UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): April 10, 2014
McDERMOTT INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Republic of Panama | 001-08430 | 72-0593134 | ||
(State or other jurisdiction of incorporation) |
(Commission file number) |
(I.R.S. employer identification number) |
757 N. Eldridge Parkway Houston, Texas |
77079 | |
(Address of principal executive offices) | (Zip code) |
Registrants telephone number, including area code: (281) 870-5000
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
The information included in Item 2.03 of this Current Report on Form 8-K (this Report) is incorporated by reference into this Item 1.01.
Item 1.02 | Termination of a Material Definitive Agreement. |
The information included in Item 2.03 of this Report is incorporated by reference into this Item 1.02.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Purchase Agreement
On April 10, 2014, McDermott International, Inc., a Panamanian corporation (McDermott), and certain subsidiary guarantors named therein (the Guarantors) entered into a Purchase Agreement (the Purchase Agreement) with Goldman, Sachs & Co., as the representative of the several initial purchasers named on Schedule A thereto (collectively, the Initial Purchasers), pursuant to which McDermott agreed to sell to the Initial Purchasers $500,000,000 aggregate principal amount of McDermotts 8.000% senior secured notes due 2021 (the Notes) in a private placement in accordance with Rule 144A and Regulation S under the Securities Act of 1933, as amended (the Securities Act). The Notes are scheduled to mature on May 1, 2021 and were issued at par, for net proceeds of approximately $491 million, after deducting the Initial Purchasers discounts and commissions and estimated offering expenses. The closing of the issuance of the Notes occurred on April 16, 2014. McDermott intends to use the net proceeds from this offering, together with the net proceeds of loans to be made under its New Credit Facilities (as defined below), (1) to replace its Prior Credit Facility (as defined below) and refinance the indebtedness outstanding thereunder and (2) for general corporate purposes, including funding working capital requirements and capital expenditures.
The foregoing description of the Purchase Agreement is only a summary and is qualified in its entirety by reference to the full text of the Purchase Agreement, a copy of which is filed as Exhibit 1.1 to this Report and is incorporated herein by reference.
Indenture
The Notes are governed by an Indenture, dated April 16, 2014 (the Indenture), entered into by McDermott and the Guarantors with Wells Fargo Bank, National Association, as trustee and collateral agent (the Trustee). Interest on the Notes is payable semi-annually in arrears on May 1 and November 1 of each year, beginning on November 1, 2014. The Notes are unconditionally guaranteed on a senior secured basis by the Guarantors, and the Notes will be secured on a secondlien basis by pledges of capital stock of certain of McDermotts subsidiaries and mortgages and other security interests covering (1) specified marine vessels owned by certain of the Guarantors and (2) substantially all the other tangible and intangible assets of McDermott and the Guarantors, subject to exceptions for certain assets. The Notes will rank: senior in right of payment to all of McDermotts future subordinated indebtedness; effectively senior to all of McDermotts existing and future unsecured senior indebtedness, to the extent of the value of the collateral that is subject to liens securing the Notes; effectively junior to all of McDermotts existing and future indebtedness that is either (1) secured by first priority liens on the collateral, including the indebtedness under the New Credit Facilities, or (2) secured by assets that are not part of the collateral that is securing the Notes, in either case to the extent of the value of the collateral that is subject to liens securing such indebtedness; and structurally subordinated to all liabilities of McDermotts subsidiaries that do not guarantee the Notes.
Optional Redemption
At any time or from time to time on or after May 1, 2017, McDermott, at its option, may redeem the Notes, in whole or in part, at the redemption prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, together with accrued and unpaid interest to (but excluding) the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period beginning May 1 of the years indicated:
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Year |
Percentage | |||
2017 |
104.000 | % | ||
2018 |
102.000 | % | ||
2019 and thereafter |
100.000 | % |
At any time or from time to time prior to May 1, 2017, McDermott, at its option, may on any one or more occasions, redeem up to 35.0% of the aggregate principal amount of the outstanding Notes issued under the Indenture (calculated after giving effect to any issuance of Additional Notes (as defined therein)), with the net cash proceeds of one or more Qualified Equity Offerings (as defined therein) (which have not been applied to permanently repay other Indebtedness (as defined therein)) at a redemption price equal to 108.000% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to (but excluding) the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that: (1) at least 65.0% of the aggregate principal amount of Notes issued under the Indenture on the Issue Date remains outstanding immediately after giving effect to any such redemption; and (2) the redemption occurs not more than 180 days after the date of the closing of any such Qualified Equity Offering.
The Notes may also be redeemed, in whole or in part, at any time prior to May 1, 2017 at the option of McDermott, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium (as defined therein) as of, and accrued and unpaid interest to (but excluding) the applicable redemption date (subject to the right of the Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Certain Covenants
The Indenture governing the Notes contains covenants that, among other things, limit McDermotts ability and the ability of its restricted subsidiaries to: (i) incur or guarantee additional indebtedness or issue preferred stock; (ii) make investments or certain other restricted payments; (iii) pay dividends or distributions on its capital stock or purchase or redeem its subordinated indebtedness; (iv) sell assets; (v) create restrictions on the ability of its restricted subsidiaries to pay dividends or make other payments to McDermott; (vi) create certain liens; (vii) sell all or substantially all of its assets or merge or consolidate with or into other companies; (viii) enter into transactions with affiliates; and (ix) create unrestricted subsidiaries. Many of those covenants would become suspended if the Notes were to attain an investment grade rating from both Moodys Investors Service, Inc. and Standard and Poors Ratings Services and no default has occurred. The covenants mentioned above are subject to a number of important exceptions and limitations.
Upon a change of control, holders of the Notes will have the right to require McDermott to make an offer to purchase each holders Notes at a price in cash equal to 101% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest to, but excluding, the date of purchase.
The foregoing descriptions of the Indenture and the Notes are only summaries and are qualified in their entirety by reference to the full text of the Indenture (including the form of Notes attached as an exhibit thereto), a copy of which is filed as Exhibit 4.1 to this Report and is incorporated herein by reference.
New Credit Facilities
On April 16, 2014, McDermott and McDermott Finance L.L.C., a Delaware limited liability company and a direct, wholly owned subsidiary of McDermott (the Term Borrower), entered into a Credit Agreement (the New Credit Agreement) with a syndicate of lenders and letter of credit issuers, Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent for the LC Facility (as defined below) and the Term Loan (as defined below) and as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Securities, LLC, as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Bank, N.A., as syndication agent for the LC Facility, and Goldman Sachs Lending Partners LLC, as sole lead arranger, sole bookrunner and sole syndication agent for the Term Loan. The LC Facility and the Term Loan are together referred to as the New Credit Facilities.
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The New Credit Facilities include a $400 million first-lien, first-out letter of credit facility (the LC Facility) which is scheduled to mature on April 16, 2017 and a $300 million first-lien, second-out term loan (the Term Loan) which is scheduled to mature April 16, 2019. The indebtedness and other obligations under the New Credit Facilities are guaranteed by the Guarantors, which include substantially all of McDermotts material, wholly owned subsidiaries, other than its captive insurance subsidiary.
The New Credit Facilities will be used (1) to replace the Prior Credit Facility (as defined below) and refinance the indebtedness and replace the letters of credit outstanding thereunder and (2) for general corporate purposes, including funding working capital requirements and capital expenditures.
LC Facility
The LC Facility provides for an initial letter of credit capacity of $400 million and allows for uncommitted increases in capacity of $100 million through December 31, 2014 and $200 million in total thereafter through the term of the LC Facility. Letters of credit issuable under the LC Facility support the obligations of McDermott and its affiliates and joint ventures. The aggregate amount of the LC Facility available for financial letters of credit is capped at 25% of the total LC Facility.
The LC Facility is secured on a first-lien, first-out basis (with relative priority over the Term Loan) by pledges of the capital stock of all the Guarantors and mortgages on, or other security interests in, substantially all the tangible and intangible assets of McDermott and the Guarantors, subject to specific exceptions.
The LC Facility contains various customary affirmative covenants, as well as specific affirmative covenants, including specific reporting requirements and a requirement for ongoing periodic financial reviews by a financial advisor. The LC Facility also requires compliance with various negative covenants, including limitations with respect to the incurrence of other indebtedness and liens, restrictions on acquisitions, capital expenditures and other investments, restrictions on sale/leaseback transactions and restrictions on prepayments of other indebtedness, including the Notes.
The LC Facility requires McDermott to meet a minimum EBITDA (as defined) covenant, which will require that McDermott generate consolidated EBITDA of at least certain specified amounts for different periods over the term of the facility. The LC Facility also requires McDermott and the Guarantors to maintain a ratio of fair market value of vessel collateral to the sum of (1) the outstanding principal amount of the Term Loan, (2) the aggregate amount of undrawn financial letters of credit outstanding under the LC Facility, (3) all drawn but unreimbursed letters of credit under the LC Facility, and (4) mark-to-market foreign exchange exposure that is not cash secured of at least 1.20:1.00. The LC Facility also requires McDermott and the Guarantors to maintain at least $200 million of minimum liquidity, excluding restricted cash, at the end of each quarter.
The LC Facility provides for a commitment fee of 0.50% per year on the unused portion of the LC Facility and letter of credit fees at an annual rate of 2.25% for performance letters of credit and 4.50% for financial letters of credit, as well as customary issuance fees and other fees and expenses.
Term Loan
The Term Loan is secured on a first-lien, second-out basis (with the LC Facility having relative priority over the Term Loan) by pledges of the capital stock of all the Guarantors and mortgages on, or other security interests in, substantially all the tangible and intangible assets of McDermott and the Guarantors, subject to specific exceptions.
The Term Loan requires mandatory prepayments from: (1) the proceeds from the sale of assets, as well as insurance proceeds, in each case subject to certain exceptions, to the extent such proceeds are not reinvested in the business of McDermott and its subsidiaries within 365 days of receipt; (2) net cash proceeds from the incurrence of indebtedness not otherwise permitted by the New Credit Facilities; and (3) 50% of amounts deemed to be excess cash flow, subject to specified adjustments. The Term Loan also requires quarterly amortization payments equal to $750,000. The Term Loan also provides for a prepayment premium if the Term Borrower prepays or re-prices the Term Loan within the first two years after the April 16, 2014 closing date.
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The Term Loan requires compliance with various customary affirmative and negative covenants. McDermott and the Guarantors must also maintain a ratio of ownership adjusted fair market value of marine vessels to the sum of (1) the outstanding principal amount of the Term Loan and (2) the aggregate principal amount of unreimbursed drawings and advances under the LC Facility of at least 1.75:1.00.
The Term Loan was incurred with 25 basis points of original issue discount and bears interest at a floating rate, which can be, at McDermotts option, either: (1) a LIBOR rate for a specified interest period (subject to a LIBOR floor of 1.00%) plus an applicable margin of 4.25%; or (2) an alternate base rate (subject to a base rate floor of 2.00%) plus an applicable margin of 3.25%.
In connection with the New Credit Facilities, we paid certain fees to the lenders thereunder, as well as certain arrangement fees to the arrangers and agents for the New Credit Facilities, which we intend to amortize to interest expense over the respective terms of the LC Facility and the Term Loan.
The foregoing description of the New Credit Facilities is only a summary and is qualified in its entirety by reference to the full text of the New Credit Agreement, a copy of which is filed as Exhibit 4.3 to this Report and is incorporated herein by reference.
Intercreditor Agreement
On April 16, 2014, McDermott, the Term Borrower, the other Guarantors, Crédit Agricole Corporate and Investment Bank, as collateral agent for the New Credit Facilities (the First Priority Agent), and Wells Fargo Bank, National Association, as collateral agent with respect to the Notes (the Second Priority Agent), entered into an Intercreditor Agreement (the Intercreditor Agreement) under which the lenders and letter of credit issuers under the New Credit Facilities and related hedge counterparties and providers of treasury management arrangements will generally be entitled to receive and apply all proceeds of any collateral to the repayment in full of the obligations under the New Credit Facilities before any such proceeds will be available to repay obligations under the Notes.
The First Priority Agent will generally be entitled to sole control of all decisions and actions, including foreclosure, with respect to collateral, even if an event of default under the Notes has occurred, and neither the holders of Notes, the Trustee nor the Second Priority Agent will generally be entitled to independently exercise remedies with respect to the collateral except in limited circumstances or after specified periods. In addition, the First Priority Agent will be entitled, without the consent of holders of the Notes, the Trustee or the Second Priority Agent, to release the liens of the secured parties on any part of the collateral at any time, subject to certain limitations.
The foregoing description of the Intercreditor Agreement is only a summary and is qualified in its entirety by reference to the full text of the Intercreditor Agreement, a copy of which is filed as Exhibit 4.4 to this Report and is incorporated herein by reference.
Pledge and Security Agreements
On April 16, 2014, McDermott and the Guarantors entered into a First Lien Pledge and Security Agreement (the First Lien Pledge and Security Agreement) in favor of Crédit Agricole Corporate and Investment Bank, as collateral agent. On April 16, 2014, McDermott and the Guarantors entered into a Second Lien Pledge and Security Agreement (the Second Lien Pledge and Security Agreement and, together with the First Lien Pledge and Security Agreement, the Pledge and Security Agreements) in favor of Wells Fargo Bank, National Association, as collateral agent.
Under the First Lien Pledge and Security Agreement, McDermott and the Guarantors granted to Crédit Agricole Corporate and Investment Bank, on behalf of and for the ratable benefit of the lenders and letter of credit issuers under the New Credit Facilities, security interests in substantially all of their personal property, except for specific excluded items identified in the First Lien Pledge and Security Agreement. Under the Second Lien Pledge and Security Agreement, McDermott and the Guarantors granted to the collateral agent thereunder, on behalf of and for the ratable benefit of the holders of the Notes, the same such security interests, with priority, however, being given to the security interests granted under the First Lien Pledge and Security Agreement.
The foregoing descriptions of the Pledge and Security Agreements are summaries only and are qualified in their entirety by reference to the full text of the forms of Pledge and Security Agreements, copies of which are included as Exhibit 4.5 and 4.6 to this Report and are incorporated herein by reference.
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Termination of Prior Credit Facility and Bridge Commitment
The New Credit Facilities replace McDermotts prior $950 million first-lien senior secured revolving credit facility (the Prior Credit Facility). All amounts outstanding under the Prior Credit Facility have been repaid and the related credit agreement and liens have been terminated. In connection with the New Credit Facilities, the previously announced bridge-loan commitment obtained from an affiliate of Goldman, Sachs & Co. was also terminated.
Item 8.01 | Other Events. |
On March 28, 2014, McDermott issued a press release announcing its intent to commence the offering of the Notes. A copy of that press release is filed as Exhibit 99.1 to this Report, which is incorporated by reference into this Item 8.01.
On April 10, 2014, McDermott issued a press release announcing the pricing of the Notes. A copy of that press release is filed as Exhibit 99.2 to this Report, which is incorporated by reference into this Item 8.01.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits. |
1.1 | Purchase Agreement, dated as of April 10, 2014, by and among McDermott, the Guarantors and Goldman, Sachs & Co., as representative of the Initial Purchasers. |
4.1 | Indenture, dated April 16, 2014, by and among McDermott, the Guarantors and the Trustee. |
4.2 | Form of 8.000% Senior Note due 2021 (included in Exhibit 4.1). |
4.3 | Credit Agreement, dated April 16, 2014, by and among McDermott, McDermott Finance L.L.C., a syndicate of lenders and letter of credit issuers, Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent for the LC Facility and the Term Loan and as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Securities, LLC, as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Bank, N.A., as syndication agent for the LC Facility, and Goldman Sachs Lending Partners LLC, as sole lead arranger, sole bookrunner and sole syndication agent for the Term Loan. |
4.4 | Intercreditor Agreement, dated April 16, 2014, by and among McDermott, McDermott Finance L.L.C., the other Guarantors, Crédit Agricole Corporate and Investment Bank, as first priority agent, and Wells Fargo Bank, National Association, as second priority agent. |
4.5 | Form of First Lien Pledge and Security Agreement, dated April 16, 2014, made by McDermott and the Guarantors in favor of Crédit Agricole Corporate and Investment Bank, as collateral agent (included as Exhibit D to the Credit Agreement filed as Exhibit 4.3 to this Report). |
4.6 | Form of Second Lien Pledge and Security Agreement, dated April 16, 2014, made by McDermott and the Guarantors in favor of Wells Fargo Bank, National Association, as collateral agent (included as Exhibit E to the Indenture filed as Exhibit 4.1 to this Report). |
99.1 | Press Release, dated March 28, 2014, announcing the launch of the offering of the Notes. |
99.2 | Press Release, dated April 10, 2014, announcing the pricing of the Notes. |
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SIGNATURE
Pursuant to the requirements 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.
McDERMOTT INTERNATIONAL, INC. | ||
By: | /s/ PERRY L. ELDERS | |
Perry L. Elders Senior Vice President and Chief Financial Officer |
Date: April 16, 2014
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Index to Exhibits
Exhibit No |
||
1.1 | Purchase Agreement, dated as of April 10, 2014, by and among McDermott, the Guarantors and Goldman, Sachs & Co., as representative of the Initial Purchasers. | |
4.1 | Indenture, dated April 16, 2014, by and among McDermott, the Guarantors and the Trustee. | |
4.2 | Form of 8.000% Senior Note due 2021 (included in Exhibit 4.1). | |
4.3 | Credit Agreement, dated April 16, 2014, by and among McDermott, McDermott Finance L.L.C., a syndicate of lenders and letter of credit issuers, Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent for the LC Facility and the Term Loan and as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Securities, LLC, as joint lead arranger and joint bookrunner for the LC Facility, Wells Fargo Bank, N.A., as syndication agent for the LC Facility, and Goldman Sachs Lending Partners LLC, as sole lead arranger, sole bookrunner and sole syndication agent for the Term Loan. | |
4.4 | Intercreditor Agreement, dated April 16, 2014, by and among McDermott, McDermott Finance L.L.C., the other Guarantors of McDermott, Crédit Agricole Corporate and Investment Bank, as first priority agent, and Wells Fargo Bank, National Association, as second priority agent. | |
4.5 | Form of First Lien Pledge and Security Agreement, dated April 16, 2014, made by McDermott and the Guarantors in favor of Crédit Agricole Corporate and Investment Bank, as collateral agent (included as Exhibit D to the Credit Agreement filed as Exhibit 4.3 to this Report). | |
4.6 | Form of Second Lien Pledge and Security Agreement, dated April 16, 2014, made by McDermott and the Guarantors in favor of Wells Fargo Bank, National Association, as collateral agent (included as Exhibit E to the Indenture filed as Exhibit 4.1 to this Report). | |
99.1 | Press Release, dated March 28, 2014, announcing the launch of the offering of the Notes. | |
99.2 | Press Release, dated April 10, 2014, announcing the pricing of the Notes. |
Exhibit 1.1
EXECUTION VERSION
$500,000,000
McDermott International, Inc.
8.000% Senior Secured Notes due 2021
PURCHASE AGREEMENT
April 10, 2014
Goldman, Sachs & Co.
200 West Street
New York, New York, 10282
As Representative of the several Initial Purchasers
Ladies and Gentlemen:
Introductory. McDermott International, Inc., a Panamanian corporation (the Company), proposes to issue and sell to the several initial purchasers named on Schedule A hereto (the Initial Purchasers) acting severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate principal amount of the Companys 8.000% Senior Secured Notes due 2021 (the Notes). Goldman, Sachs & Co. has agreed to act as the representative of the several Initial Purchasers (the Representative) in connection with the offering and sale of the Notes. This Purchase Agreement is herein referred to as this Agreement.
The Securities (as defined below) will be issued pursuant to an indenture, to be dated as of April 16, 2014 (the Indenture), among the Company, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the Trustee). Notes will be issued only in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the Depositary) pursuant to a letter of representations, to be dated on or before the Closing Date (as defined in Section 2 hereof) (the DTC Agreement), between the Company and the Depositary.
The payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior secured basis, jointly and severally by the entities listed on the signature pages hereof as Guarantors (collectively, the Guarantors), pursuant to their guarantees (the Guarantees). The Notes and the Guarantees attached thereto are herein collectively referred to as the Securities.
On the Closing Date, the Company, McDermott Finance L.L.C., the Guarantors, Crédit Agricole Corporate and Investment Bank, as administrative agent (the Administrative Agent), and the several lenders and other agents party thereto, will enter into a credit agreement (the New Credit Agreement) in respect of new credit facilities (the New Credit Facilities), which will be comprised of a new term loan in aggregate principal amount of $300 million (the New Term Loan) and a new letter of credit facility in aggregate principal amount of at least $400 million (subject to increase as provided in the New Credit Agreement) (the New LC Facility), and which New Credit Facilities will be secured by a first priority security interest in the Collateral (as defined below). The Company will, on the Closing Date, use either a portion of the net proceeds from the sale of the Securities or a portion of the concurrent borrowings under the New Term Loan or a combination of both, to pay down all outstanding amounts under the credit agreement, dated May 3, 2010 among the Company and the lenders thereto, as amended (the Existing Credit Agreement) and will terminate such agreement.
The Notes will be secured on a second priority basis, subject to permitted liens as described under the caption Description of the Notes in the Pricing Disclosure Package and the Offering Circular (Permitted Liens), by liens on the assets (the Collateral) of the Company and the Guarantors that will be pledged on a first priority basis as collateral securing the New Term Loan and the New LC Facility, as more particularly described in the Pricing Disclosure Package and documented by (1) a pledge and security agreement dated as of the Closing Date (the Security Agreement), (2) mortgages dated as of the Closing Date with respect to the U.S.-flagged marine vessels DB 16 and Intermac 600 (the U.S. Vessel Mortgages), (3) mortgages dated as of the Closing Date with respect to the Panamanian-flagged vessels McDermott Derrick Barge No. 27, DB 101, Intermac 650, McDermott Derrick Barge No. 32 and McDermott Derrick Barge No. 50 (collectively, the Panamanian Vessel Mortgages), (4) mortgages dated as of the Closing Date with respect to the Barbados-flagged vessels Agile and Emerald Sea (collectively, the Barbados Vessel Mortgages), and (5) a mortgage dated as of the Closing Date with respect to the Canada-flagged vessel Thebaud Sea (the Canada Vessel Mortgage), each in favor of Wells Fargo Bank, National Association, as collateral agent under the Intercreditor Agreement (in such capacity, the Collateral Agent), for its benefit and the benefit of the Trustee and the holders of the Notes. The Security Agreement, the U.S. Vessel Mortgages, the Panamanian Vessel Mortgages, the Barbados Vessel Mortgages and the Canada Vessel Mortgage are collectively referred to herein as the Security Documents. The vessels subject to the U.S. Vessel Mortgages, the Panamanian Vessel Mortgages, the Barbados Vessel Mortgages and the Canada Vessel Mortgage shall be collectively referred to herein as the Mortgaged Vessels.
The liens on the Collateral securing the Securities will be subject to an Intercreditor Agreement, dated as of the Closing Date (the Intercreditor Agreement), by and among the Collateral Agent and the Administrative Agent and acknowledged by the Company and the Guarantors.
This Agreement, the Indenture, the Intercreditor Agreement, the Security Documents and the Securities are referred to herein as the Transaction Documents.
The Company understands that the Initial Purchasers propose to make an offering of the Securities on the terms and in the manner set forth herein and in the Pricing Disclosure Package (as defined below) and agrees that the Initial Purchasers may resell, subject to the conditions set forth herein, all or a portion of the Securities to purchasers (the Subsequent Purchasers) on
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the terms set forth in the Pricing Disclosure Package (the first time when sales of the Securities are made being 4:00 p.m. (Eastern Time) on the date hereof, and referred to as the Time of Sale). The Securities are to be offered and sold to or through the Initial Purchasers without being registered with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933 (as amended, the Securities Act, which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder), in reliance upon exemptions therefrom. Pursuant to the terms of the Securities and the Indenture, investors who acquire Securities shall be deemed to have agreed that Securities may only be resold or otherwise transferred, after the date hereof, if such Securities are registered for sale under the Securities Act or if an exemption from the registration requirements of the Securities Act is available (including the exemptions afforded by Rule 144A under the Securities Act (Rule 144A) or Regulation S under the Securities Act (Regulation S)).
The Company has prepared and delivered to each Initial Purchaser copies of a Preliminary Offering Circular, dated April 4, 2014 (the Preliminary Offering Circular), and has prepared and delivered to each Initial Purchaser copies of a Pricing Supplement, dated April 10, 2014 (the Pricing Supplement), describing the terms of the Securities, each for use by such Initial Purchaser in connection with its solicitation of offers to purchase the Securities. The Preliminary Offering Circular and the Pricing Supplement are herein referred to as the Pricing Disclosure Package. Promptly after this Agreement is executed and delivered, the Company will prepare and deliver to each Initial Purchaser a final offering circular dated the date hereof (the Offering Circular).
All references herein to the terms Pricing Disclosure Package and Offering Circular shall be deemed to mean and include all information filed under the Securities Exchange Act of 1934 (as amended, the Exchange Act, which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder) prior to the Time of Sale and incorporated by reference in the Pricing Disclosure Package (including the Preliminary Offering Circular) or the Offering Circular (as the case may be), and all references herein to the terms amend, amendment or supplement with respect to the Offering Circular shall be deemed to mean and include all information filed under the Exchange Act after the Time of Sale and incorporated by reference in the Offering Circular.
The Company hereby confirms its agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly and severally, hereby represents and warrants to each Initial Purchaser that, as of the date hereof and as of the Closing Date:
(a) No Registration Required. Subject to the accuracy of the representations and warranties set forth in Section 2 hereof and compliance by the Initial Purchasers with the procedures set forth in Section 7 hereof, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Offering Circular to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act, which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder).
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(b) No Integration of Offerings or General Solicitation. None of the Company, its affiliates (as such term is defined in Rule 501 under the Securities Act) (each, an Affiliate), or any person acting on its or any of their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has, directly or indirectly, solicited any offer to buy or offered to sell, or will, directly or indirectly, solicit any offer to buy or offer to sell, in the United States or to any United States citizen or resident, any security which is or would be integrated with the sale of the Securities in a manner that would require the Securities to be registered under the Securities Act. None of the Company, its Affiliates, or any person acting on its or any of their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has engaged in connection with the offering of the Securities, in any form of general solicitation or general advertising within the meaning of Rule 502 under the Securities Act. With respect to those Securities sold in reliance upon Regulation S, (i) none of the Company, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has engaged in any directed selling efforts within the meaning of Regulation S and (ii) each of the Company and its Affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has complied and will comply with the offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities satisfy the requirements for resale pursuant to Rule 144A and will not be, at the Closing Date, of the same class (within the meaning of Rule 144A(d)(3)) as securities listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated interdealer quotation system.
(d) The Pricing Disclosure Package and Offering Circular. Neither the Pricing Disclosure Package, as of the Time of Sale, nor the Offering Circular, as of its date or (as amended or supplemented in accordance with Section 3(a), as applicable) as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation, warranty and agreement shall not apply to statements in or omissions from the Pricing Disclosure Package, the Offering Circular or any amendment or supplement thereto made in reliance upon and in conformity with information furnished to the Company in writing by any Initial Purchaser through the Representative expressly for use in the Pricing Disclosure Package, the Offering Circular or amendment or supplement thereto, as the case may be. The Pricing Disclosure Package contains, and the Offering Circular will contain, all the information specified in, and meeting the applicable requirements of, Rule 144A.
(e) Company Additional Written Communications. The Company has not prepared, made, used, authorized, approved or distributed any written communication that constitutes an offer to sell or solicitation of an offer to buy the Securities other than (i) the Pricing Disclosure Package, (ii) the Offering Circular and (iii) any electronic road show or other written communications (as defined in Rule 405 under the Securities Act), in each case used in accordance with Section 3(a). Each such communication by the Company or its agents and representatives pursuant to clause (iii) of the preceding sentence (each, a Company Additional Written Communication), when taken together with the Pricing Disclosure Package, did not as of the Time of Sale, and at the Closing Date will not, contain any untrue statement of a
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material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty does not apply to statements in or omissions from each such Company Additional Written Communication made in reliance upon and in conformity with information furnished to the Company in writing by any Initial Purchaser through the Representative expressly for use in any Company Additional Written Communication.
(f) Incorporated Documents. The documents incorporated or to be incorporated by reference in the Pricing Disclosure Package and the Offering Circular at the time they were or hereafter are filed with the Commission (collectively, the Incorporated Documents) complied or will comply in all material respects with the applicable requirements of the Exchange Act.
(g) The Purchase Agreement. This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors.
(h) The DTC Agreement. The DTC Agreement has been duly authorized and, on the Closing Date (assuming the due authorization and valid execution and delivery by thereof by the Depositary), will have been duly executed and delivered by, and will constitute a valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by any implied covenants of good faith or fair dealing (collectively, the Enforceability Exceptions) and except as rights to indemnification may be limited by applicable law.
(i) Authorization of the Notes and the Guarantees. The Notes to be purchased by the Initial Purchasers from the Company will on the Closing Date be in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and when validly executed and delivered by the Company and duly authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by the Enforceability Exceptions and will be entitled to the benefits of the Indenture. The Guarantees of the Notes have been duly authorized for issuance pursuant to this Agreement and the Indenture; when the Notes have been authenticated in the manner provided for in the Indenture and issued and delivered against payment of the purchase price therefor, the Guarantees of the Notes will constitute valid and binding agreements of the Guarantors, enforceable against each Guarantor in accordance with their terms, except as the enforcement thereof may be limited by the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(j) Authorization of the Indenture. The Indenture has been duly authorized by the Company and the Guarantors and, when duly executed and delivered by the Company and the Guarantors (assuming the due authorization and valid execution and delivery by thereof by the Trustee), will constitute a valid and binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as rights to indemnification may be limited by applicable law.
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(k) Authorization of the Intercreditor Agreement. The Intercreditor Agreement has been duly authorized by the Company and each Guarantor and, at the Closing Date, will have been duly executed and delivered by the Company and each Guarantor.
(l) Security Documents. Each of the Security Documents has been duly authorized by the Company and/or the applicable Guarantor, as appropriate, and, when executed and delivered by the Company and/or the applicable Guarantor, will constitute a legal and binding agreement of the Company and/or the applicable Guarantor in accordance with its terms, except as the enforcement thereof may be limited by the Enforceability Exceptions. The Security Documents, when executed and delivered in connection with the sale of the Securities, will create in favor of the Collateral Agent for the ratable benefit of the Trustee and the holders of the Notes valid and enforceable security interests in and liens on the Collateral, and (i) upon the filing of appropriate Uniform Commercial Code financing statements in United States jurisdictions as set forth on Schedule B hereto, the security interests in the rights of the Company or the applicable Guarantor in such Collateral that can be perfected by the filing of a financing statement under the Uniform Commercial Code of the applicable United States jurisdiction will be perfected security interests, superior to and prior to the liens of all third persons other than the liens securing the New Credit Facilities and the liens securing hedging obligations and treasury management arrangements on a pari passu basis with the liens securing the New Credit Facilities, in each case, in accordance with the terms of the New Credit Agreement, and other Permitted Liens and (ii) upon the recordation of the U.S. Vessel Mortgages, the Panamanian Vessel Mortgages, the Barbados Vessel Mortgages and the Canada Vessel Mortgage with the appropriate governmental authorities in the United States, Panama, Barbados and Canada, as applicable, the liens on the rights of the applicable Guarantor in the marine vessels described therein will be perfected liens, superior to and prior to the liens of all third persons other than liens securing the New Credit Facilities, the liens securing hedging obligations and treasury management arrangements on a pari passu basis with the liens securing the New Credit Agreement, in each case, in accordance with the terms of the New Credit Facilities, and other Permitted Liens.
(m) Description of the Securities and the Indenture. The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained in the Pricing Disclosure Package and the Offering Circular.
(n) Fair Summary. The statements set forth in the Pricing Disclosure Package and the Offering Circular under the captions Description of the Notes and Material U.S. Federal Income Tax Considerations, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and fair summaries thereof.
(o) Independent Accountants. Deloitte & Touche LLP, which expressed its opinion with respect to the financial statements, including the related notes thereto, and supporting schedule filed with the Commission and included in the Pricing Disclosure Package and the Offering Circular is an independent registered public accounting firm within the meaning of applicable rules and regulations of the Commission, the Exchange Act and the applicable rules of the Public Company Accounting Oversight Board.
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(p) Preparation of the Financial Statements. The financial statements, together with the related schedules and notes, included in the Pricing Disclosure Package and the Offering Circular present fairly the consolidated financial position of the entities to which they relate as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods covered thereby, except as may be stated in the related notes thereto. The financial data set forth in the Pricing Disclosure Package and the Offering Circular under the captions SummarySummary Historical Consolidated Financial Data and Selected Consolidated Historical Financial Data fairly present the information set forth therein on a basis consistent with that of the audited financial statements contained in the Offering Circular. The statistical and market related data included in the Offering Circular are based on or derived from sources that the Company and its subsidiaries believe to be reliable and accurate in all material respects and represent their good faith estimates that are made on the basis of data derived from such sources.
(q) Incorporation and Good Standing of the Company. The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the Republic of Panama, has the corporate power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Offering Circular and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the business, condition (financial or otherwise), earnings or results of operations of the Company and its subsidiaries, taken as a whole (a Material Adverse Effect).
(r) Incorporation and Good Standing of the Guarantors. Each Guarantor has been duly incorporated or formed, is validly existing and in good standing under the laws of the jurisdiction of its organization, has the corporate or other organizational power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Offering Circular and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. Except as described in the Pricing Disclosure Package and the Offering Circular, all of the issued and outstanding capital stock or ownership interests of each Guarantor has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, lien, option, claim or other encumbrance (collectively, Liens), (i) other than Liens arising under the New Credit Facilities and the security documents related thereto and (ii) except as would not, individually or in the aggregate, have a Material Adverse Effect. Each of the guarantors under the Existing Credit Agreement as of the date hereof is a Guarantor.
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(s) Corporate Power. The Company and each of the Guarantors has the full corporate or other organizational right, power and authority to execute and deliver the Transaction Documents to which it is a party and to perform its obligations hereunder and thereunder; and the Company and each of the Guarantors has duly and validly taken all corporate or other organizational action required to be taken by it for the due and proper authorization, execution and delivery by it of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.
(t) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. None of the Company or any of the Guarantors is (i) in violation of its organizational documents, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of the Guarantors is a party or by which it or any of them may be bound, or to which any of their property or assets is subject, except in the case of clause (ii) above for any such defaults as are disclosed in the Pricing Disclosure Package and the Offering Circular and any such defaults that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, or (iii) in violation of any applicable law, rule or regulation, or any judgment, order or decree of any court with jurisdiction over the Company or any subsidiary of the Company, or other governmental or regulatory authority with jurisdiction over the Company, any of its subsidiaries, except for any such violations as are disclosed in the Pricing Disclosure Package and the Offering Circular and any such violations that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. The execution and delivery by the Company and each Guarantor of, and the performance by the Company and the Guarantors of its and their respective obligations under, each of the Transaction Documents will not contravene any provision of applicable law or the articles of incorporation or by-laws of the Company or the organizational documents of any Guarantor or any indenture, mortgage, loan agreement, note, lease or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Securities.
(u) No Material Adverse Effect. Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package a Material Adverse Effect, and except as disclosed in the Pricing Disclosure Package, to the knowledge of the Company, there has been no prospective development that would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(v) No Material Actions or Proceedings. Except as disclosed in the Pricing Disclosure Package and the Offering Circular, there are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries
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is subject other than proceedings that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect and would not have a material adverse effect on the power or ability of the Company and the Guarantors to perform its and their respective obligations under each of the Transaction Documents or to consummate the transactions contemplated by the herein or therein.
(w) Intellectual Property Rights. The Company and the Guarantors own or possess the right to use, or can acquire on reasonable terms, the material patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, patent and proprietary rights) presently employed by them in connection with the respective businesses now operated by them, and none of the Company or any of the Guarantors has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any patent or proprietary rights, or of any facts which would render any patent and proprietary rights invalid or inadequate to protect the interest of the Company or any of the Guarantors and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy would reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
(x) All Necessary Permits, etc. The Company and the Guarantors possess such certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the respective businesses now operated by them, except for such certificates, authorizations or permits of which the failure by the Company to possess would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, and none of the Company or any of the Guarantors has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit which, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(y) Title to Properties. The Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that are necessary to conduct the respective businesses of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances, claims and defects except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(z) Tax Law Compliance. Except as disclosed in the Pricing Disclosure Package and the Offering Circular, the Company and each of the Guarantors has filed all foreign, federal or state income and franchise tax returns required to be filed after giving effect to any applicable extension in the time for filing (except insofar as the failure to file such returns would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect) and have paid all material taxes shown thereon as due; and all material tax liabilities of the Company and the Guarantors are adequately provided for on the books of the Company and the Guarantors.
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(aa) None of the Company and the Guarantors are an Investment Company. Neither the Company nor any of the Guarantors is, or after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Offering Circular, will be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended.
(bb) No Price Stabilization or Manipulation. None of the Company, the Guarantors or any of their respective affiliates has taken, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(cc) Solvency. The Company and its Subsidiaries, taken as a whole, are, and immediately after the Closing Date will be, Solvent. As used herein, the term Solvent means, with respect to any person on a particular date, that on such date (i) the fair market value of the assets of such person is greater than the total amount of liabilities (including known contingent liabilities) of such person, (ii) the present fair salable value of the assets of such person is greater than the amount that will be required to pay the probable liabilities of such person on its debts as they become absolute and matured, (iii) such person is able to realize upon its assets and pay its debts and other liabilities, including contingent obligations, as they mature and (iv) such person does not have unreasonably small capital.
(dd) Compliance with Sarbanes-Oxley. The Company and its subsidiaries and their respective officers and directors are in compliance in all material respects with the applicable effective provisions of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act, which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder).
(ee) Companys Accounting System. The Company and its subsidiaries maintain a system of accounting controls that is in compliance with the Sarbanes-Oxley Act and is sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with managements general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with managements general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(ff) Disclosure Controls and Procedures. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that (i) information required to be disclosed by the Company in reports it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commissions rules and forms and (ii) information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is accumulated and communicated to the Companys management, including its principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure; the Companys auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) any significant deficiencies or material weaknesses in the design or
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operation of internal controls over financial reporting which are reasonably likely to adversely affect the Companys ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal controls over financial reporting; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that have affected or could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(gg) Regulations T, U, X. Neither the Company nor any Guarantor nor any of their respective subsidiaries nor any agent thereof acting on their behalf has taken any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(hh) Compliance with and Liability under Environmental Laws. Except as otherwise disclosed in the Pricing Disclosure Package and the Offering Circular, the Company and its subsidiaries (i) are in compliance with all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (Environmental Laws), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. Except to the extent described in the Pricing Disclosure Package and the Offering Circular, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
(ii) No Labor Disputes. No labor dispute with the employees of the Company or any of the Guarantors exists or, to the knowledge of the Company, is imminent, except for any such disputes that would not, in the aggregate, have a Material Adverse Effect; and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors which would reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
(jj) No Unlawful Contributions or Other Payments under the FCPA. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries has, while acting on behalf of the Company or any such subsidiary, taken any action, directly or indirectly, that would reasonably be expected to result in such person becoming subject to an investigation or enforcement action by a governmental authority pursuant to the FCPA or the Bribery Act 2010 of the United Kingdom, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to
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pay or authorization or approval of the payment of any money, or other property, gift, promise to give, or authorization or approval of the giving of anything of value to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization or any person acting in an official capacity for or on behalf of any of the foregoing), in any case in violation of the FCPA or the Bribery Act 2010 of the United Kingdom. FCPA means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(kk) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times since January 1, 2006 in all material respects in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ll) No Conflict with OFAC Laws. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (Person) currently the subject or target of any sanctions administered or enforced by the U.S. Department of the Treasurys Office of Foreign Assets Control (OFAC), the United Nations Security Council (UNSC), the European Union or Her Majestys Treasury (HMT) (collectively, Sanctions), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of: (i) comprehensive U.S. economic and trade sanctions; or (ii) any other Sanctions whereby such location, organization or residence would be in violation thereof; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, in violation of any Sanctions.
(mm) Regulation S. The Company, the Guarantors and their respective affiliates and all persons acting on their behalf (other than the Initial Purchasers, as to whom the Company and the Guarantors make no representation) have complied with the offering restrictions requirements of Regulation S in connection with the offering of the Securities outside the United States and, in connection therewith, the Pricing Disclosure Package and the Offering Circular will contain the disclosure required by Rule 902. Each of the Company and the Guarantors is a reporting issuer or foreign issuer, as the case may be, as defined in Rule 902 under the Securities Act.
(nn) New Credit Agreement. The New Credit Agreement has been duly and validly authorized by the Company, McDermott Finance L.L.C. and the Guarantors and, when duly executed and delivered by the Company, McDermott Finance L.L.C. and the Guarantors, will be the valid and legally binding obligation of the Company, McDermott Finance L.L.C. and the Guarantors, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
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Any certificate signed by an officer of the Company or any Guarantor and delivered to the Initial Purchasers or to counsel for the Initial Purchasers shall be deemed to be a representation and warranty by the Company or such Guarantor to each Initial Purchaser as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company and the Guarantors agree to issue and sell to the Initial Purchasers, severally and not jointly, the Securities, and the Initial Purchasers agree, severally and not jointly, to purchase from the Company and the Guarantors the aggregate principal amount of Securities set forth opposite their respective names on Schedule A, at a purchase price of 98.0% of the principal amount thereof payable on the Closing Date, in each case, on the basis of the representations, warranties and agreements herein contained, and upon the terms, subject to the conditions thereto, herein set forth.
(b) The Closing Date. Delivery of certificates for the Securities in definitive form to be purchased by the Initial Purchasers and payment therefor shall be made at the offices of Milbank, Tweed, Hadley & McCloy LLP, One Chase Manhattan Plaza, New York, New York 10005 (or such other place as may be agreed to by the Company and the Representative) at 9:00 a.m. New York City time, on April 16, 2014, or such other time and date as the Initial Purchasers shall designate by notice to the Company (the time and date of such closing are called the Closing Date).
(c) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the Representative for the accounts of the several Initial Purchasers, the Notes at the Closing Date against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The Notes shall be in global form, registered in the name of Cede & Co., as nominee of the Depositary, pursuant to the DTC Agreement, in such denominations as the Representative shall indicate, and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representative may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Initial Purchasers.
(d) Initial Purchasers as Qualified Institutional Buyers. Each Initial Purchaser, severally and not jointly, represents and warrants to, and agrees with, the Company that:
(i) it will offer and sell Securities only to (a) persons who it reasonably believes are qualified institutional buyers within the meaning of Rule 144A (Qualified Institutional Buyers) in transactions meeting the requirements of Rule 144A or (b) upon the terms and conditions set forth in Annex I to this Agreement;
(ii) it is a Qualified Institutional Buyer; and
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(iii) it will not offer or sell the Securities by any form of general solicitation or general advertising including but not limited to the methods described in Rule 502(c) under the Securities Act.
SECTION 3. Additional Covenants. Each of the Company and the Guarantors further covenants and agrees with each Initial Purchaser as follows:
(a) Preparation of Offering Circular; Initial Purchasers Review of Proposed Amendments and Supplements and Company Additional Written Communications. As promptly as practicable following the Time of Sale and in any event not later than the second business day following the date hereof, the Company will prepare and deliver to the Initial Purchasers the Offering Circular. The Company will not amend or supplement the Preliminary Offering Circular (except via the Pricing Supplement) or the Pricing Supplement. The Company will not amend or supplement the Offering Circular prior to the Closing Date unless the Representative shall previously have been furnished a copy of the proposed amendment or supplement at least one business day prior to the proposed use or filing, and shall not have objected to such amendment or supplement. Before making, preparing, using, authorizing, approving or distributing any Company Additional Written Communication, the Company will furnish to the Representative a copy of such written communication for review and will not make, prepare, use, authorize, approve or distribute any such written communication to which the Representative reasonably objects.
(b) Amendments and Supplements to the Offering Circular and Other Securities Act Matters. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package to comply with law, the Company and the Guarantors will immediately notify the Initial Purchasers thereof and forthwith prepare and (subject to Section 3(a) hereof) furnish to the Initial Purchasers such amendments or supplements to any of the Pricing Disclosure Package as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that any of the Pricing Disclosure Package will comply with all applicable law. If, prior to the completion of the placement of the Securities by the Initial Purchasers with the Subsequent Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Offering Circular, as then amended or supplemented, in order to make the statements therein, in the light of the circumstances existing when the Offering Circular is delivered to a Subsequent Purchaser, not misleading, or if in the judgment of the Initial Purchasers or counsel for the Initial Purchasers it is otherwise necessary to amend or supplement the Offering Circular to comply with applicable law, the Company and the Guarantors agree to promptly prepare (subject to Section 3 hereof), and furnish at their own expense to the Initial Purchasers, amendments or supplements to the Offering Circular so that the statements in the Offering Circular as so amended or supplemented will not, in the light of the circumstances at the Closing Date and at the time of sale of the Securities, be misleading or so that the Offering Circular, as amended or supplemented, will comply with all applicable law.
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The Company hereby expressly acknowledges that the indemnification and contribution provisions of Sections 8 and 9 hereof are specifically applicable and relate to each offering memorandum, amendment or supplement referred to in this Section 3.
(c) Copies of the Pricing Disclosure Package and the Offering Circular. The Company agrees to furnish the Initial Purchasers, without charge, as many copies of the Pricing Disclosure Package and the Offering Circular and any amendments and supplements thereto as they shall reasonably request.
(d) Blue Sky Compliance. Each of the Company and the Guarantors shall cooperate with the Representative and counsel for the Initial Purchasers to qualify or register (or to obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions reasonably requested by the Representative, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. None of the Company or any of the Guarantors shall be required to qualify as a foreign corporation or other entity or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation. The Company will advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, each of the Company and the Guarantors shall use its commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the caption Use of Proceeds in the Pricing Disclosure Package.
(f) The Depositary. The Company will cooperate with the Initial Purchasers and use its commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the placement of the Securities by the Initial Purchasers with the Subsequent Purchasers, the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange (NYSE) all reports and documents required to be filed under Section 13 or 15 of the Exchange Act. Additionally, at any time prior to the completion of the placement of the Securities by the Initial Purchasers with the Subsequent Purchasers when the Company is not subject to Section 13 or 15 of the Exchange Act and the Securities are restricted securities within the meaning of Rule 144 under the Securities Act, for the benefit of holders and beneficial owners from time to time of the Securities, the Company shall furnish, at its expense, upon request, to holders and beneficial owners of Securities and prospective purchasers of Securities information (Additional Issuer Information) satisfying the requirements of Rule 144A(d).
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(h) Agreement Not To Offer or Sell Additional Securities. During the period of 90 days following the date hereof, the Company will not, without the prior written consent of the Representative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, any debt securities of the Company or securities exchangeable for or convertible into debt securities of the Company (other than as contemplated by this Agreement); provided, that the Company may file with the Commission one or more universal shelf registration statements under the Securities Act.
(i) No Integration. The Company agrees that it will not and will cause its Affiliates not to make any offer or sale of securities of the Company of any class if, as a result of the doctrine of integration referred to in Rule 502 under the Securities Act, such offer or sale would render invalid (for the purpose of (i) the sale of the Securities by the Company to the Initial Purchasers, (ii) the resale of the Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the resale of the Securities by such Subsequent Purchasers to others) the exemption from the registration requirements of the Securities Act provided by Section 4(2) thereof or by Rule 144A or by Regulation S.
(j) No General Solicitation or Directed Selling Efforts. The Company agrees that it will not and will not permit any of its Affiliates or any other person acting on its or their behalf (other than the Initial Purchasers or Subsequent Purchasers, as to which no covenant is given by the Company) to (i) solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts with respect to the Securities within the meaning of Regulation S, and the Company will and will cause all such persons to comply with the offering restrictions requirement of Regulation S with respect to the Securities.
(k) No Restricted Resales. During the period of six months after the Closing Date, the Company will not, and will use commercially reasonable efforts not to permit any of its affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Notes that have been reacquired by any of them.
(l) Legended Securities. Each certificate for a Security will bear the legend contained in Transfer Restrictions in the Preliminary Offering Circular for the time period and upon the other terms stated in the Preliminary Offering Circular.
(m) No Stabilization. The Company, the Guarantors and their respective Affiliates will not take, directly or indirectly, any action designed to or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of the Securities.
The Representative, on behalf of the several Initial Purchasers may, in its sole discretion, waive in writing the performance by the Company or any Guarantor of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Company and the Guarantors agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including, without
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limitation, (i) all expenses incident to the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Initial Purchasers, (iii) all fees and expenses of the Companys and the Guarantors counsel, independent public or certified public accountants and other advisors, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Pricing Disclosure Package and the Offering Circular (including financial statements and exhibits thereto), and all amendments and supplements thereto, this Agreement, the Indenture, the Intercreditor Agreement, the Security Documents, the DTC Agreement and the Securities, (v) all filing fees, reasonable attorneys fees and expenses incurred by the Company, the Guarantors or the Initial Purchasers in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions reasonably requested by the Initial Purchasers (including, without limitation, the cost of preparing, printing and mailing preliminary and final blue sky or legal investment memoranda and any related supplements to the Pricing Disclosure Package or the Offering Circular), (vi) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) the reasonable fees and expenses of the Collateral Agent, including the fees and disbursements of counsel for the Collateral Agent in connection with the Security Documents, (viii) any fees payable in connection with the rating of the Securities with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities by the Depositary for book-entry transfer, and the performance by the Company and the Guarantors of their respective other obligations under this Agreement, (x) all reasonable out-of-pocket costs and expenses incurred in connection with the Security Documents, lien searches, taxes, fees and other charges for recording vessel mortgages, filing financing statements and continuations and other actions necessary or advisable, in the Representatives reasonable discretion, to perfect, protect, enforce and continue the Collateral Agents liens on the Collateral, (xi) all reasonable, documented, out-of-pocket fees, costs and expenses of the Initial Purchasers, including, without limitation, the reasonable fees, costs and disbursements of counsel and advisors to the Initial Purchasers (including local and special counsel) and any sales, use or similar taxes (including addition to such taxes, if any), (xii) all expenses incident to cost of any chartered airplane or other transportation for the road show for the offering of the Securities and any other meetings with investors and (xiii) all of the remaining expenses of the Company incident to the road show for the offering of the Securities and any other meetings with investors, not already covered by clause (xii).
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Accountants Comfort Letter. On the date hereof, the Initial Purchasers shall have received from Deloitte & Touche LLP, the independent registered public accounting firm for the Company, a comfort letter dated the date hereof addressed to the Initial Purchasers, in
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form and substance reasonably satisfactory to the Representative, covering the financial information in the Pricing Disclosure Package and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from such accountants, a bring-down comfort letter dated the Closing Date addressed to the Initial Purchasers, in form and substance satisfactory to the Representative, in the form of the comfort letter delivered on the date hereof, except that (i) it shall cover the financial information in the Offering Circular and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three days prior to the Closing Date.
(b) No Material Adverse Effect or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any Material Adverse Effect the effect of which, in the reasonable judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Offering Circular; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Companys securities by any nationally recognized statistical rating organization as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.
(c) Opinion of Panamanian Counsel for the Company and the Panamanian Guarantors. On the Closing Date the Initial Purchasers shall have received an opinion of Arias, Fabrega and Fabrega, Panamanian counsel for the Company and the Panamanian Guarantors, dated as of the Closing Date, as to the matters set forth in Exhibit A.
(d) Opinion of Counsel for the Company. On the Closing Date the Initial Purchasers shall have received an opinion of Baker Botts L.L.P., counsel for the Company, dated as of the Closing Date, as to the matters set forth in Exhibit B.
(e) Opinion of General Counsel for the Company. On the Closing Date the Initial Purchasers shall have received an opinion of Liane K. Hinrichs, counsel for the Company, dated as of the Closing Date, as to the matters set forth in Exhibit C.
(f) Opinion of Barbados Counsel for the Company. To the extent the Administrative Agent under the New Credit Agreement shall have received, on the Closing Date, an opinion of Clarkes Gittens & Farmer, special Barbados counsel for the Company, the Initial Purchasers shall have received, on the Closing Date, an opinion of such counsel, dated as of the Closing Date, with respect to substantially the same matters as that set forth in the opinion delivered by such counsel to such Administrative Agent, with such changes thereto as are necessary or appropriate to reflect the relative priority of the Notes and the Guarantees (and the associated rights in respect of the collateral for the obligations evidenced thereby), as compared to the obligations under the New Credit Agreement (and the associated collateral).
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(g) Opinion of Cayman Islands Counsel for the Company. To the extent the Administrative Agent under the New Credit Agreement shall have received, on the Closing Date, an opinion of Walkers, special Cayman Islands counsel for the Company, the Initial Purchasers shall have received, on the Closing Date, an opinion of such counsel, dated as of the Closing Date, with respect to substantially the same matters as that set forth in the opinion delivered by such counsel to such Administrative Agent, with such changes thereto as are necessary or appropriate to reflect the relative priority of the Notes and the Guarantees (and the associated rights in respect of the collateral for the obligations evidenced thereby), as compared to the obligations under the New Credit Agreement (and the associated collateral).
(h) Opinion of Canadian Counsel for the Company. To the extent the Administrative Agent under the New Credit Agreement shall have received, on the Closing Date, an opinion of McInnes Cooper, Canadian counsel for the Company, the Initial Purchasers shall have received, on the Closing Date, an opinion of such counsel, dated as of the Closing Date, with respect to substantially the same matters as that set forth in the opinion delivered by such counsel to such Administrative Agent, with such changes thereto as are necessary or appropriate to reflect the relative priority of the Notes and the Guarantees (and the associated rights in respect of the collateral for the obligations evidenced thereby), as compared to the obligations under the New Credit Agreement (and the associated collateral).
(i) Opinion of Norwegian Counsel for the Company. To the extent the Administrative Agent under the New Credit Agreement shall have received, on the Closing Date, an opinion of Wikborg Rein LLP, special Norwegian counsel for the Company, the Initial Purchasers shall have received, on the Closing Date, an opinion of such counsel, dated as of the Closing Date, with respect to substantially the same matters as that set forth in the opinion delivered by such counsel to such Administrative Agent, with such changes thereto as are necessary or appropriate to reflect the relative priority of the Notes and the Guarantees (and the associated rights in respect of the collateral for the obligations evidenced thereby), as compared to the obligations under the New Credit Agreement (and the associated collateral).
(j) Opinion of Mexican Counsel for the Company. To the extent the Administrative Agent under the New Credit Agreement shall have received, on the Closing Date, an opinion of Cornejo Méndez González & Duarte, Mexican counsel for the Company, the Initial Purchasers shall have received, on the Closing Date, an opinion of such counsel, dated as of the Closing Date, with respect to substantially the same matters as that set forth in the opinion delivered by such counsel to such Administrative Agent, with such changes thereto as are necessary or appropriate to reflect the relative priority of the Notes and the Guarantees (and the associated rights in respect of the collateral for the obligations evidenced thereby), as compared to the obligations under the New Credit Agreement (and the associated collateral).
(k) Opinion of Counsel for the Initial Purchasers. On the Closing Date the Initial Purchasers shall have received an opinion of Milbank, Tweed, Hadley & McCloy LLP, counsel for the Initial Purchasers, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Initial Purchasers.
(l) Opinion of Panamanian Counsel for the Initial Purchasers. On the Closing Date the Initial Purchasers shall have received an opinion of Morgan & Morgan Group, Panamanian counsel for the Initial Purchasers, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Initial Purchasers.
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(m) Officers Certificate. On the Closing Date the Initial Purchasers shall have received a written certificate executed by the Chief Executive Officer and the Chief Financial Officer of the Company, on behalf of the Company and each Guarantor, dated as of the Closing Date, to the effect set forth in Section 5(b)(ii) hereof, and further to the effect that:
(i) the representations and warranties of the Company and the Guarantors set forth in Section 1 hereof are true and correct as of the Closing Date; and
(ii) the Company has complied with all the agreements set forth herein and satisfied all the conditions set forth herein on its part to be performed or satisfied at or prior to the Closing Date.
(n) Indenture. The Company and the Guarantors shall have executed and delivered the Indenture, and, if requested by the Initial Purchasers, the Initial Purchasers shall have received executed copies thereof.
(o) Security Documents and Intercreditor Agreement. On or prior to the Closing Date, except as otherwise provided for in the Security Agreement, the Indenture or the other documents entered into in connection with the Transactions, the Security Documents and the Intercreditor Agreement shall be in full force and effect, and each document (including each Uniform Commercial Code financing statement and documentation relating to the Mortgaged Vessels) required by law or reasonably requested by the Representative and the Collateral Agent to be filed or submitted for registration or recording on the Closing Date in order to create in favor of the Collateral Agent for the ratable benefit of the secured parties under the Security Documents a valid, legal and perfected lien on, and security interest in, the Collateral (subject to liens securing the obligations under the New Credit Facilities, the liens securing hedging obligations and treasury management arrangements on a pari passu basis with the liens securing the New Credit Facilities, in each case, in accordance with the terms of the New Credit Facilities, and other Permitted Liens) shall have been delivered to the Collateral Agent. The capital stock and the promissory notes to be pledged under the Security Agreement shall be duly and validly pledged under the Security Agreement to the Collateral Agent for the ratable benefit of the secured parties under the Security Documents, and certificates representing such pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in blank, shall have been delivered to the Administrative Agent as a gratuitous bailee of the Collateral Agent in accordance with the Intercreditor Agreement.
(p) DTC. The Notes shall be eligible for clearance and settlement through the Depositary.
(q) Refinancing. Substantially concurrently with the issuance of the Securities pursuant to this Agreement on the Closing Date, (i) the New Credit Agreement shall have become effective, (ii) the Company (or one of its subsidiaries) shall have received the net proceeds of the New Term Loan and the Company (or such subsidiary) shall have used either a
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portion of such net proceeds or a portion of the net proceeds of the offering of the Securities or a combination of both to refinance all outstanding indebtedness under the Existing Credit Agreement, and (iii) the Existing Credit Agreement shall have been terminated.
(r) Additional Documents. On or before the Closing Date, the Initial Purchasers shall have received such information and documents as they may have reasonably requested in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers Expenses. If this Agreement is terminated by the Representative pursuant to Section 5 or clauses (i) or (iv) of Section 10 hereof, including if the sale to the Initial Purchasers of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Initial Purchasers, severally, upon demand for all reasonable out-of-pocket expenses that shall have been reasonably incurred by the Initial Purchasers in connection with the proposed purchase and the offering and sale of the Securities, including, without limitation, fees and disbursements of outside counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial Purchasers, on the one hand, and the Company and each of the Guarantors, on the other hand, hereby agree to observe the following procedures in connection with the offer and sale of the Securities:
(a) Offers and sales of the Securities will be made only by the Initial Purchasers or Affiliates thereof qualified to do so in the jurisdictions in which such offers or sales are made. Each such offer or sale shall only be made to persons whom the offeror or seller reasonably believes to be Qualified Institutional Buyers or non-U.S. persons outside the United States to whom the offeror or seller reasonably believes offers and sales of the Securities may be made in reliance upon Regulation S upon the terms and conditions set forth in Annex I hereto, which Annex I is hereby expressly made a part hereof.
(b) No general solicitation or general advertising (within the meaning of Rule 502 under the Securities Act) will be used in the United States in connection with the offering of the Securities.
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(c) Upon original issuance by the Company, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes (and all securities issued in exchange therefor or in substitution thereof) shall bear the following legend:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.
Following the sale of the Securities by the Initial Purchasers to Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers shall not be liable or responsible to the Company for any losses, damages or liabilities suffered or incurred by the Company, including any losses, damages or liabilities under the Securities Act, arising from or relating to any resale or transfer of any Security.
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SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchasers. Each of the Company and the Guarantors, jointly and severally, agrees to indemnify and hold harmless each Initial Purchaser, its affiliates, directors, officers and employees, and each person, if any, who controls any Initial Purchaser within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Initial Purchaser, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular, the Pricing Supplement, any Company Additional Written Communication or the Offering Circular (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Initial Purchaser and each such affiliate, director, officer, employee or controlling person for any and all out-of-pocket expenses (including the reasonable fees and disbursements of outside counsel chosen by the Representative) as such expenses are reasonably incurred by such Initial Purchaser or such affiliate, director, officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Initial Purchasers through the Representative expressly for use in the Preliminary Offering Circular, the Pricing Supplement, any Company Additional Written Communication or the Offering Circular (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company and the Guarantors. Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, each Guarantor, each of their respective directors, officers and employees and each person, if any, who controls the Company or any Guarantor within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company, any Guarantor or any such director, officer, employee or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Initial Purchaser), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Offering Circular, the Pricing Supplement, any Company Additional Written Communication or the Offering Circular (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or
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alleged untrue statement or omission or alleged omission was made in the Preliminary Offering Circular, the Pricing Supplement, any Company Additional Written Communication or the Offering Circular (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by such Initial Purchaser through the Representative expressly for use therein; and to reimburse the Company, any Guarantor and each such director or controlling person for any and all expenses (including the fees and disbursements of counsel) as such expenses are reasonably incurred by the Company, any Guarantor or such director or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. Each of the Company and the Guarantors hereby acknowledges that the only information that the Initial Purchasers through the Representative have furnished to the Company expressly for use in the Preliminary Offering Circular, the Pricing Supplement, any Company Additional Written Communication or the Offering Circular (or any amendment or supplement thereto) are the statements set forth in the third sentence of the second full paragraph, the second sentence of the seventh full paragraph, the eighth full paragraph and the fourth sentence of the tenth paragraph under the caption Plan of Distribution in the Preliminary Offering Circular and the Offering Circular. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; provided that the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 8 except to the extent that it has been materially prejudiced by such failure (through the forfeiture of any substantive rights or defenses) and the operation of this provision shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under this Section 8. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to
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the immediately preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any special, local and conflicts counsel in each relevant jurisdiction), which shall be selected by the Representative (in the case of counsel representing the Initial Purchasers or their related persons), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the reasonable fees and expenses of outside counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment (other than a final judgment entered into pursuant to a settlement as to which the indemnifying party did not consent) for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel as contemplated by this Section 8, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or disputed in good faith the indemnified partys entitlement to such reimbursement prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors, on the one hand, and the
25
Initial Purchasers, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total discount received by the Initial Purchasers bear to the aggregate initial offering price of the Securities. The relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors, on the one hand, or the Initial Purchasers, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or inaccuracy.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8 hereof, any out-of-pocket legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 8 hereof with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 9; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 8 hereof for purposes of indemnification.
The Company, the Guarantors and the Initial Purchasers agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser shall be required to contribute any amount in excess of the discount received by such Initial Purchaser in connection with the Securities distributed by it. No person guilty of fraudulent misrepresentation (within the meaning of Section 11 of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial Purchasers obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each director, officer and employee of an Initial Purchaser and each person, if any, who controls an Initial Purchaser within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Initial Purchaser, and each director of the Company or any Guarantor, and each person, if any, who controls the Company or any Guarantor with the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company and the Guarantors.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this Agreement may be terminated by the Representative by notice given to the Company if at any time: (i) trading in any of the Companys securities shall have been suspended or materially limited by the Commission or by the New York Stock Exchange (the NYSE), or trading in securities generally on the NYSE shall have been suspended or materially limited, or minimum or maximum prices shall have been generally established on such stock exchange by the
26
Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or material escalation of national or international hostilities or any crisis or calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions, as in the judgment of the Representative is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities in the manner and on the terms described in the Pricing Disclosure Package or to enforce contracts for the sale of securities; or (iv) in the judgment of the Representative there shall have occurred any Material Adverse Effect, the effect of which, in the judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering sale or delivery of the Securities in the manner and on the terms described in the Pricing Disclosure Package. Any termination pursuant to this Section 10 shall be without liability on the part of (i) the Company or any Guarantor to any Initial Purchaser, except that the Company and the Guarantors shall be obligated to reimburse the expenses of the Initial Purchasers pursuant to Sections 4 and 6 hereof, (ii) any Initial Purchaser to the Company, or (iii) any party hereto to any other party except that the provisions of Sections 8 and 9 hereof shall at all times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The respective indemnities, representations and warranties of the Company, the Guarantors, their respective officers and the several Initial Purchasers set forth in or made pursuant to this Agreement will remain in full force and effect (in each case, until the expiration of the applicable statutes of limitation), regardless of any investigation made by or on behalf of any Initial Purchaser, the Company, any Guarantor or any of their partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities sold hereunder and, except as otherwise provided herein, any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
If to the Initial Purchasers:
c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Facsimile: 212-902-9316
Attention: Registration Department
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with a copy (which shall not constitute notice) to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
Facsimile: 212-822-5022
Attention: Rodney D. Miller
If to the Company or the Guarantors:
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
with a copy (which shall not constitute notice) to:
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
Facsimile: 713-229-7738
Attention: Ted W. Paris
Any party hereto may change the address or facsimile number for receipt of communications by giving written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Sections 8 and 9 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term successors shall not include any Subsequent Purchaser or other purchaser of the Securities as such from any of the Initial Purchasers merely by reason of such purchase.
SECTION 14. Authority of the Representative. Any action by the Initial Purchasers hereunder may be taken by the Representative on behalf of the Initial Purchasers, and any such action taken by the Representative shall be binding upon the Initial Purchasers.
SECTION 15. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(a) Agent for Service of Process. By the execution and delivery of this Agreement, each of the Company and the Guarantors (i) acknowledges that it hereby irrevocably designates and appoints McDermott, Inc. (together with any successor, the Agent for Service) as its authorized agent upon which process may be served in legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (Related Proceedings) that may be instituted in any Specified Court (as defined below), and acknowledges that the Agent for Service has accepted such designation and appointment.
(b) Consent to Jurisdiction. Any Related Proceedings may be instituted in the Specified Courts, federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the Specified Courts), and each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding a Related Judgment, as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such partys address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Specified Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
(c) Waiver of Immunity. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
(d) Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than U.S. dollars, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Initial Purchasers could purchase U.S. dollars with such other currency in The City of New York on the business
29
day preceding that on which final judgment is given. The obligations of the Company and each Guarantor in respect of any sum due from them to the Initial Purchasers shall, notwithstanding any judgment in any currency other than U.S. dollars, not be discharged until the first business day, following receipt by the Initial Purchasers of any sum adjudged to be so due in such other currency, on which (and only to the extent that) the Initial Purchasers may in accordance with normal banking procedures purchase U.S. dollars with such other currency; if the U.S. dollars so purchased are less than the sum originally due to the Initial Purchasers hereunder, the Company and each Guarantor agrees, as a separate obligation and notwithstanding any such judgment, to indemnify each Initial Purchaser against such loss. If the U.S. dollars so purchased are greater than the sum originally due to the Initial Purchasers hereunder, each Initial Purchaser agrees to pay to the Company and the Guarantors (but without duplication) an amount equal to the excess of the U.S. dollars so purchased over the sum originally due to such Initial Purchaser hereunder.
SECTION 17. Default of One or More of the Several Initial Purchasers. If any one or more of the several Initial Purchasers shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Securities to be purchased on such date, the other Initial Purchasers shall be obligated, severally, in the proportions that the number of Securities set forth opposite their respective names on Schedule A bears to the aggregate number of Securities set forth opposite the names of all such non-defaulting Initial Purchasers, or in such other proportions as may be specified by the Initial Purchasers with the consent of the non-defaulting Initial Purchasers, to purchase the Securities which such defaulting Initial Purchaser or Purchasers agreed but failed or refused to purchase on the Closing Date. If any one or more of the Initial Purchasers shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs exceeds 10% of the aggregate number of Securities to be purchased on the Closing Date, and arrangements satisfactory to the Initial Purchasers and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6, 8 and 9 hereof shall at all times be effective and shall survive such termination; but nothing herein shall relieve a defaulting Initial Purchaser from liability for its default and a defaulting Initial Purchaser shall not be entitled to reimbursement of expenses pursuant to Section 6 hereof. In any such case either the Initial Purchasers or the Company shall have the right to postpone the Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any, to the Offering Circular or any other documents or arrangements may be effected.
As used in this Agreement, the term Initial Purchaser shall be deemed to include any person substituted for a defaulting Initial Purchaser under this Section 17. Any action taken under this Section 17 shall not relieve any defaulting Initial Purchaser from liability in respect of any default of such Initial Purchaser under this Agreement.
SECTION 18. No Advisory or Fiduciary Responsibility. Each of the Company and the Guarantors acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the offering price of the Securities and any related discounts and commissions, is an arms-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Initial Purchasers, on the other
30
hand, and the Company and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Initial Purchaser is and has been acting solely as a principal and is not the agent or fiduciary of the Company and the Guarantors or their respective affiliates, stockholders, creditors or employees; (iii) no Initial Purchaser has assumed or will assume an advisory or fiduciary responsibility in favor of the Company and the Guarantors with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Initial Purchaser has advised or is currently advising the Company and the Guarantors on other matters) or any other obligation to the Company and the Guarantors except the obligations expressly set forth in this Agreement; (iv) the several Initial Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the Guarantors and that the several Initial Purchasers have no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship; and (v) the several Initial Purchasers have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and the Guarantors have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate. The Company and the Guarantors hereby waive and release, to the fullest extent permitted by law, any claims that the Company and the Guarantors may have against the several Initial Purchasers with respect to any breach or alleged breach of fiduciary duty.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantors and the several Initial Purchasers, or any of them, with respect to the subject matter hereof.
SECTION 19. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other electronic transmission (i.e., a pdf or tif) shall be effective as delivery of a manually executed counterpart thereof. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, | ||||||
MCDERMOTT INTERNATIONAL, INC. | ||||||
By: | /s/ PERRY L. ELDERS | |||||
Name: | Perry L. Elders | |||||
Title: | Senior Vice President and Chief Financial Officer | |||||
GUARANTORS: | ||||||
MCDERMOTT FINANCE L.L.C. | ||||||
By: | /s/ PERRY L. ELDERS | |||||
Name: | Perry L. Elders | |||||
Title: | Senior Vice President and Chief Financial Officer | |||||
DEEPSEA (AMERICAS) LLC DEEPSEA (EUROPE) LIMITED DEEPSEA (HOLLAND) B.V. DEEPSEA (UK) LIMITED DEEPSEA (US) INCORPORATED J. RAY MCDERMOTT (LUXEMBOURG), S.AR.L. J. RAY MCDERMOTT (NIGERIA) LIMITED J. RAY MCDERMOTT INVESTMENTS B.V. MCDERMOTT HOLDINGS (U.K.) LIMITED MCDERMOTT INTERNATIONAL B.V. MCDERMOTT INTERNATIONAL MARINE INVESTMENTS N.V. MC DERMOTT OVERSEAS INVESTMENT CO. N.V. MCDERMOTT SERVICOS OFFSHORE DO BRASIL LTDA. PT. BAJA WAHANA INDONESIA SINGAPORE HUANGDAO PTE. LTD. VARSY INTERNATIONAL N.V. | ||||||
By: | /s/ JAMES P. GOODWIN | |||||
Name: | James P. Goodwin | |||||
Title: | Authorized Officer |
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CHARTERING COMPANY (SINGAPORE) PTE. LTD. DEEPSEA GROUP LIMITED EASTERN MARINE SERVICES, INC. GLOBAL ENERGYMCDERMOTT LIMITED HYDRO MARINE SERVICES, INC. INTERNATIONAL VESSELS LTD. J. RAY HOLDINGS, INC. J. RAY MCDERMOTT (AUST.) HOLDING PTY. LIMITED J. RAY MCDERMOTT (CASPIAN), INC. J. RAY MCDERMOTT (QINGDAO) PTE. LTD. J. RAY MCDERMOTT CANADA HOLDING, LTD. J. RAY MCDERMOTT CANADA, LTD. J. RAY MCDERMOTT CONTRACTORS, INC. J. RAY MCDERMOTT ENGINEERING SERVICES PRIVATE LIMITED J. RAY MCDERMOTT FAR EAST, INC. J. RAY MCDERMOTT INTERNATIONAL VESSELS, LTD. J. RAY MCDERMOTT INTERNATIONAL, INC. J. RAY MCDERMOTT KAZAKHSTAN LIMITED LIABILITY PARTNERSHIP J. RAY MCDERMOTT LOGISTIC SERVICES PVT. LIMITED J. RAY MCDERMOTT SOLUTIONS, INC. J. RAY MCDERMOTT TECHNOLOGY, INC. J. RAY MCDERMOTT UNDERWATER SERVICES, INC. J. RAY MCDERMOTT WEST AFRICA HOLDINGS, INC. J. RAY MCDERMOTT (NORWAY), AS |
By: | /s/ STEVEN D. OLDHAM | |||||
Name: | Steven D. Oldham | |||||
Title: | Treasurer |
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J. RAY MCDERMOTT WEST AFRICA, INC. |
MALMAC SDN. BHD. |
MCDERMOTT ASIA PACIFIC PTE. LTD. |
MCDERMOTT AUSTRALIA PTY. LTD. |
MCDERMOTT CASPIAN CONTRACTORS, INC. |
MCDERMOTT CAYMAN LTD. |
MCDERMOTT EASTERN HEMISPHERE, LTD. |
MCDERMOTT ENGINEERING, LLC |
MCDERMOTT FAR EAST, INC. |
MCDERMOTT GULF OPERATING COMPANY, INC. |
MCDERMOTT INTERNATIONAL INVESTMENTS CO., INC. |
MCDERMOTT INTERNATIONAL TRADING CO., INC. |
MCDERMOTT INTERNATIONAL VESSELS, INC. |
MCDERMOTT MARINE CONSTRUCTION LIMITED |
MCDERMOTT MIDDLE EAST, INC. |
MCDERMOTT OFFSHORE SERVICES COMPANY, INC. |
MCDERMOTT OLD JV OFFICE, INC. |
MCDERMOTT OVERSEAS, INC. |
MCDERMOTT SUBSEA ENGINEERING, INC. |
MCDERMOTT TRADE CORPORATION |
NORTH ATLANTIC VESSEL, INC. |
OFFSHORE PIPELINES INTERNATIONAL, LTD. |
OPI VESSELS, INC. |
OPMI, LTD. |
SABINE RIVER REALTY, INC. |
SPARTEC, INC. |
By: | /s/ STEVEN D. OLDHAM | |||
Name: | Steven D. Oldham | |||
Title: | Treasurer |
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J. RAY MCDERMOTT HOLDINGS, LLC J. RAY MCDERMOTT, S.A. MCDERMOTT INVESTMENTS, LLC MCDERMOTT, INC. | ||||
By: | /s/ STEVEN D. OLDHAM | |||
Name: | Steven D. Oldham | |||
Title: | Vice President, Treasurer | |||
MCDERMOTT INTERNATIONAL MANAGEMENT, S. DE RL. | ||||
By: | /s/ STEVEN D. OLDHAM | |||
Name: | Steven D. Oldham | |||
Title: |
Vice President, Treasurer and Investor Relations |
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J. RAY MCDERMOTT DE MEXICO, S.A. DE C.V. | ||||
MCDERMOTT MARINE MEXICO, S.A. DE C.V. | ||||
SERVICIOS PROFESIONALES DE ALTAMIRA, S.A. DE C.V. | ||||
SERVICIOS DE FABRICACION DE ALTAMIRA, S.A. DE C.V. | ||||
By: | /s/ ANA L. MENDEZ BURKART | |||
Name: | Ana L. Mendez Burkart | |||
Title: | Attorney-in-fact |
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The foregoing Purchase Agreement is hereby confirmed and accepted by the several Initial Purchasers as of the date first above written.
Acting on behalf of themselves and as the
Representative of the several Initial Purchasers
GOLDMAN, SACHS & CO. | ||
By: | /s/ MICHAEL HICKEY | |
Name: Michael Hickey | ||
Title: Managing Director |
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SCHEDULE A
Initial Purchaser |
Aggregate Principal Amount of Securities to be Purchased |
|||
Goldman, Sachs & Co. |
$ | 300,000,000 | ||
Credit Agricole Securities (USA) Inc. |
100,000,000 | |||
Wells Fargo Securities, LLC |
100,000,000 | |||
|
|
|||
Total |
$ | 500,000,000 |
EXHIBIT A
Form of Opinion of Panamanian counsel for the Company
Ladies and Gentlemen:
We have acted as Panamanian counsel to McDermott International, Inc., a Panamanian corporation (the Company), and the Panamanian Guarantors listed in Schedule A hereto, in connection with the issue and sale to the several initial purchasers named on Schedule A to the Purchase Agreement (the Initial Purchasers) acting severally and not jointly, of US$[500,000,000.00] aggregate principal amount of the Companys [ ]% Senior Secured Notes due 2021 (the Notes). Goldman, Sachs & Co. (GS) has agreed to act as the representative of the several Initial Purchasers (the Representative) in connection with the offering and sale of the Notes.
The Securities (as defined below) will be issued pursuant to an indenture, to be dated as of April [ ], 2014 (the Indenture), among the Company, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the Trustee). Securities will be issued only in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the Depositary) pursuant to a letter of representations, to be dated on or before the Closing Date (as defined in Section 2 hereof) (the DTC Agreement), between the Company and the Depositary.
The payment of principal, of premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior secured basis, jointly and severally by the entities listed on the signature pages of the Purchase Agreement (collectively, the Guarantors), pursuant to their guarantees (the Guarantees). The Notes and the Guarantees attached to the Purchase Agreement are herein collectively referred to as the Securities.
In addition, the Notes will be secured, subject to permitted liens as described under the caption Description of the Notes in the Pricing Disclosure Package and the Offering Circular, by liens on the assets of the Company and the Guarantors, as more particularly described in the Pricing Disclosure Package and documented, among others, by the Panamanian Mortgages described in Schedule B attached hereto.
In their capacity as owners of the Panamanian vessels described in Schedule C attached hereto, Hydro Marine Services, Inc., a Panamanian corporation (Hydro Marine) and J. Ray McDermott International Vessels, Ltd., a Cayman Islands company (JRMIVL), will be referred to collectively as the Panamanian Vessel Owners.
This opinion is being delivered to you pursuant to Section 5(c) of the Purchase Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Purchase Agreement (as defined below).
Exhibit A-1
In connection with this opinion, we have examined:
(i) | an executed copy of that certain Purchase Agreement, dated as of April [ ], 2014, by and between the Company, the Guarantors and the Initial Purchasers (the Purchase Agreement); |
(ii) | an executed copy of the Indenture; |
(iii) | an executed copy of that certain Intercreditor Agreement, dated as of April [ ], 2014, by and between Wells Fargo Bank, National Association, as collateral agent, and Crédit Agricole Corporate and Investment Bank, as administrative agent, and acknowledged by the Company, McDermott Finance L.L.C. and the Subsidiaries of the Company party thereto (the Intercreditor Agreement); |
(iv) | an executed copy of that certain Second Lien Pledge and Security Agreement, dated as of April [ ], 2014 by and between the Company and certain of its Subsidiaries and Wells Fargo Bank, National Association, as Collateral Agent (the Security Agreement); |
(v) | an executed copy of each of the Panamanian Mortgages; |
(vi) | an executed copy of a certificate of the Assistant Secretary of the Company certifying the Resolutions of the Board of Directors of the Company authorizing, among other things, the offering of the Notes; |
(vii) | an executed copy of the Unanimous Written Consent of the Pricing Committee of the Board of Directors of the Company in connection with the offering of the Notes; |
(viii) | an executed copy of an omnibus certificate of an assistant secretary of the Panamanian Guarantors certifying the Resolutions of the Board of Directors of each of the Panama Guarantors authorizing, among other things, the Guarantees; |
(ix) | the Articles of Incorporation of the Company and the Panamanian Guarantors, filed with the Registry of Companies (Registro Público) in Panama, as in effect on the date hereof; and |
(x) | the Amended and Restated By-laws of the Company, as amended to date. |
In addition to the foregoing, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such instruments, corporate records, certificates of public officials, certificates from the transfer agent, certificates of officers of the Company and the Panamanian Guarantors, and other documents, and have made such investigations of law, as we have deemed necessary or advisable as a basis for the opinions set forth herein.
Exhibit A-2
We have also reviewed the records of the Vessel at the Merchant Marine Administration of the Panama Maritime Authority and at the Public Registry of Titles and Encumbrances of Vessels (the Public Registry of Vessels). We have further examined such provisions of Panamanian laws and regulations as we have deemed relevant for purposes of this opinion.
For purposes of this opinion, the Purchase Agreement, the Indenture, the Intercreditor Agreement, the Securities and the Security Agreement will be referred to herein together as the Transaction Documents.
In our examination, we have assumed, with your permission: (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies, (iii) the due organization, existence and good standing of all parties to the Transaction Documents and the Panamanian Mortgages, other than the Company and the Panamanian Guarantors, (iv) the capacity, power and authority of all parties to execute all documents and agreements submitted to us, other than the Company and the Panamanian Guarantors, (v) the due authorization, execution and delivery of all documents and agreements submitted to us by all parties thereto, other than the Company and the Panamanian Guarantors, (vi) that the Transaction Documents (other than the Panamanian Mortgages) are a legal, valid and binding obligation, enforceable against the parties thereto (other than the Company and the Panamanian Guarantors) in accordance with their respective terms under, and comply in all material respects with, the laws governing the Transaction Documents (other than the Panamanian Mortgages), (vii) that the proceeds of the Securities will not be used by the Company in Panama, (viii) that neither the Company nor the Panamanian Guarantors carry on any business activities that generate taxable income in Panama; and (ix) that the records at the Public Registry of Vessels of the Panama Maritime Authority and the Directorate General of the Merchant Marine of the Republic of Panama with respect to the Vessels are accurate, complete and up to date.
As to all questions of fact material to this opinion, we have relied, without independent investigation, upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties contained in the Purchase Agreement.
Based upon the foregoing and subject to the qualifications set forth herein below, we are of opinion that:
(i) | The Company and each of the Panamanian Guarantors is a corporation duly incorporated and in good standing under the laws of the Republic of Panama and has the corporate power and authority (a) to own its property and assets and to carry on its business as described in the Pricing Disclosure Package and the Final Offering Memorandum and (b) to execute, deliver and perform its obligations under each of the Transaction Documents to which it is a party. |
(ii) | All of the issued and outstanding stock or ownership interests of each Panamanian Guarantor, except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum, is owned directly or indirectly by the Company, free and clear of all Liens, except for those Liens arising under the New Credit Facility, the Security Agreement, the Panamanian Mortgages and the Securities. |
Exhibit A-3
(iii) | The execution and delivery of each of the Transaction Documents to which they are a party has been duly authorized by the Company and the Panamanian Guarantors, and constitute the legal, valid and binding obligation of the Company and the Panamanian Guarantors enforceable against the Company and the Panamanian Guarantors in accordance with their respective terms. |
(iv) | The execution and delivery by the Company and the Panamanian Guarantors of, and the performance by the Company and the Panamanian Guarantors of their obligations under, the Transaction Documents to which they are a party (a) will not contravene (i) any provision of applicable law or the articles of incorporation or by-laws of the Company or any Panamanian Guarantor or (ii) to our knowledge, any judgment, order or decree of any governmental body, agency or court in the Republic of Panama, and (b) no consent, approval, authorization or order of, or qualification with, any governmental body or agency of the Republic of Panama is required for the issue and sale of the Securities or the consummation by the Company or the Panamanian Guarantors of the transactions contemplated by the Transaction Documents, provided that the Securities are not publicly offered in the Republic of Panama. |
(v) | The choice of New York law as the governing law of the Transaction Documents is a valid choice of law and will be recognized and given effect to by the courts of Panama. |
(vi) | Except for the proper notation in the Stock Register of each of the Panamanian Guarantors identified in Schedule 1 to the Security Agreement, it is not necessary or advisable under the law of Panama that any document be filed, registered or recorded in any public office of Panama, or any other actions be taken in Panama in order to ensure the validity, effectiveness, priority, perfection, admissibility into evidence or enforceability against third parties of the Transaction Documents under the laws of Panama. |
(vii) | The irrevocable submission by the Company and the Panamanian Guarantors in the Transaction Documents to which they are a party to the exclusive jurisdiction of the federal courts of the United States of America or the courts of the State of New York in each case located in the City and County of New York is a valid submission to the jurisdiction of such courts. |
(viii) | The courts of Panama should recognize and enforce a final money judgment of a United States federal or state court of competent jurisdiction sitting in the State of New York in respect of any amount payable by the Company and the Panamanian Guarantors under the Transaction Documents, provided that such judgment conforms with the requirements of the laws of Panama for the enforcement of foreign judgments, which require that (i) the courts outside of the Panama who rendered the judgment or award would in similar circumstances recognize a final judgment of the courts of Panama, (ii) such judgment or award arises out of an in personam action, (iii) the party against whom the judgment or award was rendered was (or the agent of such party) personally served in such action |
Exhibit A-4
within such foreign jurisdiction, (iv) the cause of action upon which the judgment was based does not contravene the public order or public policy of Panama and the obligation in respect of which the judgment was rendered is lawful in Panama, (v) such judgment or award has been properly authenticated under the laws of Panama or pursuant to the 1961 Hague Convention on the legalization of documents and (vi) the judgment has been translated into Spanish by a licensed translator in Panama. |
(ix) | The Company and each Panamanian Guarantor is not entitled to claim any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of Panama. |
(x) | The statements in the Pricing Disclosure Package and the Final Offering Memorandum under the caption Panamanian Income Tax Considerations, insofar as such statements constitute a summary of the Panamanian tax laws referred to therein, are accurate and fairly summarize in all material respects the Panamanian tax laws referred to therein. |
(xi) | The Transaction Documents are in proper legal form for enforcement against the Company and the Panamanian Guarantors in Panama, and no stamp or registration duty or similar tax or charge is payable under the laws of Panama in respect of any Transaction Document. |
(xii) | No stamp, registration or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Trustee, the Collateral Agent, the Holders of the Notes or the Initial Purchasers to Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Initial Purchasers of the Securities as contemplated by the Pricing Disclosure Package and the Prospectus. |
(xiii) | Each of the Panamanian Mortgages constitutes the valid and legally binding obligation of the respective Panamanian Vessel Owner enforceable in accordance with their respective terms. |
(xiv) | Each Panamanian Vessel Owner has record title to 100% of each of the Vessels that are identified as owned by it on Schedule B attached hereto and each Vessel is permanently registered in the name of such Panamanian Vessel Owner (as applicable) under the Panamanian flag. |
(xv) | The Panamanian Mortgages have been preliminarily registered at the Public Registry of Vessels of the Panama Maritime Authority. |
(xvi) | As a result of the above preliminary registrations, each of the Panamanian Mortgages shall be fully effective against third parties and shall continue to have such effect as of the date of its preliminary registration so long as it is filed for definitive registration at the Public Registry of Vessels of the Panama Maritime Authority within six months of the date of its preliminary registration and said definitive registration is completed. |
Exhibit A-5
(xvii) | Save for the definitive registration of each Panamanian Mortgage at the Public Registry of Vessels of the Panama Maritime Authority, as stated above in this opinion letter, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of each Panamanian Mortgage that such Panamanian Mortgage or any other instrument be notarized, filed, recorded, registered or enrolled in any court, public office or elsewhere in the Republic of Panama. |
(xviii) | Save for customary mortgage registration fees, no stamp, registration or similar tax or charge is required to be paid in the Republic of Panama on or in relation to any of the Panamanian Mortgages. |
(xix) | To the best of our knowledge, there are no actions, suits, proceedings or investigations pending or, to the best of our knowledge without inquiry, threatened against or affecting the Company, its property or business, in any court in Panama or by or before any governmental agency, department, board or instrumentality in Panama or before any arbitrator in Panama that could reasonably be expected to have a material adverse effect. |
(xx) | It is not a condition to the ability of any party to the Transaction Documents to bring legal action in the courts of the Republic of Panama against any such party in respect of any such agreements that such party be licensed, registered or subject to taxation in the Republic of Panama (or any political subdivision thereof) or otherwise have complied with any requirements in the Republic of Panama necessary to enable it to do or carry on business in the Republic of Panama. No party to the Transaction Documents is or will be deemed resident, carrying on business or subject to taxation in the Republic of Panama or required to qualify to do business in the Republic of Panama or required to comply with the requirements of any foreign registration or qualification statute of the Republic of Panama by reason only of the execution or delivery, or enforcement in the Republic of Panama of such agreements. |
(xxi) | None of the parties to the Transaction Documents will, under current law, be deemed to be a resident or subject to taxation in Panama by reason solely of the execution, delivery, performance or enforcement of the Transaction Documents. |
(xxii) | The payment obligations of the Company and the Panamanian Guarantors under the Transaction Documents rank, under current law, at least pari passu in priority of payment with all other unsecured and unsubordinated indebtedness of the of the Company and such Panamanian Guarantor, respectively. |
The opinions set forth above are subject to the following qualifications:
a) With regard to the opinion set forth in paragraphs 3 and 13 above, the term enforceable means that the obligations assumed by the party against whom enforcement is sought are of a type which the courts of Panama will enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In
Exhibit A-6
particular, enforcement may be limited by applicable bankruptcy, insolvency, fraudulent transfer, banking intervention, reorganization, forceful liquidation, moratorium and other similar laws affecting creditors` rights generally, or by concepts of materiality, reasonableness, good faith and fair dealings, and claims may become barred under applicable statutes of limitation or may be or become subject to defenses of set-off, counterclaim or other similar defenses.
b) With regard to the opinion set forth in paragraph 5 above, the courts of Panama will not apply or give effect to any provision of foreign law that violates the public policy of Panama.
c) With regard to the opinions set forth in paragraphs 6, 11 and 17 above, before any Transaction Document is used before any court or governmental authority in Panama (i) the signatures of the parties who executed such Transaction Document outside of Panama must be authenticated by a diplomatic or consular officer of Panama or by an Apostille pursuant to the 1961 Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, (ii) such Transaction Document must be translated into Spanish by a licensed translator in Panama and (iii) stamp taxes at the rate of $0.10 per each $100 of face value or fraction thereof will become due and payable. In the case of the Panamanian Mortgages, the amounts paid in Notarial Paper for their protocolization and in registration duties would be deducted from the applicable stamp tax.
d) With regard to the opinion set forth in paragraph 19 above, we have limited our search to a review, as diligent as circumstances have permitted, of the dockets or records of the civil courts of the First Judicial Circuit of Panama in respect of actions filed against the Company within the past twelve months seeking an award for monetary damages in excess of US$1,000,000. A search of said dockets and court records cannot guarantee, however, that an action against the Company does not exist in said courts or before any other governmental authority in Panama.
We are licensed to practice law in Panama and we do not purport to be experts on, or to express any opinion herein concerning, any laws other than the laws of Panama as in effect on the date hereof.
This opinion is addressed to you and is solely for your benefit and the benefit of your successors, permitted assigns and legal counsel and only in connection with the transactions contemplated by the Transaction Documents. Except as may be required or requested pursuant to law or regulation, this opinion may not be relied upon by you for any other purpose or furnished to, circulated, quoted, filed with or relied upon by any other person, firm, corporation or other entity for any purpose without our prior written consent.
Exhibit A-7
EXHIBIT B
Form of Opinion of counsel for the Company
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Section 5(d) of the Purchase Agreement dated April 10, 2014 (the Purchase Agreement) among McDermott International, Inc., a Panamanian corporation (the Company), the guarantors listed in Schedule A thereto (the Guarantors), and you, as representative of the several initial purchasers listed therein (the Initial Purchasers), relating to the issuance and sale by the Company to the Initial Purchasers, severally, of $500 million aggregate principal amount of the Companys 8.000% Senior Secured Notes due 2021 (the Notes). The Notes are to be issued under an Indenture, dated as of April 16, 2014 (the Indenture), among the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee and collateral agent (the Trustee), and guaranteed by the Guarantors to the extent set forth in the Indenture (the Guarantees and, together with the Notes, the Securities). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
In connection with the sale of the Securities, the Company has prepared a Preliminary Offering Circular, dated April 4, 2014 (the Preliminary Offering Circular), and has prepared and delivered to each Initial Purchaser copies of a Pricing Supplement, dated April 10, 2014 (the Pricing Supplement), describing the terms of the Securities, each for use by such Initial Purchaser in connection with its solicitation of offers to purchase the Securities. The Preliminary Offering Circular and the Pricing Supplement are collectively referred to as the Pricing Disclosure Package. For purposes of this letter, Time of Sale means [ ] p.m. (Eastern time) on April 10, 2014.
We have examined originals, or copies certified or otherwise identified, of:
1. | the Purchase Agreement; |
2. | the Indenture; |
3. | the Pricing Disclosure Package; |
4. | the Final Offering Circular, dated April 10, 2014 (the Offering Circular), relating to the offering and sale of the Securities; |
5. | the global notes representing the Notes; |
6. | the Pledge and Security Agreement, dated as of April 16, 2014 (the Pledge and Security Agreement), made by the Company and each Guarantor in favor of the Trustee; |
Exhibit B-1
7. | the Preferred Ship Mortgage, dated effective as of April 16, 2014 (the Intermac 600 Mortgage), made by McDermott, Inc., a Delaware corporation (MI), in favor of the Trustee; |
8. | the Preferred Ship Mortgage, dated effective as of April 16, 2014 (the DB 16 Mortgage and, together with the Intermac 650 Mortgage, the U.S. Vessel Mortgages; the U.S. Vessel Mortgages together with the Pledge and Security Agreement, the Security Documents), made by J. Ray McDermott Holdings, LLC, a Delaware limited liability company (JRMH), in favor of the Trustee; |
9. | the Intercreditor Agreement; |
10. | the certificate of incorporation and bylaws of each of the Guarantors that is a Delaware corporation (each, a Delaware Corporate Guarantor), each as amended to date; |
11. | the certificate of formation and limited liability company agreement of each of the Guarantors that is a Delaware limited liability company (each, a Delaware LLC Guarantor and, together with each Delaware Corporate Guarantor, each a Delaware Guarantor), each as amended to date; |
12. | the articles of incorporation and bylaws of each of the Guarantors that is a Texas corporation (each, a Texas Corporate Guarantor), each as amended to date; |
13. | the certificate of formation and limited liability company agreement of each of the Guarantors that is a Texas limited liability company (each, a Texas LLC Guarantor and, together with each Texas Corporate Guarantor, each a Texas Guarantor), each as amended to date; |
14. | the unfiled copies of the financing statements on Form UCC-1 attached hereto as Exhibit A (the Delaware Financing Statements), each naming a Delaware Guarantor as debtor and the Trustee as secured party, which we understand will be filed in the office of the Secretary of State of the State of Delaware (the Delaware Filing Office); |
15. | the unfiled copies of the financing statements on Form UCC-1 attached hereto as Exhibit B (the Texas Financing Statements), each naming a Texas Guarantor as debtor and the Trustee as secured party, which we understand will be filed in the office of the Secretary of State of the State of Texas (the Texas Filing Office); |
Exhibit B-2
16. | corporate and limited liability company records of the Company, the Delaware Guarantors and the Texas Guarantors, including minute books, as furnished to us by the Company; |
17. | certificates of public officials and of representatives of the Company, the Delaware Guarantors and the Texas Guarantors; and |
18. | statutes and such other instruments and documents as we have deemed necessary or advisable as a basis for the opinions hereinafter expressed. |
The documents described in clauses 1, 2, 5, 6, 7, 8 and 9 above are hereinafter referred to as Opinion Documents.
In giving the opinions set forth below, we have relied, without independent investigation or verification, to the extent we deemed appropriate, on the certificates, statements or other representations of officers or other representatives of the Company and the Guarantors and of governmental and public officials, with respect to the accuracy of the factual matters contained in or covered by such certificates, statements or representations. In making our examination, we have assumed the legal capacity of all natural persons, that all signatures on documents examined by us are genuine, all documents submitted to us as originals are authentic and complete and all documents submitted to us as copies are true and correct copies of the originals of such documents.
In rendering the opinions expressed below, we have also assumed with your permission and without independent verification or inquiry:
(a) | that each Opinion Document has been duly authorized, executed and delivered by each party thereto (other than, to the extent expressly set forth below, the Delaware Guarantors and the Texas Guarantors) and that each Opinion Document constitutes the valid and binding obligation of each party thereto (other than, with respect to the Opinion Documents, the Company and the Guarantors, to the extent we expressly address such matters in paragraphs 1 through 4 hereof), enforceable against each such party in accordance with its terms; |
(b) | that the Company and each Guarantor has, or has the power to transfer, rights (to the extent necessary to grant a security interest) in the Collateral existing on the date hereof in which the Company or such Guarantor purports to grant a security interest pursuant to the Security Documents and will have rights (to such extent) in property that becomes Collateral after the date hereof in which the Company or such Guarantor purports to grant a security interest pursuant to the Security Agreement; |
Exhibit B-3
(c) | that the Company and each Guarantor is an entity validly existing and in good standing (to the extent such concept is applicable) under the laws of its jurisdiction of organization with the corporate, limited liability company, partnership or equivalent power and authority, as the case may be, to enter into the Opinion Documents to which it is a party and to perform its obligations under the Opinion Documents to which it is a party (other than with respect to the Delaware Guarantors and the Texas Guarantors, to the extent we expressly address such matters in paragraphs 1, 3 and 4 hereof); |
(d) | the execution and delivery by the Company and each Guarantor of the Opinion Documents to which it is a party do not, and the performance by the Company and each Guarantor of its obligations under the Opinion Documents to which it is a party will not, (i) violate any agreement, order, writ, judgment, decree or other court ruling to which the Company or such Guarantor, as applicable, is a party or by which it or its properties are bound or (ii) require any consent or approval of, or registration or filing with, any Governmental Authority (except that we do not make the foregoing assumption to the extent we expressly address such matters in paragraph 10 hereof); and |
(e) | that no laws, rules or regulations, and no judicial, administrative or other action of any Governmental Authority, not expressly opined to herein would adversely affect the opinions set forth herein. |
On the basis of and subject to the limitations, exceptions, qualifications and assumptions set forth herein, we are of the opinion that:
1. | Each of the Purchase Agreement and the Indenture has been duly authorized, executed and delivered by each of the Delaware Guarantors and the Texas Guarantors. The Indenture is a valid and binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms. |
2. | When the Securities have been executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of the Purchase Agreement, the Securities will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
3. | The Guarantee of each of the Delaware Guarantors and the Texas Guarantors has been duly authorized, executed and delivered by such Delaware Guarantor or Texas Guarantor, as applicable. When the Securities have been duly issued, executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of the Purchase Agreement, the Guarantee of each Guarantor will constitute a valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms. |
Exhibit B-4
4. | Each of the Security Documents to which a Delaware Guarantor or Texas Guarantor is a party has been duly authorized, executed and delivered by such Delaware Guarantor or Texas Guarantor, as applicable. Each Security Document constitutes the valid and binding obligation of the Company and each Guarantor that is a party thereto under the laws of the State of New York and applicable federal law, enforceable against the Company and each such Guarantor in accordance with its terms. |
5. | The Pledge and Security Agreement is effective under the Uniform Commercial Code as in effect on the date hereof in the State of New York (the New York UCC) to create in favor of the [Collateral Agent] for its benefit and the benefit of the [Trustee and the holders of the Notes] valid security interests in all of the respective rights, titles and interests of the Company and each Guarantor party thereto in the Collateral (as defined in the Pledge and Security Agreement) to the extent such Collateral constitutes collateral in which a security interest can be created under the New York UCC (the Subject Collateral). |
6. | (a) Each Delaware Financing Statement is in appropriate form for filing in the Delaware Filing Office. Upon the filing of the Delaware Financing Statements in the Delaware Filing Office, the Trustee will have a perfected security interest in that portion of the Subject Collateral in which a security interest can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect on the date hereof in the State of Delaware (the Delaware UCC). |
(b) Each Texas Financing Statement is in appropriate form for filing in the Texas Filing Office. Upon the filing of the Texas Financing Statements in the Texas Filing Office, the Trustee will have a perfected security interest in that portion of the Subject Collateral in which a security interest can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect on the date hereof in the State of Texas (the Texas UCC).
7. | MI is the sole documented owner of the whole of the vessel named INTERMAC 600, Official No. 552815 (the Intermac 600). JRMH is the sole documented owner of the whole of the vessel named McDermott Derrick Barge No. 16, Official No. 508922 (the DB 16). The Intermac 600 is duly documented in the name of MI under the laws and flag of the United States with the National Vessel Documentation Center of the United States Coast Guard, in Falling Waters, West Virginia (the NVDC). The DB 16 is duly documented in the name of JRMH under the laws and flag of the United States with the NVDC. |
8. | Each U.S. Vessel Mortgage is in proper form for filing and recording with the NVDC. Subject to the filing requirements described in the following sentence, each U.S. Vessel Mortgage constitutes a preferred mortgage on the Subject Vessel within the meaning of Chapter 313 of Title 46 of the United States Code (the Ship Mortgage Act). A fully executed counterpart original of each U.S. Vessel Mortgage is required to be filed and recorded with the NVDC. |
9. | The Intercreditor Agreement has been duly authorized, executed and delivered by each of the Delaware Guarantors and the Texas Guarantors. |
Exhibit B-5
10. | No consent, approval, authorization or order of, or qualification with, any U.S. federal, New York or Texas governmental body or agency is required for the performance by the Company or any Guarantor of its obligations under the Purchase Agreement, the Indenture, the Security Documents, the Intercreditor Agreement or the Securities, except such as may be required by state securities or Blue Sky laws in connection with the offer and sale of the Securities; provided, however, that no opinion is provided pursuant to this paragraph 10 with respect to the matters covered by paragraph 12 hereof. |
11. | The statements relating to U.S. laws, documents or proceedings included in the Pricing Disclosure Package and the Offering Circular under the captions Description of Material Indebtedness, Description of the Notes and Material U.S. Federal Income Tax Considerations fairly summarize in all material respects such U.S. laws, documents or proceedings. |
12. | Assuming (A) the accuracy of the representations and warranties contained in the Purchase Agreement of, and the compliance with the covenants contained in the Purchase Agreement by, the Company and the Initial Purchasers, (B) the accuracy of the representations and warranties made in accordance with the Offering Circular by the investors to whom the Initial Purchasers initially resell Securities and (C) receipt by the investors to whom the Initial Purchasers initially resell Securities of copies of the Offering Circular prior to the effectiveness of such resale, it is not required in connection with the offer, sale and delivery of the Securities to the Initial Purchaser under the Purchase Agreement or in connection with the initial resale of such Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement to register the Securities under the Securities Act of 1933, as amended, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, it being understood that no opinion is expressed as to any subsequent resale of any Security. |
13. | The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Offering Circular will not be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended. |
14. | The issue and sale of the Securities and, subject to the terms of the Intercreditor Agreement, the performance by the Company of its obligations under each of the Purchase Agreement, the Indenture and the Securities will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, the New Credit Agreement. |
We have reviewed the Pricing Disclosure Package and the Offering Circular and have participated in conferences with officers and other representatives of the Company and the Guarantors, with representatives of the Companys independent registered public accounting firm and with your representatives and your counsel, at which the contents of the Pricing Disclosure Package, the Offering Circular and related matters were discussed. The purpose of
Exhibit B-6
our professional engagement was not to establish or confirm factual matters set forth in the Pricing Disclosure Package or the Offering Circular, and we have not undertaken to verify independently any of the factual matters in such documents. Moreover, many of the determinations required to be made in the preparation of the Pricing Disclosure Package and the Offering Circular involve matters of a non-legal nature. Accordingly, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in, the Pricing Disclosure Package and the Offering Circular (except to the extent stated in paragraph 11 above). Subject to the foregoing and on the basis of the information we gained in the course of performing the services referred to above, we advise you that nothing came to our attention that caused us to believe that:
(a) the Pricing Disclosure Package, as of the Time of Sale, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(b) the Offering Circular, as of its date or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that in each case we have not been asked to, and do not, express any belief with respect to (1) the financial statements and schedules or other financial, accounting or statistical information or data or the report on the effectiveness of internal control over financial reporting contained or included or incorporated by reference therein or omitted therefrom or (2) the representations and warranties and other statements of fact contained in the exhibits to the documents incorporated by reference therein.
The | foregoing opinions are subject to the following additional assumptions, exceptions, qualifications and limitations: |
(a) Our opinions in paragraphs 1 through 8 are subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent transfer or conveyance, moratorium, conservatorship and similar laws affecting creditors rights and remedies generally, (ii) general principles of equity (whether considered in a proceeding in equity or at law), including, without limitation, the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (iii) principles of materiality and reasonableness and implied covenants of good faith and fair dealing.
(b) Certain of the remedial, waiver, consent and other provisions of the Security Documents may be further limited or rendered unenforceable under existing laws or judicial decisions. However, subject to the other express qualifications contained herein, such laws or judicial decisions do not, in our opinion, substantially interfere with the practical realization of the principal benefits expressed in the Security Documents, except for the economic consequences of any procedural delay that might result from such laws or decisions.
Exhibit B-7
(c) We express no opinion as to the enforceability of any provision in any of the Opinion Documents, to the extent relating to: (i) any failure to comply with requirements concerning notices, relating to delay or omission to enforce rights or remedies or purporting to waive or affect rights, claims, defenses or other benefits to the extent that any of the same cannot be waived or so affected under applicable law; (ii) indemnities or exculpation from liability to the extent prohibited by federal or state laws and the public policies underlying those laws or that might require indemnification for, or exculpation from liability on account of, negligence, willful misconduct, unlawful acts, violations of securities laws, fraud or illegality of an indemnified or exculpated party; (iii) the disregard of any course of dealing between the parties; (iv) an attempt to grant to any party conclusive rights of determination; (v) an attempt to confer subject matter jurisdiction or venue on any federal court of the United States; (vi) methods or procedures for service of process; (vii) the establishment of evidentiary standards; (viii) the severability of unenforceable provisions from the Intercreditor Agreement or the Security Documents to the extent that the enforcement of remaining provisions would frustrate the fundamental intent of the parties; (ix) the preservation of the solvency of any guarantor, pledgor or grantor by purporting to limit (by formula or otherwise) the amount of the liability of, or to provide rights of contribution or subrogation in favor of, such guarantor, pledgor or grantor; (x) any guaranty provided by, or any joint and several liability imposed upon, or the grant of a Lien by, any person or entity that is not an eligible contract participant within the meaning of Section 1a(18) of the Commodity Exchange Act, insofar as such guaranty or such joint and several liability covers, or such Lien secures, an agreement, contract or transaction that constitutes a swap within the meaning of Section 1a(47) of the Commodity Exchange Act; (xi) the grant of any right of set-off to the extent that such right can be exercised without notice or with respect to any contingent or unmatured obligation or with respect to a trust account or other deposit account, or by or against any Person that is not a party to the Transaction Documents; and (xii) a waiver of any objection based on inappropriate venue or forum non conveniens of any federal court.
(d) We express no opinion as to the effect of any state or federal securities laws, rules or regulations insofar as they are applicable to, or otherwise affect any party to (in its capacity as a party to), the Intercreditor Agreement or the Security Documents, the transactions contemplated by the Intercreditor Agreement or the Security Documents or the exercise of any rights or remedies of any party to the Intercreditor Agreement or the Security Documents, other than the Investment Company Act of 1940, as amended, to the extent specifically covered by our opinion in paragraph 13 above.
(e) We express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of the Trustee or any of the holders of the Notes with any state, federal or other laws, rules or regulations applicable to it, (ii) the legal or regulatory status or the nature of the business of any of the Trustee or any of the holders of the Notes, (iii) other facts specifically pertaining to the Trustee or any of the holders of the Notes or (iv) any state, federal or other laws, rules or regulations or orders that may be applicable as a result of the involvement of the Trustee or any of the holders of the Notes in the transactions contemplated by the Intercreditor Agreement or any of the Security Documents or because of the legal or regulatory status or the nature of the business of the Trustee or any of the holders of the Notes.
Exhibit B-8
(f) We call to your attention that Section 552 of the Bankruptcy Code (11 U.S.C. § 101 et seq.) limits the extent to which proceeds realized and property acquired by a debtor after the commencement of a case under such Bankruptcy Code may be subject to a security interest arising from a security agreement entered into by the debtor before the commencement of that case.
(g) Our opinions in paragraphs 5 and 6 hereof are subject to the following assumptions, qualifications and limitations:
(i) We express no opinion as to any property or transaction that is excluded from the scope of Article 9 of the New York UCC or the Delaware UCC by Section 9-109 thereof or from the scope of Chapter 9 of the Texas UCC by Section 9.109 thereof or as to the perfection of any security interest by a means other than those described in paragraph 6 hereof.
(ii) We express no opinion as to the creation of a security interest in any collateral to the extent that the description of such collateral does not reasonably identify the property purported to be described thereby in accordance with Section 9-108 of the New York UCC.
(iii) In the case of proceeds (within the meaning of Section 9-102 of the New York UCC, Section 9-102 of the Delaware UCC and Section 9.102 of the Texas UCC), including that portion of the collateral under the Security Documents that constitutes proceeds, continuation of perfection is limited to the extent set forth in Section 9-315 of the New York UCC, Section 9-315 of the Delaware UCC and Section 9.315 of the Texas UCC.
(iv) We express no opinion with respect to any actions that may be required to be taken periodically under the New York UCC, the Delaware UCC or the Texas UCC in order for the effectiveness of the Financing Statements or perfection of any security interest to be maintained.
(h) We express no opinion as to (i) the creation of any lien or security interest under the Security Documents, except as expressly set forth in paragraph 5 or 8 above, (ii) the priority of the liens and security interests created by the Security Documents with respect to any collateral thereunder, (iii) the filing or recording of the Security Documents, the Financing Statements or any other instruments relating thereto, except as set forth in paragraphs 6, 7 and 8 above, (iv) the accuracy of the descriptions of any collateral contained in the Security Documents or the Financing Statements, or (v) the creation or perfection of a security interest in any collateral consisting of commercial tort claims, consumer goods, cooperative interests, farm products, fixtures, timber to be cut, and minerals and the like (including as-extracted collateral). We have assumed, with your approval and without independent verification, that the Financing Statements set forth the correct name and address of the Trustee. We undertake no obligation to file the Financing Statements or the U.S. Vessel Mortgages.
(i) We call to your attention that the perfection, effect of perfection and non-perfection, and the priority, of the security interests created under the Security Documents may be governed by laws other than the laws of the State of New York, the State of Delaware or the State of Texas. In this regard, among other things, we call to your attention Section 9-311 of the New York UCC, Section 9-311 of the Delaware UCC and Section 9.311 of the Texas UCC relating to the perfection of security interests in property subject to certain statutes, regulations and treaties.
Exhibit B-9
(j) We call to your attention that the exercise of any remedies against the Intermac 600 and DB 16 will be subject to the requirements and limitations of the Ship Mortgage Act.
(k) We express no opinion as to the specific remedy a court may grant or impose with respect to the provisions in the U.S. Vessel Mortgages requiring the mortgagor to perform specific affirmative acts, or the process, jurisdiction or venue of any particular court in respect to any action by any party under the U.S. Vessel Mortgages.
(l) We express no opinion as to whether the Intermac 600 or the DB 16 is free of any claims which might affect the priority of any U.S. Vessel Mortgage or, except as set forth in paragraphs 7 and 8 above, to the documentation, title, papers, registry, books and accounts, or operations, of the Intermac 600 or the DB 16.
(m) The opinions contained in paragraphs 7 and 8 above are based solely on a review of copies of an abstract of title, a Certificate of Documentation and a Certificate of Ownership issued by the United States Coast Guard and are subject to the additional assumptions that there are no material inaccuracies in such certificates that would cause a rescission of the documentation of the Intermac 600 or the DB 16.
(n) In the event of a foreclosure of any U.S. Vessel Mortgage, in order to operate the Intermac 600 or the DB 16 in its present capacity, the buyer of the Intermac 600 or the DB 16, as applicable, must be a citizen of the United States within the meaning of Title 46, Section 802, of the United States Code, entitled to own and document the Intermac 600 or the DB 16, as applicable, under the laws of the United States of America and to operate the Intermac 600 or the DB 16, as applicable, in the then applicable trade.
The opinions set forth above are limited in all respects to matters of applicable U.S. federal law, the laws of the State of Texas, the contract laws of the State of New York, the Delaware U.C.C. and the Delaware General Corporation Law, as in effect on the date hereof, and we have assumed that no laws, rules or regulations, and no judicial, administrative or other action of any other jurisdiction would adversely affect the opinions set forth herein.
This opinion letter is being furnished to you solely for your use in your capacity as Initial Purchasers in connection with the issuance and sale of the Securities, and no other use or distribution of this opinion letter may be made without our prior written consent. This opinion letter speaks as of the date hereof, and we disclaim any obligation to update this opinion letter.
Exhibit B-10
EXHIBIT C
Form of Opinion of General Counsel for the Company
Ladies and Gentlemen:
I am the Senior Vice President, General Counsel and Corporate Secretary of McDermott International, Inc., a Panamanian corporation (the Company). This opinion is being furnished to you pursuant to Section 5(e) of the Purchase Agreement dated April 10, 2014 (the Purchase Agreement) among McDermott International, Inc., a Panamanian corporation (the Company), the guarantors listed in Schedule A thereto (the Guarantors) and you, as representative of the several initial purchasers listed therein (the Initial Purchasers), relating to the issuance and sale by the Company to the Initial Purchasers, severally, of $500 million aggregate principal amount of the Companys 8.000% Senior Secured Notes due 2021 (the Notes). Payment of principal of, premium, if any, and interest on the Notes will be guaranteed by the Guarantors to the extent set forth in the Indenture (as defined below) (the Guarantees and, together with the Notes, the Securities). The Securities will be issued pursuant to an indenture, dated as of the date hereof (the Indenture), among the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee (the Trustee). Capitalized terms used but not defined herein that are defined in the Purchase Agreement shall have the respective meanings assigned to them in the Purchase Agreement.
In connection with the sale of the Securities, the Company has prepared a Preliminary Offering Circular, dated April 4, 2014 (the Preliminary Offering Circular), and has prepared and delivered to each Initial Purchaser copies of a Pricing Supplement, dated April 10, 2014 (the Pricing Supplement), describing the terms of the Securities, each for use by such Initial Purchaser in connection with its solicitation of offers to purchase the Securities. The Preliminary Offering Circular and the Pricing Supplement are collectively referred to as the Pricing Disclosure Package. For purposes of this letter, (i) Time of Sale means [ ] p.m. (Eastern time) on April 10, 2014 and (ii) Transaction Documents means the Purchase Agreement, the Indenture and the Securities.
In connection with the opinion set forth below, I or others under my supervision have examined originals, or copies certified or otherwise identified, of:
1. | the Purchase Agreement; |
2. | the Indenture; |
3. | the Pricing Disclosure Package; |
4. | the Final Offering Circular, dated April 10, 2014 (the Offering Circular), relating to the offering and sale of the Securities; |
5. | the global notes representing the Notes; |
Exhibit C-1
6. | the certificate of incorporation and bylaws (together, the Organizational Documents) of each of the Guarantors that is a Delaware corporation (each, a Delaware Guarantor), each as amended to date; |
7. | corporate records of the Company and the Delaware Guarantors, including minute books; |
8. | certificates of public officials and of representatives of the Company and the Delaware Guarantors; and |
9. | statutes and such other instruments and documents as I have deemed necessary or advisable as a basis for the opinions hereinafter expressed. |
In giving the opinions set forth below, I have relied, without independent investigation or verification, to the extent I deemed appropriate, on the certificates, statements or other representations of officers or other representatives of the Company and of governmental and public officials, with respect to the accuracy of the factual matters contained in or covered by such certificates, statements or representations. In making my examination, I have assumed the legal capacity of all natural persons, that all signatures on documents examined by me are genuine, all documents submitted to me as originals are authentic and complete and all documents submitted to me as copies are true and correct copies of the originals of such documents.
On the basis of and subject to the limitations, exceptions, qualifications and assumptions set forth herein, I am of the opinion that:
1. | Each of the Delaware Guarantors has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. Each of the Delaware Guarantors has the corporate or other organizational power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and Offering Circular; all of the issued shares of capital stock of each of the Delaware Guarantors have been duly and validly authorized and issued, are fully paid and non-assessable, and (except as set forth in the Pricing Disclosure Package and Offering Circular) are owned, directly or indirectly, by the Company, free and clear of all Liens, (a) except for those Liens arising under the [Credit Agreement], the Securities and the security documents related thereto and (b) except as would not, individually or in the aggregate, have a Material Adverse Effect. |
2. | (a) None of the Delaware Guarantors is in violation of its Organizational Documents, in each case as amended to date, and (b) to my knowledge, neither the Company nor any of its significant subsidiaries (as defined by Rule 1-02 of Regulation S-X) (each, a Significant Subsidiary) is in default in the performance or observance of any obligation, agreement, covenant or condition |
Exhibit C-2
contained in any indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any Significant Subsidiary is a party or by which it or any of them may be bound, or to which any of their property or assets is subject, except in the case of this clause (b) for any such defaults as are disclosed in the Pricing Disclosure Package and Offering Circular and any such defaults that would not have a Material Adverse Effect. |
3. | Except as disclosed in the Pricing Disclosure Package and Offering Circular, there are no legal or governmental proceedings pending or, to my knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject other than proceedings described in the Pricing Disclosure Package and Offering Circular and proceedings that are not expected to have a Material Adverse Effect, or have a material adverse effect on the power or ability of the Company to perform its obligations under the Transaction Documents or to consummate the transactions contemplated by the Pricing Disclosure Package and Offering Circular. |
4. | The statements in the Pricing Disclosure Package and Offering Circular under the caption BusinessGovernmental Regulations and Environmental Matters fairly summarize in all material respects the matters referred to therein. |
5. | To my knowledge, the execution and delivery by the Company and each Delaware Guarantor of, and the performance by the Company of its obligations under, the Transaction Documents will not violate or breach any provision of applicable law or any indenture, mortgage, loan agreement, note, lease or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except for any such violation or breach as would not have a Material Adverse Effect. |
I have reviewed the Pricing Disclosure Package and the Offering Circular and have participated in conferences with officers and other representatives of the Company, your representatives, your counsel and representatives of the independent registered public accounting firm of the Company at which the contents of the Pricing Disclosure Package, the Offering Circular and related matters were discussed. Many of the determinations required to be made in the preparation of the Pricing Disclosure Package and the Offering Circular involve matters of a non-legal nature. Accordingly, I did not independently verify such information and am not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Pricing Disclosure Package and the Offering Circular (except to the extent set forth in paragraph 4 above). Subject to the foregoing, I advise you that no facts have come to my attention which lead me to believe that:
(a) the Pricing Disclosure Package, as of the Time of Sale, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Exhibit C-3
(b) the Offering Circular, as of its date or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that in each case I do not express any belief with respect to (1) the financial statements and schedules or other financial, accounting or statistical information or data or the report on the effectiveness of internal control over financial reporting contained or included or incorporated by reference therein or omitted therefrom or (2) the representations and warranties and other statements of fact contained in the exhibits to the documents incorporated by reference therein.
In rendering the opinion expressed in the first sentence of paragraph 1 above, I have relied solely upon certificates from the Secretary of State of the State of Delaware.
I express no opinion as to the effect of any state or federal securities laws, rules or regulations in paragraph 6 above.
I am a member of the bar of the State of Louisiana and, except as otherwise expressly stated herein, the opinions expressed herein are limited to matters governed by the laws of the State of Louisiana and the General Corporation Law of the State of Delaware, in each case, as in effect on the date hereof, and I have assumed that no laws, rules or regulations, and no judicial, administrative or other action of any other jurisdiction would adversely affect the opinions set forth herein.
Phrases such as to my knowledge, known to me and those with equivalent words refer to my conscious awareness of information, without any independent investigation.
This opinion is given as of the date hereof and I assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to my attention or any changes in laws which may hereafter occur. This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without my prior written consent.
Exhibit C-4
ANNEX I
Resale Pursuant to Regulation S or Rule 144A. Each Initial Purchaser understands that:
Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the Securities in the United States or to, or for the benefit or account of, a U.S. Person (other than a distributor), in each case, as defined in Rule 902 of Regulation S (i) as part of its distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities pursuant hereto and the Closing Date, other than in accordance with Regulation S or another exemption from the registration requirements of the Securities Act. Such Initial Purchaser agrees that, during such 40-day restricted period, it will not cause any advertisement with respect to the Securities (including any tombstone advertisement) to be published in any newspaper or periodical or posted in any public place and will not issue any circular relating to the Securities, except such advertisements as are permitted by and include the statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Securities by it to any distributor, dealer or person receiving a selling concession, fee or other remuneration during the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration a confirmation or notice to substantially the following effect:
The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the Securities Act), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise until 40 days after the later of the date the Securities were first offered to persons other than distributors in reliance upon Regulation S and the Closing Date, except in either case in accordance with Regulation S under the Securities Act (or in accordance with Rule 144A under the Securities Act or to accredited investors in transactions that are exempt from the registration requirements of the Securities Act), and in connection with any subsequent sale by you of the Securities covered hereby in reliance on Regulation S under the Securities Act during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings assigned to them in Regulation S under the Securities Act.
Annex I-1
Exhibit 4.1
EXECUTION VERSION
MCDERMOTT INTERNATIONAL, INC.
8.000% SENIOR SECURED NOTES DUE 2021
INDENTURE
DATED AS OF APRIL 16, 2014
WELLS FARGO BANK, NATIONAL ASSOCIATION
Trustee
WELLS FARGO BANK, NATIONAL ASSOCIATION
Collateral Agent
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||||
SECTION 1.1. |
Definitions | 1 | ||||
SECTION 1.2. |
Other Definitions | 34 | ||||
SECTION 1.3. |
Rules of Construction | 35 | ||||
ARTICLE II THE NOTES |
35 | |||||
SECTION 2.1. |
Form and Dating | 35 | ||||
SECTION 2.2. |
Execution and Authentication | 37 | ||||
SECTION 2.3. |
Registrar; Paying Agent | 37 | ||||
SECTION 2.4. |
Paying Agent to Hold Money in Trust | 38 | ||||
SECTION 2.5. |
Holder Lists | 38 | ||||
SECTION 2.6. |
Book-Entry Provisions for Global Notes | 38 | ||||
SECTION 2.7. |
Replacement Notes | 40 | ||||
SECTION 2.8. |
Outstanding Notes | 41 | ||||
SECTION 2.9. |
Treasury Notes | 41 | ||||
SECTION 2.10. |
Temporary Notes | 41 | ||||
SECTION 2.11. |
Cancellation | 41 | ||||
SECTION 2.12. |
Defaulted Interest | 42 | ||||
SECTION 2.13. |
Computation of Interest | 42 | ||||
SECTION 2.14. |
CUSIP Number | 42 | ||||
SECTION 2.15. |
Special Transfer Provisions | 42 | ||||
SECTION 2.16. |
Issuance of Additional Notes | 44 | ||||
SECTION 2.17. |
Payment of Additional Amounts | 45 | ||||
ARTICLE III REDEMPTION AND PREPAYMENT |
47 | |||||
SECTION 3.1. |
Notices to Trustee | 47 | ||||
SECTION 3.2. |
Selection of Notes to Be Redeemed | 48 | ||||
SECTION 3.3. |
Notice of Redemption | 48 | ||||
SECTION 3.4. |
Effect of Notice of Redemption | 49 | ||||
SECTION 3.5. |
Deposit of Redemption Price | 49 | ||||
SECTION 3.6. |
Notes Redeemed in Part | 50 | ||||
SECTION 3.7. |
Optional Redemption | 50 | ||||
ARTICLE IV COVENANTS |
52 | |||||
SECTION 4.1. |
Payment of Notes | 52 | ||||
SECTION 4.2. |
Maintenance of Office or Agency | 52 | ||||
SECTION 4.3. |
Provision of Financial Information | 52 | ||||
SECTION 4.4. |
Compliance Certificate | 54 | ||||
SECTION 4.5. |
Taxes | 54 | ||||
SECTION 4.6. |
Stay, Extension and Usury Laws | 54 | ||||
SECTION 4.7. |
Limitation on Restricted Payments | 54 | ||||
SECTION 4.8. |
Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries | 58 |
- i -
TABLE OF CONTENTS
(Continued)
Page | ||||||
SECTION 4.9. |
Limitations on Additional Indebtedness | 60 | ||||
SECTION 4.10. |
Limitations on Asset Sales | 65 | ||||
SECTION 4.11. |
Limitation on Transactions with Affiliates | 69 | ||||
SECTION 4.12. |
Limitations on Liens | 71 | ||||
SECTION 4.13. |
Payments for Consent | 71 | ||||
SECTION 4.14. |
Offer to Purchase upon Change of Control | 71 | ||||
SECTION 4.15. |
Corporate Existence | 73 | ||||
SECTION 4.16. |
Business Activities | 73 | ||||
SECTION 4.17. |
Additional Guarantees | 73 | ||||
SECTION 4.18. |
Limitations on Designation of Unrestricted Subsidiaries | 73 | ||||
SECTION 4.19. |
Further Assurances | 75 | ||||
SECTION 4.20. |
After-Acquired Collateral; Additional Security Interests | 75 | ||||
SECTION 4.21. |
Covenant Suspension | 76 | ||||
ARTICLE V SUCCESSORS |
77 | |||||
SECTION 5.1. |
Consolidation, Merger, Conveyance, Transfer or Lease | 77 | ||||
ARTICLE VI DEFAULTS AND REMEDIES |
80 | |||||
SECTION 6.1. |
Events of Default | 80 | ||||
SECTION 6.2. |
Acceleration | 82 | ||||
SECTION 6.3. |
Other Remedies | 83 | ||||
SECTION 6.4. |
Waiver of Past Defaults | 83 | ||||
SECTION 6.5. |
Control by Majority | 83 | ||||
SECTION 6.6. |
Limitation on Suits | 83 | ||||
SECTION 6.7. |
Rights of Holders to Receive Payment | 84 | ||||
SECTION 6.8. |
Collection Suit by Trustee | 84 | ||||
SECTION 6.9. |
Trustee May File Proofs of Claim | 84 | ||||
SECTION 6.10. |
Priorities | 85 | ||||
SECTION 6.11. |
Undertaking for Costs | 85 | ||||
ARTICLE VII TRUSTEE |
85 | |||||
SECTION 7.1. |
Duties of Trustee | 85 | ||||
SECTION 7.2. |
Rights of Trustee | 87 | ||||
SECTION 7.3. |
Individual Rights of the Trustee | 88 | ||||
SECTION 7.4. |
Trustees Disclaimer | 88 | ||||
SECTION 7.5. |
Notice of Defaults | 88 | ||||
SECTION 7.6. |
Compensation and Indemnity | 89 | ||||
SECTION 7.7. |
Replacement of Trustee | 89 | ||||
SECTION 7.8. |
Successor Trustee by Merger, Etc | 90 | ||||
SECTION 7.9. |
Eligibility; Disqualification | 90 | ||||
ARTICLE VIII DEFEASANCE; DISCHARGE OF THIS INDENTURE |
91 | |||||
SECTION 8.1. |
Option to Effect Legal Defeasance or Covenant Defeasance | 91 | ||||
SECTION 8.2. |
Legal Defeasance | 91 | ||||
SECTION 8.3. |
Covenant Defeasance | 91 |
- ii -
TABLE OF CONTENTS
(Continued)
Page | ||||||
SECTION 8.4. |
Conditions to Legal or Covenant Defeasance | 92 | ||||
SECTION 8.5. |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 93 | ||||
SECTION 8.6. |
Repayment to Issuer | 94 | ||||
SECTION 8.7. |
Reinstatement | 94 | ||||
SECTION 8.8. |
Discharge | 94 | ||||
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER |
96 | |||||
SECTION 9.1. |
Without Consent of Holders of the Notes | 96 | ||||
SECTION 9.2. |
With Consent of Holders | 97 | ||||
SECTION 9.3. |
Revocation and Effect of Consents | 98 | ||||
SECTION 9.4. |
Notation on or Exchange of Notes | 98 | ||||
SECTION 9.5. |
Trustee to Sign Amendments, Etc | 98 | ||||
ARTICLE X GUARANTEES | 99 | |||||
SECTION 10.1. |
Guarantees | 99 | ||||
SECTION 10.2. |
Execution and Delivery of Guarantee | 100 | ||||
SECTION 10.3. |
Severability | 101 | ||||
SECTION 10.4. |
Limitation of Guarantors Liability | 101 | ||||
SECTION 10.5. |
Releases | 101 | ||||
SECTION 10.6. |
Benefits Acknowledged | 102 | ||||
ARTICLE XI COLLATERAL AND SECURITY |
102 | |||||
SECTION 11.1. |
Security Interest | 102 | ||||
SECTION 11.2. |
Intercreditor Agreement | 103 | ||||
SECTION 11.3. |
Release of Liens in Respect of the Notes | 103 | ||||
SECTION 11.4. |
Collateral Agent | 104 | ||||
SECTION 11.5. |
Compensation and Indemnity | 106 | ||||
ARTICLE XII MISCELLANEOUS |
107 | |||||
SECTION 12.1. |
Notices | 107 | ||||
SECTION 12.2. |
Communication by Holders with Other Holders | 109 | ||||
SECTION 12.3. |
Certificate and Opinion as to Conditions Precedent | 109 | ||||
SECTION 12.4. |
Statements Required in Certificate or Opinion | 109 | ||||
SECTION 12.5. |
Rules by Trustee and Agents | 109 | ||||
SECTION 12.6. |
Interest Act (Canada) Disclosure | 110 | ||||
SECTION 12.7. |
No Personal Liability of Directors, Officers, Employees and Stockholders | 110 | ||||
SECTION 12.8. |
Governing Law; Consent to Jurisdiction | 110 | ||||
SECTION 12.9. |
No Adverse Interpretation of Other Agreements | 110 | ||||
SECTION 12.10. |
Successors | 110 | ||||
SECTION 12.11. |
Severability | 110 | ||||
SECTION 12.12. |
Counterpart Originals | 111 | ||||
SECTION 12.13. |
Table of Contents, Headings, Etc | 111 | ||||
SECTION 12.14. |
Acts of Holders | 111 |
- iii -
TABLE OF CONTENTS
(Continued)
Page | ||||||
SECTION 12.15. |
Waiver of Jury Trial | 112 | ||||
SECTION 12.16. |
Force Majeure | 112 | ||||
SECTION 12.17. |
Documents in English | 112 | ||||
SECTION 12.18. |
Conversion of Currency | 112 | ||||
SECTION 12.19. |
Service of Process | 113 | ||||
SECTION 12.20. |
Legal Holidays | 113 |
EXHIBITS
Exhibit A |
FORM OF NOTE | |
Exhibit B |
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS | |
Exhibit C |
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A | |
Exhibit D |
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S | |
Exhibit E |
FORM OF SECOND LIEN PLEDGE AND SECURITY AGREEMENT |
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This Indenture, dated as of April 16, 2014 is by and among McDermott International, Inc., a Panamanian corporation (as further defined in Section 1.1, the Issuer), the Guarantors listed on the signature pages hereto, Wells Fargo Bank, National Association, as trustee (as further defined in Section 1.1, the Trustee), paying agent and registrar, and Wells Fargo Bank, National Association, as collateral agent (as further defined in Section 1.1, the Collateral Agent).
The Issuer, the Guarantors, the Trustee and the Collateral Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of (i) the Issuers 8.000% Senior Secured Notes due 2021 issued on the date hereof (the Initial Notes) and (ii) Additional Notes (as defined herein):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
Acquired Indebtedness means:
(1) with respect to any Person that becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such Person and its Subsidiaries (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Persons business to acquire assets used or useful in its business) existing at the time such Person becomes a Restricted Subsidiary; and
(2) with respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a Person (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course of such Persons business to acquire assets used or useful in its business), other than the Issuer or a Restricted Subsidiary, existing at the time such Person is merged with or into the Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed by the Issuer or any Restricted Subsidiary in connection with the acquisition of an asset or assets from another Person.
Additional Notes means Notes (other than the Initial Notes) issued pursuant to Article II and otherwise in compliance with the provisions of this Indenture.
Affiliate of any Person means any other Person which directly or indirectly controls or is controlled by, or is under direct or indirect common control with, such Person. For purposes of this definition, control of a Person shall mean the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
Agent means any Registrar, Paying Agent, co-registrar or other agent appointed pursuant to this Indenture.
Applicable Premium means, with respect to any Note on any applicable redemption date, the greater of:
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(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of:
(a) the present value at such redemption date of (i) the redemption price of such Note at May 1, 2017 (such redemption price being set forth in the table appearing in Section 3.7(b)) plus (ii) all required interest payments (excluding accrued and unpaid interest to such redemption date) due on such Note through May 1, 2017, computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the principal amount of such Note.
asset means any asset or property, including, without limitation, Equity Interests.
Asset Acquisition means:
(1) an Investment by the Issuer or any Restricted Subsidiary in any other Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary, or shall be merged with or into the Issuer or any Restricted Subsidiary;
(2) the acquisition by the Issuer or any Restricted Subsidiary of all or substantially all of the assets of any other Person (other than a Restricted Subsidiary) or any division or line of business of any such other Person (other than in the ordinary course of business); or
(3) the acquisition by the Issuer or any Restricted Subsidiary of any Vessel (whether new construction or otherwise).
Asset Sale means:
(1) any sale, conveyance, transfer, lease, assignment or other disposition by the Issuer or any Restricted Subsidiary to any Person other than the Issuer or any Restricted Subsidiary (including by means of a sale and leaseback transaction or a merger or consolidation), in one transaction or a series of related transactions, of any assets of the Issuer or any of its Restricted Subsidiaries other than in the ordinary course of business;
(2) any issuance of Equity Interests of a Restricted Subsidiary (other than directors qualifying shares or shares or interests required to be held by foreign nationals or third parties to the extent required by applicable law or any Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.9) to any Person other than the Issuer or any Restricted Subsidiary in one transaction or a series of related transactions; or
(3) an Event of Loss (the actions described in these clauses (1), (2) and (3), collectively, for purposes of this definition, a transfer).
For purposes of this definition, the term Asset Sale shall not include:
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(a) transfers of cash or Cash Equivalents;
(b) transfers of all or substantially all assets (including Equity Interests) that are governed by, and made in accordance with, Section 4.14 or Section 5.1;
(c) Permitted Investments and Restricted Payments permitted under Section 4.7;
(d) the creation of or realization on any Permitted Lien and any disposition of assets resulting from the enforcement or foreclosure of any such Permitted Lien (to the extent not constituting an Event of Loss);
(e) any charter (bareboat or otherwise) or other lease of assets or property entered into in the ordinary course of business and with respect to which the Issuer or any Restricted Subsidiary is the charterer or lessor, except any such charter or lease that provides for the acquisition of such assets or property by the lessee during or at the termination thereof for an amount that is less than the Fair Market Value thereof as determined at the time the right to acquire such assets or property is exercised, in which case an Asset Sale shall be deemed to occur at the time such right is exercised;
(f) transfers or other dispositions of damaged, worn-out or obsolete equipment or assets (in each case, other than Vessels) that, in the Issuers reasonable judgment, are no longer used or useful in the business of the Issuer or its Restricted Subsidiaries;
(g) sales or grants of licenses or sublicenses to use the patents, trade secrets, know-how and other Intellectual Property, and licenses, leases or subleases of other assets, of the Issuer or any Restricted Subsidiary to the extent not materially interfering with the business of the Issuer and the Restricted Subsidiaries;
(h) a transfer or other disposition of inventory or other assets acquired and held for resale in the ordinary course of business;
(i) a transfer or other disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring and similar arrangements;
(j) a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(k) dispositions of accounts receivable and any related assets to or by the Issuer or any Restricted Subsidiary in connection with a Receivables Program; and
(l) any transfer or series of related transfers that, but for this clause (l), would be Asset Sales, if after giving effect to such transfers, the aggregate Fair Market Value of the assets transferred in such transaction or any such series of related transactions does not exceed $10.0 million.
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Attributable Debt in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP.
Bankruptcy Law means Title 11, U.S. Code or any similar federal, state or foreign law for the relief of debtors, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, winding-up, restructuring or similar debtor relief laws of the United States or other insolvency law in the applicable jurisdictions (including applicable foreign jurisdictions) from time to time in effect and affecting the rights of creditors generally.
Beneficial Owner has the meaning as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that, in calculating beneficial ownership for a particular person or group, such person or group shall be deemed to have beneficial ownership of all securities that any such person or group has the right to acquire, whether such right is exercisable immediately or only upon the occurrence of a subsequent condition.
Board of Directors means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person and (ii) in any other case, the functional equivalent of the foregoing or, in each case, other than for purposes of the definition of Change of Control, any duly authorized committee of such body.
Business Day means a day other than a Saturday, Sunday or other day on which banking institutions in the State of New York or Houston, Texas are authorized or required by law to close.
Capitalized Lease means a lease required to be capitalized for financial reporting purposes in accordance with GAAP. Notwithstanding the foregoing, any lease that would have been classified as an operating lease pursuant to U.S. generally accepted accounting principles as in effect on the Issue Date shall be deemed not to be a Capitalized Lease.
Capitalized Lease Obligations of any Person means the obligations of such Person to pay rent or other amounts under a Capitalized Lease, and the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Equivalents means:
(1) United States dollars, or money in foreign currencies received in the ordinary course of business that are readily convertible into United States dollars;
(2) marketable obligations issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided, that the full faith and credit of such government is pledged in support thereof), maturing within one year of the date of acquisition thereof;
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(3) demand and time deposits and certificates of deposit of any lender under any Credit Facility or any Eligible Bank organized under the laws of the United States, any state thereof or the District of Columbia or a U.S. branch of any other Eligible Bank maturing within one year of the date of acquisition thereof;
(4) commercial paper issued by any Person incorporated in the United States rated, at the time of acquisition thereof, at least A1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moodys or an equivalent rating by a nationally recognized rating agency if both S&P and Moodys cease publishing ratings of commercial paper issuers generally, and in each case maturing not more than one year after the date of acquisition thereof;
(5) repurchase obligations with a term of not more than one year for underlying securities of the types described in clause (2) above entered into with any Eligible Bank and maturing not more than one year after such time;
(6) securities issued and fully guaranteed by any state, commonwealth or territory of the United States or by any political subdivision or taxing authority thereof, rated at least A by Moodys or S&P and having maturities of not more than one year from the date of acquisition;
(7) (i) shares of any money market fund that has net assets of not less than $500.0 million and satisfies the requirements of rule 2a-7 under the Investment Company Act of 1940, as amended, and (ii) shares of any offshore money market fund that has net assets of not less than $500.0 million and a $1 net asset mandate;
(8) investments in money market or other mutual funds substantially all of whose assets comprise securities of the types described in clauses (1) through (7) above;
(9) demand deposit accounts maintained in the ordinary course of business;
(10) in the case of the Issuer or any Subsidiary of the Issuer organized or having its principal place of business outside the United States, investments denominated in the currency of the jurisdiction in which such Subsidiary is organized or has its principal place of business which are similar to the items specified in clauses (1) through (9) above; and
(11) any other investment defined as a Cash Equivalent under the Credit Agreement.
Change of Control means the occurrence of any of the following events:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange Act);
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(2) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the Beneficial Owner of, or controls, directly or indirectly, Voting Stock representing more than 50.0% of the voting power of the total outstanding Voting Stock of the Issuer on a fully diluted basis, in each case other than as a result of a merger or consolidation as a result of which the beneficial owners of the Issuers Voting Stock immediately prior to the transaction beneficially own, immediately after the transaction, a majority of the voting power of the Voting Stock of the successor entity or any parent thereof;
(3) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Issuer (together with any new directors whose election to such Board of Directors or whose nomination for election by the stockholders of the Issuer was approved by a vote of a majority of the directors of the Issuer then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Issuer; and
(4) the adoption by the stockholders of the Issuer of a Plan of Liquidation.
Collateral means all property wherever located and whether now owned or at any time acquired after the Issue Date by the Issuer or a Guarantor as to which a Lien is granted or purported to be granted under the Collateral Agreements.
Collateral Agent means Wells Fargo Bank, National Association, in its capacity as collateral agent under this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Collateral Agreements means, collectively, the Intercreditor Agreement, the Second Lien Pledge and Security Agreement and each instrument or agreement (including any mortgages, pledge agreements, security agreements, deeds and control agreements) creating a security interest in the Collateral in favor of the Collateral Agent, on behalf of itself and the Secured Parties, as required by the Indenture Documents, as the same may be in force from time to time.
Collateral Disposition means any sale, transfer or other disposition (whether voluntary or involuntary) to the extent involving assets or other rights or property that constitute Collateral. The sale or issuance of Equity Interests in a Guarantor such that it thereafter is no longer a Guarantor shall be deemed to be a Collateral Disposition of the Collateral owned by such Guarantor.
Common Stock means with respect to any Person, any and all shares, interest or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Persons common stock whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
Consolidated Amortization Expense for any period means the amortization expense of the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
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Consolidated Cash Flow for any period means, with respect to any specified Person, without duplication, the sum of the amounts for such period of:
(1) Consolidated Net Income, plus
(2) in each case only to the extent deducted in determining Consolidated Net Income:
(a) Consolidated Income Tax Expense,
(b) Consolidated Amortization Expense,
(c) Consolidated Depreciation Expense,
(d) Consolidated Interest Expense, and
(e) all other non-cash items reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period, minus
(3) the aggregate amount of all non-cash items, determined on a consolidated basis, to the extent such items increased Consolidated Net Income for such period (excluding any non-cash items to the extent they represent the reversal of an accrual of a reserve for a potential cash item that reduced Consolidated Cash Flow in any prior period); and
(4) excluding any nonrecurring or unusual gain or income (or nonrecurring or unusual loss or expense), together with any related provision for taxes on any such nonrecurring or unusual gain or income (or the tax effect of any such nonrecurring or unusual loss or expense), realized by the Issuer or any Restricted Subsidiary during such period.
Consolidated Depreciation Expense for any period means the depreciation expense of the Issuer and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
Consolidated Income Tax Expense for any period means the provision for taxes of the Issuer and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Consolidated Interest Coverage Ratio means, on any date of determination, with respect to any Person, the ratio of (x) Consolidated Cash Flow during the most recent four consecutive full fiscal quarters for which financial statements prepared on a consolidated basis in accordance with GAAP are available (the Four-Quarter Period) ending on or prior to the date of the transaction giving rise to the need to calculate the Consolidated Interest Coverage Ratio (the Transaction Date) to (y) Consolidated Interest Expense for the Four-Quarter Period. For purposes of this definition, Consolidated Cash Flow and Consolidated Interest Expense shall be calculated after giving effect on a pro forma basis for the period of such calculation to:
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(1) the incurrence of any Indebtedness or the issuance of any Disqualified Equity Interests of the Issuer or Disqualified Equity Interests or Preferred Stock of any Restricted Subsidiary (and the application of the proceeds thereof) and any repayment, repurchase or redemption of other Indebtedness or other Disqualified Equity Interests or Preferred Stock (and the application of the proceeds therefrom) (other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to any revolving credit arrangement) occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such incurrence, repayment, repurchase, issuance or redemption, as the case may be (and the application of the proceeds thereof), occurred on the first day of the Four-Quarter Period; and
(2) any Asset Sale or Asset Acquisition (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of the Issuer or any Restricted Subsidiary (including any Person who becomes a Restricted Subsidiary as a result of such Asset Acquisition) incurring Acquired Indebtedness and also including any Consolidated Cash Flow (including any pro forma expense and cost reductions that are directly attributable to any such transaction that have been realized or are reasonably expected to be realized within 12 months following the date of such transaction)) in each case occurring during the Four-Quarter Period or at any time subsequent to the last day of the Four-Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition (including the incurrence of, or assumption or liability for, any such Indebtedness or Acquired Indebtedness) occurred on the first day of the Four-Quarter Period; provided, that such pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Issuer whether or not such pro forma adjustments would be permitted under SEC rules or guidelines.
In calculating Consolidated Interest Expense for purposes of determining the denominator (but not the numerator) of this Consolidated Interest Coverage Ratio:
(1) interest on outstanding Indebtedness determined on a fluctuating basis as of the Transaction Date and which will continue to be so determined thereafter shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the Transaction Date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered rate, or other rates, then the interest rate in effect on the Transaction Date will be deemed to have been in effect during the Four-Quarter Period; and
(3) notwithstanding clause (1) or (2) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by agreements relating to Hedging Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.
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Consolidated Interest Expense for any period means the sum, without duplication, of the total interest expense of the Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, including, without duplication:
(1) imputed interest on Capitalized Lease Obligations or Attributable Debt;
(2) commissions, discounts and other fees and charges owed with respect to letters of credit securing financial obligations and receivables financings;
(3) the net costs associated with Hedging Obligations related to interest rates;
(4) amortization of debt issuance costs, debt discount or premium and other financing fees and expenses, excluding fees relating to the issuance of the Notes;
(5) the interest portion of any deferred payment obligations;
(6) all other non-cash interest expense (except as provided below);
(7) capitalized interest;
(8) all dividend payments on any series of Disqualified Equity Interests of the Issuer or any of its Restricted Subsidiaries or any Preferred Stock of any Restricted Subsidiary (other than dividends on Equity Interests payable solely in Qualified Equity Interests of the Issuer or to the Issuer or a Restricted Subsidiary);
(9) all interest payable with respect to discontinued operations; and
(10) all interest on any Indebtedness described in clause (7), (8) or (11) of the definition of Indebtedness, and
excluding, without duplication, any non-cash interest referred to in clause (10) of the definition of Consolidated Net Income and the cumulative effect of any change in accounting principles or policies. Notwithstanding the foregoing, if any lease or other liability is reclassified as indebtedness or as a Capitalized Lease Obligation due to a change in accounting principles after the Issue Date, the interest component of all payments associated with such lease or other liability shall be excluded from Consolidated Interest Expense.
Consolidated Net Income for any period means the net income (or loss) of such Person and its Restricted Subsidiaries, in each case for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded in calculating such net income (or loss), to the extent otherwise included therein, without duplication:
(1) the net income (or loss) of any Person (other than a Restricted Subsidiary) in which any Person other than the Issuer and the Restricted Subsidiaries has an ownership interest, except to the extent that cash in an amount equal to any such income has actually been received by the Issuer or any of its Restricted Subsidiaries during such period; provided, however, that there shall be included in Consolidated Net Income for
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such period any dividends or other distributions paid in cash to the Issuer or such Restricted Subsidiary by such Person in such period with respect to any portion of the net income of such Person allocable to the Issuer or such Restricted Subsidiary excluded from Consolidated Net Income in a previous fiscal period pursuant to the preceding provisions of this clause (1);
(2) except to the extent includible in the net income (or loss) of the Issuer pursuant to the foregoing clause (1), the net income (or loss) of any Person that accrued prior to the date that (a) such Person becomes a Restricted Subsidiary or is merged into or consolidated with the Issuer or any Restricted Subsidiary or (b) the assets of such Person are acquired by the Issuer or any Restricted Subsidiary;
(3) the net income of any Restricted Subsidiary other than a Guarantor during such period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary during such period, unless such restriction with respect to the payment of dividends has been legally waived;
(4) gains or losses attributable to discontinued operations;
(5) any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by the Issuer or any Restricted Subsidiary upon (a) the acquisition of any securities, or the extinguishment of any Indebtedness, of the Issuer or any Restricted Subsidiary or (b) any Asset Sale by the Issuer or any Restricted Subsidiary;
(6) gains and losses due solely to fluctuations in currency values and the related tax effects according to GAAP;
(7) unrealized gains and losses with respect to Hedging Obligations;
(8) the cumulative effect of any change in accounting principles or policies since December 31, 2013;
(9) extraordinary gains and losses and the related tax effect;
(10) non-cash interest expense attributable to the equity component of convertible debt, including under ASC Topic 470;
(11) non-cash charges or expenses with respect to the grant of stock options, restricted stock or other equity compensation awards;
(12) goodwill write-downs or other non-cash impairments of assets; and
(13) net after-tax gains or losses attributable to sales of accounts receivables under any Receivables Program will be excluded.
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Consolidated Tangible Assets means, with respect to any Person as of any date, the amount set forth under the caption Total Assets (or any like caption) on the most recent available consolidated balance sheet of such Person and its Restricted Subsidiaries prepared in accordance with GAAP, less, to the extent included in a determination of such Total Assets, and without duplication, all goodwill, patents, tradenames, trademarks, copyrights, franchises, experimental expenses and any other amounts classified as intangible assets in accordance with GAAP, in each case as adjusted on a pro forma basis consistent with the pro forma adjustments set forth in the definition of Consolidated Interest Coverage Ratio.
Corporate Trust Office means the offices of the Trustee at which at any time its corporate trust business shall be principally administered, which office as of the date hereof is located at Wells Fargo Bank, National Association, 750 N. Saint Paul Place, Suite 1750, Dallas, Texas 75201, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the Holders and the Issuer).
Credit Agreement means the Credit Agreement dated as of the Issue Date, by and among the Issuer, McDermott Finance L.L.C., Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent, and the several lenders and other agents party thereto, including any notes, guarantees, collateral and security documents, instruments and agreements executed in connection therewith, and in each case as such agreement or facility has been or may be amended (including any amendment or restatement thereof), supplemented or otherwise modified from time to time, including any agreement or indenture exchanging, extending the maturity of, refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or debt capital markets (or combination thereof) (including (subject to the limitations contained herein) increasing the amount of available borrowings thereunder or adding or removing Subsidiaries as borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement or facility or any successor or replacement agreement or facility.
Credit Facilities means one or more debt facilities, indentures or commercial paper facilities (which may be outstanding at the same time and including, without limitation, the Credit Agreement) providing for revolving credit loans, debt securities, term loans, receivables financing or letters of credit or other borrowings and, in each case, as such agreements may be amended, refinanced, restated, refunded or otherwise restructured, in whole or in part from time to time (including (subject to the limitations contained herein) increasing the amount of available borrowings thereunder or adding Subsidiaries of the Issuer as additional borrowers or guarantors thereunder) with respect to all or any portion of the Indebtedness under such agreement or agreements or any successor or replacement agreement or agreements and whether by the same or any other agent, lender, group of lenders or institutional lenders or investors; provided that for purposes of the definition of First Priority Claims herein, Credit Facilities shall not include debt securities issued under an indenture.
Customary Recourse Exceptions means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for the voluntary bankruptcy of such Unrestricted Subsidiary, fraud,
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misapplication of cash, environmental claims, waste, willful destruction and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.
Default means (1) any Event of Default or (2) any event, act or condition that, after notice or the passage of time or both, would be an Event of Default.
Depositary means with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Global Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture.
Designated Non-cash Consideration means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth the basis of such valuation, executed by the Chief Financial Officer of the Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.
Designation has the meaning set forth in Section 4.18.
Designation Amount has the meaning set forth in Section 4.18.
Disqualified Equity Interests of any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable (in each case, at the option of the holder thereof), is, or upon the happening of any event or the passage of time would be, required to be redeemed by such Person, at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91 days after the Stated Maturity of the Notes; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would not constitute Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuer to repurchase or redeem such Equity Interests upon the occurrence of a change in control or an Asset Sale occurring prior to the 91st day after the Stated Maturity of the Notes shall not constitute Disqualified Equity Interests if the change of control or asset sale provisions applicable to such Equity Interests are no more favorable to such holders than Section 4.14 and Section 4.10, respectively, and such Equity Interests specifically provide that the Issuer will not repurchase or redeem any such Equity Interests pursuant to such provisions prior to the Issuers purchase of the Notes as required pursuant to Section 4.14 and Section 4.10, respectively.
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Dollars, U.S. dollars, U.S. legal tender or $ means lawful money of the United States.
DTC means The Depository Trust Company and any successor thereto.
Eligible Bank means any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, capital and surplus aggregating in excess of $250.0 million (or in the equivalent thereof in a foreign currency as of the date of determination) and a rating of A (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization.
Equity Interests of any Person means (1) any and all shares, units or other equity interests (including Common Stock, Preferred Stock, limited liability company interests, trust units and partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such Person, but excluding from all of the foregoing any debt securities convertible into Equity Interests, regardless of whether such debt securities include any right of participation with Equity Interests.
Event of Loss means, with respect to any property or asset, any (i) loss or destruction of, damage to, such property or asset, (ii) any pending or threatened institution of any proceedings for the condemnation or seizure of such property or asset or for the exercise of the power of eminent domain or (iii) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property or asset, or confiscation or requisition of the use of such property or asset.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
Fair Market Value means, with respect to any asset, the price (after taking into account any liabilities relating to such asset) that would be negotiated in an arms-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction as such price is determined in good faith by management of the Issuer.
First Priority Agent means Crédit Agricole Corporate and Investment Bank, as collateral agent for the First Priority Secured Parties, together with its successors in such capacity.
First Priority Claims means (1) all Indebtedness under Credit Facilities and all other Obligations (other than principal) related to such Indebtedness and owing under the documentation relating to such Indebtedness (including all reimbursement obligations (if any) and interest thereon with respect to any letter of credit or similar instruments issued pursuant to such documentation), including any guarantees of the foregoing, to the extent the foregoing is incurred (and permitted to be incurred) pursuant to clause (1) of the definition of Permitted Indebtedness herein and to the extent purportedly secured by the Collateral, (2) all Hedging Obligations to the extent such obligations are secured under the First Priority Debt Documents and (3) the amount of all Obligations in respect of Treasury Management Arrangements to the extent such obligations are secured under the First Priority Debt Documents.
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First Priority Creditors means the lenders and issuers from time to time party to the First Priority Debt Documents.
First Priority Debt Documents means the Credit Agreement, the First Priority Security Documents, any other Loan Documents (as defined in the Credit Agreement) and any other agreements, instruments or other documents evidencing, governing, securing or perfecting any First Priority Claims described in clause (1) of the definition of First Priority Claims herein.
First Priority Liens means Liens on the Collateral securing the First Priority Claims.
First Priority Mortgages means, collectively, each mortgage, deed of trust, leasehold mortgage, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which a Lien on real property is granted by any Grantor to secure any First Priority Claims or under which rights or remedies with respect to any such Lien are governed.
First Priority Secured Parties means, at any time, (a) the First Priority Creditors, (b) the First Priority Agent, (c) each other Person to whom any of the First Priority Claims is owed (including any Affiliate of a First Priority Creditor to whom any First Priority Claims of the type described in clause (2) or clause (3) of the definition thereof is owed) and (d) the successors and assigns of each of the foregoing in their respective capacities as such.
First Priority Security Agreement means the First Lien Pledge and Security Agreement, dated as of the Issue Date, as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms of the Intercreditor Agreement.
First Priority Security Documents means the the First Priority Mortgages, the First Priority Security Agreement and any other agreement, document or instrument pursuant to which a Lien is granted by any Grantor to secure any First Priority Claims or under which rights or remedies with respect to any such Lien are governed.
Funded Debt means, with respect to any specified Person, any outstanding indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1) in respect of borrowed money or advances; or
(2) evidenced by loan agreements, bonds, notes, debentures or similar instruments.
For the avoidance of doubt, and notwithstanding the foregoing, letters of credit and reimbursement obligations under letters of credit do not constitute Funded Debt.
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GAAP means generally accepted accounting principles in the United States, which are in effect from time to time. At any time, the Issuer may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein); provided that any such election, once made, shall be irrevocable; provided further that any calculation or determination herein that requires the application of GAAP for periods that include fiscal quarters ended prior to the Issuers election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Issuer shall give notice of any such election made in accordance with this definition to the Trustee.
Global Note Legend means the legend identified as such in Exhibit A.
Global Notes means the Notes that are in the form of Exhibit A issued in global form and registered in the name of the Depositary or its nominee.
Grantors means the Issuer and each Subsidiary that shall have created or purported to create any First Priority Lien or Second Priority Lien on all or any part of its assets to secure any First Priority Claims or any Notes Obligations.
guarantee means a direct or indirect guarantee by any Person of any Indebtedness of any other Person and includes any obligation, direct or indirect, contingent or otherwise, of such Person entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); guarantee, when used as a verb, and guaranteed have correlative meanings.
Guarantee means, individually, any guarantee of payment of the Notes by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture hereto, and, collectively, all such guarantees.
Guarantors means each Restricted Subsidiary that executes this Indenture as of the Issue Date, and each other Person that is required to, or at the election of the Issuer, does become a Guarantor by the terms of this Indenture after the Issue Date, in each case, until such Person is released from its Guarantee in accordance with the terms of this Indenture.
Hedging Obligations of any Person means the obligations of such Person under option, swap, cap, collar, forward purchase or similar agreements or arrangements intended to manage exposure to interest rates or currency exchange rates or commodity prices, either generally or under specific contingencies.
Holder means any registered holder, from time to time, of the Notes.
IFRS means the international accounting standards promulgated by the International Accounting Standards Board and its predecessors, as in effect from time to time.
incur means, with respect to any Indebtedness or Obligation, to incur, create, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary shall be deemed to have been incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and
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(2) neither the accrual of interest nor the accretion of original issue discount or the accretion or accumulation of dividends on any Equity Interests shall be deemed to be an incurrence of Indebtedness.
Indebtedness of any Person at any date means, without duplication:
(1) any liabilities, contingent or otherwise, of such Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof);
(2) any obligations of such Person evidenced by bonds, debentures, bankers acceptances, notes or other similar instruments;
(3) any reimbursement obligations of such Person in respect of letters of credit, letters of guaranty and similar credit transactions, excluding (without limiting clause (12) of this definition) obligations in respect of letters of credit, letters of guaranty or other similar instruments to the extent not drawn upon or presented, or, if drawn upon or presented, the resulting obligation of the Person is paid within 20 Business Days (it being understood, for the avoidance of doubt, that any reimbursement obligations in respect of letters of credit, letters of guaranty or other similar instruments not paid within 20 Business Days shall constitute Indebtedness);
(4) any obligations of such Person to pay the deferred and unpaid purchase price of property or services, except (i) deferred compensation, trade payables, advances on contracts and accrued expenses incurred by such Person in the ordinary course of business and not overdue by more than 180 days unless subject to a bona fide dispute and (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller;
(5) any Disqualified Equity Interests (with the amount thereof being the maximum fixed redemption or repurchase price of such Disqualified Equity Interests) of such Person or, with respect to any Subsidiary that is not a Guarantor, any Preferred Stock of such Subsidiary;
(6) any Capitalized Lease Obligations or Attributable Debt of such Person;
(7) any Indebtedness of others secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;
(8) any Indebtedness of others guaranteed by such Person to the extent of such guarantee; provided that Indebtedness of the Issuer or its Subsidiaries that is guaranteed by the Issuer or the Issuers Subsidiaries shall only be counted once in the calculation of the amount of Indebtedness of the Issuer and its Subsidiaries on a consolidated basis;
(9) to the extent not otherwise included in this definition, net Hedging Obligations of such Person;
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(10) any obligations of such Person under conditional sale or other title retention agreements relating to assets purchased by such Person;
(11) any Receivables Program Indebtedness of such Person; and
(12) the face amount of, and all obligations evidenced by or in respect of, any letters of credit (a) issued under or pursuant to a Credit Facility (whether or not any such letters of credit are drawn) or (b) issued outside of a Credit Facility to the extent, in the case of clause (b), any such letters of credit are secured by assets or property other than cash (whether or not any such letters of credit are drawn).
The amount of any Indebtedness which is incurred at a discount to the principal amount at maturity thereof as of any date shall be deemed to have been incurred at the accreted value thereof as of such date. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above, the maximum liability of such Person for any such contingent obligations at such date and, in the case of clause (7), the lesser of (a) the Fair Market Value of any asset subject to a Lien securing the Indebtedness of others on the date that the Lien attaches and (b) the amount of the Indebtedness secured and, in the case of clause (12), the stated amount or face amount of any such letters of credit referenced in such clause (unless the maximum liability of such Person in respect of any such letters of credit exceeds such stated amount or face amount, in which case, the amount of Indebtedness shall be the maximum liability of such Person in respect of any such letters of credit). For purposes of clause (5), the maximum fixed redemption or repurchase price of any Disqualified Equity Interests that do not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Equity Interests as if such Disqualified Equity Interests were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture. For purposes of clause (12)(b) above, a letter of credit shall not be deemed to be secured solely by virtue of the fact that it is supported by another letter of credit or similar instrument in a back to back arrangement. Notwithstanding the foregoing, in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles after the Issue Date be deemed to be an incurrence of Indebtedness for any purpose under this Indenture. The term Indebtedness also excludes any repayment or reimbursement obligation of such Person or any of its Restricted Subsidiaries with respect to Customary Recourse Exceptions, unless and until an event or circumstance occurs that triggers the Persons or such Restricted Subsidiarys direct repayment or reimbursement obligation (as opposed to contingent or performance obligations) to the lender or other Person to whom such obligation is actually owed, in which case the amount of such direct payment or reimbursement obligation shall constitute Indebtedness.
Indenture means this Indenture, as amended, supplemented or otherwise modified from time to time.
Indenture Documents means, collectively, this Indenture, the Notes, the Guarantees and the Collateral Agreements.
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Independent Director means a director of the Issuer who is independent with respect to the transaction at issue.
Initial Notes has the meaning set forth in the preamble hereto. For the avoidance of doubt, the term Initial Notes does not include any Additional Notes.
Intellectual Property means all patents, patent applications, trademarks, trade names, service marks, copyrights, technology, trade secrets, proprietary information, domain names, know-how and processes necessary for the conduct of the Issuers or any Restricted Subsidiarys business.
Intercreditor Agreement means the intercreditor agreement dated as of the Issue Date, as amended, restated, supplemented or otherwise modified from time to time, among the Issuer, McDermott Finance L.L.C., certain subsidiaries of the Issuer, the First Priority Agent and the Collateral Agent.
Investment Grade Rating means a rating equal to or higher than (i) in the case of Moodys, Baa3 (or the equivalent) and (ii) in the case of S&P, BBB- (or the equivalent).
Investments of any Person means:
(1) all direct or indirect investments by such Person in any other Person (including Affiliates) in the form of loans, advances or capital contributions or other credit extensions constituting Indebtedness of such other Person, and any guarantee of Indebtedness of any other Person;
(2) all purchases (or other acquisitions for consideration) by such Person of Indebtedness, Equity Interests or other securities of any other Person (other than any such purchase that constitutes a Restricted Payment of the type described in clause (2) of the definition thereof);
(3) all other items that would be classified as investments in another Person on a balance sheet of such Person prepared in accordance with GAAP; and
(4) the Designation of any Subsidiary as an Unrestricted Subsidiary.
Except as otherwise expressly specified in this definition, the amount of any Investment (other than an Investment made in cash) shall be the Fair Market Value thereof on the date such Investment is made. The amount of an Investment pursuant to clause (4) shall be the Designation Amount determined in accordance with Section 4.18. If the Issuer or any Restricted Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary, the Issuer shall be deemed to have made an Investment on the date of any such sale or other disposition equal to the Fair Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary retained, directly or indirectly, by the Issuer. Notwithstanding the foregoing, purchases or redemptions of Equity Interests of the Issuer shall be deemed not to be Investments but shall be Restricted Payments.
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Issue Date means April 16, 2014, the date on which the Initial Notes are originally issued.
Issuer means McDermott International, Inc., a corporation incorporated under the laws of the Republic of Panama, and any successor Person resulting from any transaction permitted by Section 5.1.
Lien means, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, lease, easement, restriction, covenant, charge, security interest or other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement; provided, however, that for the avoidance of doubt, the interest of a Person as owner or lessor under charters or leases of property shall not constitute Liens on or in respect of such property.
merger means a statutory merger, amalgamation, scheme of arrangement or similar transaction.
Moodys means Moodys Investors Service, Inc. and its successors.
Mortgaged Vessels means at any time the marine vessels of the Issuer and the Guarantors that are subject to a Lien under the Collateral Agreements at such time.
Net Available Proceeds means, with respect to any Asset Sale, the proceeds thereof in the form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from such Asset Sale (including (i) payments in respect of deferred payment obligations, when received in the form of cash or Cash Equivalents, (ii) proceeds from the conversion of other consideration received when converted to cash or Cash Equivalents and (iii) insurance proceeds with respect to an Event of Loss), net of:
(1) brokerage commissions and other fees and expenses (including fees, discounts and expenses of legal counsel, accountants and investment banks, consultants and placement agents) of such Asset Sale;
(2) provisions for taxes payable (including any withholding or other taxes paid or reasonably estimated to be payable in connection with the transfer to the Issuer of such proceeds from any Restricted Subsidiary that received such proceeds) as a result of such Asset Sale (after taking into account any available tax credits or deductions and any tax sharing arrangements);
(3) amounts required to be paid to any Person (other than the Issuer or any Restricted Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale or having a Lien thereon;
(4) payments of unassumed liabilities (not constituting Indebtedness) relating to the assets sold at the time of, or within 30 days after the date of, such Asset Sale; and
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(5) appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve required in accordance with GAAP or amounts placed by the Issuer or any Restricted Subsidiary in escrow against any adjustment in the sale price of such asset or assets or liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including pensions and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale; provided, however, that any amounts remaining after the completion of all adjustments, revaluations or liquidations of such reserves or such amounts held in escrow shall constitute Net Available Proceeds.
Non-Recourse Debt means Indebtedness:
(1) as to which neither the Issuer nor any Restricted Subsidiary (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness but excluding charters or commercial contracts), except for Customary Recourse Exceptions, (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender; and
(2) no default with respect to which (including any rights that the holders thereof may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Issuer or any Restricted Subsidiary to declare a default on the other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity.
Note Custodian means the Person appointed as custodian for the Depositary with respect to the Global Notes, or any successor entity thereto.
Notes means the Initial Notes and any Additional Notes. The Initial Notes and the Additional Notes, if any, shall be treated as a single class for all purposes under this Indenture.
Notes Obligations means all Obligations of the Issuer and the Guarantors arising under the Indenture Documents plus interest and all fees, costs, charges and expenses, including legal fees, recording or filings fees, and expenses payable by the Issuer or any of the Guarantors thereunder or in connection with the transactions under the Indenture Documents, in each case whether accrued or incurred before or after the commencement of a bankruptcy, insolvency or liquidation proceeding, and whether or not allowed or allowable in such proceeding; provided that the term Notes Obligations shall only include Obligations relating to any Additional Notes that are actually issued to the extent the issuance of such Additional Notes was permitted under the Indenture Documents.
Obligation means any principal, interest, penalties, fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the documentation governing any Indebtedness.
Offering Circular means the Issuers offering circular, dated April 10, 2014, relating to the offer and sale of the Initial Notes.
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Officer means any of the following of the Issuer or any Guarantor: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or the Secretary.
Officers Certificate means a certificate signed by two Officers that meets the requirements of Section 12.4 of this Indenture.
Opinion of Counsel means a written opinion from legal counsel reasonably acceptable to the Trustee or the Collateral Agent, as applicable. The counsel may be an employee of or counsel to the Issuer or the Trustee or Collateral Agent, as applicable.
Participant means, with respect to the Depositary, a Person who has an account with the Depositary.
Paying Agent means any Person authorized by the Issuer to pay the principal of, premium, if any, or interest on any Notes on behalf of the Issuer.
Permitted Amount means Liens securing obligations for borrowed money not in excess of $25.0 million at any time outstanding.
Permitted Business means the businesses engaged in by the Issuer or any of its Subsidiaries on the Issue Date as described in the Offering Circular and businesses that are reasonably related, incidental or ancillary thereto or reasonable extensions thereof.
Permitted Business Investments means Investments by the Issuer or any of its Restricted Subsidiaries in any Permitted Joint Venture, provided that:
(1) at the time of such Investment and immediately thereafter, the Issuer could incur at least $1.00 of additional Indebtedness under the Coverage Ratio Exception;
(2) if such Permitted Joint Venture has outstanding Indebtedness at the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b) any such Indebtedness of such Permitted Joint Venture that is recourse to the Issuer or any of its Restricted Subsidiaries (which shall include, without limitation, all Indebtedness of such Permitted Joint Venture for which the Issuer or any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise, obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to any guarantee, including, without limitation, any claw-back, make-well or keep-well arrangement) could, at the time such Investment is made, be incurred at that time by the Issuer under the Coverage Ratio Exception.
Permitted Investment means:
(1) Investments by the Issuer or any Restricted Subsidiary in (a) any Restricted Subsidiary or (b) any Person that will become immediately after such Investment a Restricted Subsidiary or that will merge or consolidate with or into, the Issuer or any Restricted Subsidiary and any Investment held by any such Person at such time that was not incurred in contemplation of such acquisition, merger or consolidation;
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(2) Investments in the Issuer by any Restricted Subsidiary;
(3) loans and advances to directors, employees and officers of the Issuer and its Restricted Subsidiaries (i) in the ordinary course of business (including payroll, travel and entertainment related advances) (other than any loans or advances to any director or executive officer (or equivalent thereof) that would be in violation of Section 402 of the Sarbanes-Oxley Act) and (ii) to purchase Equity Interests of the Issuer not in excess of $2.5 million individually and $5.0 million in the aggregate outstanding at any one time;
(4) Hedging Obligations entered into in the ordinary course of business for bona fide hedging purposes of the Issuer or any Restricted Subsidiary and not for the purpose of speculation;
(5) Investments in cash and Cash Equivalents;
(6) receivables owing to the Issuer or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Issuer or any such Restricted Subsidiary deems reasonable under the circumstances;
(7) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or received in compromise or resolution of litigation, arbitration or other disputes with such parties;
(8) prepaid expenses and deposits created or made in the ordinary course of business;
(9) Investments made by the Issuer or any Restricted Subsidiary as a result of non-cash consideration received in connection with (a) an Asset Sale made in compliance with Section 4.10 so long as such consideration is applied (and such Investment is made) in accordance with such covenant or (b) a transaction deemed not to be an Asset Sale pursuant to clause (l) of the definition of Asset Sale;
(10) lease, utility and other similar deposits in the ordinary course of business;
(11) stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Issuer or any Restricted Subsidiary or in satisfaction of judgments;
(12) (a) Permitted Business Investments having an aggregate Fair Market Value (measured on the date each such Permitted Business Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Permitted Business Investments made pursuant to this clause (12)(a) since the Issue Date, do not exceed $200.0 million (net of, with respect to the Permitted Business Investment in any particular Person made pursuant to this clause (12)(a), the cash return thereon received after the Issue Date as a result of any sale for cash, repayment,
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redemption, liquidating distribution or other cash realization (not included in Consolidated Net Income) not to exceed the amount of such Permitted Business Investments in such Person made after the Issue Date in reliance on this clause (12)(a)) and (b) any Permitted Business Investment if and only if, immediately after giving pro forma effect thereto and the incurrence of any Indebtedness the net proceeds of which are used to finance such Permitted Business Investment, the Secured Leverage Ratio would be less than 3.0 to 1.0;
(13) guarantees of Indebtedness of the Issuer or any of its Restricted Subsidiaries permitted in accordance with Section 4.9;
(14) repurchases of, or other Investments in, the Notes;
(15) advances or extensions of credit in the nature of accounts receivable arising from the sale or lease of goods or services, the leasing of equipment or the licensing of property in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Issuer or the applicable Restricted Subsidiary deems reasonable under the circumstances;
(16) charters of Vessels in the ordinary course of business;
(17) Investments existing on the Issue Date or made pursuant to commitments in effect on the Issue Date;
(18) Investments the payment for which consists of Equity Interests (exclusive of Disqualified Equity Interests) of the Issuer; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under the Restricted Payments Basket;
(19) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) that, when taken together with all other Investments made pursuant to this clause (19) since the Issue Date, do not exceed $200.0 million (net of, with respect to the Investment in any particular Person made pursuant to this clause (19), the cash return thereon received after the Issue Date as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated Net Income) not to exceed the amount of such Investments in such Person made after the Issue Date in reliance on this clause (19);
(20) performance guarantees of any trade or non-financial operating contract (other than such contract that itself constitutes Indebtedness) in the ordinary course of business;
(21) loans to a Person for the sole purpose of enabling such Person to purchase or otherwise acquire Equity Interests of a Restricted Subsidiary (other than a Guarantor) and solely for purposes of satisfying legal requirements or regulations; provided that (i) the proceeds of such loans are concurrently contributed to such Restricted Subsidiary, (ii)
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the Issuer, directly or indirectly, retains a Lien on the Equity Interests of such Restricted Subsidiary to secure the unpaid amount of such loan, and (iii) substantially all dividends and distributions from such Restricted Subsidiary to such Person on account of such Equity Interests are applied to prepay such loan; and
(22) Investments arising as a result of any Receivables Program.
In determining whether any Investment is a Permitted Investment, the Issuer may allocate or reallocate all or any portion of an Investment among the clauses of this definition and any of the provisions of Section 4.7.
Permitted Joint Venture means, with respect to a Person, any other Person (other than a Subsidiary of such Person) engaged in a Permitted Business (1) in which the Person has (i) veto power over significant entity level joint venture decisions and (ii) board or management committee representation and (2) of which at least 20.0% of the outstanding Equity Interests of such other Person is at the time owned directly or indirectly by the specified Person.
Permitted Liens means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent or that are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the Issuer or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(2) Liens in respect of property of the Issuer or any Restricted Subsidiary imposed by law, which were not incurred or created to secure Indebtedness for borrowed money, such as maritime, carriers, warehousemens, materialmens, landlords, workmens, suppliers, vendors, repairmens and mechanics Liens and other similar Liens so long as all such Liens arise in the ordinary course of business, and which do not in the aggregate materially detract from the value of the property of the Issuer or its Restricted Subsidiaries, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Issuer and its Restricted Subsidiaries, taken as a whole;
(3) pledges or deposits made in connection therewith in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security or similar regulations;
(4) (i) Liens incurred in the ordinary course of business to secure the performance of tenders, bids, trade contracts, stay and customs bonds, leases, statutory obligations, surety and appeal bonds, performance bonds, statutory bonds, government contracts, performance and return money bonds and other similar obligations (in each case, exclusive of obligations for the payment of borrowed money) and (ii) Liens incurred in the ordinary course of business to secure liability for premiums to insurance carriers;
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(5) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(6) Liens arising out of judgments or awards not resulting in a Default or an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
(7) survey exceptions, easements, rights of way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar charges or encumbrances, and minor title deficiencies on or with respect to any Real Property, in each case whether now or hereafter in existence, not (i) securing Indebtedness and (ii) in the aggregate materially interfering with the conduct of the business of the Issuer and its Restricted Subsidiaries and not materially impairing the use of such Real Property in such business;
(8) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of the Issuer or any Restricted Subsidiary, including rights of offset and setoff;
(9) bankers Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Issuer or any Restricted Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements;
(10) any interest or title of a lessor under any lease entered into by the Issuer or any Restricted Subsidiary not in violation of this Indenture;
(11) the filing of UCC financing statements solely as a precautionary measure in connection with operating leases, consignments of goods or transfers of accounts, in each case to the extent not securing performance of a payment or other obligation;
(12) Liens on accounts receivable and related assets arising in connection with any Receivables Program;
(13) Liens existing on the Issue Date securing Indebtedness outstanding on the Issue Date other than Liens securing Indebtedness under Credit Facilities incurred pursuant to clause (1) of the definition of Permitted Indebtedness herein or the Notes; provided that (i) the aggregate principal amount of the Indebtedness, if any, secured by such Liens does not increase; and (ii) such Liens do not encumber any property other than the property subject thereto on the Issue Date (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);
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(14) Liens in favor of the Issuer or a Guarantor;
(15) (A) First Priority Liens held by the First Priority Agent for the benefit of the First Priority Secured Parties on the Collateral securing (i) First Priority Claims constituting Indebtedness under the Credit Facilities (and all other Obligations (other than principal) related to such Indebtedness and owing under the documents relating to such Indebtedness, including any guarantees of such Indebtedness) to the extent all of the foregoing is incurred (and permitted to be incurred) pursuant to clause (1) of the definition of Permitted Indebtedness herein (ii) First Priority Claims constituting Hedging Obligations incurred (and permitted to be incurred) under clause (5) of the definition of Permitted Indebtedness herein and (iii) First Priority Claims constituting Treasury Management Arrangements incurred (and permitted to be incurred) under clause (14) of the definition of Permitted Indebtedness herein and (B) Second Priority Liens held by the Collateral Agent on the Collateral for the benefit of the Secured Parties securing (i) the Initial Notes and the Guarantees thereof (and all other Obligations (other than principal) related to the Initial Notes and owing under the documents related thereto) to the extent all of the foregoing is incurred (and permitted to be incurred) pursuant to clause (2) of the definition of Permitted Indebtedness herein and (ii) any Additional Notes (and all other Obligations (other than principal) related to such Additional Notes and owing under the documents relating to such Additional Notes, including the Guarantees thereof) to the extent all of the foregoing is incurred (and permitted to be incurred) under the Coverage Ratio Exception or clause (13) of the definition of Permitted Indebtedness herein; provided that, with respect to this clause (B)(ii), either (a) the aggregate principal amount of such Additional Notes (when added to the aggregate principal amount of any other Additional Notes that are outstanding) does not exceed $100.0 million at any one time outstanding or (b) at the time of incurrence of such Additional Notes, on a pro forma basis giving effect to the use of proceeds thereof, the Secured Leverage Ratio would not exceed 3.0 to 1.0;
(16) Liens arising pursuant to Purchase Money Indebtedness, and Refinancing Indebtedness incurred in respect of any such Purchase Money Indebtedness, in an aggregate amount not to exceed $150.0 million at any one time outstanding; provided that (i) the Indebtedness secured by any such Lien (including refinancings thereof) does not exceed 100.0% of the cost of the property being acquired or leased at the time of the incurrence of such Indebtedness and (ii) any such Liens attach only to the property being financed pursuant to such Purchase Money Indebtedness (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and do not encumber any other property of the Issuer or any Restricted Subsidiary;
(17) Liens on property (or the property of a Person) existing at the time such property (or Person) is acquired by, or amalgamated or merged with or into or consolidated with, as applicable, the Issuer or any Restricted Subsidiary (and not created in anticipation or contemplation thereof); provided that such Liens shall be permitted under this clause (17) only to the extent they do not extend to property not subject to such Liens at the time of acquisition, amalgamation or merger (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);
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(18) Liens to secure Indebtedness incurred to replace or refinance Indebtedness secured by Liens referred to in the foregoing clauses (13) and (17) and this clause (18); provided that such Liens shall be permitted under this clause (18) only to the extent they do not extend to any additional assets (other than improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof) and provided, further, that the amount of such Indebtedness is not increased except as necessary to pay premiums or expenses incurred in connection with such refinancing;
(19) licenses, sublicenses or leases or subleases of property, including Intellectual Property, granted by the Issuer or any Restricted Subsidiary in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Issuer or such Restricted Subsidiary;
(20) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business;
(21) Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Issuer or any Restricted Subsidiary, which defeasance is otherwise permitted under this Indenture;
(22) Liens securing Hedging Obligations entered into for bona fide hedging purposes of the Issuer or any Restricted Subsidiary and not for the purpose of speculation;
(23) Liens in favor of the Trustee as provided for in this Indenture on money or property held or collected by the Trustee in its capacity as Trustee;
(24) other Liens with respect to obligations which do not in the aggregate exceed at any time outstanding the greater of (a) $75.0 million and (b) 2.5% of the Issuers Consolidated Tangible Assets determined at the time of incurrence of such obligation; provided that no Liens securing Indebtedness for borrowed money may be incurred pursuant to this clause (24) other than (a) Liens securing local working capital lines of credit and Purchase Money Indebtedness (and Refinancing Indebtedness in respect thereof), in each case encumbering property or assets (other than Collateral) of non-wholly-owned Restricted Subsidiaries that are organized outside the United States and not Guarantors and (b) the Permitted Amount; provided further that, notwithstanding the foregoing, no Liens may be incurred pursuant to this clause (24) on the North Ocean 102 Vessel, the North Ocean 105 Vessel or on the equity interests of any entities holding such Vessels;
(25) any pledge of the Equity Interests of an Unrestricted Subsidiary to secure Indebtedness of such Unrestricted Subsidiary, to the extent such pledge constitutes an Investment permitted under the covenant described in Section 4.7; and
(26) (i) Liens on the Deepwater Lay Vessel 2000 (and any related equipment and spare parts) securing Indebtedness incurred by the special purpose vehicle Subsidiary of the Issuer whose purpose is to own and operate the Deepwater Lay Vessel 2000 to
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finance the construction and purchase of the Deepwater Lay Vessel 2000 (and such related equipment and spare parts) and (ii) Liens on the Equity Interests of the special purpose vehicle Subsidiary that incurs such Indebtedness; provided that the Indebtedness secured by any such Lien does not exceed 80.0% of the cost of the Deepwater Lay Vessel 2000 (and such related equipment and spare parts).
Person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, mutual fund trust or government or other agency or political subdivision thereof or other legal entity of any kind.
Plan of Liquidation with respect to any Person, means a plan that provides for, contemplates or the effectuation of which is preceded or accompanied by (whether or not substantially contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other disposition of all or substantially all of the assets of such Person otherwise than as an entirety or substantially as an entirety; and (2) the distribution of all or substantially all of the proceeds of such sale, lease, conveyance or other disposition of all or substantially all of the remaining assets of such Person to holders of Equity Interests of such Person.
Preferred Stock means, with respect to any Person, any and all preferred or preference stock or other Equity Interests (however designated) of such Person whether now outstanding or issued after the Issue Date that is preferred as to the payment of dividends or distributions upon liquidation, dissolution or winding up, over another class of Equity Interests of such Person.
principal means, with respect to the Notes, the principal of, and premium, if any, on the Notes.
Purchase Money Indebtedness means Indebtedness, including Capitalized Lease Obligations, of the Issuer or any Restricted Subsidiary incurred for the purpose of financing all or any part of the purchase price of property, plant or equipment used in the business of the Issuer or any Restricted Subsidiary or the cost of installation, construction or improvement thereof; provided, however, that (except in the case of Capitalized Lease Obligations) the amount of such Indebtedness shall not exceed such purchase price or cost.
Qualified Equity Interests of any Person means Equity Interests of such Person other than Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed, directly or indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such Person or any Subsidiary of such Person (including, without limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of the Issuer.
Qualified Equity Offering means the issuance and sale of Qualified Equity Interests of the Issuer (or any direct or indirect parent of the Issuer to the extent the net proceeds therefrom are contributed to the common equity capital of the Issuer or used to purchase Qualified Equity Interests of the Issuer), other than (a) any issuance pursuant to employee benefit plans or otherwise in compensation to officers, directors, trustees or employees, or (b) public offerings with respect to the Issuers Qualified Equity Interests (or options, warrants or rights with respect thereto) registered on Form S-4 or S-8.
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Rating Agencies means Moodys and S&P.
Real Property means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
Receivables Program means any program providing for the sale or other disposition of trade or other receivables entered into by the Issuer or a Restricted Subsidiary on terms customary for such financing transactions, the terms of which arrangement do not impose any recourse or repurchase obligations upon the Issuer or any Restricted Subsidiary except for reasonably customary representations, warranties, covenants and indemnities by the Issuer or a Restricted Subsidiary in connection therewith.
Receivables Program Indebtedness means, at any time, the liabilities of the Issuer or a Restricted Subsidiary under a Receivables Program that would be outstanding at such time thereunder if the same were structured as a secured lending arrangement rather than a purchase and sale arrangement.
Redesignation has the meaning set forth in Section 4.18.
refinance means to refinance, repay, prepay, replace, renew or refund.
Refinancing Indebtedness means Indebtedness of the Issuer or a Restricted Subsidiary incurred in exchange for, or the proceeds of which are used to redeem, refinance, replace, defease, discharge, refund or otherwise retire for value, in whole or in part, any Indebtedness of the Issuer or any Restricted Subsidiary (the Refinanced Indebtedness); provided that:
(1) the principal amount (or accreted value, in the case of Indebtedness issued at a discount) of the Refinancing Indebtedness does not exceed the principal amount of the Refinanced Indebtedness plus the amount of accrued and unpaid interest on the Refinanced Indebtedness, any premium paid to the holders of the Refinanced Indebtedness and reasonable expenses incurred in connection with the incurrence of the Refinancing Indebtedness;
(2) the obligors of the Refinancing Indebtedness do not include any Person (other than the Issuer or any Guarantor) that is not an obligor of the Refinanced Indebtedness;
(3) if the Refinanced Indebtedness was subordinated in right of payment to the Notes or the Guarantees, as the case may be, then such Refinancing Indebtedness, by its terms, is subordinate in right of payment to the Notes or the Guarantees, as the case may be, at least to the same extent as the Refinanced Indebtedness;
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(4) the Refinancing Indebtedness has a Stated Maturity either (a) no earlier than the Refinanced Indebtedness being repaid or amended or (b) no earlier than 91 days after the maturity date of the Notes;
(5) the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the maturity date of the Notes has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is equal to or greater than the Weighted Average Life to Maturity of the portion of the Refinanced Indebtedness being repaid that is scheduled to mature on or prior to the maturity date of the Notes; and
(6) the proceeds of the Refinancing Indebtedness shall be used substantially concurrently with the incurrence thereof to redeem, refinance, replace, defease, discharge, refund or otherwise retire for value the Refinanced Indebtedness, unless the Refinanced Indebtedness is not then due and is not redeemable or prepayable at the option of the obligor thereof or is redeemable or prepayable only with notice, in which case such proceeds shall be held until the Refinanced Indebtedness becomes due or redeemable or prepayable or such notice period lapses and then shall be used to refinance the Refinanced Indebtedness; provided that in any event the Refinanced Indebtedness shall be redeemed, refinanced, replaced, defeased, discharged, refunded or otherwise retired for value within one year of the incurrence of the Refinancing Indebtedness.
Regulation S Legend means the legend identified as such in Exhibit A.
Responsible Officer means, when used with respect to the Trustee, any officer assigned to the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such persons knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
Restricted Notes Legend means the legend identified as such in Exhibit A.
Restricted Payment means any of the following:
(1) the declaration or payment of any dividend or any other distribution (whether made in cash, securities or other property) on or in respect of Equity Interests of the Issuer or any Restricted Subsidiary or any payment made to the direct or indirect holders (in their capacities as such) of Equity Interests of the Issuer or any Restricted Subsidiary, including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of its Restricted Subsidiaries but excluding (a) dividends or distributions payable solely in Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests and (b) in the case of any Restricted Subsidiary, any dividend or distribution to the holders of its Equity Interests on a pro rata basis or a basis more favorable to the Issuer;
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(2) the purchase, redemption, defeasance or other acquisition or retirement for value of any Equity Interests of the Issuer or any direct or indirect parent of the Issuer held by Persons other than the Issuer or a Restricted Subsidiary (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer);
(3) any Investment other than a Permitted Investment; or
(4) any principal payment on, purchase, redemption, defeasance, prepayment, decrease or other acquisition or retirement for value prior to any scheduled maturity in respect of any Subordinated Indebtedness (other than any such payment made within one year of any such scheduled maturity and other than any Subordinated Indebtedness owed to and held by the Issuer or any Restricted Subsidiary permitted under clause (6) of the definition of Permitted Indebtedness herein).
Restricted Payments Basket has the meaning set forth in Section 4.7(a).
Restricted Subsidiary means any Subsidiary other than an Unrestricted Subsidiary. Unless otherwise specified, Restricted Subsidiary refers to a Restricted Subsidiary of the Issuer.
S&P means Standard & Poors Ratings Services, a division of the McGraw-Hill Companies, Inc., and its successors.
SEC means the U.S. Securities and Exchange Commission.
Second Lien Pledge and Security Agreement means the Second Lien Pledge and Security Agreement, dated as of the Issue Date, by and among, the Issuer, the Grantors party thereto and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time and substantially in the form of Exhibit E to this Indenture.
Second Priority Liens means Liens on the Collateral securing the Notes Obligations.
Secured Parties means the holders of the Notes Obligations (including the Holders, the Trustee and the Collateral Agent).
Secretarys Certificate means a certificate signed by the Secretary of the Issuer.
Secured Leverage Ratio as of any date of determination means the ratio of (x) the aggregate amount of Indebtedness for borrowed money (which, notwithstanding anything to the contrary, shall include reimbursement obligations in respect of any letters of credit that have been drawn upon or presented and not paid within five Business Days) of the Issuer and the Restricted Subsidiaries that is secured by a Lien on property or assets of the Issuer or a Restricted Subsidiary to (y) Consolidated Cash Flow of the Issuer for the four most recent fiscal quarters for which internal financial statements are available immediately preceding the date on which such calculation is being made, in each case determined on a pro forma basis consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Interest Coverage Ratio.
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Securities Act means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
Significant Subsidiary means any Restricted Subsidiary that would be a significant subsidiary as defined in Rule 102 of Regulation S-X promulgated pursuant to the Securities Act as such Regulation was in effect on the Issue Date.
Stated Maturity means, with respect to any Indebtedness, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
Subordinated Indebtedness means Indebtedness of the Issuer or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or the Guarantees, respectively.
Subsidiary means, with respect to any Person:
(1) any corporation, limited liability company, association, trust or other business entity of which more than 50.0% of the total voting power of the Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).
provided that any reference herein to a Subsidiary of the Issuer shall (i) exclude any Person whose financial statements are not at that time consolidated with the financial statements of the Issuer in accordance with GAAP and (ii) include any Person whose financial statements are at that time consolidated with the financial statements of the Issuer in accordance with GAAP.
Unless otherwise specified, Subsidiary refers to a Subsidiary of the Issuer.
Tangible Equity Units means the 11,500,000 6.25% tangible equity units issued by the Issuer on April 7, 2014.
Transfer Restricted Notes means Notes that bear or are required to bear the Restricted Notes Legend.
Treasury Management Arrangement means any arrangement for credit card, cash management, clearing house, wire transfer, depository, treasury or investment services in connection with any transfer or disbursement of funds through an automated clearinghouse or on
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a same day or immediate or accelerated availability basis (including all monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise of the Issuer or any of its Restricted Subsidiaries arising out of any cash management, clearing house, wire transfer, depository, treasury or investment services) provided to the Issuer or any of its Restricted Subsidiaries.
Trustee means Wells Fargo Bank, National Association, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
Treasury Rate means, as of any redemption date, the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to May 1, 2017; provided, however, that if the period from the redemption date to May 1, 2017 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from the redemption date to May 1, 2017 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended.
United States or U.S. means the United States of America.
Unrestricted Subsidiary means (a) Boudin Insurance Company, Ltd., (b) any other Subsidiary of the Issuer that at the time of determination shall have been designated an Unrestricted Subsidiary by the Board of Directors of the Issuer in accordance with Section 4.18 and (c) any Subsidiary of an Unrestricted Subsidiary. Notwithstanding the preceding, if at any time any Unrestricted Subsidiary would fail to meet the requirements of an Unrestricted Subsidiary described in Section 4.18, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture.
Unsecured Notes means the senior amortizing notes due 2017 in original aggregate principal amount of approximately $47.5 million initially comprising part of the Tangible Equity Units and issued by the Issuer on April 7, 2014 (but not any additional senior amortizing notes).
U.S. Government Obligations means direct non-callable obligations of, or guaranteed by, the United States for the payment of which guarantee or obligations the full faith and credit of the United States is pledged.
Vessel means any marine vessel used or useful in the business of the Issuer or its Restricted Subsidiaries, together with all related spares, equipment and any additions or improvements thereto.
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Voting Stock with respect to any Person, means securities of any class of Equity Interests of such Person entitling the holders thereof at such time (without regard to the occurrence of any contingency) to vote in the election of members of the Board of Directors of such Person.
Weighted Average Life to Maturity when applied to any Indebtedness at any date, means the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at Stated Maturity, in respect thereof by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (2) the then outstanding principal amount of such Indebtedness.
SECTION 1.2. Other Definitions.
Term |
Defined in Section | |
acceleration declaration |
6.2 | |
Act |
12.14(a) | |
Additional Amounts |
2.17(1)(a) | |
Affiliate Transaction |
4.11(a) | |
Change of Control Offer |
4.14(2) | |
Change of Control Payment Date |
4.14(2) | |
Change of Control Purchase Price |
4.14 | |
Covenant Defeasance |
8.3 | |
Covenant Suspension Event |
4.21(a) | |
Coverage Ratio Exception |
4.9(a) | |
Deposit Trustee |
8.5 | |
EDGAR |
4.3 | |
Event of Default |
6.1 | |
Excess Proceeds |
4.10(b) | |
Four-Quarter Period |
1.1 | |
Judgment Currency |
12.18 | |
Legal Defeasance |
8.2 | |
Net Proceeds Offer |
4.10(c) | |
Net Proceeds Offer Amount |
4.10(d) | |
Net Proceeds Offer Period |
4.10(d) | |
Net Proceeds Purchase Date |
4.10(d) | |
Non-Guarantor Debt Cap |
4.9(b) | |
Permitted Indebtedness |
4.9(b) | |
QIBs |
2.1(b) | |
Refinanced Indebtedness |
1.1 | |
Registrar |
2.3 | |
Regulation S |
2.1(b) | |
Regulation S Global Note |
2.1(b) | |
Restricted Period |
2.15(a)(i) | |
Reversion Date |
4.21(b) |
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Term |
Defined in Section | |
Rule 144A |
2.1(b) | |
Rule 144A Global Note |
2.1(b) | |
Specified Tax Jurisdiction |
2.17(1) | |
Surviving Entity |
5.1(a)(1)(b) | |
Suspended Covenants |
4.21(a) | |
Suspension Period |
4.21(c) | |
Transaction Date |
1.1 |
SECTION 1.3. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) unless otherwise specified, any reference to Section, Article or Exhibit refers to such Section, Article or Exhibit, as the case may be, of this Indenture;
(6) provisions apply to successive events and transactions;
(7) all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United States;
(8) references to agreements, documents and other instruments herein include amendments, supplements, restatements and waivers to such agreements, documents or instruments but only to the extent any such amendments, supplements, restatements and waivers are not prohibited by the Indenture Documents; and
(9) references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time.
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating. The Notes and the Trustees certificate of authentication shall be substantially in the form of Exhibit A attached hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes will be issued in registered form, without coupons, and in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The registered Holder will be treated as the owner of such Note for all purposes.
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The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
(a) The Notes shall be issued initially in the form of one or more Global Notes, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified therein, and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Note Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.6.
(b) The Initial Notes are being issued by the Issuer only (i) to qualified institutional buyers (as defined in Rule 144A under the Securities Act (Rule 144A)) (QIBs) and (ii) in reliance on Regulation S under the Securities Act (Regulation S). After such initial issuance, Initial Notes that are Transfer Restricted Notes may be transferred to QIBs in reliance on Rule 144A or outside the United States pursuant to Regulation S or to the Issuer, in accordance with certain transfer restrictions. Initial Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A and bear the Restricted Notes Legend (collectively, the Rule 144A Global Note), deposited with the Note Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. Initial Notes that are offered in offshore transactions in reliance on Regulation S shall be issued in the form of one or more permanent Global Notes substantially in the form set forth in Exhibit A and bear the Regulation S Legend (collectively, the Regulation S Global Note), deposited with the Note Custodian. The Rule 144A Global Note and the Regulation S Global Note shall each be issued with separate CUSIP numbers. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian. Transfers of Notes among QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate increases and decreases to the respective amounts of the appropriate Global Notes, as more fully provided in Section 2.15.
(c) Section 2.1(b) shall apply only to Global Notes deposited with or on behalf of the Depositary.
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The Issuer shall execute and the Trustee shall, in accordance with Section 2.1(a) and Section 2.1(b) and this Section 2.1(c) and Section 2.2, authenticate and deliver the Global Notes that (i) shall be registered in the name of the Depositary or the nominee of the Depositary and (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositarys instructions or held by the Note Custodian for the Depositary.
SECTION 2.2. Execution and Authentication. An Officer shall sign the Notes for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of a Responsible Officer of the Trustee. The signature of a Responsible Officer of the Trustee shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon receipt of a written order of the Issuer signed by one Officer directing the Trustee to authenticate the Notes and certifying that all conditions precedent to the issuance of the Notes contained herein have been complied with and receipt of an Opinion of Counsel, authenticate Notes for original issue in the aggregate principal amount stated in such written order.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent or agents. An authenticating agent has the same rights as an Agent to deal with Holders or the Issuer or an Affiliate of the Issuer.
SECTION 2.3. Registrar; Paying Agent. The Issuer shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (Registrar) and (ii) an office or agency where Notes may be presented for payment to a Paying Agent. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional Paying Agents. The term Registrar includes any co-registrar, and the term Paying Agent includes any additional Paying Agent. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer and/or any Restricted Subsidiary may act as Paying Agent or Registrar.
The Issuer shall notify the Trustee in writing, and the Trustee shall notify the Holders, of the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with Section 7.6.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent.
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The Issuer initially appoints DTC to act as the Depositary with respect to the Global Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and shall notify the Trustee of any Default by the Issuer in making any such payment. While any such Default continues, the Trustee may require a Paying Agent to pay to the Trustee all money held by it in trust for the benefit of the Holders or the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it in trust for the benefit of the Holders or the Trustee to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for such money. If the Issuer or any of its Restricted Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon the occurrence of any of the events specified in Section 6.1, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven (7) Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, including the aggregate principal amount of the Notes held by each Holder thereof.
SECTION 2.6. Book-Entry Provisions for Global Notes.
(a) Each Global Note shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be delivered to the Note Custodian for such Depositary and (iii) bear the Global Note legends as required by Section 2.6(e).
Members of, or Participants in, the Depositary shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Note Custodian, or under such Global Note, and the Depositary may be treated by the Issuer, and any Trustee or Agent and any of their respective agents, as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any Agent or their respective agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants, the operation of customary practices governing the exercise of the rights of an owner of a beneficial interest in any Global Note.
Neither the Trustee nor any Agent shall have any responsibility or obligation to any Holder that is a member of (or a Participant in) the Depositary or any other Person with respect to the accuracy of the records of the Depositary (or its nominee) or of any member or Participant thereof, with respect to any ownership interest in the Notes or with respect to the delivery of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to the Notes. Each of the Trustee and the Agents may rely (and shall be fully protected in relying) upon information furnished by the Depositary with respect to its members, Participants and any beneficial owners in the Notes.
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Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary (or its nominee).
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Note may be transferred in accordance with Section 2.15 and the rules and procedures of the Depositary. In addition, certificated Notes shall be transferred to beneficial owners in exchange for their beneficial interests only if (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes and a successor depositary is not appointed by the Issuer within ninety (90) days of such notice or (ii) there shall have occurred and be continuing an Event of Default and the Depositary shall have requested the issuance of certificated Notes.
(c) In connection with the transfer of the entire Global Note to beneficial owners pursuant to clause (b) of this Section 2.6, such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Note an equal aggregate principal amount of certificated Notes of authorized denominations.
(d) The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interest through Participants, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(e) Each Global Note shall bear the Global Note Legend on the face thereof.
(f) At such time as all beneficial interests in Global Notes have been exchanged for certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for certificated Notes, redeemed, repurchased or cancelled, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note, by the Trustee or the Note Custodian, at the direction of the Trustee, to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and certificated Notes at the Registrars request.
(2) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.10, Section 2.16, Section 3.6, Section 4.10, Section 4.14 and Section 9.4 hereof).
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(3) All Global Notes and certificated Notes issued upon any registration of transfer or exchange of Global Notes or certificated Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes (or interests therein) or certificated Notes surrendered upon such registration of transfer or exchange.
(4) The Registrar is not required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business fifteen (15) days before the day of any selection of Notes for redemption and ending at the close of business on the day of such selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.
(5) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent, or the Issuer shall be affected by notice to the contrary.
(6) The Trustee shall authenticate Global Notes and certificated Notes in accordance with the provisions of Section 2.2. Except as provided in Section 2.6(b), neither the Trustee nor the Registrar shall authenticate or deliver any certificated Note in exchange for a Global Note.
(7) Neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(8) Each Holder agrees to indemnify the Issuer and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holders Note in violation of any provision of this Indenture and/or applicable United States Federal or state securities law.
SECTION 2.7. Replacement Notes. If any mutilated Note is surrendered to the Trustee, or the Issuer and the Trustee receive evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon the written order of the Issuer signed by an Officer of the Issuer, shall authenticate a replacement Note if the Trustees requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be
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supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer, the Trustee and the Agents may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.8 as not outstanding. Except as set forth in Section 2.9, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on or after the maturity date, any redemption date or date for purchase of the Notes pursuant to an offer to purchase, money sufficient to pay the amounts under the Notes payable on such date, then on and after that date such Notes payable on such date shall be deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.9. Treasury Notes. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or by any Affiliate of the Issuer shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes of which a Responsible Officer of the Trustee has written notice as being so owned shall be so disregarded. Notwithstanding the foregoing, Notes that are to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an exchange offer, tender offer or other agreement shall not be deemed to be owned by such entity until legal title to such Notes passes to such entity.
SECTION 2.10. Temporary Notes. Until certificated Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes upon a written order of the Issuer signed by one Officer of the Issuer. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall upon receipt of a written order of the Issuer signed by one Officer, authenticate certificated Notes in certificate form in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11. Cancellation. The Issuer at any time may deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder or which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled
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by the Trustee. All Notes surrendered for registration of transfer, exchange or payment, if surrendered to any Person other than the Trustee, shall be delivered to the Trustee. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. Subject to Section 2.7, the Issuer may not issue new Notes to replace Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled Notes held by the Trustee shall be disposed of in accordance with its customary practice, and certification of their disposal delivered to the Issuer upon its written request therefor.
SECTION 2.12. Defaulted Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, which date shall be the earliest practicable date but in all events at least five (5) Business Days prior to the payment date, in each case at the rate provided in the Notes and in Section 4.1. The Issuer shall fix or cause to be fixed each such special record date and payment date and shall promptly thereafter notify the Trustee of any such date. At least fifteen (15) days before the special record date, the Issuer (or the Trustee, in the name and at the expense of the Issuer) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
SECTION 2.13. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 2.14. CUSIP Number. The Issuer in issuing the Notes may use a CUSIP number, and if it does so, the Trustee shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Notes and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuer shall promptly notify the Trustee in writing of any change in any CUSIP number.
SECTION 2.15. Special Transfer Provisions. Each Note issued pursuant to an exemption from registration under the Securities Act (other than in reliance on Regulation S) will constitute a Transfer Restricted Note and be required to bear the Restricted Notes Legend until the date that is one year after the later of the date of original issue and the last date on which the Issuer or any affiliate (within the meaning of Rule 405 under the Securities Act) of the Issuer was the owner of such Notes (or any predecessor thereto), unless and until such Transfer Restricted Note is transferred or exchanged pursuant to an effective registration statement under the Securities Act.
(a) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Note issued in reliance on Regulation S to a QIB:
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(i) The Registrar shall register the transfer of a Note issued in reliance on Regulation S by a Holder to a QIB if such transfer is being made by a proposed transferor who has provided the Registrar with (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit C from the proposed transferor; provided that the letter required by paragraph 2.5(a)(i)(b) shall only be required on or prior to the 40th day after the later of the commencement of the offering of such Note and the issue date of such Note (such period through and including such 40th day, the Restricted Period). The Issuer shall provide written notice to the Trustee of the date that constitutes the final day of the Restricted Period in respect of any Notes issued in reliance on Regulation S; provided, however, that no such notice shall be required with respect to any Initial Notes issued in reliance on Regulation S and May 26, 2014 shall constitute the final day of the Restricted Period for such Initial Notes.
(ii) If the proposed transferee is a Participant and the Note to be transferred consists of an interest in the Regulation S Global Note, upon receipt by the Registrar of (x) the items required by paragraph (i) above and (y) instructions given in accordance with the Depositarys and the Registrars procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the beneficial interest in the Regulation S Global Note to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of such Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in such Regulation S Global Note to be so transferred.
(b) Transfers Pursuant to Regulation S. The following provisions shall apply with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant to Regulation S:
(i) The Registrar shall register any proposed transfer of a Transfer Restricted Note by a Holder pursuant to Regulation S upon receipt of (a) an appropriately completed certificate of transfer in the form attached to the Note and (b) a letter substantially in the form set forth in Exhibit D hereto from the proposed transferor.
(ii) If the proposed transferee is a Participant and the Transfer Restricted Note to be transferred consists of an interest in the Rule 144A Global Note upon receipt by the Registrar of (x) the letter, if any, required by paragraph (i) above and (y) instructions in accordance with the Depositarys and the Registrars procedures therefor, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Note in an amount equal to the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Rule 144A Global Note in an amount equal to the principal amount of the beneficial interest in such Rule 144A Global Note to be transferred.
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(c) In the event that a Global Note is exchanged for Notes in certificated, registered form pursuant to Section 2.6, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of clauses (a) and (b) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and such other procedures as may from time to time be adopted by the Issuer and notified to the Trustee in writing.
(d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing the Restricted Notes Legend, the Registrar shall deliver Notes that do not bear the Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing the Restricted Notes Legend, the Registrar shall deliver only Notes that bear the Restricted Notes Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.
(e) Regulation S Legend. Upon the transfer, exchange or replacement of Notes not bearing the Regulation S Legend, the Registrar shall deliver Notes that do not bear the Regulation S Legend. Upon the transfer, exchange or replacement of Notes bearing the Regulation S Legend, the Registrar shall deliver only Notes that bear the Regulation S Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Restricted Notes Legend or the Regulation S Legend, as applicable, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Restricted Notes Legend or the Regulation S Legend, as applicable, and agrees that it shall transfer such Note only as provided in this Indenture. A transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a certificated Note or a beneficial interest in another Global Note shall be subject to compliance with applicable law and the applicable procedures of the Depositary but is not subject to any procedure required by this Indenture.
In connection with any proposed transfer pursuant to Regulation S or pursuant to any other available exemption from the registration requirements of the Securities Act (other than pursuant to Rule 144A), the Issuer may require the delivery of an Opinion of Counsel, other certifications or other information satisfactory to the Issuer.
The Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.15.
SECTION 2.16. Issuance of Additional Notes. The Issuer shall be entitled to issue Additional Notes in an unlimited aggregate principal amount under this Indenture that shall have identical terms as the Initial Notes, other than with respect to the date of issuance, issue price,
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amount of interest payable on the first interest payment date applicable thereto and transfer restrictions; provided that such issuance is not prohibited by the terms of this Indenture, including Section 4.9 and Section 4.12, provided further that Additional Notes will not be issued with the same CUSIP, if any, as any Notes then existing unless such Additional Notes are fungible with such Notes then existing for U.S. federal income tax purposes. The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Notes, the Issuer shall set forth in a resolution of its Board of Directors and in an Officers Certificate, a copy of each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date, the CUSIP number of such Additional Notes, the first interest payment date and the amount of interest payable on such first interest payment date applicable thereto and the date from which interest shall accrue;
(3) whether such Additional Notes shall be Transfer Restricted Notes; and
(4) that such issuance is not prohibited by this Indenture.
The Trustee shall, upon receipt of the resolution of the Issuers Board of Directors and Officers Certificate, authenticate the Additional Notes in accordance with the provisions of Section 2.2 of this Indenture.
SECTION 2.17. Payment of Additional Amounts.
(1) All payments made by or on behalf of the Issuer under or with respect to the Notes or by or on behalf of any Guarantor pursuant to its Guarantee, will be made without withholding or deduction for or on account of any taxes imposed or levied by or on behalf of any Panamanian taxing authority or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor (including any successor entity) is organized, incorporated, engaged in business or is otherwise resident or treated as resident for tax purposes, or any jurisdiction from or through which payment is made (including, without limitation, the jurisdiction of each paying agent) (each, a Specified Tax Jurisdiction), unless required by law or regulation of any such taxing authority. If the Issuer or a Guarantor is obligated to withhold or deduct any amount on account of taxes imposed by any Specified Tax Jurisdiction from any payment made with respect to the Notes, the Issuer or such Guarantor will:
(a) subject to the limitations below, pay to each Holder such additional amounts (Additional Amounts) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder would have received if such taxes had not been withheld or deducted;
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(b) furnish to the Trustee for the benefit of the Holders, within 60 days after the date payment of any taxes is due pursuant to applicable law, certified copies of an official receipt of the relevant government authorities for all amounts deducted or withheld pursuant to applicable law, or if such receipts are not readily obtainable without significant expense (as reasonably determined by the Issuer), other evidence of payment by the Issuer or such Guarantor of those taxes reasonably satisfactory to the Trustee which the Trustee will make available to the Holders or beneficial owners of Notes upon reasonable request; and
(c) at least 15 days prior to each date on which any Additional Amounts are payable, deliver to the Trustee an Officers Certificate setting forth the calculation of the Additional Amounts to be paid and such other information as the Trustee may request to enable the Trustee to pay such Additional Amounts to Holders on the payment date. The Issuer agrees to indemnify the Trustee and each Paying Agent for, and to hold each harmless against, any loss, liability or expense reasonably incurred without bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance on any such Officers Certificate or any failure to furnish such a certificate. The obligations of the Issuer hereunder shall survive the payment of the Notes, the resignation or removal of the Trustee or any Paying Agent and/or termination of this Indenture.
(2) Notwithstanding the foregoing, neither the Issuer nor any Guarantor will pay Additional Amounts with respect to a payment made to any Holder or beneficial owner of a Note:
(a) which is subject to such taxes by reason of the Holder or the beneficial owner being a resident, domicile or national of, or engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with the relevant Specified Tax Jurisdiction otherwise than by the mere acquisition, holding or disposition of the Notes, enforcement of rights hereunder or the receipt of payments thereunder;
(b) for or on account of any taxes imposed or deducted or withheld by reason of the failure of the Holder or beneficial owner of the Notes to complete, execute and deliver to the Issuer or a Guarantor, as the case may be, any customary form or document, to the extent applicable to such Holder or beneficial owner, that may be required by law (including any applicable tax treaty) or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Issuer or such Guarantor in order to enable the Issuer or such Guarantor to make payments on the Notes or pursuant to any Guarantee, as the case may be, without deduction or withholding for taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by the Issuer or such Guarantor;
(c) for or on account of any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
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(d) for or on account of any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(e) where the payment could have been made without deduction or withholding if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later;
(f) if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment, to the extent that such payment would be required to be included in income under the laws of the relevant taxing jurisdiction for tax purposes, of a beneficiary or settler with respect to such fiduciary, a member of such partnership or a beneficial owner who, in each case, would not have been entitled to such Additional Amounts had such beneficiary, settler, partner or beneficial owner been the Holder thereof; or
(g) any combination of the instances described in the foregoing clauses (a) through (f).
(3) Any reference in this Indenture or the Notes to the payment of principal, premium, if any, interest, purchase price, redemption price or any other amount payable under or with respect to any Note, will be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. The Issuers and the Guarantors obligation to make payments of Additional Amounts will survive any termination of this Indenture or the defeasance of any rights hereunder.
(4) The Issuer will promptly pay when due any present or future stamp, issue, registration, documentation, court or similar documentary taxes or any other excise or property taxes, charges or similar levies (including interest and penalties with respect thereto) that arise in a Specified Tax Jurisdiction from the execution, delivery or registration of each Note or any other document or instrument referred to herein or therein.
ARTICLE III
REDEMPTION AND PREPAYMENT
SECTION 3.1. Notices to Trustee. If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 3.7, it shall furnish to the Trustee, at least three (3) Business Days (or such shorter period as is acceptable to the Trustee) prior to the giving of notice of redemption, an Officers Certificate setting forth the (i) section of this Indenture pursuant to which the redemption shall occur, (ii) redemption date, (iii) principal amount of Notes to be redeemed and (iv) redemption price (provided that, with respect to any redemption pursuant to Section 3.7(a), the redemption price need only be included in such notice to the extent the redemption price has been determined at the time of such notice (and if not so determined at such time, such notice shall then include the manner in which the redemption price will be calculated)).
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If the Issuer is required to make an offer to purchase Notes pursuant to Section 4.10 or Section 4.14, it shall furnish to the Trustee, at least three (3) Business Days (or such shorter period as is acceptable to the Trustee) prior to the giving of notice of the offer to purchase, an Officers Certificate setting forth the (i) section of this Indenture pursuant to which the offer to purchase shall occur, (ii) terms of the offer, (iii) principal amount of Notes to be purchased, (iv) purchase price and (v) purchase date and further setting forth a statement to the effect that (a) the Issuer or one of its Restricted Subsidiaries has effected an Asset Sale and there are Excess Proceeds aggregating an amount equal to or more than $25.0 million or (b) a Change of Control has occurred, as applicable.
The Issuer will also provide the Trustee with any additional information that the Trustee reasonably requests in connection with any redemption or offer.
SECTION 3.2. Selection of Notes to Be Redeemed. If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis (subject to the procedures of the Depositary), by lot or by such method as the Trustee, in its sole discretion, may deem fair and appropriate; provided, however that no Notes of $2,000 in original principal amount or less shall be redeemed in part. In addition, if a partial redemption is made pursuant to Section 3.7(c), selection of the Notes or portions thereof for redemption shall be made by the Trustee only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to the procedures of the Depositary), unless that method is otherwise prohibited.
On and after the redemption date, interest will cease to accrue on Notes or portions of them called for redemption so long as the Issuer has complied with Section 3.5 in connection with such redemption. The Trustee shall make the selection from the Notes outstanding and not previously called for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to this Indenture and shall promptly notify the Issuer in writing of the Notes selected for redemption. The Trustee may select for redemption portions (equal to $1,000 or any integral multiples of $1,000 thereof) of the principal of the Notes that have denominations larger than $2,000.
SECTION 3.3. Notice of Redemption. Subject to the provisions of Section 4.10 and Section 4.14, the Issuer shall deliver or cause to be delivered in accordance with Section 12.1, a notice of redemption to each Holder whose Notes are to be redeemed (with a copy to the Trustee), at least thirty (30) days but not more than sixty (60) days before a redemption date (except that notices may be delivered more than sixty (60) days before a redemption date if the notice is issued in accordance with Section 8.8).
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The notice shall identify the Notes (including CUSIP numbers) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price; provided that, with respect to any redemption pursuant to Section 3.7(a), the redemption price need only be included in the notice of redemption to the extent the redemption price has been determined at the time of such notice of redemption (and if not so determined at such time, the notice of redemption shall then include the manner in which the redemption price will be calculated);
(3) if any Note is being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the redemption date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);
(4) the name and address of the Trustee;
(5) that Notes called for redemption must be surrendered to the Trustee to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes; and
(9) if applicable, any conditions to such redemption.
At the Issuers written request, the Trustee shall give the notice of redemption in the Issuers name and at the Issuers expense; provided, however, that the Issuer shall have delivered to the Trustee, at least three (3) Business Days prior to the giving of notice of redemption (or such shorter period as is acceptable to the Trustee), an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in the notice as provided in the preceding paragraph. The notice delivered in the manner herein provided shall be deemed to have been duly given whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note shall not affect the validity of the proceeding for the redemption of any other Note.
SECTION 3.4. Effect of Notice of Redemption. Except with respect to notices of redemption given in accordance with Section 3.7(d), once notice of redemption is delivered in accordance with Section 3.3, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price plus accrued and unpaid interest to (but excluding) such date unless the redemption is subject to a condition precedent that has not been satisfied or waived. Notice of redemption may, at the Issuers option and discretion, be subject to one or more conditions precedent as set forth in Section 3.7(f).
SECTION 3.5. Deposit of Redemption Price. On or before 10:00 a.m. (New York City time) on the Business Day prior to each redemption date or the date on which Notes must be accepted for purchase pursuant to Section 4.10 or Section 4.14, the Issuer shall deposit with the
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Trustee or with the Paying Agent (other than the Issuer or an Affiliate of the Issuer) money sufficient to pay the redemption price of and accrued and unpaid interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of (including any applicable premium), and accrued interest, if any, on, all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in a Net Proceeds Offer or Change of Control Offer are paid or if the Issuer has deposited with the Trustee or Paying Agent money sufficient to pay the redemption or purchase price of, and unpaid and accrued interest, if any, on, all Notes to be redeemed or purchased, on and after the redemption or purchase date, interest, if any, shall cease to accrue on the Notes or the portions of Notes called for redemption or tendered and not withdrawn in a Net Proceeds Offer or Change of Control Offer (regardless of whether certificates for such securities are actually surrendered). If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case, at the rate provided in the Notes and in Section 4.1.
SECTION 3.6. Notes Redeemed in Part. Upon surrender and cancellation of a Note that is redeemed in part, the Issuer shall issue and, upon the written request of an Officer of the Issuer, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed portion of the Note surrendered and canceled; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.
SECTION 3.7. Optional Redemption.
(a) The Notes may be redeemed, in whole or in part, at any time prior to May 1, 2017 at the option of the Issuer upon notice in accordance with the provisions of Section 3.3, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium (calculated by the Issuer) as of, and accrued and unpaid interest, if any, to (but excluding), the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(b) The Notes are subject to redemption, at the option of the Issuer, in whole or in part, at any time or from time to time on or after May 1, 2017, upon notice in accordance with the provisions of Section 3.3, at the following redemption prices (expressed as percentages of the principal amount to be redeemed) set forth below, plus accrued and unpaid interest, if any, on the Notes to be redeemed to (but excluding) the applicable redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period beginning May 1 of the years indicated below:
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Year |
Redemption Price |
|||
2017 |
104.000 | % | ||
2018 |
102.000 | % | ||
2019 and thereafter |
100.000 | % |
(c) At any time or from time to time prior to May 1, 2017, the Issuer, at its option, may on any one or more occasions, upon notice in accordance with the provisions of Section 3.3, redeem up to 35.0% of the aggregate principal amount of the outstanding Notes issued under this Indenture (calculated after giving effect to any issuance of Additional Notes) with the net cash proceeds of one or more Qualified Equity Offerings (which have not been applied to permanently repay other Indebtedness) at a redemption price equal to 108.000% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to (but excluding) the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that:
(1) at least 65.0% of the aggregate principal amount of Notes issued under this Indenture on the Issue Date remains outstanding immediately after giving effect to any such redemption; and
(2) the redemption occurs not more than 180 days after the date of the closing of any such Qualified Equity Offering.
(d) If the Issuer becomes obligated to pay any Additional Amounts as a result of a change in the laws or regulations of any Specified Tax Jurisdiction, or a change in any official position regarding the application or interpretation thereof (including a holding by a court of competent jurisdiction), which is publicly announced or becomes effective on or after the Issue Date (or, if later, on or after the date the relevant Specified Tax Jurisdiction first becomes a Specified Tax Jurisdiction) and such Additional Amounts cannot (as certified in an Officers Certificate to the Trustee) be avoided by the use of reasonable measures available to the Issuer, then the Issuer may, at its option, redeem the Notes, in whole but not in part, upon notice in accordance with the provisions of Section 3.3 (such notice to be provided not more than 90 days before the next date on which the Issuer would be obligated to pay Additional Amounts), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date). Notice of the Issuers intent to redeem the Notes shall not be effective until such time as it delivers to the Trustee an Opinion of Counsel stating that the Issuer is obligated to pay Additional Amounts because of an amendment to or change in law or regulation or position as described in this paragraph.
(e) Any redemption pursuant to this Section 3.7 shall be made in accordance with the applicable provisions of Sections 3.1 through 3.6.
(f) Any redemption and any notice of any redemption (other than, in each case, a redemption under Section 3.7(d)) may, at the Issuers discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a Qualified Equity Offering, other offering, issuance of Indebtedness or other corporate transaction or event. Notice of any redemption in respect thereof may be given prior to the completion thereof and may be partial as a result of only some of the conditions being satisfied.
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ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes.
(a) The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid for all purposes hereunder on the date the Trustee or the Paying Agent, if other than the Issuer or a Restricted Subsidiary thereof, holds, as of 10:00 a.m. (New York City time) on the Business Day prior to the relevant payment date, U.S. dollars deposited by the Issuer in immediately available funds and designated for and sufficient to pay all such principal, premium, if any, and interest then due.
(b) The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency. The Issuer shall maintain an office or agency where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer and Guarantors in respect of the Notes and this Indenture (other than the type contemplated by Section 12.19) may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish to the Trustee the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.3.
SECTION 4.3. Provision of Financial Information.
Whether or not required by the SEC, so long as any Notes are outstanding, the Issuer will furnish to the Trustee and the Holders, or, to the extent permitted by the SEC, file electronically with the SEC through the SECs Electronic Data Gathering, Analysis and Retrieval System (or any successor system) (EDGAR) within the time periods specified in the SECs rules and regulations:
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(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuer were required to file such reports.
If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries, and such Unrestricted Subsidiaries, individually or taken together, would constitute a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required by this Section 4.3 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Managements Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries excluding the Unrestricted Subsidiaries.
For so long as any Notes remain outstanding and are restricted securities within the meaning of Rule 144(A)(3), and the Issuer and the Guarantors are not required to file the reports required by this Section 4.3 with the SEC, the Issuer shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The Issuer will be deemed to have furnished the reports required to be furnished to the Trustee and the Holders pursuant to this Section 4.3 if it has filed such reports with the SEC using the EDGAR filing system or if it has made such reports publicly available on its website.
In the event that:
(i) the rules and regulations of the SEC permit the Issuer and any direct or indirect parent company of the Issuer to report at such parent entitys level on a consolidated basis and such parent entity of the Issuer is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the Voting Stock of the Issuer, or
(ii) any direct or indirect parent of the Issuer becomes a Guarantor,
such consolidated reporting at such parent entitys level in a manner consistent with that described in this covenant for the Issuer will satisfy this covenant; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent and any of its Subsidiaries other than the Issuer and its Subsidiaries, on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
The Issuer shall notify the Trustee in writing if the Issuer is not permitted by the SEC to file, or has not filed, electronically with the SEC through EDGAR (or any successor system) the information and reports referred to in clauses (1) and (2) of this Section 4.3. The Trustee shall have no obligation to determine if and when the Issuers information is available on the SECs website.
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Delivery of the above reports to the Trustee is for informational purposes only and the Trustees receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants in this Indenture (as to which the Trustee is entitled to rely exclusively on Officers Certificates) or any other agreement or document.
SECTION 4.4. Compliance Certificate. The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year beginning with the fiscal year ended December 31, 2014, an Officers Certificate stating that a review of the activities of the Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether each has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that, to his or her knowledge, each entity has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto) and that, to his or her knowledge, no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest on the Notes is prohibited or if such event has occurred, a description of the event and what action the Issuer is taking or proposes to take with respect thereto.
The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee, within 30 days after any Officer becomes aware of any Default, an Officers Certificate specifying such Default and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 4.5. Taxes. The Issuer shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency all material taxes, assessments and governmental levies, except such as are contested in good faith and by appropriate proceedings and with respect to which appropriate reserves have been taken in accordance with GAAP or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
SECTION 4.6. Stay, Extension and Usury Laws. The Issuer and each of the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture, and the Issuer and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 4.7. Limitation on Restricted Payments.
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(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment (and after giving pro forma effect to such Restricted Payment):
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer is not able to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2) through (11) of Section 4.7(b), exceeds the sum (the Restricted Payments Basket) of (without duplication):
(A) 50.0% of Consolidated Net Income of the Issuer and the Restricted Subsidiaries for the period (taken as one accounting period) commencing on April 1, 2014 to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100.0% of such deficit),
plus
(B) 100.0% of (A) (i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Issuer), (y) Equity Interests of a Person (other than the Issuer or a Subsidiary of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in each case received by the Issuer or its Restricted Subsidiaries after the Issue Date as a contribution to its common equity capital or from the issue or sale of Qualified Equity Interests (other than (a) the Tangible Equity Units (or the component parts thereof) and (b) Qualified Equity Interests to the extent, in the case of clause (b), the proceeds thereof are applied to redeem the Notes in accordance with the provisions set forth under Section 3.7(c)), plus
(C) 100.0% of the aggregate amount by which Indebtedness (including Disqualified Equity Interests but other than Indebtedness held by a Subsidiary of the Issuer) of the Issuer or any Restricted Subsidiary is reduced on the Issuers consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Qualified Equity Interests, plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made by the Issuer after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100.0% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, plus
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(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) the Fair Market Value of the Issuers proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuers Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced,
provided that, notwithstanding the foregoing, there shall be no increase to the Restricted Payments Basket in respect of the issuance of the Tangible Equity Units or any Qualified Equity Interests purchased (or to be purchased) pursuant to the Tangible Equity Units or the component parts thereof.
(b) Notwithstanding the foregoing, Section 4.7(a) will not prohibit:
(1) the payment of any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration thereof if, on the date of declaration, the dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture;
(2) any Restricted Payment made in exchange for, or out of the proceeds of, the substantially concurrent issuance of Qualified Equity Interests;
(3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of, the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.9 and the other terms of this Indenture;
(4) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) at a purchase price not greater than 101.0% of the principal amount of such Subordinated Indebtedness in the event of a Change of Control in accordance with provisions similar to Section 4.14 or (b) at a purchase price not greater than 100.0% of the principal amount thereof in accordance with provisions similar to Section 4.10; provided that, prior to or concurrently with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer has made the Change of Control Offer or Net Proceeds Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Net Proceeds Offer;
(5) the redemption, repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates),
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either (x) upon any such individuals death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $10.0 million during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year; provided that the maximum amount that may be redeemed, repurchased, acquired or retired pursuant to this clause (A) in any calendar year, after giving effect to any and all carry-forwards of unused amounts in a prior calendar year, is $20.0 million) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (5), plus (C) the net cash proceeds of any key-man life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (5); and provided further that cancellation of Indebtedness owing to the Issuer from members of management of the Issuer or any Restricted Subsidiary in connection with a repurchase of Equity Interests of the Issuer will not be deemed to constitute a Restricted Payment for purposes of this Section 4.7 or any other provision of this Indenture;
(6) (a) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of the Issuer deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests of the Issuer or other convertible securities to the extent such Equity Interests of the Issuer represent a portion of the exercise or exchange price thereof and (b) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of the Issuer made in lieu of withholding taxes in connection with any vesting of restricted Equity Interests or any exercise, vesting or exchange of stock options, warrants or other similar rights;
(7) dividends or distributions on Disqualified Equity Interests of the Issuer or any Restricted Subsidiary or on any Preferred Stock of any Restricted Subsidiary, in each case issued in compliance with Section 4.9 to the extent such dividends or distributions are included in the definition of Consolidated Interest Expense;
(8) the payment of cash in lieu of fractional Equity Interests of the Issuer;
(9) payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with Section 5.1;
(10) cash distributions by the Issuer to the holders of Equity Interests of the Issuer in accordance with a distribution reinvestment plan or dividend reinvestment plan to the extent such payments are applied to the purchase of Equity Interests directly from the Issuer; and
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(11) so long as no Default has occurred and is continuing or would be caused thereby, the payment of other Restricted Payments from time to time in an aggregate amount not to exceed since the Issue Date the sum of (a) $100.0 million plus (b) an additional $150.0 million; provided that a Restricted Payment may only be made pursuant to clause (b) of this clause (11) if and only if after giving pro forma effect to the applicable Restricted Payment and the incurrence of any Indebtedness the net proceeds of which would be used to finance such Restricted Payment, the Secured Leverage Ratio would be less than 3.0 to 1.0;
provided that no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2) or (5)(B) above shall increase the Restricted Payments Basket to the extent of such payment.
For the avoidance of doubt, payments by the Issuer on, or with respect to, the Unsecured Notes, including any payments of interest, amortization payments and early payments of principal, shall not constitute Restricted Payments.
For the purposes of determining compliance with any U.S. dollar denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar equivalent amount of such Restricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made.
The Issuer will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to Section 4.18. For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, as determined by the Issuer, in an amount determined as set forth in the definition of Investment. Such designation will be permitted only if a Restricted Payment and Permitted Investments, as applicable, in such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.8. Limitations on Dividend and Other Restrictions Affecting Restricted Subsidiaries. The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on or in respect of its Equity Interests to the Issuer or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Equity Interests);
(b) make loans or advances, or pay any Indebtedness or other obligation owed, to the Issuer or any other Restricted Subsidiary (it being understood that the subordination of loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness or obligations incurred by the Issuer or any Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
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(c) transfer any of its property or assets to the Issuer or any other Restricted Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (a) or (b) above);
except for, in each case:
(1) encumbrances or restrictions existing under agreements existing on the Issue Date (including, without limitation, the Credit Agreement) as in effect on that date;
(2) encumbrances or restrictions existing under this Indenture, the Notes and the Guarantees;
(3) any instrument governing Acquired Indebtedness or Equity Interests of a Person acquired by the Issuer or any of its Restricted Subsidiaries, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;
(4) any agreement or other instrument of a Person acquired by the Issuer or any of its Restricted Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after acquired property);
(5) any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2), (3), (4), (5) or (11); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer, not materially more restrictive than the encumbrances and restrictions contained in the agreements referred to in such clauses on the Issue Date or the date such Restricted Subsidiary became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever is applicable;
(6) encumbrances or restrictions existing under or by reason of applicable law, regulation, order, approval, license or similar restriction;
(7) non-assignment provisions of any contract or any lease entered into in the ordinary course of business;
(8) in the case of clause (c) above, Liens permitted to be incurred under the provisions of Section 4.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
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(9) encumbrances or restrictions arising or agreed to in the ordinary course of business (i) that restrict in a customary manner the chartering, subletting, assignment or transfer of any property or asset that is subject to a lease or license or (ii) not relating to Indebtedness and that do not, individually or in the aggregate, detract from the value of property or assets of the Issuer or the Restricted Subsidiaries in any manner material to the Issuer and the Restricted Subsidiaries, taken as a whole;
(10) restrictions imposed under any agreement to sell Equity Interests or assets, as permitted under this Indenture, to any Person pending the closing of such sale;
(11) any other agreement governing Indebtedness or other obligations entered into after the Issue Date that either (A) contains encumbrances and restrictions that in the good faith judgment of the Issuer are not materially more restrictive with respect to any Restricted Subsidiary than those in effect on the Issue Date with respect to that Restricted Subsidiary pursuant to agreements in effect on the Issue Date or (B) any such encumbrance or restriction contained in such Indebtedness that is customary and does not prohibit (except upon a default or an event of default thereunder) the payment of dividends in an amount sufficient, as determined by the Issuer in good faith, to make scheduled payments of cash interest and principal on the Notes when due;
(12) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements, shareholder agreements and other similar agreements that in each case restrict the disposition or distribution of ownership interests in or assets of the partnership, limited liability company, joint venture, corporation or similar Person governed thereby;
(13) Purchase Money Indebtedness and any Refinancing Indebtedness in respect thereof incurred in compliance with Section 4.9 that imposes restrictions of the nature described in Section 4.8(c) on the assets acquired;
(14) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords under contracts entered into in the ordinary course of business; and
(15) restrictions pursuant to any Receivables Program.
SECTION 4.9. Limitations on Additional Indebtedness.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided that the Issuer or (subject to the Non-Guarantor Debt Cap) any Restricted Subsidiary may incur additional Indebtedness (including Acquired Indebtedness), in each case, if, after giving effect thereto on a pro forma basis (including giving pro forma effect to the application of the proceeds thereof), the Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00 (the Coverage Ratio Exception).
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(b) Notwithstanding the above, each of the following incurrences of Indebtedness shall be permitted (the Permitted Indebtedness):
(1) the incurrence of Indebtedness by the Issuer and (subject to the Non-Guarantor Debt Cap) the Restricted Subsidiaries under one or more Credit Facilities in an aggregate principal amount at any time outstanding, including the issuance and creation of letters of credit thereunder (with letters of credit being deemed to have a principal amount equal to the face amount thereof), not to exceed $900.0 million; provided that, notwithstanding the foregoing, not more than $375.0 million in aggregate principal amount of Funded Debt may be incurred or outstanding pursuant to this clause (1) at any time;
(2) Indebtedness of the Issuer and the Guarantors under (a) the Initial Notes and (b) the Guarantees of the Initial Notes;
(3) Indebtedness of the Issuer and its Restricted Subsidiaries to the extent outstanding on the Issue Date (including the Unsecured Notes but excluding any Indebtedness described in another clause of this Section 4.9(b));
(4) (a) guarantees of Indebtedness of the Issuer or a Restricted Subsidiary permitted to be incurred in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being guaranteed is Subordinated Indebtedness, the related guarantee shall be subordinated in right of payment to the Notes or the Guarantee, as the case may be;
(5) Indebtedness under Hedging Obligations entered into for bona fide hedging purposes of the Issuer or any Restricted Subsidiary in the ordinary course of business and not for the purpose of speculation; provided that, in the case of Hedging Obligations relating to interest rates, (a) such Hedging Obligations relate to payment obligations on Indebtedness not prohibited to be incurred by this Section 4.9 and (b) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;
(6) Indebtedness of the Issuer owed to and held by a Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to and held by the Issuer or any other Restricted Subsidiary; provided, however, that
(a) if the Issuer is the obligor on Indebtedness and a Restricted Subsidiary that is not a Guarantor is the obligee, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(b) if a Guarantor is the obligor on such Indebtedness and a Restricted Subsidiary that is not a Guarantor is the obligee, such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor; and
(c)
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(i) any subsequent issuance or transfer of Equity Interests or any other event which results in any such Indebtedness being held by a Person other than the Issuer or any other Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Issuer or any other Restricted Subsidiary
shall be deemed, in each case of this clause (c), to constitute an incurrence of such Indebtedness not permitted by this clause (6);
(7) Indebtedness in respect of workers compensation claims, bank guarantees, warehouse receipt or similar facilities, property, casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, performance, bid performance, customs, appeal or surety bonds, in each case incurred in the ordinary course of business, including guarantees or obligations with respect to letters of credit supporting such workers compensation claims, bank guarantees, warehouse receipt or similar facilities, property, casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations or completion, performance, bid performance, customs, appeal or surety bonds;
(8) Purchase Money Indebtedness incurred by the Issuer or any Restricted Subsidiary after the Issue Date, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount not to exceed at any time outstanding the greater of (a) $100.0 million and (b) 3.5% of the Issuers Consolidated Tangible Assets determined at the time of incurrence;
(9) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(10) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(11) Refinancing Indebtedness with respect to Indebtedness incurred pursuant to the Coverage Ratio Exception or pursuant to clause (2), (3) or this clause (11), or clause (15) below;
(12) indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets of the Issuer or any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such acquisition; provided that (a) any amount of such obligations included on the face of the balance sheet of the Issuer or any Restricted Subsidiary shall not be permitted under this clause (12) (contingent obligations referred to on the face of a balance sheet or in a footnote thereto and not otherwise quantified and reflected on the balance sheet will not be deemed included on the face of the balance sheet for purposes of the foregoing) and (b) in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (12) shall at no time exceed the gross proceeds actually received by the Issuer and the Restricted Subsidiaries in connection with such disposition;
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(13) additional Indebtedness of the Issuer or (subject to the Non-Guarantor Debt Cap) any Restricted Subsidiary, and Refinancing Indebtedness in respect thereof, in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (13) and then outstanding, does not exceed the greater of (a) $150.0 million and (b) 5.5% of the Issuers Consolidated Tangible Assets determined at the time of incurrence;
(14) Indebtedness in respect of Treasury Management Arrangements;
(15) subject to the Non-Guarantor Debt Cap, Indebtedness of Persons incurred and outstanding on the date on which such Person was acquired by the Issuer or any Restricted Subsidiary, or merged or consolidated with or into the Issuer or any Restricted Subsidiary (other than Indebtedness incurred in connection with, or in contemplation of, such acquisition, merger or consolidation); provided, however, that at the time such Person or assets is/are acquired by the Issuer or a Restricted Subsidiary, or merged or consolidated with the Issuer or any Restricted Subsidiary and after giving pro forma effect to the incurrence of such Indebtedness pursuant to this clause (15) and any other related Indebtedness, either: (i) the Issuer would have been able to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (ii) the Consolidated Interest Coverage Ratio of the Issuer and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio immediately prior to such acquisition, merger or consolidation;
(16) Indebtedness representing deferred compensation to directors, officers, members of management or employees (in their capacities as such) of the Issuer or any Restricted Subsidiary and incurred in the ordinary course of business;
(17)(a) the incurrence by the Issuer or any of its Restricted Subsidiaries of any Receivables Program Indebtedness and (b) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness provided by the shipyard of the Deepwater Lay Vessel 2000 (or the financier of such shipyard) and incurred solely to finance the construction, equipping and commissioning of the Deepwater Lay Vessel 2000; provided that, in the case of clause (b), such Indebtedness (i) is repaid in full concurrently with delivery to the Issuer or any of its Subsidiaries of the Deepwater Lay Vessel 2000 and (ii) does not exceed at any time outstanding the lesser of (x) the cost of constructing, equipping and commissioning the Deepwater Lay Vessel 2000 and (y) $400.0 million; and
(18) Indebtedness of the Issuer or (subject to the Non-Guarantor Debt Cap) any Restricted Subsidiary consisting of the guarantee of Indebtedness of Permitted Joint Ventures or Unrestricted Subsidiaries in an aggregate principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (18) and then outstanding, does not exceed the greater of (i) $150.0 million and (ii) 5.5% of the Issuers Consolidated Tangible Assets determined at the time of incurrence.
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Notwithstanding anything to the contrary, a Restricted Subsidiary that is not a Guarantor may not (and the Issuer will not permit any Restricted Subsidiary that is not a Guarantor to) incur any Indebtedness pursuant to the Coverage Ratio Exception or clause (1), (13), (15) or (18) of this Section 4.9(b) if after giving effect to such incurrence on a pro forma basis (including giving pro forma effect to the application of the proceeds thereof), more than an aggregate of $175.0 million of Indebtedness of Restricted Subsidiaries that are not Guarantors would be outstanding pursuant to the Coverage Ratio Exception and clauses (1), (13), (15) and (18) of this Section 4.9(b) (this paragraph is referred to as the Non-Guarantor Debt Cap).
Neither the Issuer nor any Guarantor will incur any Indebtedness that pursuant to its terms is subordinate or junior in right of payment to any other Indebtedness of the Issuer or such Guarantor, as applicable, unless such Indebtedness is subordinated in right of payment to the Notes and the Guarantees of the Notes to the same extent; provided that Indebtedness will not be considered subordinate or junior in right of payment to any other Indebtedness solely by virtue of being unsecured or secured to a greater or lesser extent or with greater or lower priority or by virtue of structural subordination or with different collateral or as a result of provisions that apply proceeds or amounts received by the borrower, obligor or issuer following a default or exercise of remedies in a certain order of priority.
For purposes of determining compliance with this Section 4.9, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (18) above or is entitled to be incurred pursuant to the Coverage Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and may divide and classify such Indebtedness in more than one of the types of Indebtedness described (except that Indebtedness incurred (or outstanding) under the Credit Agreement on the Issue Date shall be deemed to have been incurred under clause (1) above), and may later reclassify any item of Indebtedness described in clauses (1) through (18) above (provided that at the time of reclassification it meets the criteria in such category or categories). In addition, for purposes of determining any particular amount of Indebtedness under this Section 4.9, (i) guarantees or letter of credit obligations supporting Indebtedness otherwise included in the determination of such particular amount shall not be included so long as incurred by a Person that could have incurred such Indebtedness; and (ii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
For the purposes of determining compliance with any U.S. dollar denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction
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shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Notwithstanding any other provision of this Section 4.9, in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles after the Issue Date be deemed to be an incurrence of Indebtedness.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary then outstanding shall be deemed to be incurred by a Restricted Subsidiary as of such time (and, if such Indebtedness is not permitted to be incurred as of such time under this Section 4.9, the Issuer shall be in Default of this Section 4.9).
SECTION 4.10. Limitations on Asset Sales.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Sale or, in circumstances where the Issuer or such Restricted Subsidiary grants a third party the right to purchase an asset, the date of such grant) of the shares and assets subject to such Asset Sale; and
(2) at least 75.0% of the total consideration from such Asset Sale and all other Asset Sales on a cumulative basis since the Issue Date received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents.
For purposes of clause (2) above and for no other purpose, the following shall be deemed to be cash:
(A) the amount (without duplication) of any Indebtedness (other than Subordinated Indebtedness or intercompany Indebtedness) of the Issuer or such Restricted Subsidiary that is expressly assumed by the transferee of any such assets pursuant to a written agreement that releases the Issuer or such Restricted Subsidiary from further liability therefor,
(B) the amount of any securities, notes or other obligations received from such transferee that are within 180 days after such Asset Sale converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash actually so received),
(C) any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration
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received pursuant to this Section 4.10(a)(2)(C) that is at that time outstanding, not to exceed the greater of (i) $75.0 million and (ii) 2.5% of the Issuers Consolidated Tangible Assets at the time of receipt of such Designated Non-cash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value, provided that if the applicable Asset Sale is a Collateral Disposition, (x) any assets received pursuant to this clause (C) must become Collateral in which the Collateral Agent has a Second Priority Lien concurrently with such receipt, which Second Priority Lien shall be perfected to the extent required by the Indenture Documents, and
(D) the Fair Market Value of (i) any assets (other than securities) received by the Issuer or any Restricted Subsidiary to be used by it in a Permitted Business, (ii) Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged in a Permitted Business that shall become a Restricted Subsidiary concurrently with the acquisition of such Person by the Issuer or (iii) a combination of (i) and (ii); provided that if the applicable Asset Sale is a Collateral Disposition, (x) any assets received pursuant to clause (i) of this clause (D) must become Collateral in which the Collateral Agent has a Second Priority Lien concurrently with such receipt, (y) any Equity Interests received pursuant to clause (ii) of this clause (D) must become Collateral in which the Collateral Agent has a Second Priority Lien concurrently with such receipt, which Second Priority Lien in the case of clauses (x) and (y) shall be perfected to the extent required by the Indenture Documents, and (z) to the extent any Person acquired pursuant to clause (ii) of this clause (D) becomes a wholly owned Restricted Subsidiary, such Person shall become a Guarantor.
If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds thereof shall be applied in accordance with this Section 4.10.
Any Asset Sale pursuant to an Event of Loss shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this Section 4.10(a).
Notwithstanding the foregoing, the 75.0% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provisions on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75.0% limitation.
(b) If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or such Restricted Subsidiary may, no later than 365 days following the consummation thereof, apply all or any of the Net Available Proceeds therefrom to:
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(1) (A) if the Asset Sale is a Collateral Disposition, repay, redeem, cash collateralize or otherwise retire any Indebtedness that constitutes First Priority Claims or Notes Obligations or (B) if the Asset Sale is not a Collateral Disposition, repay, redeem or otherwise retire any Indebtedness of the Issuer or a Restricted Subsidiary (other than any Disqualified Equity Interests or Subordinated Indebtedness of the Issuer or a Guarantor, and other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that, for purposes of clauses (A) and (B), any repayment, redemption or retirement of Indebtedness under or in respect of a revolving Credit Facility shall be accompanied by a permanent termination of the corresponding amount of commitments thereunder; or
(2) (A) if the Asset Sale is a Collateral Disposition (i) make any capital expenditure with respect to Collateral or otherwise invest all or any part of the Net Available Proceeds thereof in the purchase of assets (other than securities and excluding working capital or current assets for the avoidance of doubt) to be used by the Issuer or any Guarantor in a Permitted Business and that constitute Collateral, (ii) acquire Qualified Equity Interests held by a Person other than the Issuer or any of its Restricted Subsidiaries in a Person that is a Restricted Subsidiary or in a Person engaged in a Permitted Business, which Qualified Equity Interests shall be pledged as Collateral to the Collateral Agent upon such consummation (and if such acquired Person becomes a wholly owned Restricted Subsidiary, such acquired Person shall become a Guarantor) or (iii) a combination of (i) and (ii) or (B) if the Asset Sale is not a Collateral Disposition, (i) make any capital expenditure or otherwise invest all or any part of the Net Available Proceeds thereof in the purchase of assets (other than securities and excluding working capital or current assets for the avoidance of doubt) to be used by the Issuer or any Restricted Subsidiary in a Permitted Business, (ii) acquire Qualified Equity Interests held by a Person other than the Issuer or any of its Restricted Subsidiaries in a Person that is a Restricted Subsidiary or in a Person engaged in a Permitted Business that shall become a Restricted Subsidiary concurrently with the consummation of such acquisition or (iii) a combination of (i) and (ii).
The amount of Net Available Proceeds not applied or invested as provided in clauses (1) or (2) of this Section 4.10(b) shall constitute Excess Proceeds.
(c) On the 366th day after an Asset Sale (or, at the Issuers option, an earlier date), if the aggregate amount of Excess Proceeds equals or exceeds $25.0 million, the Issuer shall be required to make an offer to purchase or redeem (a Net Proceeds Offer) from all Holders the maximum principal amount of Notes to which the Net Proceeds Offer applies that may be purchased or redeemed out of the Excess Proceeds, at an offer price in cash in an amount equal to 100.0% of the principal amount of Notes plus accrued and unpaid interest thereon to (but excluding) the date of purchase, in accordance with the procedures set forth in this Indenture in denominations of $2,000 or integral multiples of $1,000 in excess thereof.
To the extent that the sum of the aggregate principal amount of Notes so validly tendered pursuant to a Net Proceeds Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds, or a portion thereof, for any purposes not otherwise prohibited by the provisions of this Indenture. If the aggregate principal amount of Notes so validly tendered
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pursuant to a Net Proceeds Offer exceeds the amount of Excess Proceeds, the Issuer shall select the Notes to be purchased on a pro rata basis on the basis of the aggregate outstanding principal amount of Notes. Upon completion of such Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Net Proceeds Offer was made shall be deemed to be zero.
(d) The Net Proceeds Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the Net Proceeds Offer Period). No later than five Business Days after the termination of the Net Proceeds Offer Period (the Net Proceeds Purchase Date), the Issuer will purchase the principal amount of Notes required to be purchased pursuant to this Section 4.10 (the Net Proceeds Offer Amount) or, if less than the Net Proceeds Offer Amount has been so validly tendered, all Notes validly tendered in response to the Net Proceeds Offer.
If the Net Proceeds Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Net Proceeds Offer.
Pending the final application of any Net Available Proceeds pursuant to this Section 4.10, the Issuer or the Restricted Subsidiary, as applicable, may apply such Net Available Proceeds temporarily to reduce Indebtedness outstanding under a revolving Credit Facility or otherwise invest such Net Available Proceeds in any manner not prohibited by this Indenture.
On or before the Net Proceeds Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Net Proceeds Offer Amount of Notes or portions of Notes so validly tendered and not properly withdrawn pursuant to the Net Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and not properly withdrawn, all Notes so validly tendered and not properly withdrawn, in each case in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Issuer or the Paying Agent, as the case may be, will promptly (but in any case not later than five Business Days after termination of the Net Proceeds Offer Period) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes so validly tendered and not properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an Officers Certificate from the Issuer, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Net Proceeds Offer on the Net Proceeds Purchase Date.
Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by Section 4.14 and/or Section 5.1 and not by this Section 4.10.
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The Issuer shall comply with all applicable securities laws and regulations in the United States, including, without limitation, the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such compliance.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, in one transaction or a series of related transactions, sell, lease, transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter into any contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (an Affiliate Transaction), unless:
(1) the terms of such Affiliate Transaction are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could reasonably be expected to have been obtained in a comparable transaction at the time of such transaction in arms-length dealings with a Person who is not such an Affiliate or are otherwise fair to the Issuer or such Restricted Subsidiary from a financial point of view; and
(2) the Issuer delivers to the Trustee, with respect to any Affiliate Transaction involving aggregate value in excess of $25.0 million, an Officers Certificate certifying that such Affiliate Transaction complies with clause (1) above and, with respect to any Affiliate Transaction involving aggregate value in excess of $40.0 million, a Secretarys Certificate which sets forth and authenticates a resolution that has been adopted by a majority of the Independent Directors approving such Affiliate Transaction.
(b) The foregoing restrictions shall not apply to:
(1) transactions to the extent between or among (a) the Issuer and one or more Restricted Subsidiaries or (b) Restricted Subsidiaries;
(2) director, officer, employee and consultant compensation (including bonuses) and other benefits (including pursuant to any employment agreement or arrangement, severance agreement, consulting agreement or any retirement, health, stock option, other equity award or other benefit plan), payments or loans (or cancellation of loans) to employees of the Issuer and indemnification arrangements, including reimbursement or advance of out-of-pocket expenses and provision of officers and directors liability insurance;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto, between the Issuer and/or one or more Subsidiaries, on the one hand, and any other Person with which the Issuer or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Issuer or such Subsidiaries are part of a consolidated group for tax purposes to be used by such Person to pay taxes, and which payments by the Issuer and the Restricted Subsidiaries, collectively, are not in excess of the tax liabilities that would have been payable by them, collectively, on a stand-alone basis;
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(4) any Permitted Investments (other than pursuant to clause (1) of the definition thereof);
(5) any Restricted Payments which are made in accordance with Section 4.7;
(6) any agreement, arrangement or commitment in effect on the Issue Date or as thereafter amended or replaced in any manner that, taken as a whole, is not more disadvantageous to the Issuer in any material respect than such agreement as it was in effect on the Issue Date;
(7) any transaction with a Person (other than an Unrestricted Subsidiary) which would constitute an Affiliate of the Issuer solely because the Issuer or a Restricted Subsidiary owns an equity interest in or otherwise controls such Person;
(8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the applicable terms of this Indenture; provided that in the reasonable determination of the Board of Directors of the Issuer or the senior management of the Issuer, such transactions are on terms not materially less favorable to the Issuer or the relevant Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arms-length basis from a Person that is not an Affiliate of the Issuer;
(9) (a) any transaction with an Affiliate where the only consideration paid by the Issuer or any Restricted Subsidiary is Qualified Equity Interests and (b) the issuance or sale of any Qualified Equity Interests and the granting of registration and other customary rights in connection therewith;
(10) pledges by the Issuer or any Restricted Subsidiary of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of the Unrestricted Subsidiaries;
(11) transactions entered into by a Person prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Issuer or a Restricted Subsidiary (provided that such transaction is not entered into in contemplation of such event);
(12) dividends and distributions to the Issuer or a Restricted Subsidiary by any Unrestricted Subsidiary or Permitted Joint Venture; and
(13) transactions entered into as part of a Receivables Program.
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SECTION 4.12. Limitations on Liens. The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit or suffer to exist any Lien (other than Permitted Liens) upon any of their property or assets (including Equity Interests of any Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired, which Lien secures Indebtedness.
SECTION 4.13. Payments for Consent. The Issuer will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid and is paid to all Holders of the Notes that so consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.
SECTION 4.14. Offer to Purchase upon Change of Control. Upon the occurrence of any Change of Control, unless the Issuer has previously or concurrently exercised its right to redeem all of the Notes as described under Section 3.7, each Holder will have the right to require that the Issuer purchase all or any portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes for a cash price (the Change of Control Purchase Price) equal to 101.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon to (but excluding) the date of purchase.
Not later than 30 days following any Change of Control, the Issuer will deliver, or cause to be delivered, to the Holders, with a copy to the Trustee, a notice:
(1) describing the transaction or transactions that constitute the Change of Control;
(2) offering to purchase, pursuant to the procedures required by this Indenture and described in the notice (a Change of Control Offer), on a date specified in the notice, which shall be a Business Day not earlier than 30 days, nor later than 60 days, from the date the notice is delivered (the Change of Control Payment Date), and for the Change of Control Purchase Price, all Notes properly tendered by such Holder pursuant to such Change of Control Offer prior to 5:00 p.m. New York time on the second Business Day preceding the Change of Control Payment Date; and
(3) describing the procedures, as determined by the Issuer, consistent with this Indenture, that Holders must follow to accept the Change of Control Offer.
On or before the Change of Control Payment Date, the Issuer will, to the extent lawful, deposit with the Paying Agent an amount equal to the Change of Control Purchase Price in respect of the Notes or portions of Notes properly tendered.
On the Change of Control Payment Date, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (of $2,000 or integral multiples of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer; and
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(2) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
The Paying Agent will promptly deliver to each Holder who has so tendered Notes the Change of Control Purchase Price for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes so tendered, if any; provided that each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.
If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, the accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
A Change of Control Offer shall remain open for at least 20 Business Days or for such longer period as is required by applicable law. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the date of purchase.
The Issuers obligation to make a Change of Control Offer shall be satisfied if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.
If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 30 days nor more than 60 days prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Purchase Price plus, to the extent not included in the Change of Control Purchase Price, accrued and unpaid interest to (but excluding) the date of redemption.
The Issuer shall comply with all applicable securities legislation in the United States, including, without limitation, the requirements of Rule 14e-l under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 4.14, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.14 by virtue of such compliance.
The provisions under this Indenture relating to the Issuers obligation to make a Change of Control Offer may be waived, modified or terminated with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
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Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
SECTION 4.15. Corporate Existence. Subject to Section 4.14 and Article V, as the case may be, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership, limited liability company or other existence of each of its Restricted Subsidiaries in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuer or any such Restricted Subsidiary and the rights (charter and statutory), licenses and franchises of the Issuer and its Restricted Subsidiaries; provided that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors of the Issuer shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders.
SECTION 4.16. Business Activities. The Issuer shall engage, and shall cause its Restricted Subsidiaries to engage, in businesses that, when considered together as a single enterprise, are primarily the Permitted Business.
SECTION 4.17. Additional Guarantees. If any Restricted Subsidiary, other than a Guarantor, shall guarantee any Indebtedness of the Issuer or any Guarantor under a Credit Facility, then the Issuer shall, within 30 days thereof, cause such Restricted Subsidiary to execute and deliver to the Trustee a supplemental indenture in substantially the form attached hereto as Exhibit B, pursuant to which such Restricted Subsidiary shall become a Guarantor with respect to the Notes, upon the terms and subject to the release provisions and other limitations described under Section 10.1.
SECTION 4.18. Limitations on Designation of Unrestricted Subsidiaries. The Board of Directors of the Issuer may designate any Subsidiary (including any newly formed or newly acquired Subsidiary or a Person becoming a Subsidiary through merger or consolidation or Investment therein) of the Issuer as an Unrestricted Subsidiary under this Indenture (a Designation) only if:
(1) no Default shall have occurred and be continuing at the time of or after giving effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of such Designation, (a) a Permitted Investment or (b) an Investment pursuant to Section 4.7, in either case, in an amount (the Designation Amount) equal to the Fair Market Value of the Issuers proportionate interest in such Subsidiary on such date.
No Subsidiary shall be Designated as an Unrestricted Subsidiary unless:
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(1) all of the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date of Designation, consist of Non-Recourse Debt, except for any guarantee given solely to support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any Restricted Subsidiary, and except for any guarantee of Indebtedness of such Subsidiary by the Issuer or a Restricted Subsidiary that is permitted as both an incurrence of Indebtedness and an Investment (in each case in an amount equal to the amount of such Indebtedness so guaranteed) permitted by Sections 4.7 and 4.9;
(2) on the date such Subsidiary is Designated an Unrestricted Subsidiary, such Subsidiary is not party to any agreement, contract, arrangement or understanding (other than a guarantee permitted under clause (1) above) with the Issuer or any Restricted Subsidiary unless the terms of the agreement, contract, arrangement or understanding are not materially less favorable to the Issuer or the Restricted Subsidiary than those that could reasonably be expected to have been obtained at the time from Persons who are not Affiliates of the Issuer, as determined in good faith by the Issuer; and
(3) such Subsidiary is a Person with respect to which neither the Issuer nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests of such Person or (b) to maintain or preserve the Persons financial condition or to cause the Person to achieve any specified levels of operating results (in each case other than a guarantee permitted under clause (1) above).
Any such Designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to such Designation and an Officers Certificate certifying that such Designation complies with the foregoing conditions. If, at any time, any Unrestricted Subsidiary fails to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of the Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time and, if the Indebtedness is not permitted to be incurred under Section 4.9 or the Lien is not permitted under Section 4.12, the Issuer shall be in default of the applicable covenant. Notwithstanding anything to the contrary, no Guarantor may be designated as an Unrestricted Subsidiary if it provides (or continues to provide) a guarantee of any Credit Facility unless such Guarantor is substantially concurrently being designated as an unrestricted subsidiary under such Credit Facility.
The Board of Directors of the Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a Redesignation) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately following such Redesignation would, if incurred or made at such time, have been permitted to be incurred or made for all purposes of this Indenture.
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Any such Redesignation shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officers Certificate certifying that such Redesignation complies with the foregoing conditions.
SECTION 4.19. Further Assurances. (a) The Issuer and the Guarantors shall, at their expense and to the extent not in violation of the Intercreditor Agreement, duly execute and deliver, or cause to be duly executed and delivered, such further agreements, documents and instruments, and do or cause to be done such further acts (i) as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture or (ii) as the Collateral Agent may reasonably request to grant, evidence, perfect, maintain and enforce the security interests and the priority thereof in the Collateral in favor of the Collateral Agent for its benefit and for the benefit of the Holders and any other Secured Parties and the Trustee, and to otherwise effectuate the provisions or purposes of this Indenture and the Collateral Agreements.
(b) The Issuer and the Guarantors will (i) maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as, in the reasonable determination of the Issuer, is usually carried out by companies engaged in similar businesses and owning similar properties in the same general areas in which the Issuer or such Subsidiary operates; provided that, with respect to the Mortgaged Vessels, the Issuer shall be required to provide or cause to be provided only such insurance as is required by the Collateral Agreements, and (ii) cause all property and general liability insurance policies to name the Collateral Agent on behalf of the Secured Parties as additional insured (with respect to liability and property policies), loss payee (with respect to property policies) or lenders loss payee (with respect to property policies), as appropriate, and to provide that no cancellation, material addition in amount or material change in coverage shall be effective until after 30 days written notice to the Collateral Agent. So long as an Event of Default is not then continuing, the Collateral Agent, on behalf of the Secured Parties, agrees to promptly release, endorse and turn over to the Issuer or the applicable Subsidiary any insurance proceeds received by the Collateral Agent.
SECTION 4.20. After-Acquired Collateral; Additional Security Interests. From and after the Issue Date, if and to the extent that the Issuer or any Guarantor executes and delivers any First Priority Security Documents (including any amendments, supplements or modifications to any First Priority Security Documents) or takes any other actions (including any actions taken in the United States of America or in any other jurisdiction) to grant a perfected security interest in any property or asset (including a marine vessel) to secure the First Priority Claims (including in connection with any acquisition by the Issuer or any Guarantor of any property or asset after the Issue Date), the Issuer shall, and shall cause such Guarantor to, promptly (but in any event not later than the date that is 10 Business Days after the date on which such First Priority Security Documents are executed and delivered or such other actions are taken with respect to the First Priority Liens), to the extent a Second Priority Lien may be granted or perfected in such property or asset, (a) execute and deliver to the Collateral Agent such Collateral Agreements (including any amendments and supplements thereto) and take such other actions to grant the Collateral Agent a perfected Second Priority Lien in such Collateral to secure the Notes Obligations (in each case, to the same extent as any First Priority Security Documents were executed and delivered and any other actions were taken in connection with granting a perfected security interest in such property or asset to secure the First Priority Claims) and (b) cause to be delivered to the Collateral Agent legal opinions and other deliverables related thereto (in each
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case, to the extent such legal opinions and other deliverables were delivered to the First Priority Agent in connection with granting a perfected security interest in such property or asset to secure the First Priority Claims). The Issuer will not, and will not permit its Subsidiaries to, take any action, or knowingly omit to take any action, which action or omission would have the result of materially impairing the validity, perfection or priority of the security interests in the Collateral created by the Collateral Agreements (except as permitted in this Indenture, the Intercreditor Agreement or the other Collateral Agreements). Notwithstanding anything to the contrary contained herein, to the extent that any Lien on any Collateral is perfected by the First Priority Agent (or any of its agents or bailees) by obtaining control (as defined in the UCC) of such Collateral, the obligation of the Issuer and the Guarantors to grant the Collateral Agent, or to cause the Collateral Agent to obtain, such control of such Collateral shall be limited to using their commercially reasonable efforts to grant the Collateral Agent, or to cause the Collateral Agent to obtain, such control of such Collateral.
SECTION 4.21. Covenant Suspension.
(a) If on any date following the Issue Date (i) the Notes have an Investment Grade Rating from both Rating Agencies and (ii) no Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a Covenant Suspension Event), the Issuer and the Restricted Subsidiaries will not be subject to the following covenants (collectively, the Suspended Covenants):
(1) Section 4.7;
(2) Section 4.8;
(3) Section 4.9;
(4) Section 4.10;
(5) Section 4.11;
(6) Section 4.16; and
(7) Section 5.1(a)(3).
(b) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for any period of time as a result of the foregoing, and on any subsequent date (the Reversion Date) one or both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, then the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture with respect to future events.
(c) The Issuer shall promptly notify the Trustee of the existence, and of the termination of any Covenant Suspension Event or Reversion Date by filing with the Trustee an Officers Certificate certifying the same; provided, however, that the Trustee shall have no obligation to discover or verify the existence or termination of any Covenant Suspension Event or Reversion Date.
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(d) The period of time between the occurrence of a Covenant Suspension Event and the Reversion Date is referred to herein as the Suspension Period. Solely for the purpose of determining the amount of Permitted Liens in accordance with the provisions of Section 4.12 during any Suspension Period and without limiting the Issuers or any Restricted Subsidiarys ability to incur Indebtedness without restriction during any Suspension Period, to the extent that calculations as set forth in the definition of Permitted Liens refer to the covenant set forth in Section 4.9, such calculations shall be made as though the covenant set forth in Section 4.9 remains in effect during the Suspension Period. Additionally, upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds shall be reset at zero.
(e) In the event of any reinstatement of the Suspended Covenants, from and after the Reversion Date, no action taken or omitted to be taken by the Issuer or any of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default under this Indenture with respect to Notes; provided, however, that with respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments made will be calculated as though the covenant as set forth in Section 4.7 had been in effect prior to, but not during, the Suspension Period. No Subsidiaries shall be designated as Unrestricted Subsidiaries during the Suspension Period. All Indebtedness incurred during the Suspension Period will be classified to have been incurred or issued pursuant to clause (3) of the definition of Permitted Indebtedness herein. Any Affiliate Transaction entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (6) of Section 4.11(b).
ARTICLE V
SUCCESSORS
SECTION 5.1. Consolidation, Merger, Conveyance, Transfer or Lease.
(a) The Issuer shall not, directly or indirectly, in a single transaction or a series of related transactions, consolidate or merge with or into another Person (whether or not the Issuer is the surviving Person), or sell, lease, transfer, convey or otherwise dispose of or assign all or substantially all of the assets of the Issuer and its Restricted Subsidiaries (taken as a whole) to any Person unless:
(1) either:
(a) the Issuer shall be the surviving or continuing Person; or
(b) the Person (if other than the Issuer) formed by or surviving or continuing from such consolidation or merger or to which such sale, lease, transfer, conveyance or other disposition or assignment shall be made is a corporation, limited liability company or limited partnership organized and existing under the laws of the United States or of any State of the United States or the District of Columbia, any member state of the European Union, Bermuda, the British Virgin Islands, the Cayman Islands, Curaçao, or Sint Maarten and such
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Person expressly assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of the Issuer under the Notes, this Indenture and the Collateral Agreements to which it is a party (such surviving or continuing Person pursuant to clause (a) or (b), the Surviving Entity); provided, that if the Surviving Entity is not a corporation, a Restricted Subsidiary that is a corporation expressly assumes as co-obligor all of the obligations of the Issuer under this Indenture and the Notes pursuant to a supplemental indenture to this Indenture executed and delivered to the Trustee and under the Collateral Agreements pursuant to appropriate documentation executed and delivered to the Trustee;
(2) immediately after giving effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above (if applicable) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction and the assumption of the obligations as set forth in clause (1)(b) above (if applicable) and the incurrence of any Indebtedness to be incurred in connection therewith, and the use of any net proceeds therefrom on a pro forma basis, (i) the Surviving Entity could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (ii) the Consolidated Interest Coverage Ratio for the Surviving Entity and its Restricted Subsidiaries would be greater than or equal to such Consolidated Interest Coverage Ratio prior to such transaction;
(4) each Guarantor, unless it is the other party to the transactions described above, shall have by supplemental indenture confirmed that its Guarantee shall continue to apply to the Surviving Entitys obligations under the Indenture Documents;
(5) any Collateral owned by or transferred to the Surviving Entity shall (a) continue to constitute Collateral under this Indenture and the Collateral Agreements, (b) be subject to the Lien in favor of the Collateral Agent and (c) not be subject to any Lien (other than Permitted Liens);
(6) the property and assets of the Person which is merged or consolidated with or into the Surviving Entity, to the extent that they are property or assets of the types which would constitute Collateral under the Collateral Agreements, shall be treated as after-acquired property and the Surviving Entity shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Liens of the Collateral Agreements in the manner and to the extent required under the Collateral Agreements; and
(7) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel to the effect that such merger, consolidation or transfer and such agreement and/or supplemental indenture (if any) comply with the Indenture Documents.
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For purposes of this Section 5.1, any Indebtedness of the Surviving Entity which was not Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been incurred in connection with such transaction.
(b) Except in circumstances which provide for the release of the Guarantee of a Guarantor in accordance with the provisions of Section 10.5, no Guarantor shall, and the Issuer shall not permit any Guarantor to, directly or indirectly, in a single transaction or a series of related transactions, consolidate or merge with or into another Person (whether or not the Guarantor is the surviving Person), unless either:
(1)
(a) (i) such Guarantor shall be the surviving or continuing Person; or (ii) the Person (if other than such Guarantor) formed by or surviving any such consolidation or merger is the Issuer or another Guarantor or assumes, by agreements in form and substance reasonably satisfactory to the Trustee, all of the obligations of such Guarantor under the Guarantee of such Guarantor and this Indenture and the Collateral Agreements to which it is a party;
(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(c) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such merger or consolidation and such agreements and/or supplemental indenture (if any) comply with the Indenture Documents; or
(2) the transaction is made in compliance with Section 4.10.
For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Equity Interests of which constitute all or substantially all of the properties and assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(c) Upon any consolidation or merger of the Issuer or a Guarantor, or any transfer of all or substantially all of the assets of the Issuer in accordance with the foregoing, in which the Issuer or such Guarantor is not the continuing obligor under the Notes or its Guarantee, as applicable, the surviving entity formed by such consolidation or merger or into which the Issuer or such Guarantor is merged or the Person to which the sale, conveyance, lease, transfer, disposition or assignment is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or such Guarantor under this Indenture, the Notes and the Guarantees with the same effect as if such surviving entity had been named therein as the Issuer or such Guarantor and, so long as the Issuers or the applicable Guarantors obligations under the Indenture Documents are assumed as provided above, except in the case of a lease, the Issuer or such Guarantor, as the case may be, shall be released from the obligation to pay the principal of and interest on the Notes or in respect of its Guarantee, as the case may be, and all of the Issuers or such Guarantors other obligations and covenants under the Notes, this Indenture and its Guarantee, if applicable.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Each of the following is an Event of Default:
(1) failure to pay interest on any of the Notes when the same becomes due and payable and the continuance of any such failure for 30 days;
(2) failure to pay principal of or premium, if any, on any of the Notes when it becomes due and payable, whether at Stated Maturity, upon redemption, upon purchase, upon acceleration or otherwise;
(3) failure by the Issuer or any of its Restricted Subsidiaries to comply with any of their respective agreements or covenants described in Section 5.1, or failure by the Issuer to comply in respect of its obligations to make a Change of Control Offer pursuant to Section 4.14;
(4) (a) except with respect to Section 4.3, failure by the Issuer or any Restricted Subsidiary to comply with any other agreement or covenant in the Indenture Documents and continuance of this failure for 60 days after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding, or (b) failure by the Issuer for 120 days after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding to comply with Section 4.3;
(5) default by the Issuer or any Restricted Subsidiary under any mortgage, indenture or other instrument or agreement under which there is issued or by which there is secured or evidenced Indebtedness for borrowed money by the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date, which default:
(a) is caused by a failure to pay at its Stated Maturity principal on such Indebtedness within the applicable express grace period and any extensions thereof, or
(b) results in the acceleration of such Indebtedness prior to its Stated Maturity,
and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness with respect to which an event described in clause (a) or (b) has occurred and is continuing, aggregates $55.0 million or more;
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(6) one or more judgments (to the extent not covered by insurance) for the payment of money in an aggregate amount in excess of $55.0 million shall be rendered against the Issuer, any of its Significant Subsidiaries or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed;
(7)
(a) the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(b) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, in an involuntary case;
(ii) appoints a custodian of the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, or for all or substantially all of the property of the Issuer or any of its Restricted Subsidiaries; or
(iii) orders the liquidation of the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, and the order or decree remains unstayed and in effect for 60 consecutive days; or
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(8) (a) any Guarantee from any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and this Indenture) or is declared null and void and unenforceable or found to be invalid, or (b) any Guarantor denies its liability under the Guarantee of such Guarantor (other than by reason of release of such Guarantor from its Guarantee in accordance with the terms of this Indenture and the Guarantee); or
(9) the Collateral Agreements shall for any reason cease to create a valid and perfected second-priority Lien (subject to the terms of the Intercreditor Agreement and Permitted Liens) on any portion of the Collateral having a Fair Market Value in excess of $25.0 million (in each case, other than (a) the failure to perfect Liens that are not required to be perfected by the terms of this Indenture or the Collateral Agreements or (b) in accordance with the terms of this Indenture, the Intercreditor Agreement or the terms of the Collateral Agreements).
SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default specified in Section 6.1(7) with respect to the Issuer) shall have occurred and be continuing under this Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, may declare (an acceleration declaration) all amounts owing under the Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due and payable immediately.
If an Event of Default specified in clause (7) of Section 6.1 occurs with respect to the Issuer, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes or any other action or notice, to the extent permitted by applicable law.
After any acceleration described above in this Section 6.2, but before a judgment or decree based on acceleration, the Holders of a majority in aggregate principal amount of the Notes then outstanding may rescind and annul such acceleration if:
(1) the rescission would not conflict with any judgment or decree;
(2) all existing Events of Default have been cured or waived other than nonpayment of accelerated principal and interest;
(3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid;
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(4) the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances; and
(5) in the event of the cure or waiver of an Event of Default (other than an Event of Default described in clauses (1), (2) or (7) of Section 6.1), the Trustee shall have received an Officers Certificate and an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Defaults. Subject to Section 9.2, the Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default and its consequences under this Indenture except a continuing Default in the payment of interest or premium on, or the principal of, the Notes, which shall require the consent of all of the Holders of the Notes then outstanding.
SECTION 6.5. Control by Majority. The Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee. However, (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such direction prejudices the rights of such Holders) and (ii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with any such direction received from the Holders.
SECTION 6.6. Limitation on Suits. A Holder may pursue a remedy with respect to this Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of a continuing Event of Default;
(b) the Holder or Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
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(c) such Holder or Holders offer the Trustee and Collateral Agent indemnity satisfactory to the Trustee and Collateral Agent, as applicable, against any costs, liability or expense;
(d) the Trustee does not comply with the request within sixty (60) days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such use by a Holder prejudices the rights of any other Holders or obtains priority or preference over such other Holders).
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, shall not be impaired or affected without the consent of the Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in Section 6.1(1) or Section 6.1(2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable upon the conversion or exchange of the Notes or on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances to the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.6 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in
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such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. Subject to the terms of the Intercreditor Agreement, if the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money and property in the following order:
First: to the Trustee and the Collateral Agent, their agents and attorneys for amounts due under Section 7.6 and 11.5, as applicable, including payment of all reasonable compensation, expenses and liabilities incurred, and all advances made, by the Trustee or the Collateral Agent and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively;
Third: without duplication, to the Holders for any other Obligations owing to the Holders under this Indenture and the Notes; and
Fourth: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein); however, the Trustee shall examine the certificates and opinions furnished to it to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.
(d) The Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(e) Each of the Trustee and the Collateral Agent is hereby authorized to execute this Indenture and any other Collateral Agreement to which it may be a party and perform its obligations in accordance with their respective terms, and the rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be compensated, reimbursed and indemnified, are extended to the Trustees execution and performance of each such agreement. Similarly, the rights, privileges, protections, immunities and benefits given to the Collateral Agent, including its rights to be compensated, reimbursed and indemnified under any Collateral Agreement, are extended to the Collateral Agents execution and performance of this Indenture and each such other Collateral Agreement, and any other instrument, power of attorney or other agreement incidental to any Collateral Agreement in respect of the Collateral, and shall apply mutatis mutandis hereunder and under each such other agreement.
(f) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to clauses (a) through (d) of this Section 7.1.
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SECTION 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting on any resolution, certificate, statement, instrument, opinion, notice, report, request, direction, consent, order, bond, debenture or other document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated therein.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. Prior to taking, suffering or admitting any action, the Trustee may consult with counsel of the Trustees own choosing, and the Trustee shall be fully protected from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in conclusive reliance on the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys, attorneys-in-fact and agents and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Guarantor shall be sufficient if signed by an Officer of the Issuer or such Guarantor.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine during normal business hours the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, the Collateral Agent, the Agents and each other agent, attorney, attorney-in-fact, custodian and Person employed to act hereunder.
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(i) The Trustee may request that the Issuer and each of the Guarantors shall deliver to the Trustee an Officers Certificate setting forth the names of individuals and/or titles of Officers of the Issuer and each Guarantor, as applicable, authorized at such time to take specified actions pursuant to this Indenture, the Notes and the Guarantees, which Officers Certificate may be signed by any Person authorized to sign an Officers Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default unless a Responsible Officer of the Trustee has actual knowledge thereof or the Trustee shall have received from the Issuer or any other obligor upon the Notes or from any Holder written notice thereof at its address set forth in Section 12.1 and such notice references the Notes and this Indenture. In the absence of such actual knowledge or such notice, the Trustee may conclusively assume that no such Default exists.
(k) In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
SECTION 7.3. Individual Rights of the Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest, it must eliminate such conflict within ninety (90) days, apply to the SEC for permission to continue as Trustee (if this Indenture has been qualified under the Trust Indenture Act of 1939, as amended) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.9 hereof.
SECTION 7.4. Trustees Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or any Guarantee, it shall not be accountable for the use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes, any Officers Certificate delivered to the Trustee hereunder, or any other document in connection with the sale of the Notes or pursuant to this Indenture other than the Trustees certificate of authentication hereunder.
SECTION 7.5. Notice of Defaults. If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall deliver to Holders a notice of the Default within 60 days after it occurs. Except in the case of a Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interests of the Holders.
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SECTION 7.6. Compensation and Indemnity. The Issuer shall pay to the Trustee from time to time compensation for its acceptance of this Indenture and for all services rendered by it hereunder as agreed upon in writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services, except any such disbursements, expenses and advances as may be attributable to the Trustees gross negligence, bad faith or willful misconduct. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
Each of the Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee (which for purposes of this Section 7.6 shall include its officers, directors, employees and agents) against any and all claims, damages, losses, liabilities, costs or expenses incurred by it (including, without limitation, the fees and expenses of its agents and counsel) arising out of or in connection with the acceptance or administration of its duties under this Indenture, the performance of its obligations and/or exercise of its rights hereunder, including the costs and expenses of enforcing this Indenture against the Issuer or any Guarantor (including this Section 7.6) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall be caused by its own gross negligence, bad faith or willful misconduct. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Trustee may have one separate counsel in each relevant jurisdiction, and the Issuer shall pay the reasonable fees and expenses of such counsel for the Trustee. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Issuer and the Guarantors under this Section 7.6 shall survive the discharge of this Indenture, the payment of the Notes or the resignation or removal of the Trustee.
To secure the Issuers payment obligations in this Section 7.6, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal or interest, if any, on particular Notes. Such Lien shall survive the discharge of this Indenture, the payment of the Notes and the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(7) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.7. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor trustees acceptance of appointment as provided in this Section 7.7.
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The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.9 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to such Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Issuer shall promptly appoint a successor trustee. Within one year after the successor trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor trustee to replace the successor trustee appointed by the Issuer.
If a successor trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.9 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.
A successor trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor trustee shall have all the rights, powers and the duties of the Trustee under this Indenture. The successor trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided that all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.6. Notwithstanding replacement of the Trustee pursuant to this Section 7.7, the Issuers and the Guarantors obligations under Section 7.6 shall continue for the benefit of the retiring Trustee.
SECTION 7.8. Successor Trustee by Merger, Etc. If the Trustee or any Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee or Agent, as applicable.
SECTION 7.9. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power and that is subject to supervision or examination by federal or state authorities. Such Trustee together with its affiliates shall at all times have a combined capital surplus of at least $50.0 million as set forth in its most recent annual report of condition.
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ARTICLE VIII
DEFEASANCE; DISCHARGE OF THIS INDENTURE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at the option of its Board of Directors and evidenced by a board resolution and an Officers Certificate, at any time, elect to have either Section 8.2 or Section 8.3 applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance. Upon the Issuers exercise under Section 8.1 of the option applicable to this Section 8.2, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.4, be deemed to have been discharged from their obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire Obligations represented by the Notes and the Guarantees, which shall thereafter be deemed to be outstanding only for the purposes of Section 8.5 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all of its other Obligations under such Notes, Guarantees and this Indenture (and the Trustee, on written demand of and at the expense of the Issuer, shall execute instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, and interest and premium, if any, on such Notes when such payments are due from the trust referred to in Section 8.4(1); (b) the Issuers obligations with respect to such Notes under Section 2.2, Section 2.3, Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.10, Section 2.15, Section 2.17, Section 4.1 and Section 4.2; (c) the rights, powers, trusts, benefits, duties and immunities of the Trustee, including without limitation thereunder, under Section 7.6, Section 8.5 and Section 8.7 and the obligations of the Issuer and the Guarantors in connection therewith; and (d) the provisions of this Article VIII. Subject to compliance with this Article VIII, the Issuer may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under Section 8.3.
SECTION 8.3. Covenant Defeasance. Upon the Issuers exercise under Section 8.1 above of the option applicable to this Section 8.3, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.4 below, be released from its obligations under Section 4.3, Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12, Section 4.14, Section 4.16, Section 4.17, Section 4.18, Section 4.19, Section 4.20 and Section 5.1 (a)(3) with respect to the outstanding Notes and the Collateral Agreements (other than the Intercreditor Agreement) shall automatically terminate, in each case, on and after the date the conditions set forth below are satisfied (hereinafter, Covenant Defeasance), and the Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer or any of its Subsidiaries may omit to comply with and shall have no liability in respect of any term,
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condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuers exercise under Section 8.1 of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4, Section 6.1(3), Section 6.1(4), Section 6.1(5), Section 6.1 (6), Section 6.1(8) and Section 6.1(9) shall not constitute Events of Default.
Notwithstanding any discharge or release of any obligations pursuant to Section 8.2 or Section 8.3, the Issuers and the Guarantors obligations, as applicable, in Section 2.5, Section 2.6, Section 2.7, Section 2.10, Section 2.15, Section 2.17, Section 4.1, Section 4.2, Section 7.6, Section 8.5 and Section 8.7 shall survive until the Notes are no longer outstanding pursuant to the last paragraph of Section 2.8. After the Notes are no longer outstanding, the Issuers obligations in Section 7.6, Section 8.5 and Section 8.7 shall survive.
SECTION 8.4. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.2 or Section 8.3 to the outstanding Notes:
(1) the Issuer must irrevocably deposit with the Trustee, as trust funds, in trust solely for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants selected by the Issuer which is delivered to the Trustee, to pay the principal of and interest on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be,
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(A) the Issuer has received from, or there has been published by the United States Internal Revenue Service, a ruling, or
(B) since the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon, such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred,
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(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and the granting of any Lien securing such borrowings),
(5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound (other than this Indenture),
(6) the Issuer shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by it with the intent of preferring the Holders over any other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors or others, and
(7) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each to the effect that the conditions precedent provided for in clauses (1) through (6) have been complied with.
SECTION 8.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6, all U.S. legal tender and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively, for purposes of this Section 8.5, the Deposit Trustee) pursuant to Section 8.4 in respect of the outstanding Notes shall be held in trust, shall not be invested, and shall be applied by the Deposit Trustee in accordance with the provisions of such Notes and this Indenture to the payment, either directly or through any Paying Agent (including the Issuer or any Subsidiary acting as Paying Agent) as the Deposit Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Deposit Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.4 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Deposit Trustee shall deliver or pay to the Issuer from time to time upon the written request of the Issuer and be relieved of all liability with respect to any U.S. legal tender or non-callable U.S. Government Obligations held by it as provided in Section 8.4 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Deposit Trustee (which may be the opinion delivered under Section 8.4(1)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
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If the funds deposited with the Deposit Trustee to effect Covenant Defeasance or Legal Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Issuers obligations and the obligations of the Guarantors under this Indenture will be revived and no such defeasance will be deemed to have occurred.
SECTION 8.6. Repayment to Issuer. Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Issuer on its written request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof; and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuer.
SECTION 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. dollars or U.S. Government Obligations in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Guarantors under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.2, Section 8.3 or Section 8.8 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2, Section 8.3 or Section 8.8, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
SECTION 8.8. Discharge. This Indenture shall be discharged and shall cease to be of further effect (except as to rights of registration of transfer or exchange of Notes which shall survive until all Notes have been canceled and the rights, protections and immunities of the Trustee) as to all outstanding Notes when either:
(a) all the Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from this trust), have been delivered to the Trustee for cancellation; or
(b)
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(1) | all Notes not delivered to the Trustee for cancellation otherwise (i) have become due and payable (by reason of the making of a notice of redemption or otherwise), (ii) will become due and payable within one year, (iii) have been called for redemption pursuant to Section 3.7 or (iv) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and, in any case in clauses (i)-(iv), the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire Indebtedness (including all principal and accrued interest) on the Notes not theretofore delivered to the Trustee for cancellation; |
(2) | the Issuer has paid or caused to be paid all other sums payable by it under this Indenture; and |
(3) | the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the date of redemption, as the case may be. |
In addition, the Issuer must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to the discharge of this Indenture pursuant to this Section 8.8 have been complied with.
In the case of clause (b) of this Section 8.8, and subject to the next sentence and notwithstanding the foregoing paragraph, the Issuers and the Guarantors obligations, as applicable, in Section 2.2, Section 2.3, Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.10, Section 2.12, Section 2.15, Section 2.17, Section 4.1, Section 4.2, Section 4.15 (as to legal existence of the Issuer only), Section 7.6, Section 8.5 and Section 8.7 shall survive until the Notes are no longer outstanding pursuant to the last paragraph of Section 2.8. After the Notes are no longer outstanding, the Issuers and the Guarantors obligations in Section 7.6, Section 8.5 and Section 8.7 shall survive any discharge pursuant to this Section 8.8.
After such delivery or irrevocable deposit and receipt of the Officers Certificate and Opinion of Counsel, the Trustee, upon written request, shall acknowledge in writing the discharge of the Issuers obligations under the Notes and this Indenture except for those surviving obligations specified above.
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ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. Without Consent of Holders of the Notes. Notwithstanding Section 9.2, without the consent of any of the Holders, the Issuer, the Guarantors and the Trustee and, to the extent applicable, the Collateral Agent, at any time and from time to time, may amend or supplement this Indenture, the Guarantees, the Notes issued hereunder or the Collateral Agreements for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Issuers or a Guarantors obligations to the Holders in the case of a merger, consolidation or sale of all or substantially all of the Issuers or such Guarantors assets or sale, lease, transfer, conveyance or other disposition or assignment in accordance with Section 5.1;
(4) to add any Guarantee or to effect the release of any Guarantor from any of its obligations under its Guarantee or the provisions of this Indenture (to the extent in accordance with this Indenture);
(5) to make any change that would provide any additional rights or benefits to the Holders or that does not materially adversely affect the rights of any Holder;
(6) to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(7) to add to the Collateral securing the Notes Obligations;
(8) to evidence and provide for the acceptance of appointment by a successor trustee or Collateral Agent;
(9) to conform the text of this Indenture, the Guarantees, the Notes or the Collateral Agreements to any provision of the Description of the Notes contained in the Offering Circular, to the extent that such provision in such Description of the Notes purports to describe a provision of this Indenture, the Guarantees, the Notes or the Collateral Agreements;
(10) to provide for the issuance of Additional Notes in accordance with this Indenture;
(11) with respect to the Collateral Agreements, as provided in the Intercreditor Agreement; or
(12) to provide for the release of Collateral from the Liens securing the Notes when permitted by the Collateral Agreements or this Indenture or required by the Intercreditor Agreement.
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In addition to the foregoing, any Collateral Agreement may be amended or supplemented or replaced without the consent of Holders to the extent necessary or appropriate to maintain the Liens of the Collateral Agent in connection with the issuance of Additional Notes in accordance with this Indenture.
After an amendment under this Indenture becomes effective, the Issuer shall deliver to Holders of the Notes a notice briefly describing such amendment. However, the failure to give such notice to all Holders of the Notes, or any defect therein, will not impair or affect the validity of the amendment.
SECTION 9.2. With Consent of Holders. With the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), the Issuer, the Guarantors and the Trustee and, to the extent applicable, the Collateral Agent may amend or supplement this Indenture, the Notes, the Guarantees or the Collateral Agreements, or, subject to Section 6.4 and Section 6.7, waive any existing Default or compliance with any provision of this Indenture or the Notes; provided, however, that without the consent of each affected Holder, no amendment, supplement or waiver under this Section 9.2 may (with respect to any Notes held by a non-consenting Holder):
(1) reduce, or change the maturity of, the principal of any Note;
(2) reduce the rate of or extend the time for payment of interest on any Note;
(3) reduce any premium payable upon redemption of the Notes or change the date on which any Notes are subject to redemption (other than the notice provisions) or waive any payment with respect to the redemption of the Notes; provided, however, that solely for the avoidance of doubt, and without any other implication, any purchase or repurchase of Notes (including pursuant to Section 4.10 and Section 4.14) shall not be deemed a redemption of the Notes;
(4) make any Note payable in money or currency other than that stated in the Notes;
(5) modify or change any provision of this Indenture or the related definitions to affect the ranking of the Notes or any Guarantee in a manner that adversely affects the Holders;
(6) reduce the percentage of Holders necessary to consent to an amendment or waiver to this Indenture or the Notes;
(7) waive a default in the payment of principal of or premium, if any, or interest on any Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in this Indenture and a waiver of the payment default that resulted from such acceleration);
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(8) impair the rights of Holders to receive payments of principal of or interest on the Notes on or after the due date therefor or to institute suit for the enforcement of any payment on the Notes;
(9) release any Guarantor from any of its obligations under its Guarantee or this Indenture, except as permitted by this Indenture; or
(10) make any change in these amendment and waiver provisions.
In addition, the consent of Holders representing at least 66 2/3% of the outstanding Notes shall be required to release the Liens for the benefit of the Holders of the Notes on all or substantially all of the Collateral, other than any such release in accordance with this Indenture, the Intercreditor Agreement and the Collateral Agreements.
It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
SECTION 9.3. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. When an amendment, supplement or waiver becomes effective in accordance with its terms, it thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a record date for determining which Holders consent to such amendment, supplement or waiver. If the Issuer fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 2.5 or (ii) such other date as the Issuer shall designate.
SECTION 9.4. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.5. Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In signing or refusing to sign any amendment or supplemental indenture, the Trustee shall be provided with and (subject to Section 7.1) shall be fully protected in relying upon an Officers Certificate and an Opinion of Counsel stating that the execution of such amendment or supplemental indenture is authorized or permitted by this Indenture, that all conditions precedent
thereto have been met or waived, that such amendment or supplemental indenture is not inconsistent herewith and that it will be valid and binding upon the Issuer and the Guarantors in accordance with its terms.
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ARTICLE X
GUARANTEES
SECTION 10.1. Guarantees.
(a) Each Guarantor hereby jointly and severally, fully and unconditionally guarantees the Notes and obligations of the Issuer hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, that: (i) the principal of and premium, if any, and interest on the Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of Title 11 of the U.S. Code), together with interest on the overdue principal, if any, and interest on any overdue interest, to the extent lawful, and all other Obligations of the Issuer to the Holders or the Trustee under this Indenture or the Notes shall be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of any such other obligations, the same shall be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Each of the Guarantees shall be a guarantee of payment and not of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(c) Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer or any other Person, any right to request the division of the payment obligations among the Guarantors, any right to request that any Collateral be foreclosed upon, protest, notice and all demands whatsoever and covenants that the Guarantee of such Guarantor shall not be discharged as to any Note or this Indenture except by complete performance of the obligations contained in such Note and this Indenture and such Guarantee. Each of the Guarantors hereby agrees that, in the event of a Default in payment of principal or premium, if any, or interest on any Note, whether at its Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce each such Guarantors Guarantee without first proceeding against the Issuer or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any
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other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders and any other amounts due and owing to the Trustee under this Indenture.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain effective notwithstanding any contrary action which may be taken by the Trustee or any Holder in reliance upon such amount required to be returned. This paragraph (d) shall survive the termination of this Indenture.
(e) Each Guarantor further agrees that, as between each Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VI for the purposes of the Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any acceleration of such obligations as provided in Article VI, such obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of the Guarantee of such Guarantor.
(f) Each Guarantor acknowledges that each Guarantee will be a general obligation of such Guarantor and will rank senior in right of payment to all future Obligations of such Guarantor that are, by their terms, expressly subordinated in right of payment to such Guarantee and equal in right of payment with all existing and future obligations of such Guarantor that are not so subordinated.
(g) Each Guarantee will be secured by a second-priority Lien on the Collateral owned by such Guarantor, subject to the terms of the Intercreditor Agreement.
(h) Each Guarantor that makes a payment for distribution under its Guarantee is entitled upon payment in full of all guaranteed obligations under this Indenture to seek contribution from each other Guarantor in a pro rata amount of such payment based on the respective net assets of all the Guarantors at the time of such payment in accordance with GAAP or applicable law.
SECTION 10.2. Execution and Delivery of Guarantee. To evidence its Guarantee set forth in Section 10.1, each Guarantor agrees that this Indenture or a supplemental indenture in substantially the form attached hereto as Exhibit B shall be executed on behalf of such Guarantor by an Officer of such Guarantor (or, if an officer is not available, by a board member or director) on behalf of such Guarantor by manual or facsimile signature. Each Guarantor hereby agrees that its Guarantee set forth in Section 10.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. In case the Officer, board member or director of such Guarantor whose signature is on this Indenture or supplemental indenture, as applicable, no longer holds office at the time the Trustee authenticates any Note, the Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.17 hereof, the Issuer shall cause each Restricted Subsidiary described in Section 4.17 hereof to comply with the provisions of Section 4.17 hereof and this Article X, to the extent applicable.
SECTION 10.3. Severability. In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. Limitation of Guarantors Liability. (a) Each Guarantor and by its acceptance hereof each Holder confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or the provisions of its local law relating to fraudulent transfer or conveyance. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor under its Guarantee (other than a company that is a direct or indirect parent of the Issuer) shall be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under its Guarantee constituting a fraudulent conveyance, fraudulent preference, or fraudulent transfer or otherwise reviewable transaction under applicable law.
(b) Notwithstanding anything set out to the contrary in this Indenture or any other Indenture Document, the obligations and liabilities of J. Ray McDermott (Norway) AS under any provision of this Indenture or any other Indenture Document to which it is a party shall not include any obligations or liabilities to the extent they would constitute unlawful financial assistance within the meaning of Section 8-7 and/or 8-10, cfr. Section 1-4, of the Norwegian Companies Act of 13 June 1997 no. 44, and the obligations and liabilities of J. Ray McDermott (Norway) AS under this Indenture or any other Indenture Document only apply to the extent permitted by those provisions of the Norwegian Companies Act of 13 June 1997 no. 44.
(c) The total liability of J. Ray McDermott (Norway) AS under this Indenture or any other Indenture Document to which it is a party shall never exceed $1,000,000,000 plus interest thereon and fees, costs and expenses as set out in this Indenture or any other Indenture Document.
SECTION 10.5. Releases. A Guarantor shall be released and relieved of any Obligations under its Guarantee and this Indenture:
(a) upon any sale, exchange or transfer (by merger, consolidation or otherwise) of the Equity Interests of such Guarantor after which the applicable Guarantor is no longer a Restricted Subsidiary, which sale, exchange or transfer does not violate this Indenture;
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(b) upon designation by the Board of Directors of the Issuer as an Unrestricted Subsidiary in accordance with the terms of this Indenture;
(c) in the case of any Restricted Subsidiary that after the Issue Date is required to guarantee the Notes pursuant to the requirements of Section 4.17, upon the release or discharge of such Restricted Subsidiarys guarantee of Indebtedness of the Issuer or any Guarantor that resulted in the obligation of such Restricted Subsidiary to guarantee the Notes pursuant to such Section 4.17, except if any such release or discharge is by or as a result of payment under such other guarantee; provided that no continuing Event of Default relating to the failure to make required payments on the Notes exists;
(d) if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option pursuant to Section 8.2 or Section 8.3 or if this Indenture is discharged in accordance with Section 8.8;
(e) upon dissolution of such Guarantor, which dissolution does not violate the provisions of this Indenture;
(f) in accordance with the provisions of Article IX; or
(g) as otherwise provided in the Intercreditor Agreement, including, without limitation, with respect to any Guarantor that is released from its obligations to guarantee the First Priority Claims to the extent set forth in the Intercreditor Agreement.
Upon delivery to the Trustee of an Officers Certificate and an Opinion of Counsel to the effect that all conditions precedent to the release of a Guarantors Guarantee set forth in this Indenture have been satisfied, the Trustee shall execute any documents reasonably requested by the Issuer in writing in order to evidence the release of any Guarantor from its obligations under its Guarantee.
Any Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article X.
SECTION 10.6. Benefits Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that its guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of such benefits.
ARTICLE XI
COLLATERAL AND SECURITY
SECTION 11.1. Security Interest. The Notes Obligations are secured by Second Priority Liens on the Collateral as provided in the Collateral Agreements. Each Holder, by its acceptance of a Note, consents and agrees to the terms of the Collateral Agreements (including the provisions providing for foreclosure and release of Collateral by the Collateral Agent, relating to ranking of Second Priority Liens and order of application of proceeds from enforcement of Second Priority Liens) as the same may be in effect or may be amended,
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amended and restated, modified, renewed, restated or replaced from time to time in accordance with their terms and each Holder and the Trustee hereby authorizes and appoints Wells Fargo Bank, National Association, as Collateral Agent, and each Holder and the Trustee direct the Collateral Agent to enter into the Collateral Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith and to exercise such powers as are delegated to the Trustee and the Collateral Agent by the terms thereof, together with such actions and powers as are reasonably incidental thereto. The Issuer and each of the applicable Guarantors consents and agrees to be bound by the terms of the Collateral Agreements, as the same may be in effect from time to time, and agrees to perform its obligations thereunder in accordance therewith. Each Holder agrees that all Notes Obligations shall be and are secured equally and ratably by all Second Priority Liens at any time granted by the Issuer or any Guarantor to secure any Notes Obligations and all such Second Priority Liens shall be enforceable by the Collateral Agent for the benefit of all holders of Notes Obligations.
SECTION 11.2. Intercreditor Agreement. THIS INDENTURE, THE NOTES AND THE COLLATERAL AGREEMENTS ARE SUBJECT TO THE TERMS, LIMITATIONS AND CONDITIONS SET FORTH IN THE INTERCREDITOR AGREEMENT. THE TRUSTEE AND EACH HOLDER, BY ITS ACCEPTANCE OF A NOTE, IS DEEMED TO HAVE AUTHORIZED AND INSTRUCTED THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON ITS BEHALF. Each Holder, by its acceptance of a Note, agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Indenture and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control. Nothing in the Indenture Documents (a) impairs, as between the Issuer and the Holders, the obligation of the Issuer to pay principal of and interest, premium, if any, on the Notes in accordance with their terms, (b) impairs, as between the Issuer and the Holders, subject to the preceding sentence, any other obligation of the Issuer or any Guarantor under the Indenture Documents, (c) restricts the right of any Holder to sue for payments that are then due and owing (but not the right to enforce any judgment in respect thereof against any Collateral to the extent prohibited by the Intercreditor Agreement) or (d) restricts or prevents any Holder or any other Person from exercising any of its rights or remedies upon a Default or in any insolvency or liquidation proceeding not restricted or prohibited by the Intercreditor Agreement.
SECTION 11.3. Release of Liens in Respect of the Notes. The Liens on Collateral securing the Notes Obligations will be entitled to be released upon any one or more of the following circumstances:
(1) in connection with a sale or other disposition of Collateral to a Person that is not the Issuer or a Restricted Subsidiary in accordance with the provisions of Section 4.10;
(2) if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance option pursuant to Section 8.2 or Section 8.3 or if this Indenture is discharged in accordance with Section 8.8;
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(3) in the event that the owner thereof is properly designated as an Unrestricted Subsidiary;
(4) in the event that the owner thereof ceases to be a Guarantor in accordance with this Indenture; provided that no continuing Event of Default relating to the failure to make required payments on the Notes exists;
(5) in whole or in part, in accordance with the provisions of Article IX; or
(6) otherwise as provided in the Intercreditor Agreement.
SECTION 11.4. Collateral Agent. (a) Each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Agreements and the Intercreditor Agreement and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture and the Collateral Agreements (including the Intercreditor Agreement) and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture and the Collateral Agreements (including the Intercreditor Agreement), and consents and agrees to the terms of the Intercreditor Agreement and each Collateral Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The provisions of this Section 11.4 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Guarantors or the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Collateral Agreements (including the Intercreditor Agreement), and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Collateral Agreements (including the Intercreditor Agreement), the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Indenture Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or fiduciary relationship with the Trustee, any Holder, any Guarantor or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Collateral Agreements (including the Intercreditor Agreement) or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term agent in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) Subject to the provisions of the applicable Collateral Agreement, each Holder, by acceptance of the Notes, agrees that the Collateral Agent shall execute and deliver the Intercreditor Agreement and the other Collateral Agreements to which it is a party and all agreements, power of attorney, documents and instruments incidental thereto, and act in accordance with the terms thereof. The Collateral Agent shall hold (directly or through any
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Agent) and is directed by each Holder to so hold, and shall be entitled to enforce on behalf of the holders of Notes Obligations all Second Priority Liens on the Collateral created by the Collateral Agreements for their benefit, subject to the provisions of the Intercreditor Agreement.
(c) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, unless the Collateral Agent shall have received written notice from the Trustee or the Issuer referring to this Indenture, describing such Default and stating that such notice is a notice of default. The Collateral Agent shall take such action with respect to such Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 11.4).
(d) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Notes Obligations except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VI, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent, such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Intercreditor Agreement and the other Collateral Agreements.
(e) The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or Guarantor or is cared for, protected, or insured or has not been encumbered, or that the Collateral Agents Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Grantors property constituting Collateral intended to be subject to the Lien and security interest of the Collateral Agreements has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture, the Intercreditor Agreement or any other Collateral Agreements other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Collateral Agreements, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder or any Grantor or Guarantor as to any of the foregoing.
(f) The Collateral Agent may resign at any time by notice to the Trustee and the Issuer, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Issuer shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Issuer (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Issuer pursuant to the preceding sentence within thirty
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(30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term Collateral Agent shall mean such successor collateral agent, and the retiring Collateral Agents appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agents resignation hereunder, the provisions of this Section 11.4 (and Article VI) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
(g) Notwithstanding anything to the contrary in this Indenture or any other Indenture Document, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or the other Indenture Documents (including without limitation the filing or continuation of any UCC financing statements, mortgages, security agreements or similar documents or instruments in any U.S. or foreign jurisdiction), nor shall the Collateral Agent or the Trustee be responsible for, and neither the Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Agreements or the security interests or Liens intended to be created thereby.
(h) Notwithstanding anything to the contrary contained herein, the Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to this Indenture, the Collateral Agreements and the Collateral.
SECTION 11.5. Compensation and Indemnity. (a) The Issuer and the Guarantors shall pay to the Collateral Agent from time to time such compensation as the Issuer and the Collateral Agent shall from time to time agree in writing for its services rendered under this Indenture, the Collateral Agreements and the Intercreditor Agreement. The Issuer and the Guarantors shall reimburse the Collateral Agent promptly upon request for all reasonable disbursements, expenses and advances incurred or made by it in addition to the compensation for its services, except any such disbursements, expenses and advances as may be attributable to the Collateral Agents gross negligence, bad faith or willful misconduct. Such expenses shall include the reasonable fees and expenses of the Collateral Agents agents, attorneys-in-fact and counsel, including but not limited to counsel in any U.S. or foreign jurisdiction.
(b) Each of the Issuer and the Guarantors, jointly and severally, shall indemnify the Collateral Agent (which for purposes of this Section 11.5(b) shall include its affiliates and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of the Collateral Agent and its affiliates) against any and all claims, damages, losses, liabilities, costs or expenses incurred by it (including, without limitation, the fees and expenses of its agents, attorneys-in-fact and counsel) arising out of or in connection with the acceptance or administration of its duties under the Indenture Documents, the performance of its obligations and/or exercise of its rights under any Indenture Document, including the costs and expenses of enforcing this Indenture or any Collateral Agreement against the Issuer or any Guarantor (including this Section 11.5(b)) and defending itself against any claim (whether asserted by the Issuer or any Holder or any other
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Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall be caused by its own gross negligence, bad faith or willful misconduct. The Collateral Agent shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Collateral Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Collateral Agent may have one separate counsel in each relevant jurisdiction, and the Issuer shall pay the fees and expenses of such counsel for the Collateral Agent. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The obligations of the Issuer and the Guarantors under this Section 11.5(b) shall survive the discharge of this Indenture, the payment of the Notes, the release or termination of any Second Priority Liens or the resignation or removal of the Collateral Agent.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1. Notices. Any notice, request, direction, instruction or communication by the Issuer, any Guarantor, the Trustee or the Collateral Agent to the others is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the addresses set forth below:
If to the Issuer or any Guarantor:
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
With a copy to:
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
Facsimile: (713) 229-7738
Attention: Ted W. Paris
If to the Trustee:
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
107
Facsimile: (214) 756-7401
Attention: Patrick Giordano
and
If to the Collateral Agent
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
Facsimile: (214) 756-7401
Attention: Patrick Giordano
The parties hereto, by written notice to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed by first class mail or by overnight air courier promising next Business Day delivery to its address shown on the register kept by the Registrar. As long as the Notes are Global Notes, notices to be given to the Holders shall be given to the Depositary, in accordance with its applicable policies as in effect from time to time. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
In respect of this Indenture, neither the Trustee nor the Collateral Agent shall have any duty or obligation to verify or confirm that the Person sending instructions, directors, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directors, reports notices or other communications or information on behalf of the party purporting to send such electronic transmission; and neither the Trustee nor the Collateral Agent shall have any liability for any losses, liability, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions directors, reports, notices or other communications or information. Each other party, agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or indemnifications to the Trustee or the Collateral Agent, including without limitation the risk of the Trustee or the Collateral Agent acting on unauthorized instructions, notices, reports or other communications or information, and the risks of interception and misuse by third parties.
If a notice or communication is delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it, except in the case of notices or communications given to the Trustee or the Collateral Agent, which shall be effective only upon actual receipt.
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If the Issuer delivers a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.2. Communication by Holders with Other Holders. Holders may communicate with other Holders with respect to their rights under this Indenture or the Notes.
SECTION 12.3. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture (other than in connection with the issuance of the Initial Notes) or by the Issuer or any Grantor to the Collateral Agent to take any action under or pursuant to a Collateral Agreement, the Issuer and such Grantor shall furnish to the Trustee or the Collateral Agent, as applicable, upon request:
(a) an Officers Certificate (which shall include the statements set forth in Section 12.4) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in the Indenture Documents relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel (which shall include the statements set forth in Section 12.4) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
SECTION 12.4. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include substantially:
(a) a statement that the Person making such certificate or opinion has read and understands such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.
SECTION 12.5. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. Each of the Agents may make reasonable rules and set reasonable requirements for its functions.
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SECTION 12.6. Interest Act (Canada) Disclosure. For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Indenture and the Notes (and stated herein or therein, as applicable, to be computed on the basis of a 360 day year or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or the actual number of days in such other period of time, respectively.
SECTION 12.7. No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor (in its capacity as such) will have any liability for any indebtedness, obligations or liabilities of the Issuer under the Notes or this Indenture or of any Guarantor under its Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees.
SECTION 12.8. Governing Law; Consent to Jurisdiction. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES, THE GUARANTEES AND THE INTERCREDITOR AGREEMENT. Each of the parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes, the Guarantees, this Indenture or the Intercreditor Agreement, and all such parties hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding, and, in the case of the Guarantors organized under the laws of Mexico, the right to any other jurisdiction.
Nothing in this Indenture or any other Indenture Document or otherwise shall affect any right that the Trustee, the Collateral Agent or any other Secured Party may otherwise have to bring any action or proceeding relating to this Indenture or any other Indenture Document against the Issuer, any Guarantor or any of their respective properties in the courts of any jurisdiction.
SECTION 12.9. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. Successors. All agreements of the Issuer and the Guarantors in this Indenture and the Notes and the Guarantees, as applicable, shall bind their respective successors and assigns. All agreements of any Trustee in this Indenture shall bind its respective successors and assigns.
SECTION 12.11. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 12.12. Counterpart Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 12.13. Table of Contents, Headings, Etc. The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 12.14. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Section 12.14.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signers individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signers authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the register maintained by the Registrar hereunder.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
(e) If the Issuer shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, by or pursuant to a board resolution of the Issuers Board of Directors, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. If such a record
111
date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
SECTION 12.15. Waiver of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES, THE INTERCREDITOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12.16. Force Majeure. In no event shall the Trustee, the Collateral Agent or any Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, fire, riots, strikes, or stoppages for any reason, embargoes, governmental actions, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee or the Collateral Agent, as applicable, shall use reasonable efforts which are consistent with accepted practices in the U.S. banking industry to resume performance as soon as practicable under the circumstances.
SECTION 12.17. Documents in English. The parties to this Indenture have expressly requested that this Indenture and all related notices, amendments and other documents be drafted in the English language.
SECTION 12.18. Conversion of Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due under this Indenture to the Holder from U.S. dollars to another currency, the Issuer and each Guarantor has agreed, and each Holder by holding such Note will be deemed to have agreed, to the fullest extent that the Issuer, each Guarantor and they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures such Holder could purchase U.S. dollars with such other currency in New York City, New York on the Business Day preceding the day on which final judgment is given.
The Issuers and Guarantors obligations to any Holder will, notwithstanding any judgment in a currency (the Judgment Currency) other than U.S. dollars, be discharged only to the extent that on the Business Day following receipt by such Holder or the Trustee, as the case may be, of any amount in such Judgment Currency, such Holder may in accordance with normal banking procedures purchase U.S. dollars with the judgment currency. If the amount of the
112
U.S. dollars so purchased is less than the amount originally to be paid to such Holder or the Trustee in the Judgment Currency (as determined in the manner set forth in the preceding paragraph), as the case may be, each of the Issuer and the Guarantors, jointly and severally, agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Holder and the Trustee, as the case may be, against any such loss. If the amount of the U.S. dollars so purchased is more than the amount originally to be paid to such Holder or the Trustee, as the case may be, such Holder or the Trustee, as the case may be, will pay the Issuer and the Guarantors, such excess; provided that such Holder or the Trustee, as the case may be, shall not have any obligation to pay any such excess as long as a Default under the Notes or this Indenture has occurred and is continuing or if the Issuer or the Guarantors shall have failed to pay any Holder or the Trustee any amounts then due and payable under such Note or this Indenture, in which case such excess may be applied by such Holder or the Trustee to such Obligations.
SECTION 12.19. Service of Process. Each of the Issuer and each non-U.S. Guarantor hereby appoints McDermott, Inc., as its agent for service of process in any suit, action or proceeding with respect to this Indenture, the Notes or the Guarantees and for actions brought under federal or state securities laws brought in any federal or state court located in The City of New York.
SECTION 12.20. Legal Holidays. If any payment date falls on a day that is not a Business Day, the payment to be made on such payment date will be made on the next succeeding Business Day with the same force and effect as if made on such payment date, and no additional interest will accrue solely as a result of such delayed payment.
[Signatures on following page]
113
Dated as of the date first written above.
MCDERMOTT INTERNATIONAL, INC. | ||
By: | /s/ PERRY L. ELDERS | |
Name: | Perry L. Elders | |
Title: | Senior Vice President and Chief Financial Officer | |
GUARANTORS: | ||
MCDERMOTT FINANCE L.L.C. | ||
By: | /s/ PERRY L. ELDERS | |
Name: | Perry L. Elders | |
Title: | Senior Vice President and Chief Financial Officer | |
DEEPSEA (AMERICAS) LLC | ||
DEEPSEA (EUROPE) LIMITED | ||
DEEPSEA (HOLLAND) B.V. | ||
DEEPSEA (UK) LIMITED | ||
DEEPSEA (US) INCORPORATED | ||
J. RAY MCDERMOTT (LUXEMBOURG), S.AR.L. | ||
J. RAY MCDERMOTT (NIGERIA) LIMITED | ||
J. RAY MCDERMOTT INVESTMENTS B.V. | ||
MCDERMOTT HOLDINGS (U.K.) LIMITED | ||
MCDERMOTT INTERNATIONAL B.V. | ||
MCDERMOTT INTERNATIONAL MARINE INVESTMENTS N.V. | ||
MC DERMOTT OVERSEAS INVESTMENT CO. N.V. | ||
MCDERMOTT SERVICOS OFFSHORE DO BRASIL LTDA. | ||
PT. BAJA WAHANA INDONESIA | ||
SINGAPORE HUANGDAO PTE. LTD. | ||
VARSY INTERNATIONAL N.V. | ||
By: | /s/ JAMES P. GOODWIN | |
Name: | James P. Goodwin | |
Title: | Authorized Officer |
Signature Page to Indenture
CHARTERING COMPANY (SINGAPORE) PTE. LTD. | ||
DEEPSEA GROUP LIMITED | ||
EASTERN MARINE SERVICES, INC. | ||
GLOBAL ENERGY - MCDERMOTT LIMITED | ||
HYDRO MARINE SERVICES, INC. | ||
INTERNATIONAL VESSELS LTD. | ||
J. RAY HOLDINGS, INC. | ||
J. RAY MCDERMOTT (AUST.) HOLDING PTY. LIMITED | ||
J. RAY MCDERMOTT (CASPIAN), INC. | ||
J. RAY MCDERMOTT (QINGDAO) PTE. LTD. | ||
J. RAY MCDERMOTT CANADA HOLDING, LTD. | ||
J. RAY MCDERMOTT CANADA, LTD. | ||
J. RAY MCDERMOTT CONTRACTORS, INC. | ||
J. RAY MCDERMOTT ENGINEERING SERVICES PRIVATE LIMITED | ||
J. RAY MCDERMOTT FAR EAST, INC. | ||
J. RAY MCDERMOTT INTERNATIONAL VESSELS, LTD. | ||
J. RAY MCDERMOTT INTERNATIONAL, INC. | ||
J. RAY MCDERMOTT KAZAKHSTAN LIMITED LIABILITY PARTNERSHIP | ||
J. RAY MCDERMOTT LOGISTIC SERVICES PVT. LIMITED | ||
J. RAY MCDERMOTT SOLUTIONS, INC. | ||
J. RAY MCDERMOTT TECHNOLOGY, INC. | ||
J. RAY MCDERMOTT UNDERWATER SERVICES, INC. | ||
J. RAY MCDERMOTT WEST AFRICA HOLDINGS, INC. | ||
J. RAY MCDERMOTT (NORWAY) AS | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Treasurer |
Signature Page to Indenture
J. RAY MCDERMOTT WEST AFRICA, INC. MALMAC SDN. BHD. MCDERMOTT ASIA PACIFIC PTE. LTD. MCDERMOTT AUSTRALIA PTY. LTD. MCDERMOTT CASPIAN CONTRACTORS, INC. MCDERMOTT CAYMAN LTD. MCDERMOTT EASTERN HEMISPHERE, LTD. MCDERMOTT ENGINEERING, LLC MCDERMOTT FAR EAST, INC. MCDERMOTT GULF OPERATING COMPANY, INC. MCDERMOTT INTERNATIONAL INVESTMENTS CO., INC. MCDERMOTT INTERNATIONAL TRADING CO., INC. MCDERMOTT INTERNATIONAL VESSELS, INC. MCDERMOTT MARINE CONSTRUCTION LIMITED MCDERMOTT MIDDLE EAST, INC. MCDERMOTT OFFSHORE SERVICES COMPANY, INC. MCDERMOTT OLD JV OFFICE, INC. MCDERMOTT OVERSEAS, INC. MCDERMOTT SUBSEA ENGINEERING, INC. MCDERMOTT TRADE CORPORATION NORTH ATLANTIC VESSEL, INC. OFFSHORE PIPELINES INTERNATIONAL, LTD. OPI VESSELS, INC. OPMI, LTD. SABINE RIVER REALTY, INC. SPARTEC, INC. | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
J. RAY MCDERMOTT HOLDINGS, LLC J. RAY MCDERMOTT, S.A. MCDERMOTT INVESTMENTS, LLC MCDERMOTT, INC. | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer |
Signature Page to Indenture
MCDERMOTT INTERNATIONAL MANAGEMENT, S. DE RL. | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer and Investor Relations |
Signature Page to Indenture
J. RAY MCDERMOTT DE MEXICO, S.A. DE C.V. | ||
MCDERMOTT MARINE MEXICO, S.A. DE C.V. | ||
SERVICIOS PROFESIONALES DE ALTAMIRA, S.A. DE C.V. | ||
SERVICIOS DE FABRICACION DE ALTAMIRA, S.A. DE C.V. | ||
By: | /s/ ANA L. MENDEZ BURKART | |
Name: | Ana L. Mendez Burkart | |
Title: | Attorney-in-fact |
Signature Page to Indenture
Dated as of the date first written above.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
as Trustee, Registrar and Paying Agent | ||
By: |
/s/ PATRICK T. GIORDANO | |
Name: |
Patrick T. Giordano | |
Title: |
Vice President |
Signature Page to Indenture
Dated as of the date first written above.
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
as Collateral Agent | ||
By: | /s/ PATRICK T. GIORDANO | |
Name: | Patrick T. Giordano | |
Title: | Vice President |
Signature Page to Indenture
EXHIBIT A
FORM OF NOTE
(Face of 8.000% Senior Secured Note)
8.000% Senior Secured Notes due 2021
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE.
[Restricted Notes Legend]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE SECURITIES ACT) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
[Regulation S Legend]
A-1
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS NOTE MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE ABSENCE OF THIS REGISTRATION EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
A-2
No. | CUSIP NO. 1 ISIN |
McDermott International, Inc. (including any successor thereto) promises to pay to Cede & Co. or registered assigns, the principal sum of (as may be increased or decreased as set forth on the Schedule of Increases and Decreases attached hereto) on May 1, 2021.
Interest Payment Dates: May 1 and November 1, commencing on November 1, 2014
Record Dates: April 15 and October 15 (whether or not a Business Day)
Reference is made to further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
1 | Rule 144A Note CUSIP: 580037 AB5 |
Rule 144A Note ISIN: US580037AB54 |
Regulation S Note CUSIP: P64655 AB2 |
Regulation S Note ISIN: USP64655AB20 |
A-3
MCDERMOTT INTERNATIONAL, INC. | ||
By |
| |
Name: | ||
Title: |
This is one of the Notes referred to in the | ||
within-mentioned Indenture: | ||
Dated: | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: |
|
A-4
(Back of 8.000% Senior Secured Note)
8.000% Senior Secured Notes due 2021
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) Interest. McDermott International, Inc., a corporation incorporated under the laws of the Republic of Panama and any successor thereto, as the Issuer, promises to pay interest on the principal amount of this 8.000% Senior Secured Note due 2021 (a Note) at a fixed rate of 8.000% per annum. The Issuer will pay interest in U.S. dollars (except as otherwise provided herein) semiannually in arrears on May 1 and November 1, commencing on November 1, 2014 (each, an Interest Payment Date) or if any such day is not a Business Day, on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, and no additional interest shall accrue solely as a result of such delayed payment. Interest on the Notes shall accrue from the most recent date to which interest has been paid, or, if no interest has been paid, from and including the date of issuance. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
(2) Method of Payment. The Issuer will pay interest on the Notes (except defaulted interest) on the applicable Interest Payment Date to the Persons who are registered Holders at the close of business on the April 15 and October 15 preceding the Interest Payment Date (whether or not a Business Day), even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. If a Holder has given written wire transfer instructions to the Trustee at least ten Business Days prior to the applicable Interest Payment Date, the Issuer will make all payments of principal, premium and interest on such Holders Notes by wire transfer of immediately available funds to the account specified in those instructions. Otherwise, payments on the Notes will be made at the office or agency of the Trustee or Paying Agent within the City and State of New York unless the Issuer elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Any payments of principal of this Note prior to Stated Maturity shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. The final principal amount due and payable at the maturity of this Note shall be payable only upon presentation and surrender of this Note at an office of the Trustee or the Trustees agent appointed for such purposes. Notwithstanding anything to the contrary in this Note or in the Indenture, payments in respect of Global Notes will be made by wire transfer of immediately available funds to the Depositary.
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(3) Paying Agent and Registrar. Initially, Wells Fargo Bank, National Association shall act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder, and the Issuer and/or any Restricted Subsidiaries may act as Paying Agent or Registrar.
(4) Indenture. The Issuer issued the Notes under an Indenture, dated as of April 16, 2014 (the Indenture), among the Issuer, the Guarantors thereto, the Trustee and the Collateral Agent. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. The Initial Notes are senior obligations of the Issuer limited to $500,000,000 in aggregate principal amount. The Indenture permits the issuance of Additional Notes subject to compliance with certain conditions.
The payment of principal and interest on the Notes and all other amounts under the Indenture is unconditionally guaranteed, jointly and severally, on a senior basis by the Guarantors. Each Guarantee will be secured by a second-priority Lien on the Collateral owned by such Guarantor, subject to the terms of the Intercreditor Agreement.
(5) Optional Redemption.
(a) The Notes may be redeemed, in whole or in part, at any time prior to May 1, 2017 at the option of the Issuer upon notice in accordance with the provisions of Section 3.3 of the Indenture, at a redemption price equal to 100.0% of the principal amount of the Notes redeemed plus the Applicable Premium (calculated by the Issuer) as of, and accrued and unpaid interest, if any, to (but excluding), the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(b) The Notes are subject to redemption, at the option of the Issuer, in whole or in part, at any time or from time to time on or after May 1, 2017, upon notice in accordance with the provisions of Section 3.3 of the Indenture, at the following redemption prices (expressed as percentages of the principal amount to be redeemed) set forth below, plus accrued and unpaid interest, if any, on the Notes to be redeemed to (but excluding) the applicable redemption date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period beginning May 1 of the years indicated below:
Year |
Redemption Price | |||
2017 |
104.000 | % | ||
2018 |
102.000 | % | ||
2019 and thereafter |
100.000 | % |
(c) At any time or from time to time prior to May 1, 2017, the Issuer, at its option, may on any one or more occasions, upon notice in accordance with the provisions of Section 3.3 of the Indenture, redeem up to 35.0% of the aggregate principal amount of the outstanding Notes issued under the Indenture (calculated after giving effect to any issuance of Additional Notes) with the net cash proceeds of one or more Qualified Equity Offerings (which have not been applied to permanently repay other Indebtedness) at a redemption price equal to 108.000% of the
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principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon, if any, to (but excluding) the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date); provided that:
(1) at least 65.0% of the aggregate principal amount of Notes issued under the Indenture on the Issue Date remains outstanding immediately after giving effect to any such redemption; and
(2) the redemption occurs not more than 180 days after the date of the closing of any such Qualified Equity Offering.
(d) If the Issuer becomes obligated to pay any Additional Amounts as a result of a change in the laws or regulations of any Specified Tax Jurisdiction, or a change in any official position regarding the application or interpretation thereof (including a holding by a court of competent jurisdiction), which is publicly announced or becomes effective on or after the Issue Date (or, if later, on or after the date the relevant Specified Tax Jurisdiction first becomes a Specified Tax Jurisdiction) and such Additional Amounts cannot (as certified in an Officers Certificate to the Trustee) be avoided by the use of reasonable measures available to the Issuer, then the Issuer may, at its option, redeem the Notes, in whole but not in part, upon notice in accordance with the provisions of Section 3.3 of the Indenture (such notice to be provided not more than 90 days before the next date on which the Issuer would be obligated to pay Additional Amounts), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to (but excluding) the redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the redemption date). Notice of the Issuers intent to redeem the Notes shall not be effective until such time as it delivers to the Trustee an Opinion of Counsel stating that the Issuer is obligated to pay Additional Amounts because of an amendment to or change in law or regulation or position as described in this paragraph.
(6) Mandatory Redemption. Except as provided in the Indenture, the Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to Notes.
(7) Repurchase at Option of Holder.
(a) If a Change of Control occurs, unless the Issuer at such time has given notice of redemption pursuant to Paragraph (5) hereof with respect to all outstanding Notes, each Holder will have the right to require the Issuer to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes pursuant to a Change of Control Offer at a price in cash equal to 101.0% of the principal amount of Notes repurchased plus accrued and unpaid interest to (but excluding) the date of purchase; provided that no partial redemption shall result in a Note having a principal amount of less than $2,000. Not later than 30 days following any Change of Control unless the Issuer at such time has given notice of redemption pursuant to Paragraph (5) hereof with respect to all outstanding Notes, the Issuer will deliver a notice to each Holder (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and setting forth the procedures governing the Change of Control Offer required by the Indenture.
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(b) Following the occurrence of certain Asset Sales, the Issuer may be required to offer to purchase Notes.
(c) Holders of the Notes that are the subject of an offer to purchase will receive notice of a Net Proceeds Offer or the Change of Control Offer, as applicable, pursuant to an Asset Sale or a Change of Control from the Issuer prior to any related purchase date and may elect to have such Notes purchased by completing the form titled Option of Holder to Elect Purchase attached hereto.
(8) Notice of Redemption. Notice of redemption shall be delivered at least thirty (30) days but not more than sixty (60) days before the redemption date to each Holder whose Notes are to be redeemed in accordance with the applicable provisions of Article III and Section 12.1 of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in minimum denominations of $2,000 and integral multiples of $1,000 thereof, unless all of the Notes held by a Holder are to be redeemed so long as no partial redemption results in a Note having a principal amount of less than $2,000.
(9) Guarantees; Security. The Notes Obligations are jointly and severally, fully and conditionally, Guaranteed by the Guarantors to the extent set forth in the Indenture. The Notes Obligations are secured by Second Priority Liens on the Collateral as provided in the Collateral Agreements.
(10) Denominations, Transfer, Exchange. The Notes are in registered form without coupons in initial denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of the Notes may be registered and the Notes may be exchanged as provided in the Indenture. The Registrar, any Trustee and the Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay any stamp or transfer tax or similar government charge required by law or permitted by the Indenture in accordance with Section 2.6(g)(2) of the Indenture. The Registrar is not required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business fifteen (15) days before the day of any selection of Notes for redemption and ending at the close of business on the day of such selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
(11) Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes.
(12) Amendment, Supplement and Waiver. Subject to the following paragraphs, the Indenture, the Notes and the Guarantees may be amended or supplemented with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes, including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and, except as set forth in the Indenture, any existing Default or compliance with any provision of the Indenture, the Notes or the Guarantees may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes, including consents obtained in connection with a tender offer or exchange offer for Notes.
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Notwithstanding Section 9.2 of the Indenture, without the consent of any of the Holders, the Issuer, the Guarantors and the Trustee and, to the extent applicable, the Collateral Agent, at any time and from time to time, may amend or supplement the Indenture, the Guarantees, the Notes or the Collateral Agreements for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(3) to provide for the assumption of the Issuers or a Guarantors obligations to the Holders in the case of a merger, consolidation or sale of all or substantially all of the Issuers or such Guarantors assets or sale, lease, transfer, conveyance or other disposition or assignment in accordance with the Indenture;
(4) to add any Guarantee or to effect the release of any Guarantor from any of its obligations under its Guarantee or the provisions of the Indenture (to the extent in accordance with the Indenture);
(5) to make any change that would provide any additional rights or benefits to the Holders or that does not materially adversely affect the rights of any Holder;
(6) to effect or maintain the qualification of the Indenture under the Trust Indenture Act;
(7) to add to the Collateral securing the Notes Obligations;
(8) to evidence and provide for the acceptance of appointment by a successor trustee or Collateral Agent;
(9) to conform the text of the Indenture, the Guarantees, the Notes or the Collateral Agreements to any provision of the Description of the Notes contained in the Offering Circular, to the extent that such provision in such Description of the Notes purports to describe a provision of the Indenture, the Guarantees, the Notes or the Collateral Agreements;
(10) to provide for the issuance of Additional Notes in accordance with the Indenture;
(11) with respect to the Collateral Agreements, as provided in the Intercreditor Agreement; or
(12) to provide for the release of Collateral from the Liens securing the Notes when permitted by the Collateral Agreements or the Indenture or required by the Intercreditor Agreement.
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With the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), the Issuer, the Guarantors and the Trustee and, to the extent applicable, the Collateral Agent may amend or supplement the Indenture, the Notes, the Guarantees or the Collateral Agreements, or, subject to Section 6.4 and Section 6.7 of the Indenture, waive any existing Default or compliance with any provision of the Indenture or the Notes; provided, however, that without the consent of each affected Holder, no amendment, supplement or waiver under this paragraph may (with respect to any Notes held by a non-consenting Holder):
(1) reduce, or change the maturity of, the principal of any Note;
(2) reduce the rate of or extend the time for payment of interest on any Note;
(3) reduce any premium payable upon redemption of the Notes or change the date on which any Notes are subject to redemption (other than the notice provisions) or waive any payment with respect to the redemption of the Notes; provided, however, that solely for the avoidance of doubt, and without any other implication, any purchase or repurchase of Notes (including pursuant to Section 4.10 and Section 4.14 of the Indenture) shall not be deemed a redemption of the Notes;
(4) make any Note payable in money or currency other than that stated in the Notes;
(5) modify or change any provision of the Indenture or the related definitions to affect the ranking of the Notes or any Guarantee in a manner that adversely affects the Holders;
(6) reduce the percentage of Holders necessary to consent to an amendment or waiver to the Indenture or the Notes;
(7) waive a default in the payment of principal of or premium, if any, or interest on any Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in the Indenture and a waiver of the payment default that resulted from such acceleration);
(8) impair the rights of Holders to receive payments of principal of or interest on the Notes on or after the due date therefor or to institute suit for the enforcement of any payment on the Notes;
(9) release any Guarantor from any of its obligations under its Guarantee or the Indenture, except as permitted thereunder; or
(10) make any change in these amendment and waiver provisions.
In addition, the consent of Holders representing at least 66 2/3% of the outstanding Notes will be required to release the Liens for the benefit of the Holders of the Notes on all or substantially all of the Collateral, other than any such release in accordance with the Indenture, the Intercreditor Agreement and the Collateral Agreements.
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It shall not be necessary for the consent of the Holders under Section 9.2 of the Indenture to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
(13) Defaults and Remedies. Each of the following constitutes an Event of Default:
(1) failure to pay interest on any of the Notes when the same becomes due and payable and the continuance of any such failure for 30 days;
(2) failure to pay principal of or premium, if any, on any of the Notes when it becomes due and payable, whether at Stated Maturity, upon redemption, upon purchase, upon acceleration or otherwise;
(3) failure by the Issuer or any of its Restricted Subsidiaries to comply with any of their respective agreements or covenants described in Section 5.1 of the Indenture, or failure by the Issuer to comply in respect of its obligations to make a Change of Control Offer pursuant to Section 4.14 of the Indenture;
(4) (a) except with respect to Section 4.3 of the Indenture, failure by the Issuer or any Restricted Subsidiary to comply with any other agreement or covenant in any of the Indenture Documents and continuance of this failure for 60 days after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding, or (b) failure by the Issuer for 120 days after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes then outstanding to comply with Section 4.3 of the Indenture;
(5) default by the Issuer or any Restricted Subsidiary under any mortgage, indenture or other instrument or agreement under which there is issued or by which there is secured or evidenced Indebtedness for borrowed money by the Issuer or any Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue Date, which default:
(a) is caused by a failure to pay at its Stated Maturity principal on such Indebtedness within the applicable express grace period and any extensions thereof, or
(b) results in the acceleration of such Indebtedness prior to its Stated Maturity,
and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other Indebtedness with respect to which an event described in clause (a) or (b) has occurred and is continuing, aggregates $55.0 million or more;
(6) one or more judgments (to the extent not covered by insurance) for the payment of money in an aggregate amount in excess of $55.0 million shall be rendered against the Issuer, any of its Significant Subsidiaries or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed;
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(7)
(a) the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(b) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer, in an involuntary case;
(ii) appoints a custodian of the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer or for all or substantially all of the property of the Issuer or any of its Restricted Subsidiaries; or
(iii) orders the liquidation of the Issuer or any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer and the order or decree remains unstayed and in effect for 60 consecutive days; or
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(8) (a) any Guarantee from any Restricted Subsidiary that is a Significant Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Issuer ceases to be in full force and effect (other than in accordance with the terms of such Guarantee and the Indenture) or is declared null and void and unenforceable or found to be invalid, or (b) any Guarantor denies its liability under the Guarantee of such Guarantor, (other than by reason of release of such Guarantor from its Guarantee in accordance with the terms of the Indenture and the Guarantee); or
(9) the Collateral Agreements shall for any reason cease to create a valid and perfected second-priority Lien (subject to the terms of the Intercreditor Agreement and Permitted Liens) on any portion of the Collateral having a Fair Market Value in excess of $25.0 million (in each case, other than (a) the failure to perfect Liens that are not required to be perfected by the terms of the Indenture or the Collateral Agreements or (b) in accordance with the terms of the Indenture, the Intercreditor Agreement or the terms of the Collateral Agreements).
If an Event of Default (other than an Event of Default specified in clause (7) above with respect to the Issuer) shall have occurred and be continuing under the Indenture, the Trustee, by written notice to the Issuer, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding by written notice to the Issuer and the Trustee, may declare all amounts owing under the Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the outstanding Notes shall become due and payable immediately.
If an Event of Default specified in clause (7) above occurs with respect to the Issuer, then all unpaid principal of, and premium, if any, and accrued and unpaid interest, if any, on all of the outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Notes or any other action or notice, to the extent permitted by law.
(14) No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor (in its capacity as such) will have any liability for any indebtedness, obligations or liabilities of the Issuer under the Notes or the Indenture or of any Guarantor under its Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes and the Guarantees, to the extent permitted by applicable law.
(15) Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(16) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
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(17) Intercreditor Agreement. THIS NOTE, THE INDENTURE AND THE COLLATERAL AGREEMENTS ARE SUBJECT TO THE TERMS, LIMITATIONS AND CONDITIONS SET FORTH IN THE INTERCREDITOR AGREEMENT. THE TRUSTEE AND EACH HOLDER, BY ITS ACCEPTANCE OF THE INDENTURE, IS DEEMED TO HAVE AUTHORIZED AND INSTRUCTED THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON ITS BEHALF. Each Holder, by its acceptance of a Note, agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Indenture and the provisions of the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall control.
(18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes, and either Trustee may use CUSIP numbers in notices of redemption as a convenience to the Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature: |
| |
(Sign exactly as your name appears on the face of this Note) |
Signature guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, check the box below:
[ ] | Section 4.10 | [ ] | Section 4.14 |
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect to have purchased: $
Date:
Your Signature: |
| |
(Sign exactly as your name appears on the face of this Note) |
Tax Identification No.:
Signature guarantee:
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[INCLUDE IN TRANSFER RESTRICTED NOTES]
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OF TRANSFER RESTRICTED NOTES
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
Facsimile: (214) 756-7401
Attention: Patrick Giordano
Re: CUSIP NO.
Reference is hereby made to that certain Indenture dated as of April 16, 2014 (the Indenture) among McDermott International, Inc., as the Issuer, the guarantors named therein, Wells Fargo Bank, National Association, as Trustee, and Wells Fargo Bank, National Association, as Collateral Agent. Capitalized terms used but not defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (transferor) (check one box below):
¨ | hereby requests the Registrar to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above), in accordance with Section 2.6 of the Indenture; |
¨ | hereby requests the Trustee to exchange a Note or Notes to (transferee). |
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the periods referred to in Rule 144(d) under the Securities Act of 1933, as amended, the undersigned confirms that such Notes are being transferred in accordance with its terms:
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CHECK ONE BOX BELOW:
(1) ¨ | to the Issuer or any of its subsidiaries; or |
(2) ¨ | inside the United States to a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or |
(3) ¨ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder. |
Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof.
|
Signature |
Signature Guarantee: |
| |
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that each of it and any such account is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act of 1933, as amended (Rule 144A), and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigneds foregoing representations in order to claim the exemption from registration provided by Rule 144A.
[Name of Transferee] |
NOTICE: To be executed by an executive officer, if an entity |
Dated:
[INCLUDE IN NOTES BEARING THE REGULATION S LEGEND]
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CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OF NOTES BEARING THE REGULATION S LEGEND
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
Facsimile: (214) 756-7401
Attention: Patrick Giordano
Re: CUSIP NO.
Reference is hereby made to that certain Indenture dated as of April 16, 2014 (the Indenture) among McDermott International, Inc., as the Issuer, the guarantors named therein, Wells Fargo Bank, National Association, as Trustee, and Wells Fargo Bank, National Association, as Collateral Agent. Capitalized terms used but not defined herein shall have the meanings set forth in the Indenture.
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (transferor) (check one box below):
¨ | hereby requests the Registrar to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above), in accordance with Section 2.6 of the Indenture; |
¨ | hereby requests the Trustee to exchange a Note or Notes to (transferee). |
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the expiration of the Restricted Period (as defined in the Indenture), the undersigned confirms that such Notes are being transferred in accordance with its terms:
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CHECK ONE BOX BELOW:
(1) ¨ | to the Issuer or any of its subsidiaries; or |
(2) ¨ | inside the United States to a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or |
(3) ¨ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder. |
Prior to the expiration of the Restricted Period, unless one of the boxes is checked, the Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof.
|
Signature |
Signature Guarantee: |
| |
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that each of it and any such account is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act of 1933, as amended (Rule 144A), and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigneds foregoing representations in order to claim the exemption from registration provided by Rule 144A.
[Name of Transferee] |
NOTICE: To be executed by an executive officer, if an entity |
Dated:
A-20
SCHEDULE OF INCREASES AND DECREASES OF
8.000% SENIOR SECURED NOTES DUE 2021
The following transfers, exchanges and redemption of this Global Note have been made:
Date of Transfer, Exchange or Redemption |
Amount of Decrease in Principal Amount of this Global Note |
Amount of Increase in Principal Amount of this Global Note |
Amount of this Global Note Following Such Decrease (or Increase) |
Signature of Trustee or Note Custodian | ||||
|
|
|
|
A-21
EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY SUBSEQUENT GUARANTORS]
This Supplemental Indenture and Guarantee, dated as of , 20 (this Supplemental Indenture or Guarantee), among (the New Guarantor), McDermott International, Inc., as the Issuer, each other then-existing Guarantor under the Indenture referred to below, Wells Fargo Bank, National Association, as Trustee, paying agent and registrar under such Indenture and Wells Fargo Bank, National Association, as Collateral Agent under such Indenture.
W I T N E S S E T H:
WHEREAS, the Issuer, the Guarantors, the Trustee and the Collateral Agent have heretofore executed and delivered an Indenture, dated as of April 16, 2014 (as amended, supplemented, waived or otherwise modified, the Indenture), providing for the issuance of an unlimited aggregate principal amount of 8.000% Senior Secured Notes due 2021 of the Issuer (the Notes);
WHEREAS, Section 4.17 and Article X of the Indenture provides that the Issuer will cause any Restricted Subsidiary that guarantees any Indebtedness of the Issuer or any Guarantor under a Credit Facility to execute and deliver a Guarantee pursuant to which such Restricted Subsidiary will unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest on the Notes and all other obligations of the Issuer under the Indenture on the same terms and conditions as those set forth in the Indenture;
WHEREAS, pursuant to Section 9.1(4) of the Indenture, the Trustee, the Collateral Agent, the Issuer and the Guarantors are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder, to add an additional Guarantor.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Issuer, the existing Guarantors, the Trustee and the Collateral Agent mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, capitalized terms defined in the Indenture or in the preamble or recitals thereto are used herein as therein defined. The words herein, hereof and hereby and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
B-1
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The New Guarantor hereby becomes a party to the Indenture as a Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. The New Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2 Guarantee. The New Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as a surety, jointly and severally with each other Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations of the Issuer pursuant to the Notes and the Indenture in accordance with Section 10.1(a) of the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the New Guarantor shall be given as provided in the Indenture to the New Guarantor, at its address set forth below, with a copy to the Issuer as provided in the Indenture for notices to the Issuer.
[Name of New Guarantor]
[ ]
[ ]
Fax: [ ]
Attention: [ ]
SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.4 Service of Process. Each of the Issuer and each non-U.S. Guarantor (including, if applicable, the New Guarantor) hereby appoints McDermott, Inc. as its agent for service of process in any suit, action or proceeding with respect to this Supplemental Indenture, the Indenture, the Notes or the Guarantees and for actions brought under federal or state securities laws brought in any federal or state court located in The City of New York.
SECTION 3.5 Severability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
B-2
SECTION 3.6 Ratification of Indenture; Supplemental Indentures Part of Indenture; No Liability of Trustee. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of a Note heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or the New Guarantors Guarantee.
SECTION 3.7 Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
SECTION 3.8 Headings. The headings of the Articles and the sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signatures on following page]
B-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: | ||
Title: | ||
[EXISTING GUARANTORS] | ||
By: |
| |
Name: | ||
Title: | ||
[NEW GUARANTOR], as a Guarantor | ||
By: | ||
Name: | ||
Title: | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: |
| |
Name: | ||
Title: | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent | ||
By: |
| |
Name: | ||
Title: |
B-4
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
Facsimile: (214) 756-7401
Attention: Patrick Giordano
Re: McDermott International, Inc. (the Issuer) 8.000% Senior Secured Notes due 2021 (the Notes)
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of the Notes (CUSIP No. ), we hereby certify that such transfer is being effected pursuant to and in accordance with Rule 144A (Rule 144A) under the United States Securities Act of 1933, as amended (the Securities Act), and, accordingly, we hereby further certify that the Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its own account, or for one or more accounts with respect to which such person exercises sole investment discretion, and such person and each such account is a qualified institutional buyer within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Notes are being transferred in compliance with any applicable blue sky securities laws of any state of the United States.
The Issuer and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours, | ||
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[Name of Transferor] | ||
By: |
| |
Authorized Signature |
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
McDermott International, Inc.
P.O. Box 940519
Houston, Texas 77094-7519
Facsimile: (281) 870-5755
Attention: Liane K. Hinrichs
Wells Fargo Bank, National Association
750 N. Saint Paul Place
Suite 1750
Dallas, Texas 75201
Facsimile: (214) 756-7401
Attention: Patrick Giordano
Re: McDermott International, Inc. (the Issuer) 8.000% Senior Secured Notes due 2021 (the Notes)
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal amount of the Notes (CUSIP No. ), we confirm that such sale has been effected pursuant to and in accordance with Regulation S (Regulation S) under the U.S. Securities Act of 1933, as amended (the Securities Act), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) either (a) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b) or Rule 904(b) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may be.
D-1
The Issuer and you are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours, | ||
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[Name of Transferor] | ||
By: |
| |
Authorized Signature |
D-2
EXHIBIT E
[Form of Second Lien Pledge and Security Agreement]
[to come]
E-1
SECOND LIEN PLEDGE AND SECURITY AGREEMENT
made by
MCDERMOTT INTERNATIONAL, INC.
and certain of its Subsidiaries
in favor of
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Collateral Agent
Dated April 16, 2014
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF APRIL 16, 2014 (AS AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE INTERCREDITOR AGREEMENT), AMONG MCDERMOTT INTERNATIONAL, INC. (THE PARENT), MCDERMOTT FINANCE L.L.C., THE SUBSIDIARIES OF THE PARENT FROM TIME TO TIME PARTY THERETO, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, AS FIRST PRIORITY AGENT (AS DEFINED THEREIN), AND WELLS FARGO BANK, NATIONAL ASSOCIATION, AS SECOND PRIORITY AGENT (AS DEFINED THEREIN). NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT (AS DEFINED HEREIN), FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE PROVISIONS OF THIS SECOND LIEN PLEDGE AND SECURITY AGREEMENT OR THE OTHER INDENTURE DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.
TABLE OF CONTENTS
Page | ||||||
SECTION 1. |
DEFINED TERMS | 1 | ||||
1.1. |
Definitions | 1 | ||||
1.2. |
Other Definitional Provisions | 9 | ||||
SECTION 2. |
[INTENTIONALLY OMITTED.] | 10 | ||||
SECTION 3. |
GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL | 10 | ||||
SECTION 4. |
REPRESENTATIONS AND WARRANTIES | 12 | ||||
4.1. |
[Intentionally Omitted] | 12 | ||||
4.2. |
Title; No Other Liens | 12 | ||||
4.3. |
Perfected Second Priority Liens | 12 | ||||
4.4. |
Name; Jurisdiction of Organization, etc. | 13 | ||||
4.5. |
Inventory | 13 | ||||
4.6. |
Farm Products | 13 | ||||
4.7. |
Investment Property | 13 | ||||
4.8. |
Receivables | 14 | ||||
4.9. |
Intellectual Property | 15 | ||||
4.10. |
UCC Letters of Credit and UCC Letter of Credit Rights | 17 | ||||
4.11. |
Commercial Tort Claims | 17 | ||||
4.12. |
Contracts | 17 | ||||
4.13. |
Deposit Accounts; Securities Accounts | 17 | ||||
SECTION 5. |
COVENANTS | 18 | ||||
5.1. |
Covenants in Indenture | 18 | ||||
5.2. |
Delivery and Control of Instruments, Chattel Paper, Negotiable Documents and Investment Property | 18 | ||||
5.3. |
Maintenance of Insurance | 20 | ||||
5.4. |
Payment of Notes Obligations | 21 | ||||
5.5. |
Maintenance of Perfected Security Interest; Further Documentation | 21 | ||||
5.6. |
Changes in Locations, Name, Jurisdiction of Incorporation, etc. | 22 | ||||
5.7. |
Notices | 22 | ||||
5.8. |
Investment Property | 22 | ||||
5.9. |
Receivables | 24 | ||||
5.10. |
Intellectual Property | 24 | ||||
5.11. |
Contracts | 26 | ||||
5.12. |
Commercial Tort Claims | 27 | ||||
5.13. |
Deposit Accounts | 27 | ||||
5.14. |
Financial Assets | 27 | ||||
SECTION 6. |
REMEDIAL PROVISIONS | 27 | ||||
6.1. |
Certain Matters Relating to Receivables | 27 | ||||
6.2. |
Communications with Obligors; Grantors Remain Liable | 28 |
i
TABLE OF CONTENTS
(CONTINUED)
6.3. |
Pledged Securities | 29 | ||||
6.4. |
Proceeds to be Turned Over to the Collateral Agent | 30 | ||||
6.5. |
Application of Proceeds | 30 | ||||
6.6. |
Code and Other Remedies | 31 | ||||
6.7. |
Private Sales, etc. | 32 | ||||
6.8. |
Deficiency | 33 | ||||
6.9. |
Deposit Accounts/Securities Accounts | 33 | ||||
SECTION 7. |
THE COLLATERAL AGENT | 33 | ||||
7.1. |
Collateral Agents Appointment as Attorney-in-Fact, etc. | 33 | ||||
7.2. |
Duty of Collateral Agent | 35 | ||||
7.3. |
Execution of Financing Statements | 36 | ||||
7.4. |
Authority of Collateral Agent | 36 | ||||
7.5. |
Appointment of Co-Collateral Agents | 36 | ||||
7.6. |
Actions of the Collateral Agent | 36 | ||||
SECTION 8. |
MISCELLANEOUS. | 37 | ||||
8.1. |
Amendments in Writing | 37 | ||||
8.2. |
Notices | 37 | ||||
8.3. |
No Waiver by Course of Conduct; Cumulative Remedies | 37 | ||||
8.4. |
Enforcement Expenses; Indemnification | 37 | ||||
8.5. |
Successors and Assigns | 38 | ||||
8.6. |
Set-Off | 38 | ||||
8.7. |
Counterparts | 38 | ||||
8.8. |
Severability | 38 | ||||
8.9. |
Section Headings | 39 | ||||
8.10. |
Integration | 39 | ||||
8.11. |
APPLICABLE LAW | 39 | ||||
8.12. |
Submission to Jurisdiction; Waivers | 39 | ||||
8.13. |
Acknowledgments | 40 | ||||
8.14. |
Additional Grantors | 40 | ||||
8.15. |
Releases | 40 | ||||
8.16. |
WAIVER OF JURY TRIAL | 41 | ||||
8.17. |
Riders for Non-U.S. Jurisdictions | 41 | ||||
8.18. |
INTERCREDITOR AGREEMENT GOVERNS | 41 | ||||
8.19. |
Obligations of Grantors | 42 | ||||
8.20. |
Delivery of Collateral | 42 |
ii
TABLE OF CONTENTS
(CONTINUED)
SCHEDULE 4.3 PERFECTED SECOND PRIORITY LIENS
SCHEDULE 4.4 NAME; JURISDICTION OF ORGANIZATION, ETC.
SCHEDULE 4.5 INVENTORY
SCHEDULE 4.7 INVESTMENT PROPERTY
SCHEDULE 4.9 INTELLECTUAL PROPERTY
SCHEDULE 4.11 COMMERCIAL TORT CLAIMS
SCHEDULE 4.12 EXCLUDED PLEDGED COLLATERAL
SCHEDULE 4.13 DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS
SCHEDULE 8.2 NOTICES
EXHIBIT A ACKNOWLEDGEMENT AND CONSENT
EXHIBIT B FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
ANNEX 1 FORM OF ASSUMPTION AGREEMENT
iii
This Second Lien Pledge and Security Agreement dated as of April 16, 2014 is made by each of the signatories hereto (together with any other grantor that may become a party hereto as provided herein, the Grantors), in favor of Wells Fargo Bank, National Association, as Collateral Agent (as defined below) for the ratable benefit of the Secured Parties (as defined below) under the Indenture dated as of the date hereof (as amended, supplemented or otherwise modified from time to time, the Indenture) among McDermott International, Inc., a Panamanian corporation (the Issuer), the Guarantors (as defined below) and the Trustee (as defined below).
Each Grantor hereby agrees with the Collateral Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS.
1.1. Definitions.
(a) Unless otherwise defined herein, terms defined in the Indenture and used herein have the meanings given to them in the Indenture, and the following terms are used herein as defined in the New York UCC (and if defined in more than one Article of the New York UCC, such terms have the meanings given in Article 9 thereof): Accounts, Account Debtor, As-Extracted Collateral, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract, Commodity Intermediary, Documents, Deposit Account, Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures, General Intangibles, Goods, Instruments, Inventory, Money, Payment Intangibles, Securities Account, Securities Intermediary, Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b) The following terms shall have the following meanings:
After-Acquired Intellectual Property has the meaning assigned to such term in Section 5.10(i).
Agreement means this Second Lien Pledge and Security Agreement.
Collateral has the meaning assigned to such term in Section 3.
Collateral Account means any collateral account established by the Collateral Agent as provided in Sections 6.1 or 6.4.
Collateral Account Funds means, collectively, the following: all funds (including all trust monies) and investments (including all cash equivalents) credited to, or purchased with funds from, any Collateral Account and all certificates and instruments from time to time representing or evidencing such investments; all Money, notes, certificates of deposit, checks and other instruments from time to time hereafter delivered to or otherwise possessed by the Collateral Agent for or on behalf of any Grantor in substitution for, or in addition to, any or all of the Collateral; and all interest, dividends, cash, instruments and other property from time to time received in, receivable or otherwise distributed to the Collateral Account in respect of or in exchange for any or all of the items constituting Collateral.
Collateral Agent means Wells Fargo Bank, National Association, in its capacity as collateral agent under the Indenture until a successor replaces it in accordance with the applicable provisions of the Indenture and thereafter means the successor serving thereunder.
Contracts means all contracts and agreements between any Grantor and any other Person (in each case, whether written or oral, or third party or intercompany) as the same may be amended, assigned, extended, restated, supplemented, replaced or otherwise modified from time to time including (i) all rights of any Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of any Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) all rights of any Grantor to damages arising thereunder and (iv) all rights of any Grantor to terminate and to perform and compel performance of, such Contracts and to exercise all remedies thereunder.
Copyright Licenses means any agreement, whether written or oral, naming any Grantor as licensor or licensee (including those listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time)), granting any right in, to or under any Copyright, including the grant of rights to publicly perform, display, copy, prepare derivative works or distribute under any Copyright. This term shall exclude implied licenses and any rights obtained or granted under a copyright pursuant to the doctrines of first sale or estoppel.
Copyrights means (i) all copyrights arising under applicable Laws, whether registered or unregistered and whether published or unpublished (including those listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time)), all registrations and recordings thereof, and all applications in connection therewith and rights corresponding thereto throughout the world, including all registrations, recordings and applications in the United States Copyright Office, and all mask works (as defined in 17 USC 901), (ii) the right to, and to obtain, all extensions and renewals thereof, and the right to sue for past, present and future infringements of any of the foregoing, (iii) all proceeds of the foregoing, including license, royalties, income, payments, claims, damages, and proceeds of suit and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto.
Discharge of First Priority Claims has the meaning assigned to such term in the Intercreditor Agreement.
Excluded Accounts means: (i) Deposit Accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of a Grantors employees (including, without limitation, pension fund accounts and 401(k) accounts), (ii) Deposit Accounts exclusively used for taxes (including, without limitation, sales taxes), (iii) Special Purpose Escrow Accounts, (iv) Restricted Cash Collateral Accounts and (v) Fiduciary Accounts.
Excluded Assets means: (i) any lease, license, contract, property right (including, without limitation, interests in Inventory) or agreement to which any Grantor is a party or any of its rights or interests thereunder if and only for so long as the grant of a security interest
2
hereunder shall constitute or result in a breach, termination or default under any such lease, license, contract, property right or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Laws or principles of equity); provided, however, that such security interest shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified above; (ii) all Excluded Accounts; (iii) all Stock and Stock Equivalents of each Captive Insurance Subsidiary; (iv) all Stock and Stock Equivalents of any SPV (as defined in the First Lien Credit Agreement) that has incurred DLV 2000 Permitted Debt (as defined in the First Lien Credit Agreement) that is secured by the Stock or Stock Equivalents of such SPV; and (v) all Stock and Stock Equivalents of North Ocean 105 AS to the extent that, and only for so long as, such Stock and Stock Equivalents are pledged to secure indebtedness (other than the Notes Obligations) of North Ocean 105 AS.
Fiduciary Account means any fiduciary or trust account held by a Grantor which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
First Lien Credit Agreement means that certain Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time) among the Issuer, McDermott Finance L.L.C., a Delaware limited liability company, the lenders party thereto, the issuers party thereto and Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent for the lenders and the issuers party thereto.
First Lien Pledge and Security Agreement means that certain First Lien Pledge and Security Agreement dated as of April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time) made by the Grantors in favor of Crédit Agricole Corporate and Investment Bank, as administrative agent and collateral agent for the First Priority Creditors (as defined in the Indenture).
First Priority Agent has the meaning assigned to such term in the Intercreditor Agreement.
First Priority Claims has the meaning assigned to such term in the Intercreditor Agreement.
First Priority Lien has the meaning assigned to such term in the Intercreditor Agreement.
Grantors has the meaning assigned to such term in the preamble to this Agreement.
Gratuitous Bailee means a gratuitous bailee for the Collateral Agent, for the ratable benefit of the Secured Parties.
Guarantor has the meaning assigned to such term in the Indenture.
Holders has the meaning assigned to such term in the Indenture.
Indenture has the meaning assigned to such term in the preamble to this Agreement.
3
Indenture Documents has the meaning assigned to such term in the Indenture.
Insurance means all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is named as additional insured or loss payee thereof).
Intellectual Property means the collective reference to all intellectual property rights arising under applicable Laws, including the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all other intellectual property of any type, including mask works and industrial designs.
Intellectual Property Security Agreement means an Intellectual Property Security Agreement in substantially the form of Exhibit B or such other form as may be approved by the Collateral Agent.
Intercompany Note means any promissory note evidencing Indebtedness permitted to be incurred pursuant to Section 4.9(b)(6) of the Indenture with respect to any outstanding intercompany obligations and advances owed by or to the Issuer or a Guarantor.
Intercreditor Agreement means that certain Intercreditor Agreement dated as of April 16, 2014 (as amended, supplemented, restated or otherwise modified from time to time), among the Issuer, McDermott Finance L.L.C., the subsidiaries of the Issuer from time to time party thereto, Crédit Agricole Corporate and Investment Bank, as First Priority Agent, and Wells Fargo Bank, National Association, as Second Priority Agent (as defined therein).
Investment Property means the collective reference to (i) all investment property as such term is defined in Section 9-102(a)(49) of the New York UCC, including all Certificated Securities and Uncertificated Securities, all Security Entitlements, all Commodity Contracts and all Commodity Accounts and (ii) whether or not otherwise constituting investment property, all Pledged Notes, all Pledged Equity Interests and all Pledged Commodity Contracts.
Issue Date has the meaning assigned to such term in the Indenture.
Issuer has the meaning assigned to such term in the preamble to this Agreement.
Laws means, collectively, all international (including any union of countries, or any political subdivision thereof), foreign (including for the avoidance of doubt the laws of any jurisdiction in which any Guarantor is incorporated or registered), federal, state or other political subdivision (including the District of Columbia and any territory or possession of the United States, including those specified in Section 5.2), county, municipal and local constitutions, statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities.
Licensed Intellectual Property has the meaning assigned to such term in Section 4.9(a).
Material Account means any Deposit Account (other than Excluded Accounts) or Securities Account of a Grantor (i) listed as such on Schedule 4.13, (ii) that serves as the functional replacement of a Deposit Account or Securities Account listed as a Material
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Account on Schedule 4.13, (iii) that regularly receives payments from customers on any material contract that are not transferred to another account that constitutes a Material Account within one Business Day of receipt thereof or (iv) with a minimum daily average balance of at least $5,000,000 (other than any disbursement account that is primarily used to make vendor or other third party payments and which does not receive payments from customers on any material contracts).
Material Adverse Effect means a material adverse effect upon (a) the condition (financial or otherwise), business, results of operations or properties of the Issuer and the Grantors taken as a whole; (b) the perfection or priority of the Liens granted pursuant to the Collateral Agreements; (c) the Issuers and the Grantors ability to perform their respective obligations under the Indenture Documents; or (d) the validity or enforceability against the Issuer and the Grantors of the Indenture Documents or the rights or remedies of the Collateral Agent, the Trustee or the Holders thereunder.
Material Contract means any Contract the termination of which could reasonably be expected to have a Material Adverse Effect.
Material Intellectual Property has the meaning assigned to such term in Section 4.9(b).
New York UCC means the Uniform Commercial Code as from time to time in effect in the State of New York.
Notes Obligations has the meaning assigned to such term in the Indenture.
Other Taxes means any stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any political subdivision thereof or any applicable foreign jurisdiction, and all liabilities with respect thereto, in each case arising from any payment made under any Indenture Document or from the execution, delivery or registration of, or otherwise with respect to, any Indenture Document.
Owned Intellectual Property has the meaning assigned to such term in Section 4.9(a).
Patent License means all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to make, use, import, offer for sale, or sell any invention covered in whole or in part by a Patent, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a patent pursuant to the doctrines of exhaustion or estoppel.
Patents means (i) all United States patents, patents issued by any other country, union of countries or any political subdivision of any of the foregoing, and all reissues and extensions thereof, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (ii) all patent applications pending in the United States or any other country or union of countries or any political subdivision of any of the foregoing and all divisions, continuations and continuations-in-part thereof, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (iii) all rights to, and to obtain, any reissues or extensions of the foregoing and (iv) all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages and proceeds of suit.
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Pledged Alternative Equity Interests means all interests of any Grantor in participation or other interests in any equity or profits of any business entity and the certificates, if any, representing such interests and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and any other warrant, right or option to acquire any of the foregoing; provided, however, that Pledged Alternative Equity Interests shall not include any Pledged Stock, Pledged Partnership Interests, Pledged LLC Interests or Pledged Trust Interests.
Pledged Commodity Contracts means all commodity contracts listed on Schedule 4.7 (as such schedule may be amended from time to time) and all other Commodity Contracts to which any Grantor is party from time to time.
Pledged Equity Interests means all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests, Pledged Trust Interests and Pledged Alternative Equity Interests.
Pledged LLC Interests means all interests of any Grantor now owned or hereafter acquired in any limited liability company, including all limited liability company interests listed on Schedule 4.7 hereto under the heading Pledged LLC Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and any other warrant, right or option to acquire any of the foregoing.
Pledged Notes means all promissory notes now owned or hereafter acquired by any Grantor, including those listed on Schedule 4.7 (as such schedule may be amended or supplemented from time to time) and all Intercompany Notes at any time issued to or held by any Grantor (other than (i) promissory notes in an aggregate principal amount not to exceed $1,000,000 at any time outstanding issued in connection with extensions of trade credit by any Grantor in the ordinary course of business and (ii) promissory notes constituting Cash Equivalents that are held by any Grantor).
Pledged Partnership Interests means all interests of any Grantor now owned or hereafter acquired in any general partnership, limited partnership, limited liability partnership or other partnership, including all partnership interests listed on Schedule 4.7 hereto under the heading Pledged Partnership Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other warrant, right or option to acquire any of the foregoing.
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Pledged Securities means the collective reference to the Pledged Notes and the Pledged Equity Interests.
Pledged Stock means all shares of capital stock now owned or hereafter acquired by any Grantor, including all shares of capital stock listed on Schedule 4.7 hereto under the heading Pledged Stock (as such schedule may be amended or supplemented from time to time), and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares and any other warrant, right or option to acquire any of the foregoing.
Pledged Trust Interests means all interests of any Grantor now owned or hereafter acquired in a Delaware business trust or other trust, including all trust interests listed on Schedule 4.7 hereto under the heading Pledged Trust Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such trust interests and any interest of such Grantor on the books and records of such trust or on the books and records of any Securities Intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such trust interests and any other warrant, right or option to acquire any of the foregoing.
Proceeds means all proceeds as such term is defined in Section 9-102(a)(64) of the New York UCC and, in any event, shall include all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.
Receivable means all Accounts and any other right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance. References herein to Receivables shall include any Supporting Obligation or collateral securing such Receivable.
Restricted Cash Collateral Accounts means any restricted cash collateral account held by a Grantor where the deposits or proceeds of such account are used primarily to support letters of credit and exposure from Hedging Obligations, and which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
Secured Parties means the holders of the Notes Obligations (including the Holders, the Trustee and the Collateral Agent).
Securities Act means the Securities Act of 1933, as amended.
Special Purpose Escrow Account means any escrow account held by a Grantor in connection with holdbacks for acquisitions or similar matters, and which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
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Stock means shares of capital stock (whether denominated as common stock or preferred stock), partnership or membership interests, equity participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or similar business entity, whether voting or non-voting.
Stock Equivalents means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.
Trade Secret License means any agreement, whether written or oral, providing for the grant by or to any Grantor of any right in, to or under any Trade Secret, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a trade secret pursuant to the doctrine of estoppel.
Trade Secrets means (i) all trade secrets and all other confidential or proprietary information and know-how whether or not reduced to a writing or other tangible form, (ii) all documents and things embodying, incorporating or describing such Trade Secrets, and (iii) the right to sue for past, present and future misappropriations of any Trade Secret, and all proceeds of the foregoing, including royalties, income, payments, claims, damages and proceeds of suit.
Trademark License means any agreement, whether written or oral, providing for the grant by or to any Grantor of any right in, to or under any Trademark, including any of the foregoing referred to in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a trademark pursuant to the doctrines of first sale or estoppel.
Trademarks means (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, designs and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country, union of countries, or any political subdivision of any of the foregoing, or otherwise, and all common-law rights related thereto, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (ii) the right to, and to obtain, all renewals thereof, (iii) the goodwill of the business symbolized by the foregoing and (iv) the right to sue for past, present and future infringements or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including royalties, income, payments, claims, damages and proceeds of suit.
Trustee means Wells Fargo Bank, National Association, until a successor replaces it in accordance with the applicable provisions of the Indenture and thereafter means the successor serving under the Indenture.
UCC Letter of Credit means Letter of Credit (and in plural, Letters of Credit) as defined in the New York UCC.
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UCC Letter of Credit Rights means Letter-of-Credit Rights as defined in the New York UCC.
UETA has the meaning assigned to such term in Section 4.3.
1.2. Other Definitional Provisions.
(a) The words hereof, herein, hereto and hereunder and similar words refer to this Agreement as a whole, and not to any particular Article, Section, subsection or clause in this Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the words above and below, when following a reference to a clause or a sub-clause of this Agreement, refer to a clause or sub-clause within, respectively, the same Section or clause.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to the property or assets such Grantor has granted as Collateral or the relevant part thereof.
(d) The expressions payment in full, paid in full and any other similar terms or phrases when used herein with respect to the Notes Obligations means the unconditional, final and irrevocable payment in full, in immediately available funds, of all of the Notes Obligations, unless otherwise specified, other than indemnification and other contingent obligations not then due and payable.
(e) Each agreement defined in this Section 1 shall include all appendices, exhibits and schedules thereto. References in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified, unless (i) the prior written consent of the Holders of a majority in principal amount of the then outstanding Notes is required under the Indenture for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained or (ii) it is otherwise specified that such reference refers to such agreement as of a particular date.
(f) References in this Agreement to any statute shall be to such statute as amended or modified, together with any successor legislation, in each case in effect at the time any such reference is operative unless it is otherwise specified that such reference refers to such statute as of a particular date.
(g) The term including when used in any Indenture Document means including without limitation except when used in the computation of time periods. The phrase in the aggregate, when used in any Indenture Document, means individually or in the aggregate, unless otherwise expressly noted. All references to the Holders herein shall, where appropriate, include any Secured Party.
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SECTION 2. [INTENTIONALLY OMITTED.]
SECTION 3. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL.
(a) Each Grantor hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in such Grantors right, title and interest in and to the following property, in each case, wherever located and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the Collateral), as security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantors Notes Obligations:
(i) all Accounts;
(ii) all As-Extracted Collateral;
(iii) all cash and Cash Equivalents;
(iv) all Chattel Paper;
(v) all Collateral Accounts and all Collateral Account Funds;
(vi) all Commercial Tort Claims, including those from time to time specifically described on Schedule 4.11;
(vii) all Contracts;
(viii) all Documents;
(ix) all Equipment;
(x) all General Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Insurance;
(xiv) all Intellectual Property;
(xv) all Inventory;
(xvi) all Investment Property (it being understood that, to the extent such Investment Property constitutes shares issued by a company incorporated in the Cayman Islands, each Grantor holding such Investment Property hereby mortgages by way of first legal mortgage its right, title and interest in such Investment Property in favor of the Collateral Agent);
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(xvii) all UCC Letters of Credit and UCC Letter of Credit Rights;
(xviii) all Financial Assets;
(xix) all Deposit Accounts;
(xx) all Securities Accounts;
(xxi) all Security Entitlements;
(xxii) all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time pertain to or evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and
(xxiii) all Proceeds, goodwill, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing;
provided that, notwithstanding any other provision set forth in this Section 3, this Agreement shall not, at any time, constitute a grant of a security interest in any property that is, at such time, an Excluded Asset, and the term Collateral and each of the defined terms incorporated therein shall exclude the Excluded Assets.
(b) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under and in respect of the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any other Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including any Receivables, any Contracts and any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related hereto nor shall the Collateral Agent nor any other Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including any agreements relating to any Receivables, any Contracts or any agreements relating to Pledged Partnership Interests or Pledged LLC Interests and (iii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral, including any agreements relating to any Receivables, any Contracts and any agreements relating to Pledged Partnership Interests or Pledged LLC Interests.
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SECTION 4. REPRESENTATIONS AND WARRANTIES.
Each Grantor hereby represents and warrants to the Collateral Agent and the Secured Parties that:
4.1. [Intentionally Omitted].
4.2. Title; No Other Liens. Such Grantor owns or licenses or otherwise has the right to use each item of the Collateral free and clear of any and all Liens, including Liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as grantor under a security agreement entered into by another Person, except for Liens expressly permitted by Section 4.12 of the Indenture. No effective financing statement, mortgage or other public notice indicating the existence of a Lien with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of (i) the First Priority Agent pursuant to the First Lien Pledge and Security Agreement or as are expressly permitted by the First Lien Credit Agreement and (ii) the Collateral Agent pursuant to this Agreement or as are expressly permitted by the Indenture.
4.3. Perfected Second Priority Liens. The security interests granted pursuant to this Agreement (a) upon completion of the filings and other actions specified on Schedule 4.3 (all of which, in the case of all filings and other documents referred to on Schedule 4.3, have been (or shall be) delivered to the Collateral Agent in duly completed and duly executed form, as applicable, and may be filed by the Collateral Agent at any time) and payment of all filing fees, will constitute valid fully perfected security interests in all of the Collateral in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, as collateral security for such Grantors Notes Obligations, enforceable in accordance with the terms hereof, to the extent such security interest in such Collateral can be perfected by (i) the filing of a financing statement under the Uniform Commercial Code of any jurisdiction, (ii) the filing with the United States Patent and Trademark Office or the United States Copyright Office of an Intellectual Property Security Agreement or other filing, (iii) the possession of such Collateral by the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) under applicable Laws of the United States and of any state (including the District of Columbia) thereof or (iv) execution and delivery by the applicable Grantor, the applicable Securities Intermediary or depositary institution, as applicable, and the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) of an agreement granting control to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) over such Collateral that is a Material Account, and (b) are prior to all other Liens on the Collateral, except for Liens expressly permitted by Section 4.12 of the Indenture. Without limiting the foregoing, within the time periods and to the extent required by the Indenture (including, without limitation, Section 4.20 of the Indenture) or this Agreement, each Grantor has taken, or shall take, all actions necessary or desirable under (x) the applicable Laws of the United States and any state (including the District of Columbia) thereof and (y) applicable Laws as required by Section 4.20 of the Indenture to establish the Collateral Agents control (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to establish the Collateral Agents control, but shall nevertheless be unable to establish the Collateral Agents control, to establish the First Priority Agents control, as Gratuitous Bailee) (i) within the meanings of Sections 8-106 and 9-106 of the New York UCC or any analogous provision of the UCC over any Securities Accounts included in the Collateral and over any portion of the Investment
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Property constituting Certificated Securities, Uncertificated Securities or Security Entitlements, in each case to the extent constituting a Material Account or a financial asset that is credited to a Material Account, (ii) within the meaning of Section 9-107 of the New York UCC or any analogous provision of the UCC over all UCC Letter of Credit Rights, (iii) within the meaning of Section 9-105 of the New York UCC or any analogous provision of the UCC over all Electronic Chattel Paper, (iv) within the meaning of Section 16 of the Uniform Electronic Transaction Act (as in effect in the applicable jurisdiction, the UETA) over all transferable records (as defined in UETA) and (v) within the meaning of Section 9-104 of the New York UCC or any analogous provision of the UCC over all Deposit Accounts included in the Collateral to the extent constituting a Material Account.
4.4. Name; Jurisdiction of Organization, etc. On the Issue Date, such Grantors exact legal name (as indicated on the public record of such Grantors jurisdiction of formation or organization), jurisdiction of organization, organizational identification number, if any, and the location of such Grantors chief executive office or sole place of business are specified on Schedule 4.4. Each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. Except as otherwise indicated on Schedule 4.4, for each Grantor organized or formed under the laws of any political subdivision of the United States, the jurisdiction of each such Grantors organization of formation is required to maintain a public record showing the Grantor to have been organized or formed. Except as specified on Schedule 4.4, as of the Issue Date no such Grantor has changed its name, jurisdiction of organization, chief executive office or sole place of business or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past five years and has not within the last five years become bound (whether as a result of merger or otherwise) as a grantor under a security agreement entered into by another Person, which has not heretofore been terminated.
4.5. Inventory.
(a) On the Issue Date, the Inventory of each Grantor (other than Inventory in transit, Inventory located outside the United States and Inventory which in the aggregate does not constitute a material portion of the Inventory included in the Collateral) is kept only at the locations listed on Schedule 4.5.
(b) Any Inventory now or hereafter produced by any Grantor included in the Collateral have been and will be produced in compliance in all material respects with the requirements of all applicable Laws, including the Fair Labor Standards Act, as amended.
(c) No material portion of the Inventory included in the Collateral is in the possession of an issuer of a negotiable document (as determined by Section 7-104 of the New York UCC) therefor or is otherwise in the possession of any bailee or warehouseman.
4.6. Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm Products.
4.7. Investment Property.
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(a) Schedule 4.7 hereto sets forth under the headings Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests, respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests owned by any Grantor as of the Issue Date, and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial interest of the respective issuers thereof indicated on such schedule. Schedule 4.7 sets forth under the heading Pledged Notes all of the Pledged Notes owned by any Grantor as of the Issue Date, and all of such Pledged Notes have been duly authorized, authenticated or issued, and delivered and are the legal, valid and binding obligation of the issuers thereof enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors rights generally and subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law, and constitute all of the issued and outstanding inter-company indebtedness evidenced by an Instrument or Certificated Security of the respective issuers thereof owing to such Grantor.
(b) The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of Stock owned by such Grantor in each issuer thereof.
(c) The Pledged Equity Interests have been duly and validly issued and, except as set forth on Schedule 4.7 hereto, are fully paid and nonassessable (to the extent applicable).
(d) Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except Liens expressly permitted by Section 4.12 of the Indenture, and except as set forth on Schedule 4.7, as of the Issue Date, there are no outstanding warrants, options or other rights to purchase, or shareholder, equityholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests.
4.8. Receivables.
(a) No amount payable to such Grantor under or in connection with any Receivable that is included in the Collateral in excess of $1,000,000 is evidenced by any Instrument or Tangible Chattel Paper which has not been delivered to the Collateral Agent (or, prior to the Discharge of First Priority Claims, to the First Priority Agent, as Gratuitous Bailee) or constitutes Electronic Chattel Paper that has not been subjected to the control (within the meaning of Section 9-105 of the New York UCC) of the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to establish the Collateral Agents control, but shall nevertheless be unable to establish the Collateral Agents control, of the First Priority Agent, as Gratuitous Bailee).
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(b) Each Receivable that is included in the Collateral (i) is and will be the legal, valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor, (ii) is and will be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors rights generally and subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law, (iii) is not and will not be subject to any setoffs, defenses, taxes or counterclaims (except with respect to refunds, returns and allowances in the ordinary course of business) and (iv) is and will be in compliance with all applicable Laws, except where the failure to comply with this Section 4.8(b) with respect to each Receivable could not reasonably be expected to have a Material Adverse Effect.
4.9. Intellectual Property.
(a) Schedule 4.9 lists all Copyrights, Patents, and Trademarks which are registered with the U.S. Patent and Trademark Office or the U.S. Copyright Office or are the subject of an application for registration with any such Governmental Authority, in each case which is owned by such Grantor in its own name on the Issue Date (collectively, the Owned Intellectual Property). Except as set forth in Schedule 4.9, such Grantor is the exclusive owner of the entire and unencumbered right, title and interest in and to all material Owned Intellectual Property and is otherwise entitled to grant to others the right to use (and, where applicable, itself use) all such material Owned Intellectual Property. Such Grantor has a valid and enforceable right to use all Intellectual Property used by, or licensed to others by, such Grantor which is not Owned Intellectual Property (collectively, the Licensed Intellectual Property), in each case, which is material to such Grantors business, pursuant to one of the written material Copyright Licenses, Patent Licenses, Trademark Licenses, and/or Trade Secret Licenses listed on Schedule 4.9 and subject to the terms thereof.
(b) On the Issue Date, all Owned Intellectual Property and all Licensed Intellectual Property, in each case, which is material to such Grantors business (collectively, the Material Intellectual Property), is valid, subsisting, unexpired and enforceable and has not been abandoned. The operation of such Grantors business as currently conducted or as contemplated to be conducted does not infringe, constitute a misappropriation of, dilute, or otherwise violate the Intellectual Property of any other Person where the same could reasonably be expected to have a Material Adverse Effect.
(c) No claim has been asserted that the use of the Material Intellectual Property does or may infringe upon or constitute a misappropriation of the rights of any other Person.
(d) To such Grantors knowledge, no decision or judgment has been rendered by any Governmental Authority or arbitrator in the United States or outside the United States which would materially limit or cancel the validity or enforceability of, or such Grantors rights in, any Material Intellectual Property. Such Grantor is not aware of any uses of any item of Material Intellectual Property that could reasonably be expected to lead to such item becoming invalid or unenforceable including unauthorized trademark uses by third parties and uses which were not supported by the goodwill of the business connected with Trademarks and Trademark Licenses.
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(e) No action or proceeding is pending, or, to such Grantors knowledge, threatened, on the Issue Date (i) seeking to limit, cancel or invalidate any Owned Intellectual Property, (ii) alleging that any services provided by, processes used by, or products manufactured or sold by such Grantor infringe any patent, trademark, copyright, or misappropriate any trade secret or violate any other right of any other Person, or (iii) alleging that any Material Intellectual Property is being licensed or sublicensed in violation of any intellectual property or any other right of any other Person, in each case, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. To such Grantors knowledge, no Person is engaging in any activity that infringes upon or misappropriates, or is otherwise an unauthorized use of, any Material Intellectual Property. The consummation of the transactions contemplated by this Agreement will not result in the termination of any of the Material Intellectual Property.
(f) With respect to each Copyright License, Trademark License, Trade Secret License and Patent License which license constitutes Material Intellectual Property or the loss of which could otherwise have a Material Adverse Effect: (i) such license is binding and enforceable against the other party thereto; (ii) such license will not cease to be valid and binding and in full force and effect on terms identical to those currently in effect as a result of the rights and interests granted herein (including, but not limited to, the enforceability of such rights and interests with respect to each such license), nor will the grant of such rights and interests (or the enforceability thereof) constitute a breach or default under such license or otherwise give the licensor or licensee a right to terminate such license; (iii) such Grantor has not received any notice of termination or cancellation under such license; (iv) such Grantor has not received any notice of a breach or default under such license, which breach or default has not been cured; and (v) such Grantor is not in breach or default in any material respect, and no event has occurred that, with notice and/or lapse of time, would constitute such a breach or default or permit termination, modification or acceleration under such license.
(g) Except as set forth on Schedule 4.9, such Grantor has made all filings and recordations and paid all required fees and taxes to maintain each and every item of registered Material Intellectual Property in full force and effect and to protect and maintain its interest therein.
(h) To the knowledge of such Grantor, (i) none of the Trade Secrets that constitute Material Intellectual Property have been used, divulged, disclosed or appropriated to the detriment of such Grantor for the benefit of any other Person without permission of such Grantor; and (ii) no employee, independent contractor or agent of such Grantor has misappropriated any Trade Secrets of any other Person in the course of the performance of his or her duties as an employee, independent contractor or agent of such Grantor where the same could reasonably be expected to have a Material Adverse Effect.
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(i) Such Grantor has taken commercially reasonable steps to exercise quality control over any licensee of such Grantors Trademarks.
4.10. UCC Letters of Credit and UCC Letter of Credit Rights. With respect to any UCC Letters of Credit that are by their terms transferable, each Grantor will, upon receipt of a written request from the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), use commercially reasonable efforts to cause all issuers and nominated Persons under UCC Letters of Credit in which the Grantor is the beneficiary or assignee to (a) consent to the assignment of such UCC Letter of Credit to the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to cause such consent to be obtained, but shall nevertheless be unable to obtain such consent, the First Priority Agent, as Gratuitous Bailee) and (b) agree that, upon receipt of written notice received from the Collateral Agent that an Event of Default has occurred and so long as such Event of Default is continuing, it shall cause, subject to the rights of the First Priority Agent under the Intercreditor Agreement, all payments thereunder to be made to the Collateral Account. With respect to any UCC Letters of Credit that are not transferable, each Grantor shall, upon receipt of a written request from the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), use commercially reasonable efforts to obtain the consent of the issuer thereof and any nominated Person thereon to the assignment of the proceeds of such released UCC Letter of Credit to the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to obtain such consent, but shall nevertheless be unable to obtain such consent, the First Priority Agent, as Gratuitous Bailee) in accordance with Section 5-114(c) of the New York UCC.
4.11. Commercial Tort Claims. As of the Issue Date, Schedule 4.11 hereto sets forth all Commercial Tort Claims of each Grantor that, to each such Grantors knowledge, has a value, individually or in the aggregate, in excess of $1,000,000.
4.12. Contracts. No amount payable to such Grantor under or in connection with any Contract that is included in the Collateral which has a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is evidenced by any Instrument or Tangible Chattel Paper which has not been delivered to the Collateral Agent (or, prior to the Discharge of First Priority Claims, to the First Priority Agent, as Gratuitous Bailee) or constitutes Electronic Chattel Paper that is not under the control (within the meaning of Section 9-105 of the New York UCC) of the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to establish the Collateral Agents control, but shall nevertheless be unable to establish the Collateral Agents control, of the First Priority Agent, as Gratuitous Bailee). Notwithstanding any representation, warranty, covenant or other provision contained herein to the contrary, the failure of any Grantor to deliver to the Collateral Agent the original Certificated Securities, Instruments and Tangible Chattel Paper described on Schedule 4.12 shall not constitute a breach, Default or an Event of Default hereunder.
4.13. Deposit Accounts; Securities Accounts. Set forth on Schedule 4.13, as of the Issue Date is a description of all Deposit Accounts and Securities Accounts of the Grantors, including the name of (A) the applicable Grantor, (B) in the case of a Deposit Account, the depository institution and whether such account is a Material Account or an Excluded Account, (C) in the case of a Securities Account, the Securities Intermediary or issuer, as applicable, and whether such account is a Material Account and (D) the jurisdiction where such account is located.
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SECTION 5. COVENANTS.
Each Grantor covenants and agrees with the Collateral Agent and the Secured Parties that, as of the Issue Date and until the termination of this Agreement in accordance with its terms:
5.1. Covenants in Indenture.
Each Grantor shall take, or shall refrain from taking, as the case may be, each action that is within its control and is necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is caused by the failure to take such action or to refrain from taking such action by such Grantor or any of its Subsidiaries.
5.2. Delivery and Control of Instruments, Chattel Paper, Negotiable Documents and Investment Property.
(a) If any of the Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become evidenced or represented by any Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper, such Instrument (other than checks received in the ordinary course of business), Certificated Security, Negotiable Documents or Tangible Chattel Paper shall be promptly delivered to the Collateral Agent (or, prior to the Discharge of First Priority Claims, to the First Priority Agent, as Gratuitous Bailee), duly endorsed in a manner reasonably satisfactory to the Collateral Agent (and the First Priority Agent, if applicable), to be held as Collateral pursuant to this Agreement. Without limiting the generality of the foregoing, all of such property owned by any Grantor as of the Issue Date and represented in such form shall be delivered on or before the Issue Date.
(b) If any of the Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become Electronic Chattel Paper such Grantor shall ensure that (i) a single authoritative copy shall exist which is unique, identifiable, unalterable (except as provided in clauses (iii), (iv) and (v) of this paragraph), (ii) such authoritative copy identifies the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to identify the Collateral Agent, but shall nevertheless be unable to so identify the Collateral Agent, the First Priority Agent, as Gratuitous Bailee) as the assignee and is communicated to and maintained by the Collateral Agent or its designee (or the First Priority Agent or its designee, if applicable), (iii) copies or revisions that add or change the assignee of the authoritative copy can only be made with the participation of the Collateral Agent (and the First Priority Agent, if applicable), (iv) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy and not the authoritative copy and (v) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.
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(c) If any Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become an Uncertificated Security, such Grantor shall cause the issuer thereof, if such issuer is a Subsidiary of the Issuer, either (i) to register the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to register the Collateral Agent, but shall nevertheless be unable to so register the Collateral Agent, the First Priority Agent, as Gratuitous Bailee) as the registered owner of such Uncertificated Security, upon original issue or registration of transfer or (ii) to agree in writing with such Grantor and the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to cause such agreement with the Collateral Agent, but shall nevertheless be unable to cause such agreement with the Collateral Agent, the First Priority Agent, as Gratuitous Bailee) that such issuer will comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee, as applicable) without further consent of such Grantor, such agreement to be in substantially the form of Exhibit A, and such actions shall be taken on or prior to the Issue Date with respect to any such Uncertificated Securities owned as of the Issue Date by any Grantor.
(d) If any of the Collateral is or shall become evidenced or represented by a Commodity Contract having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate, such Grantor shall, upon receipt of written request from the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), cause the Commodity Intermediary with respect to such Commodity Contract to agree in writing with such Grantor and the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to cause such agreement with the Collateral Agent, but shall nevertheless be unable to cause such agreement with the Collateral Agent, the First Priority Agent, as Gratuitous Bailee) that such Commodity Intermediary will apply any value distributed on account of such Commodity Contract as directed by the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee, as applicable) without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee, as applicable).
(e) In addition to and not in lieu of the foregoing, if any issuer of any Investment Property is a Mortgaged Vessel Owning Subsidiary (as defined in the First Lien Credit Agreement) of the Issuer and is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Grantor shall take such additional actions, including causing such issuer to register the pledge on its books and records, as may be reasonably requested by the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), under the laws of such jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent. Notwithstanding anything herein to the contrary, each interest in any limited liability company or limited partnership that is a Subsidiary (other than any such Subsidiary that
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is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States) and pledged hereunder shall either (a) be represented by a certificate, shall be a security within the meaning of Article 8 of the New York UCC and shall be governed by Article 8 of the New York UCC, or (b) not be represented by a certificate, in which case, no Grantor shall take any action to cause such interest to be or become a security within the meaning of, or to be governed by, Article 8 of the UCC as in effect under the laws of any state having jurisdiction and shall not cause or permit any such limited liability company or limited partnership to opt in or to take any other action seeking to establish any interest in such limited liability company or limited partnership comprising the Collateral as a security or to become certificated, in each case, without promptly delivering all certificates evidencing such interest to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) in accordance with Section 5.2(a).
(f) In the case of any transferable UCC Letters of Credit in excess of $1,000,000 individually or $5,000,000 in the aggregate, each Grantor shall use commercially reasonable efforts to obtain the consent of any issuer thereof to the transfer of such UCC Letters of Credit to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee). In the case of any other UCC Letter of Credit Rights in excess of $1,000,000 individually or $5,000,000 in the aggregate, each Grantor shall use commercially reasonable efforts to obtain the consent of the issuer thereof and any nominated Person thereon to the assignment of the proceeds of the related UCC Letter of Credit in accordance with Section 5-114(c) of the New York UCC.
(g) In accordance with the terms of the Intercreditor Agreement, all Pledged Collateral delivered to the First Priority Agent shall be held by the First Priority Agent as Gratuitous Bailee solely for the purpose of perfecting the security interest therein granted under this Agreement.
5.3. Maintenance of Insurance.
(a) Such Grantor will maintain insurance in accordance with Section 4.19(b) of the Indenture, and furnish to the Collateral Agent, upon written request, with a copy of such insurance policies.
(b) Such Grantor will deliver to the Collateral Agent, on behalf of the Secured Parties, (i) on the Issue Date, a certificate dated as of a recent date showing the amount and types of insurance coverage as of such date, (ii) upon reasonable request of the Collateral Agent from time to time (or, prior to the Discharge of the First Priority Claims, to the extent delivered to the First Priority Agent), reasonably detailed information as to the insurance carried, (iii) promptly following receipt of notice from any insurer, a copy of any notice of cancellation or material change in coverage from that existing on the Issue Date and (iv) forthwith, notice of any cancellation or nonrenewal of coverage by such Grantor. To the extent applicable, the Collateral Agent shall be named as additional insured on all such liability insurance policies of such Grantor and the Collateral Agent shall be named as loss payee on all property and casualty insurance policies of such Grantor.
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5.4. Payment of Notes Obligations.
Such Grantor shall pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including claims for labor, materials and supplies) against or with respect to the Collateral, except that no such tax, assessment or charge need be paid if (i) the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein, or (ii) the failure to so pay and discharge would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.5. Maintenance of Perfected Security Interest; Further Documentation.
(a) Except as otherwise expressly permitted by the Indenture, such Grantor shall maintain each of the security interests created by this Agreement as a perfected security interest under (x) applicable Laws of the United States and of any state thereof and (y) applicable Laws as required by Section 4.20 of the Indenture having at least the priority described in Section 4.3 and shall defend such security interest against any claims and demands of any Persons (other than the Secured Parties), subject to the provisions of Section 8.15.
(b) Such Grantor shall furnish to the Secured Parties from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the assets and property of such Grantor as the Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request to be taken (or, prior to the Discharge of the First Priority Claims, to the extent such further actions have been taken with respect to the First Priority Liens), whether in the United States or outside the United States, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, the filing of any financing or continuation statements under the UCC (or other similar Laws) in effect in any jurisdiction within or without the United States with respect to the security interests created hereby and in the case of Investment Property and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent (or, prior to the Discharge of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to enable the Collateral Agent, but shall nevertheless be unable to so enable the Collateral Agent, the First Priority Agent, as Gratuitous Bailee) to obtain control (within the meaning of the UCC) with respect thereto.
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5.6. Changes in Locations, Name, Jurisdiction of Incorporation, etc. Such Grantor shall not, except upon at least 10 days prior written notice (or such shorter period consented to by the Collateral Agent in writing) to the Collateral Agent and delivery to the Collateral Agent of duly authorized and, where required, executed copies of all additional financing statements and other documents reasonably requested by the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such additional financing statements and other documents have been delivered to the First Priority Agent with respect to the First Priority Liens) to maintain the validity, perfection and priority of the security interests provided for herein:
(a) change its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business from that referred to in Section 4.4; or
(b) change its legal name, identity or structure to such an extent that any financing statement filed by the Collateral Agent in connection with this Agreement would become misleading.
5.7. Notices. Such Grantor shall advise the Collateral Agent promptly, in reasonable detail, of:
(a) any Lien on any of the Collateral (other than any Lien expressly permitted by Section 4.12 of the Indenture) which would adversely affect the ability of the Collateral Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which such Grantor becomes aware that could reasonably be expected to have a Material Adverse Effect or a material adverse effect upon the aggregate value of the Collateral or on the security interests created hereby.
5.8. Investment Property.
(a) If such Grantor shall become entitled to receive or shall receive any stock or other ownership certificate (including any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of Pledged Equity Interests in any issuer thereof, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests in the Pledged Securities, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and promptly deliver the same to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) in the exact form received, duly endorsed by such Grantor to the Collateral Agent (or the First Priority Agent), if required, together with an undated stock power or similar instrument of transfer covering such certificate duly executed in blank by such Grantor and with, if the Collateral Agent (or the First Priority Agent) so requests, signature guaranteed, to be held by the Collateral Agent (or the First Priority Agent), subject to the terms hereof, as additional collateral
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security for the Notes Obligations. Any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any issuer thereof shall be paid over to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) to be held by it hereunder as additional collateral security for the Notes Obligations if an Event of Default then exists, and in case any distribution of capital shall be made on or in respect of the Pledged Securities or any property shall be distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or reclassification of the capital of any issuer thereof or pursuant to the reorganization thereof, the property so distributed shall, if an Event of Default then exists, and unless otherwise subject to a perfected security interest in favor of the Collateral Agent (or the First Priority Agent), be delivered to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) to be held by it hereunder as additional collateral security for the Notes Obligations. If any sums of money or property so paid or distributed in respect of the Pledged Securities shall be received by such Grantor in violation of the immediately preceding sentence, such Grantor shall, until such money or property is paid or delivered to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee), hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Notes Obligations.
(b) Without the prior written consent of the Collateral Agent, such Grantor shall not (i) vote to enable, or take any other action to permit, any Subsidiary of the Issuer that is an issuer of Pledged Securities to issue any stock, partnership interests, limited liability company interests or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock, partnership interests, limited liability company interests or other equity securities of any nature of any such issuer (except, in each case, pursuant to a transaction expressly permitted by the Indenture), (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, any of the Investment Property or Proceeds thereof or any interest therein (except, in each case, pursuant to a transaction expressly permitted by the Indenture), (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or any Lien expressly permitted thereon pursuant to Section 4.12 of the Indenture, (iv) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof or any interest therein or (v) without the prior written consent of the Collateral Agent, cause or permit any Subsidiary of the Issuer that is an issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the New York UCC) on the Issue Date to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the New York UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the provisions in this clause (v) or any non-Subsidiary of the Issuer that is an issuer takes any of the foregoing actions, such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Collateral Agents (or, prior to the Discharge
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of First Priority Claims, if such Grantor shall have used commercially reasonable efforts to establish the Collateral Agents, but shall nevertheless be unable to so establish the Collateral Agents, the First Priority Agents, as Gratuitous Bailee) control thereof.
(c) In the case of each Grantor which is an issuer of Pledged Securities, such Grantor agrees that (i) it shall be bound by the terms of this Agreement relating to the Pledged Securities issued by it and shall comply with such terms insofar as such terms are applicable to it, (ii) it shall notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section 5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the Pledged Securities issued by it. In addition, each Grantor which is either an issuer or an owner of any Pledged Security hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Collateral Agent and to the transfer of any Pledged Security to the Collateral Agent or its nominee following the occurrence and during the continuance of an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner, member, shareholder or other equityholder of the issuer of the related Pledged Security.
5.9. Receivables. Other than in the ordinary course of business, such Grantor shall not, with respect to Receivables that constitute Collateral (i) grant any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could adversely affect the value thereof.
5.10. Intellectual Property.
(a) Such Grantor (either itself or through licensees) shall, in the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, (i) continue to use each owned Trademark material to its business, (ii) maintain commercially reasonable quality of products and services offered under such Trademarks and take all necessary steps to ensure that all licensed users of such Trademarks comply with such Grantors quality control requirements and maintain reasonable quality, (iii) not adopt or use any mark which is confusingly similar or a colorable imitation of such Trademarks unless the Collateral Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this Agreement and the Intellectual Property Security Agreement, and (iv) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not do any act, or omit to do any act, whereby any Patent owned by such Grantor material to its business may become forfeited, abandoned or dedicated to the public.
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(c) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not (and shall not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any material portion of Copyrights owned by such Grantor and material to its business may become invalidated or otherwise impaired. Such Grantor shall not (either itself or through licensees) do any act whereby any material portion of such Copyrights may fall into the public domain.
(d) Such Grantor shall notify the Collateral Agent promptly if it knows or suspects that any application or registration relating to any Material Intellectual Property owned by a Grantor may become forfeited, abandoned or dedicated to the public, or of any adverse determination (including the institution of, or any such determination in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any country) regarding such Grantors ownership of, or the validity of, any such Material Intellectual Property or such Grantors right to register the same or to own and maintain the same.
(e) Upon request of the Collateral Agent (or, prior to the Discharge of the First Priority Claims, to the extent such actions have been taken with respect to the First Priority Liens), such Grantor shall execute and deliver, and have recorded in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, any and all agreements, instruments, documents, and papers as the Collateral Agent may request (or, prior to the Discharge of the First Priority Claims, to the extent such agreements, instruments, documents, and papers have been executed and delivered and so recorded with respect to the First Priority Liens) to evidence the Collateral Agents security interest in any Copyright, Patent, Trademark or other Intellectual Property of such Grantor.
(f) Such Grantor, subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall take reasonable and necessary steps, including in any proceeding before the United States Patent and Trademark Office or the United States Copyright Office, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of Material Intellectual Property, including the payment of required fees and taxes, the filing of responses to office actions issued by the United States Patent and Trademark Office and the United States Copyright Office, the filing of applications for renewal or extension, the filing of affidavits of use and affidavits of incontestability, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees, and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings.
(g) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not, without the prior written consent of the Collateral Agent, discontinue use of or otherwise abandon any of its registered Owned Intellectual Property, or abandon any application or any right to file an application for any patent, trademark, or copyright, unless such Grantor shall have previously determined that such use or the pursuit or maintenance of such Intellectual Property is no longer desirable in the conduct of such Grantors business and that the loss thereof could not reasonably be expected to have a Material Adverse Effect.
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(h) In the event that any Material Intellectual Property is infringed, misappropriated or diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property and (ii) promptly notify the Collateral Agent after it learns thereof and sue for infringement, misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation or dilution.
(i) Such Grantor agrees that, should it obtain an ownership interest in any item of intellectual property which is not, as of the Issue Date, a part of the Intellectual Property Collateral (the After-Acquired Intellectual Property), (i) the provisions of Section 3 shall automatically apply thereto and (ii) any such After-Acquired Intellectual Property, and in the case of trademarks, the goodwill of the business connected therewith or symbolized thereby, shall automatically become part of the Collateral.
(j) Such Grantor shall furnish to the Collateral Agent from time to time upon the Collateral Agents reasonable request therefor reasonably detailed statements and amended schedules further identifying and describing the Owned Intellectual Property and Licensed Intellectual Property and such other materials evidencing, or reports pertaining to, the Owned Intellectual Property and Licensed Intellectual Property as the Collateral Agent may from time to time reasonably request.
5.11. Contracts.
(a) Such Grantor shall perform and comply in all material respects with all its obligations under the Contracts that constitute Collateral, except where the failure to so perform and comply could not reasonably be expected to have a Material Adverse Effect.
(b) Such Grantor shall not amend, modify, terminate, waive or fail to enforce any provision of any Contract that constitutes Collateral in any manner which could reasonably be expected to have a Material Adverse Effect.
(c) Such Grantor shall exercise promptly and diligently each and every material right which it may have under each Material Contract that constitutes Collateral (other than any right of termination), except where the failure to so exercise could not reasonably be expected to have a Material Adverse Effect.
(d) Such Grantor shall not permit to become effective in any document creating, governing or providing for any permit, lease, license or Material Contract that constitutes Collateral, a provision that would limit the creation, perfection or scope of, or exercise or enforcement of remedies in connection with, a Lien on such permit, lease, license or Material Contract in favor of the Collateral Agent for the ratable benefit of the Secured Parties unless such Grantor believes, in its reasonable judgment, that such prohibition is usual and customary in transactions of such type.
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5.12. Commercial Tort Claims. Such Grantor shall advise the Collateral Agent promptly after such Grantor becomes aware of any Commercial Tort Claim held by such Grantor individually or in the aggregate in excess of $1,000,000 and shall promptly execute and deliver to the Collateral Agent a supplement to Schedule 4.11 in form and substance reasonably satisfactory to the Collateral Agent listing such Commercial Tort Claim, which supplement shall take effect without further action on the part of any party hereto or beneficiary hereof and shall make such Commercial Tort Claim collateral security subject to this Agreement.
5.13. Deposit Accounts. For each Deposit Account that is a Material Account, such Grantor shall (a) if such Grantor opens a Deposit Account that is reasonably expected to be (or at any time becomes or replaces) a Material Account, promptly notify the Collateral Agent thereof and (b) pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use commercially reasonable efforts to cause the depositary bank to comply at any time with instructions from the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) to such depositary bank directing the disposition of funds from time to time credited to such Deposit Account, without further consent of such Grantor. The Collateral Agent agrees not to provide any such depositary bank any such instructions unless an Event of Default has occurred and is continuing.
5.14. Financial Assets. If any Securities, whether certificated or uncertificated, or other Investment Property now or hereafter acquired by any Grantor are held by such Grantor or its nominee through a Securities Intermediary in a Securities Account that is a Material Account, such Grantor shall (a) if such Grantor opens a Securities Account that is reasonably expected to be (or at any time becomes) a Material Account, promptly notify the Collateral Agent thereof and (b) pursuant to an agreement in form and substance satisfactory to the Collateral Agent use commercially reasonable efforts to cause such Securities Intermediary to agree to comply with entitlement orders or other instructions from the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) to such Securities Intermediary as to such Securities or other Investment Property without further consent of such Grantor. The Collateral Agent agrees not to provide any such Securities Intermediary any such entitlement orders or other instructions unless an Event of Default has occurred and is continuing.
SECTION 6. REMEDIAL PROVISIONS.
6.1. Certain Matters Relating to Receivables.
(a) The Collateral Agent shall have the right (but shall in no way be obligated), at the expense of the Secured Parties if an Event of Default does not then exist, to make test verifications of the Receivables that are included in the Collateral in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Collateral Agent may reasonably require in connection with such test verifications.
(b) Each Grantor hereby agrees to use its commercially reasonable efforts to continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it
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may have under any Receivable and any Supporting Obligation, in each case, at its own expense. If required by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be promptly (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee) if required, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent, as Gratuitous Bailee), subject to withdrawal by the Collateral Agent (or, prior to the Discharge of First Priority Claims, the First Priority Agent) for the account of the Secured Parties only as provided in Section 6.5, and (ii) until so turned over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.
(c) At the Collateral Agents request, but on a confidential basis in accordance with the Collateral Agents policies and procedures, during the continuance of an Event of Default each Grantor shall make available to the Collateral Agent original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables that are included in the Collateral, including original orders, invoices and shipping receipts. Any remedies provided in this Section 6.1 shall be subject to the Intercreditor Agreement.
6.2. Communications with Obligors; Grantors Remain Liable.
(a) The Collateral Agent in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables and parties to the Contracts to verify with them to the Collateral Agents satisfaction the existence, amount and terms of any Receivables or Contracts that constitute Collateral
(b) The Collateral Agent may at any time after the occurrence and during the continuance of an Event of Default notify, or require any Grantor to so notify, the Account Debtor or counterparty on any Receivable or Contract that constitutes Collateral of the security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written notice to the applicable Grantor, notify, or require any Grantor to notify, the Account Debtor or counterparty to make all payments under such Receivables and Contracts directly to the Collateral Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables and Contracts that constitutes Collateral to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. No Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or Contract by reason of or arising out of this Agreement
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or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times. Any remedies provided in this Section 6.2 shall be subject to the Intercreditor Agreement.
6.3. Pledged Securities.
(a) Unless an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Grantor that the Collateral Agent (acting upon the instructions of the Secured Parties in accordance with the terms of the Indenture) intends to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Equity Interests and all payments made in respect of the Pledged Notes, to the extent not prohibited by the Indenture, and to exercise all voting and corporate and other ownership (or other similar) rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or corporate or other ownership right exercised or other action taken which would materially impair the Collateral or which would be inconsistent with or result in any violation of any provision of the Indenture, this Agreement or any other Indenture Document.
(b) If an Event of Default shall occur and be continuing and the Collateral Agent shall have given notice to the relevant Grantor that the Collateral Agent (acting upon the instructions of the Secured Parties in accordance with the terms of the Indenture) intends to exercise its rights pursuant to this Section 6.3(b): (i) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights; (ii) the Collateral Agent shall have the right, without notice to any Grantor (where permitted by applicable Laws), any such notice being expressly waived by each Grantor, to transfer all or any portion of the Investment Property to its name or the name of its nominee or agent; and (iii) the Collateral Agent shall have the right, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Property for certificates or instruments of smaller or larger denominations. In order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request (or, prior to the Discharge of the First Priority Claims, to the extent such proxies, dividend payment orders and other instruments shall have been executed and delivered to the First Priority Agent) and each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth herein.
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(c) Each Grantor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each such issuer shall be fully protected in so complying, and (ii) upon any such instruction following the occurrence and during the continuance of an Event of Default, pay any dividends or other payments with respect to the Investment Property, including Pledged Securities, directly to the Collateral Agent. Any remedies provided in this Section 6.3 shall be subject to the Intercreditor Agreement.
6.4. Proceeds to be Turned Over to the Collateral Agent.
In addition to the rights of the Secured Parties specified in Section 6.1 with respect to payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, cash equivalents, checks and other near-cash items shall, if requested in writing by the Collateral Agent, be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the Secured Parties) shall continue to be held as collateral security for all the Notes Obligations and shall not constitute payment thereof until applied as provided in Section 6.5. Any remedies provided in this Section 6.4 shall be subject to the Intercreditor Agreement.
6.5. Application of Proceeds. At such intervals as may be agreed upon by the Issuer and the Collateral Agent, or, if an Event of Default shall have occurred and be continuing, at any time at the Collateral Agents election, subject to the payment over provisions set forth in the Intercreditor Agreement, the Collateral Agent may apply all or any part of the net Proceeds (after deducting fees and reasonable out-of-pocket expenses as provided in Section 6.6) constituting Collateral realized through the exercise by the Collateral Agent of its remedies hereunder, whether or not held in any Collateral Account, in payment of the Notes Obligations in the following order:
First, to the Collateral Agent, to pay incurred and unpaid fees and expenses of the Secured Parties under the Indenture Documents; and
Second, as set forth in Section 6.10 of the Indenture.
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6.6. Code and Other Remedies.
(a) If an Event of Default shall occur and be continuing, the Collateral Agent, on behalf of the Secured Parties and acting upon the instructions, may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Notes Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable Laws or in equity. Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by applicable Laws referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, brokers board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by applicable Laws, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Laws) all rights of redemption, stay or appraisal which it now has or may at any time in the future have under any Laws now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by applicable Laws, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable Laws, each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees, at the Collateral Agents request, to assemble the Collateral and make it available to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Grantors premises or elsewhere. To the extent permitted by applicable Laws, and so long as an Event of Default is continuing, the Collateral Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process.
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(b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including reasonable attorneys fees and disbursements, to the payment in whole or in part of the Notes Obligations and only after such application and after the payment by the Collateral Agent of any other amounts required by any provision of law, including Section 9-615(a) of the New York UCC, need the Collateral Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable Laws, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by any Secured Party of any rights hereunder.
(c) In the event of any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall be included, and the applicable Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Collateral Agent or its designee with such Grantors know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Intellectual Property subject to such disposition, and such Grantors customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of such products and services.
Any remedies provided in this Section 6.6 shall be subject to the Intercreditor Agreement.
6.7. Private Sales, etc.
(a) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Equity Interests, by reason of certain prohibitions contained in the Securities Act, applicable state securities laws or other applicable Laws, and may be compelled to resort to one or more private sales thereof, including, without limitation, to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The
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Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Equity Interests for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act, under applicable state securities laws or other applicable Laws, even if such issuer would agree to do so.
(b) Each Grantor agrees to use commercially reasonable efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Equity Interests pursuant to this Section 6.7 valid and binding and in compliance with any and all other applicable Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained in this Section 6.7 will cause irreparable injury to the Secured Parties, that the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 6.7 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing under the Indenture or a defense of payment.
Any remedies provided in this Section 6.7 shall be subject to the Intercreditor Agreement.
6.8. Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Notes Obligations and the reasonable fees and disbursements of any outside attorneys employed by any Secured Party to collect such deficiency.
6.9. Deposit Accounts/Securities Accounts. Upon the occurrence of an Event of Default and during continuation thereof, the Collateral Agent may prevent withdrawals or other dispositions of funds in Deposit Accounts and Securities Accounts subject to control agreements or held with any Secured Party.
Any remedies provided in this Section 6.9 shall be subject to the Intercreditor Agreement.
SECTION 7. THE COLLATERAL AGENT.
7.1. Collateral Agents Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:
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(i) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may request (or, prior to the Discharge of the First Priority Claims, to the extent such agreements, instruments, documents and papers have been executed and delivered and recorded with respect to the First Priority Liens) to evidence the Secured Parties security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agents option and such Grantors expense, at
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any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the Collateral Agent agrees that, except as provided in Section 7.1(b), it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement; provided, however, that unless an Event of Default has occurred and is continuing or time is of the essence, the Collateral Agent shall not exercise this power without first making demand on the Grantor and the Grantor failing to promptly comply therewith.
(c) The expenses of the Collateral Agent incurred in connection with actions undertaken as provided in this Section 7.1, together with interest thereon at a rate per annum equal to the rate per annum at which interest would then be payable on past due Notes under the Indenture, from the date of payment by the Collateral Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.
7.2. Duty of Collateral Agent. The Collateral Agents sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. Neither the Collateral Agent, nor any other Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Secured Parties hereunder are solely to protect the Secured Parties interests in the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers. The Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from their own gross negligence or willful misconduct in breach of a duty owed to such Grantor.
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7.3. Execution of Financing Statements. Each Grantor acknowledges that pursuant to Section 9-509(b) of the New York UCC and any other applicable Laws, each Grantor authorizes the Collateral Agent to file or record financing or continuation statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral, without the signature of such Grantor, in such form and in such offices as the Collateral Agent reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Collateral Agent under this Agreement. Each Grantor agrees that such financing statements may describe the collateral in the same manner as described in this Agreement or as all assets, all personal property or words of similar effect, regardless of whether or not the Collateral includes all assets or all personal property of such Grantor, or such other description as the Collateral Agent, in its sole judgment, determines is necessary or advisable that is of an equal or lesser scope or with greater detail. A photographic or other reproduction of this Agreement shall, where permitted by applicable Laws, be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.
7.4. Authority of Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed by the Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
7.5. Appointment of Co-Collateral Agents. At any time or from time to time, in order to comply with any applicable requirement of law, the Collateral Agent may appoint another bank or trust company or one of more other Persons, either to act as co-agent or agents on behalf of the Secured Parties with such power and authority as may be necessary for the effectual operation of the provisions hereof and which may be specified in the instrument of appointment (which may, in the discretion of the Collateral Agent, include provisions for indemnification and similar protections of such co-agent or separate agent).
7.6. Actions of the Collateral Agent. The Collateral Agent shall not be liable with respect to any action taken or omitted by it in accordance with the instructions of the Holders in accordance with the Indenture. The Collateral Agent shall not be under any obligation to take or consent to any action that is within the discretion of the Collateral Agent under the provisions hereof or under any Indenture Documents, except upon the written instructions of the Holders in accordance with the Indenture. For purposes of determining actions authorized or consented by the Holders, the Collateral Agent shall be entitled to rely conclusively, and shall be fully protected in so relying, upon the Trustees determination or calculation of the requisite consent obtained from the Holders under the terms of the Indenture.
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SECTION 8. MISCELLANEOUS.
8.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by each affected Grantor and the Collateral Agent subject to any consents required under Article IX of the Indenture; provided that any provision of this Agreement imposing obligations on any Grantor may be waived by the Collateral Agent in a written instrument executed by the Collateral Agent.
8.2. Notices. All notices, requests and demands to or upon the Collateral Agent or any Grantor hereunder shall be effected in the manner provided for in Section 12.1 of the Indenture; provided that any such notice, request or demand to or upon any Grantor shall be addressed to such Grantor at its notice address set forth on Schedule 8.2.
8.3. No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
8.4. Enforcement Expenses; Indemnification.
(a) Each Grantor agrees to pay or reimburse each Secured Party for its reasonable out-of-pocket costs and expenses incurred in enforcing or preserving any rights under this Agreement and the other Indenture Documents to which such Grantor is a party, including the reasonable fees and disbursements of outside counsel to each Secured Party and outside counsel to the Collateral Agent.
(b) Each Grantor agrees to pay, and to hold the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits and reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or Other Taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to hold the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits and reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement to the extent the Issuer would be required to do so pursuant to Section 7.6 and 11.5 of the Indenture.
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(d) The agreements in this Section shall survive repayment of the Notes Obligations and all other amounts payable under the Indenture and the other Indenture Documents.
8.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Collateral Agent and the Secured Parties, and their respective permitted successors and assigns; provided that, except as otherwise permitted by the Indenture, no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent and any attempted assignment without such consent shall be null and void.
8.6. Set-Off. Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time, while an Event of Default shall have occurred and be continuing, without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, whether arising hereunder, under the Indenture or under any other Indenture Document, as such Secured Party may elect, whether or not any Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Each Secured Party shall notify such Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof; provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Secured Party under this Section are in addition to other rights and remedies (including other rights of set-off) which such Secured Party may have. Any remedies provided in this Section 8.6 shall be subject to the Intercreditor Agreement.
8.7. Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart hereof.
8.8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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8.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
8.10. Integration. This Agreement, together with all of the other Indenture Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. Delivery of an executed signature page of this Agreement shall be as effective as delivery of a manually executed counterpart hereof.
8.11. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
8.12. Submission to Jurisdiction; Waivers. Each of the parties hereto hereby irrevocably and unconditionally:
(a) agrees that any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York sitting in New York County or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, except that the Collateral Agent or any of the Secured Parties may, in their sole discretion, bring legal action or proceedings in other appropriate jurisdictions with respect to the enforcement of its rights with respect to the Collateral. Each of the parties hereto hereby irrevocably waives any right to any other jurisdiction to which it may be entitled on account of domicile, residence or otherwise and waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that such party may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions;
(b) consents to the service of any and all process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of copies of such process to such Grantor at its address referred to in Section 8.2 or to the Issuer at its address referred to in Section 8.2. Each Grantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Laws;
(c) agrees that nothing contained in this Section 8.12 shall affect the right of the Collateral Agent or any Secured Party to serve process in any other manner permitted by applicable Laws or commence legal proceedings or otherwise proceed against any Grantor in any other jurisdiction;
39
(d) to the extent that such Grantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), hereby irrevocably waives such immunity in respect of its obligations hereunder; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 8.12 any special, exemplary, punitive or consequential damages.
8.13. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Indenture Documents to which it is a party;
(b) no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Indenture Documents, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Indenture Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.
8.14. Additional Grantors. Each Subsidiary of the Issuer that is required to become a party to this Agreement pursuant to Section 4.20 of the Indenture shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
8.15. Releases
(a) At such time as the Collateral Agent has been notified in writing that the Notes Obligations shall have been paid in full, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold or otherwise disposed of by any Grantor to a Person that is not the Issuer or a Restricted Subsidiary in a transaction permitted by the Indenture, then the Collateral Agent, at the request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or other documents reasonably necessary for the release of the Liens created hereby on such Collateral. At
40
the request and sole expense of the Issuer and the Grantors, a Grantor shall be released from its obligations hereunder in the event that all the Pledged Equity Interests in such Grantor shall be sold or otherwise disposed of in a transaction permitted by the Indenture; provided that the Issuer shall have delivered to the Collateral Agent, at least three Business Days (or such lesser period permitted in writing by the Collateral Agent) prior to the date of the proposed release, a written request for such release identifying the relevant Grantor and the terms of the relevant sale or other disposition in reasonable detail, including the price thereof and any expenses incurred in connection therewith, together with an Officers Certificate from the Issuer, accompanied by an Opinion of Counsel, stating that such transaction is in compliance with the Indenture and the other Indenture Documents.
(c) Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement originally filed in connection herewith without the prior written consent of the Collateral Agent, subject to such Grantors rights under Sections 9-509(d)(2) and 9-518 of the New York UCC.
8.16. WAIVER OF JURY TRIAL. EACH GRANTOR AND THE COLLATERAL AGENT WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INDENTURE DOCUMENT.
8.17. Riders for Non-U.S. Jurisdictions.
(a) Notwithstanding anything set out to the contrary in this Agreement or any other Indenture Document to the contrary, the obligations and liabilities of J. Ray McDermott (Norway) AS under any provision of this Agreement or any other Indenture Document to which it is a party shall not include any obligations or liabilities to the extent they would constitute unlawful financial assistance within the meaning of Section 8-7 and/or 8-10, cfr. Section 1-4, of the Norwegian Companies Act of 13 June 1997 no. 44, and the obligations and liabilities of J. Ray McDermott (Norway) AS under this Agreement or any other Indenture Document only apply to the extent permitted by those provisions of the Norwegian Companies Act of 13 June 1997 no. 44.
(b) The total liability of J. Ray McDermott (Norway) AS under this Agreement or any other Indenture Document to which it is a party shall never exceed $1,000,000,000 plus interest thereon and fees, costs and expenses as set out in this Agreement or any other Indenture Document.
8.18. INTERCREDITOR AGREEMENT GOVERNS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR ITSELF AND FOR THE RATABLE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.
41
8.19. Obligations of Grantors. To the extent that the obligations of any Grantor hereunder shall conflict, or shall be inconsistent, with the obligations of such Grantor under the First Lien Pledge and Security Agreement, the provisions of the First Lien Pledge and Security Agreement shall control.
8.20. Delivery of Collateral. Notwithstanding anything herein to the contrary, prior to the Discharge of First Priority Claims, to the extent any Grantor is required hereunder to deliver Collateral to the Collateral Agent for purposes of possession and control (as such term is used herein) or otherwise grant the Collateral Agent control (as such term is used herein) of such Collateral and is unable to do so as a result of having previously delivered such Collateral or granted such control to the First Priority Agent in accordance with the terms of the First Lien Pledge and Security Agreement, such Grantors obligations hereunder with respect to such delivery and/or control shall be deemed satisfied by the delivery to (or control by) the First Priority Agent, as Gratuitous Bailee.
[Remainder of page intentionally left blank]
42
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and Security Agreement to be duly executed and delivered as a deed as of the date first above written.
McDermott International, Inc. | ||
as Parent and LC Borrower | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer and Investor Relations | |
McDermott Finance L.L.C. | ||
as Term Borrower | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer |
[McDermott Second Lien Pledge and Security Agreement]
Chartering Company (Singapore) Pte. Ltd. | J. Ray McDermott West Africa Holdings, Inc. | |||||
DeepSea (Americas) LLC | J. Ray McDermott West Africa, Inc. | |||||
Deepsea (Europe) Limited | Malmac Sdn. Bhd. | |||||
Deepsea Group Limited | McDermott Asia Pacific Pte. Ltd. | |||||
Deepsea (UK) Limited | McDermott Australia Pty. Ltd. | |||||
Deepsea (US) Incorporated | McDermott Caspian Contractors, Inc. | |||||
Eastern Marine Services, Inc. | McDermott Eastern Hemisphere, Ltd. | |||||
Global Energy - McDermott Limited | McDermott Engineering, LLC | |||||
Hydro Marine Services, Inc. | McDermott Far East Inc. | |||||
International Vessels Ltd | McDermott Gulf Operating Company, Inc. | |||||
J. Ray Holdings, Inc. | McDermott International Investments Co., Inc. | |||||
J. Ray McDermott (Aust.) Holding Pty. Limited | McDermott International Trading Co., Inc. | |||||
J. Ray McDermott (Caspian), Inc. | McDermott International Vesssels, Inc. | |||||
J. Ray McDermott Canada Holding, Ltd. | McDermott Marine Construction Limited | |||||
J. Ray McDermott Canada, Ltd. | ||||||
J. Ray McDermott Contractors, Inc. | McDermott Middle East, Inc. | |||||
McDermott Offshore Services Company, Inc. | ||||||
J. Ray McDermott Engineering Services Private Limited | McDermott Old JV Office, Inc. | |||||
J. Ray McDermott Far East, Inc. | McDermott Overseas, Inc. | |||||
J. Ray McDermott International, Inc. | McDermott Subsea Engineering, Inc. | |||||
J. Ray McDermott Kazakhstan Limited Liability Partnership | McDermott Trade Corporation | |||||
J. Ray McDermott Logistic Services Private Limited | North Atlantic Vessel, Inc. | |||||
J. Ray McDermott (Norway), AS | OPI Vessels, Inc. | |||||
J. Ray McDermott (Qingdao) Pte. Ltd. | Sabine Realty, Inc. | |||||
J. Ray McDermott Solutions, Inc. | ||||||
J. Ray McDermott Technology, Inc. | ||||||
J. Ray McDermott Underwater Services, Inc. | SparTEC, Inc. | |||||
By: |
| |||||
Name: | Steven D. Oldham | |||||
Title: | Treasurer |
[McDermott Second Lien Pledge and Security Agreement]
J. Ray McDermott Holdings, LLC | ||
J. Ray McDermott, S.A. | ||
McDermott, Inc. | ||
McDermott Investments, LLC | ||
McDermott International Management, S. de RL | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer | |
DeepSea (Holland) B.V. | ||
J. Ray McDermott (Luxembourg) S.ar.l. | ||
J. Ray McDermott (Nigeria) Limited | ||
J. Ray McDermott Investments B.V. | ||
McDermott Overseas Investment Co. N.V. | ||
McDermott Holdings (U.K.) Limited | ||
McDermott International B.V. | ||
McDermott International Marine Investments N.V. | ||
McDermott Serviços Offshore do Brasil Ltda. | ||
PT. Baja Wahana Indonesia | ||
Singapore Huangdao Pte. Ltd. | ||
Varsy International N.V. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Authorized Person |
[McDermott Second Lien Pledge and Security Agreement]
J. Ray McDermott de Mexico, S.A. de C.V. | ||
McDermott Marine Mexico, S.A. de C.V. | ||
Servicios de Fabricacion de Altamira, S.A. de C.V. | ||
Servicios Profesionales de Altamira, S.A. de C.V. | ||
By: |
| |
Name: | Ana L. Mendez Burkart | |
Title: | Attorney-in-fact |
[McDermott Second Lien Pledge and Security Agreement]
Executed as a Deed by J. Ray McDermott International Vessels, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | Robert E. Stumpf | |
Title: | Assistant Secretary | |
Executed as a Deed by McDermott Cayman Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | Robert E. Stumpf | |
Title: | Assistant Secretary | |
Executed as a Deed by Offshore Pipelines International, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | Robert E. Stumpf | |
Title: | Assistant Secretary |
[McDermott Second Lien Pledge and Security Agreement]
Executed as a Deed by OPMI, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | R. E. Stumpf | |
Title: | Assistant Secretary |
[McDermott Second Lien Pledge and Security Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent | ||
By: |
| |
Name: | Patrick T. Giordano | |
Title: | Vice President |
[McDermott Second Lien Pledge and Security Agreement]
Exhibit 4.3
CREDIT AGREEMENT
Dated as of April 16, 2014
among
MCDERMOTT INTERNATIONAL, INC.
as Parent and LC Borrower
MCDERMOTT FINANCE L.L.C.
as Term Borrower
and
THE LENDERS AND ISSUERS PARTY HERETO
and
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
as Administrative Agent and Collateral Agent
for the LC Facility and the Term Facility,
and as Joint Lead Arranger and Joint Bookrunner for the LC Facility
and
WELLS FARGO SECURITIES, LLC
as Joint Lead Arranger and Joint Bookrunner for the LC Facility
and
WELLS FARGO BANK, N.A.
as Syndication Agent for the LC Facility
and
GOLDMAN SACHS LENDING PARTNERS LLC,
as Sole Lead Arranger, Sole Bookrunner and Sole Syndication Agent for the Term Facility
and
BBVA COMPASS
as Documentation Agent for the LC Facility
TABLE OF CONTENTS
Page | ||||||
ARTICLE I Definitions, Interpretation And Accounting Terms |
1 | |||||
Section 1.1 |
Defined Terms |
1 | ||||
Section 1.2 |
Computation of Time Periods |
46 | ||||
Section 1.3 |
Accounting Terms and Principles |
46 | ||||
Section 1.4 |
Certain Terms |
47 | ||||
ARTICLE II The Term Loans and Letters of Credit |
48 | |||||
Section 2.1 |
The Term Commitments |
48 | ||||
Section 2.2 |
Borrowing Procedures for the Term Loans |
48 | ||||
Section 2.3 |
Reserved |
49 | ||||
Section 2.4 |
Letters of Credit |
49 | ||||
Section 2.5 |
Reduction and Termination of the Commitments |
56 | ||||
Section 2.6 |
Repayment of Term Loans |
56 | ||||
Section 2.7 |
Evidence of Debt |
56 | ||||
Section 2.8 |
Voluntary Prepayments; Call Protection |
57 | ||||
Section 2.9 |
Mandatory Prepayments |
59 | ||||
Section 2.10 |
Interest |
61 | ||||
Section 2.11 |
Conversion/Continuation Option |
62 | ||||
Section 2.12 |
Fees |
63 | ||||
Section 2.13 |
Payments and Computations |
64 | ||||
Section 2.14 |
Special Provisions Governing Eurodollar Rate Loans |
67 | ||||
Section 2.15 |
Capital Adequacy |
69 | ||||
Section 2.16 |
Taxes |
70 | ||||
Section 2.17 |
Substitution of Lenders |
73 | ||||
Section 2.18 |
Extension Offers |
74 | ||||
Section 2.19 |
Cash Collateral |
75 | ||||
Section 2.20 |
Defaulting Lenders |
76 | ||||
Section 2.21 |
Incremental Letter of Credit Facility Commitments |
78 | ||||
ARTICLE III Conditions To Loans And Letters Of Credit |
80 | |||||
Section 3.1 |
Conditions Precedent to Effectiveness |
80 | ||||
Section 3.2 |
Conditions Precedent to the Term Loans and each Letter of Credit |
83 | ||||
Section 3.3 |
Determinations of Initial Borrowing Conditions |
84 | ||||
ARTICLE IV Representations and Warranties |
84 | |||||
Section 4.1 |
Corporate Existence; Compliance with Law |
84 | ||||
Section 4.2 |
Corporate Power; Authorization; Enforceable Obligations |
85 | ||||
Section 4.3 |
Ownership of Borrowers; Subsidiaries |
86 | ||||
Section 4.4 |
Financial Statements |
86 | ||||
Section 4.5 |
Material Adverse Effect |
87 |
TABLE OF CONTENTS
(CONTINUED)
Section 4.6 |
Solvency | 87 | ||||
Section 4.7 |
Litigation | 87 | ||||
Section 4.8 |
Taxes | 87 | ||||
Section 4.9 |
Full Disclosure | 88 | ||||
Section 4.10 |
Margin Regulations | 88 | ||||
Section 4.11 |
No Burdensome Restrictions; No Defaults | 88 | ||||
Section 4.12 |
Investment Company Act | 88 | ||||
Section 4.13 |
Use of Proceeds | 89 | ||||
Section 4.14 |
Insurance | 89 | ||||
Section 4.15 |
Labor Matters | 89 | ||||
Section 4.16 |
ERISA | 90 | ||||
Section 4.17 |
Environmental Matters | 91 | ||||
Section 4.18 |
Intellectual Property | 91 | ||||
Section 4.19 |
Title; Real Property | 91 | ||||
Section 4.20 |
Mortgaged Vessels | 93 | ||||
Section 4.21 |
Anti-Corruption Laws and Sanctions | 93 | ||||
ARTICLE V Financial Covenants |
94 | |||||
Section 5.1 |
Minimum EBITDA | 94 | ||||
Section 5.2 |
Minimum Liquidity | 94 | ||||
Section 5.3 |
LC Facility Collateral Coverage Ratio | 94 | ||||
Section 5.4 |
Term Loan Facility Collateral Ratio | 94 | ||||
ARTICLE VI Reporting Covenants |
95 | |||||
Section 6.1 |
Financial Statements | 95 | ||||
Section 6.2 |
Collateral Reporting Requirements | 97 | ||||
Section 6.3 |
Default Notices | 98 | ||||
Section 6.4 |
Litigation | 99 | ||||
Section 6.5 |
Labor Relations | 99 | ||||
Section 6.6 |
Tax Returns | 99 | ||||
Section 6.7 |
Insurance | 99 | ||||
Section 6.8 |
ERISA Matters | 100 | ||||
Section 6.9 |
Environmental Matters | 100 | ||||
Section 6.10 |
Patriot Act Information | 101 | ||||
Section 6.11 |
Other Information | 101 | ||||
Section 6.12 |
Babcock Guaranties | 102 | ||||
ARTICLE VII Affirmative Covenants |
102 | |||||
Section 7.1 |
Preservation of Corporate Existence, Etc. | 102 | ||||
Section 7.2 |
Compliance with Laws, Etc. | 102 | ||||
Section 7.3 |
Conduct of Business | 102 | ||||
Section 7.4 |
Payment of Taxes, Etc. | 103 | ||||
Section 7.5 |
Maintenance of Insurance | 103 | ||||
Section 7.6 |
Access | 103 |
TABLE OF CONTENTS
(CONTINUED)
Section 7.7 |
Keeping of Books | 104 | ||||
Section 7.8 |
Maintenance of Properties, Etc. | 104 | ||||
Section 7.9 |
Application of Proceeds; Proceeds from Second Lien Notes | 104 | ||||
Section 7.10 |
Environmental | 105 | ||||
Section 7.11 |
Additional Collateral and Guaranties | 107 | ||||
Section 7.12 |
Real Property | 108 | ||||
Section 7.13 |
Rating of Term Loans | 109 | ||||
Section 7.14 |
Lender Meetings | 109 | ||||
Section 7.15 |
Additional Collateral Perfection Undertakings | 109 | ||||
Section 7.16 |
Undertakings With Respect to the Lay Vessel 108 and DLV 2000 | 109 | ||||
Section 7.17 |
Certain Purchase Options | 109 | ||||
ARTICLE VIII Negative Covenants |
110 | |||||
Section 8.1 |
Indebtedness | 110 | ||||
Section 8.2 |
Liens, Etc. | 112 | ||||
Section 8.3 |
Acquisitions | 114 | ||||
Section 8.4 |
Sale of Assets | 115 | ||||
Section 8.5 |
Restricted Payments | 116 | ||||
Section 8.6 |
Restriction on Fundamental Changes | 119 | ||||
Section 8.7 |
Change in Nature of Business | 119 | ||||
Section 8.8 |
Transactions with Affiliates | 120 | ||||
Section 8.9 |
Restrictions on Subsidiary Distributions; No New Negative Pledge | 120 | ||||
Section 8.10 |
Modification of Constituent Documents | 120 | ||||
Section 8.11 |
Accounting Changes; Fiscal Year | 120 | ||||
Section 8.12 |
Margin Regulations | 121 | ||||
Section 8.13 |
Sale/Leasebacks | 121 | ||||
Section 8.14 |
Capital Expenditures | 121 | ||||
Section 8.15 |
Cancellation of Indebtedness Owed to It | 121 | ||||
Section 8.16 |
No Speculative Transactions | 121 | ||||
Section 8.17 |
Post-Termination Benefits | 122 | ||||
Section 8.18 |
Activities in Panama | 122 | ||||
Section 8.19 |
Vessel Flags | 122 | ||||
Section 8.20 |
Payments of Junior Priority Indebtedness | 122 | ||||
Section 8.21 |
Amendments to Joint Venture Agreements | 123 | ||||
Section 8.22 |
Certain Matters Relating to the Term Borrower | 123 | ||||
ARTICLE IX Events of Default |
123 | |||||
Section 9.1 |
Events of Default | 123 | ||||
Section 9.2 |
Remedies | 125 | ||||
Section 9.3 |
Actions in Respect of Letters of Credit | 127 |
TABLE OF CONTENTS
(CONTINUED)
ARTICLE X The Administrative Agent and Other Agents |
127 | |||||
Section 10.1 |
Authorization and Action | 127 | ||||
Section 10.2 |
Administrative Agents Reliance, Etc. | 129 | ||||
Section 10.3 |
The Agents Individually | 129 | ||||
Section 10.4 |
Lender Credit Decision | 130 | ||||
Section 10.5 |
Indemnification | 130 | ||||
Section 10.6 |
Successor Agents | 131 | ||||
Section 10.7 |
Concerning the Collateral and the Collateral Documents | 132 | ||||
Section 10.8 |
Collateral Matters Relating to Related Obligations | 134 | ||||
Section 10.9 |
Other Agents | 135 | ||||
ARTICLE XI Miscellaneous |
135 | |||||
Section 11.1 |
Amendments, Waivers, Etc. | 135 | ||||
Section 11.2 |
Assignments and Participations | 138 | ||||
Section 11.3 |
Costs and Expenses | 144 | ||||
Section 11.4 |
Indemnities | 146 | ||||
Section 11.5 |
Limitation of Liability | 148 | ||||
Section 11.6 |
Right of Set-off | 148 | ||||
Section 11.7 |
Sharing of Payments, Etc. | 149 | ||||
Section 11.8 |
Notices, Etc. | 150 | ||||
Section 11.9 |
No Waiver; Remedies | 151 | ||||
Section 11.10 |
Binding Effect | 152 | ||||
Section 11.11 |
Governing Law | 152 | ||||
Section 11.12 |
Submission to Jurisdiction; Service of Process | 152 | ||||
Section 11.13 |
Waiver of Jury Trial | 153 | ||||
Section 11.14 |
Marshaling; Payments Set Aside | 153 | ||||
Section 11.15 |
Section Titles | 153 | ||||
Section 11.16 |
Execution in Counterparts | 154 | ||||
Section 11.17 |
Entire Agreement | 154 | ||||
Section 11.18 |
Confidentiality | 154 | ||||
Section 11.19 |
Judgment Currency | 155 | ||||
Section 11.20 |
Severability | 155 |
Schedules
Schedule I - Letter of Credit Facility Commitments
Schedule II - Term Commitments
Schedule III - Letter of Credit Issuer Commitments
Schedule IV - Existing Letters of Credit
Schedule V - Subsidiary Guarantors
Schedule 1.1 - Joint Ventures
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.7 - Litigation
Schedule 4.15 - Labor Matters
Schedule 4.19 - Real Property
Schedule 7.15 - Additional Collateral Perfection Undertakings
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.5 - Existing Investments
Schedule 8.8 - Affiliate Agreements
Schedule 8.19 - Permitted Flags
Exhibits
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Promissory Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Pledge and Security Agreement
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G - Global Intercompany Note
Exhibit H-1 - Form of LC Facility Compliance Certificate
Exhibit H-2 - Form of Term Facility Compliance Certificate
Exhibit I - Form of Landlord Lien Waiver
Exhibit J - Effective Date Certificate
This Credit Agreement dated as of April 16, 2014 is among McDermott International, Inc., a Panamanian corporation (the Parent or LC Borrower), McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), the Lenders (as defined below), the Issuers (as defined below), and Crédit Agricole Corporate and Investment Bank (CA CIB), as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors pursuant to Section 10.6(a), the Administrative Agent) and collateral agent for the Lenders and the Issuers (in such capacity, and together with its successors pursuant to Section 10.6(b), the Collateral Agent).
The parties to this Credit Agreement agree as follows:
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
Defined Terms
As used in this Agreement, the following terms have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
13 Week Cash Forecast has the meaning specified in Section 6.1(e).
2014 Appraisals means the appraisals delivered to CA CIB in February, 2014.
Acquisition means, with respect to any Person, any transaction, or series of related transactions, consummated on or after the Effective Date, by which such Person (a) acquires any ongoing business or all or substantially all of the assets of any Person or group of Persons, or division thereof constituting an ongoing business, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership, limited liability company, or other entity that is not a corporation constituting an ongoing business; provided, however, that any acquisition of assets, equity securities or ownership interests of (i) a Person that is a Subsidiary of such Person prior to such acquisition or (ii) the NO 102, the NO 105 or any Person that directly or indirectly owns an interest in the NO 102 or NO 105 shall, in either case, not constitute an Acquisition hereunder.
Administrative Agent has the meaning specified in the preamble to this Agreement.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affected Lender has the meaning specified in Section 2.17.
Affiliate means, with respect to any Person, any other Person, directly or indirectly, controlling or that is controlled by or is under common control with such Person, each officer, director or general partner of such Person, and each Person that is the beneficial owner of 10% or more of any class of Voting Stock of such Person. For the purposes of this definition, control means the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Agents means the Administrative Agent, the Collateral Agent, the Documentation Agent, the Syndication Agents, the Arrangers, and the Bookrunners.
Agreement means this Credit Agreement, dated as of April 16, 2014, as it may be amended, restated, supplemented or otherwise modified from time to time.
Alternative Currency means any lawful currency (other than Dollars) of any of the G-20 Countries (or any other currency acceptable to the Administrative Agent in its sole discretion).
Anti-Corruption Laws means all laws, rules, and regulations of any jurisdiction applicable to the Parent or its Subsidiaries from time to time concerning or relating to bribery or corruption.
Applicable Lending Office means, (a) with respect to each Term Lender, its Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar Lending Office in the case of a Eurodollar Rate Loan, and (b) with respect to each LC Lender, its Domestic Lending Office.
Applicable Margin means, on any day, with respect to any Term Loan, (i) 3.25% per annum, in the case of a Base Rate Loan, and (ii) 4.25% per annum, in the case of a Eurodollar Rate Loan.
Approved Fund means any Fund that is advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity that administers or manages a Lender.
Arranger means (a) each of CA CIB and Wells Fargo Securities, LLC as a joint lead arranger for the LC Facility, and (b) Goldman Sachs, as sole lead arranger for the Term Facility.
Asset Sale has the meaning specified in Section 8.4.
Assignment and Acceptance means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and delivered to the Administrative Agent, in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
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Auction has the meaning set forth in in Section 11.2(i)(i).
Auction Manager means (a) the Administrative Agent or (b) any other financial institution agreed to by the Term Borrower and the Administrative Agent (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any repurchases of Term Loans pursuant to Section 11.2(i).
Authorized Officer means any Responsible Officer or any other Person designated as an Authorized Officer of a Loan Party by prior written notice from such Loan Party to the Administrative Agent.
Babcock means The Babcock & Wilcox Company, a Delaware corporation.
Babcock Entities means Babcock and its Subsidiaries.
Base Rate means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time, which rate per annum shall be equal to the greatest of the following:
the Prime Rate then in effect;
0.5% per annum plus the Federal Funds Rate then in effect; and
1.0% per annum plus the Eurodollar Rate determined in accordance with clause (b) of the definition thereof.
If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate or the Eurodollar Rate for any reason, including the inability of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Base Rate shall be determined without regard to clause (b) or (c), as applicable above until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Eurodollar Rate, the Federal Funds Rate or the Prime Rate shall be effective on the effective date of such change in the Eurodollar Rate, the Federal Funds Rate or the Prime Rate, respectively. Notwithstanding the foregoing, in the case of the Term Loans, the Base Rate shall at no time be less than 2.00% per annum.
Base Rate Loan means any Term Loan during any period in which it bears interest based on the Base Rate.
BMD means Berlian McDermott Sdn. Bhd., a Malaysian corporation. As of the Effective Date, the Parent indirectly owned 25% of the Stock and Stock Equivalents of BMD and effectively controlled 70% of the economic and voting interest of BMD, and BMD constituted a Restricted Subsidiary of the Parent due to the Parents indirect control of the management of BMD.
BMDL means Berlian McDermott (L) Limited, a Malaysian corporation. As of the Effective Date, BMD owned 100% of the Stock and Stock Equivalents of BMDL, and BMDL constituted a Restricted Subsidiary of the Parent due to the Parents indirect control of the management of BMD.
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Bookrunner means (a) each of CA CIB and Wells Fargo Securities, LLC, as a joint bookrunner for the LC Facility and (b) Goldman Sachs, as sole bookrunner for the Term Facility.
Borrowers means the LC Borrower and the Term Borrower.
Borrowing means Term Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.
Business Day means a day of the year on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which dealings in Dollar deposits are also carried on in the London interbank market.
CA CIB has the meaning specified in the preamble to this Agreement.
Capital Expenditures means, with respect to any Person for any period:
(a) the aggregate of amounts that would be reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person and its Subsidiaries prepared in conformity with GAAP, excluding interest capitalized during construction minus
(b) the aggregate of such amounts used to acquire assets useful in the Parents and its Subsidiaries business to the extent such amounts arose from a sale or disposition of equipment described in Section 8.4(c);
excluding, however, (i) such amounts to the extent financed with the proceeds of Indebtedness permitted to be incurred hereunder (other than the Term Loans and the Second Lien Notes), (ii) such amounts to the extent financed with insurance or condemnation proceeds received with respect to loss of, damage to or taking of property of the Parent or any of its Subsidiaries, and (iii) such amounts recovered or recoverable in the price of a contract with a customer of the Parent or a Subsidiary. Notwithstanding the foregoing, Capital Expenditures of BMD and its wholly-owned subsidiary BMDL that are treated as Capital Expenditures of the Parent and its Restricted Subsidiaries under GAAP shall, for purposes of this Agreement, be limited to the amount equal to the product of (x) such Capital Expenditures of BMD and BMDL and (y) greater of (i) the Parents direct or indirect ownership percentage of the Stock and Stock Equivalents of BMD and (ii) the Parents direct or indirect percentage of control of the economic and voting interests of BMD.
Capital Lease means, with respect to any Person, any lease of (or other arrangement conveying the right to use) property by such Person as lessee that would be
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accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP. Notwithstanding the foregoing, any lease that would have been accounted for as an operating lease on a balance sheet of such Person prepared in conformity with GAAP as in effect on December 31, 2013 shall be deemed not to be a Capital Lease.
Capital Lease Obligations means, with respect to any Person, the capitalized amount of all obligations of such Person or any of its Restricted Subsidiaries under Capital Leases, as determined on a consolidated basis in conformity with GAAP.
Captive Insurance Subsidiary means each captive insurance company that is a Subsidiary of the Parent. As of the Effective Date, the only Captive Insurance Subsidiary is Boudin Insurance Company, Ltd., a Bermuda corporation.
Cash Collateral Account means any blocked cash collateral account pledged by the LC Borrower to the Collateral Agent for the benefit of the Issuers and the LC Lenders containing cash deposited pursuant to Section 2.4(b), 2.19, or 9.3 to be maintained at the Collateral Agents office.
Cash Equivalents means:
(a) securities issued or fully guaranteed or insured by the United States government or any agency thereof;
(b) certificates of deposit, eurodollar time deposits, overnight bank deposits and bankers acceptances of (i) any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank organized in a country belonging to the OECD, or any branch or agency of any of the foregoing, in each case if such bank has a minimum rating at the time of investment of A-1+ by S&P or P-1 by Moodys, or (ii) any LC Lender or any branch or agency of any LC Lender;
(c) commercial paper with a minimum rating of A-1 or AAA by S&P or P-1 or Aaa by Moodys at the time of acquisition thereof;
(d) demand deposit accounts;
(e) (i) shares of any money market fund that has net assets of not less than $500,000,000.00 and satisfies the requirements of rule 2a-7 under the Investment Company Act of 1940 and (ii) shares of any offshore money market fund that has net assets of not less than $500,000,000.00 and a $1 net asset mandate;
(f) fully collateralized repurchase agreements; and
(g) other investments permitted by the McDermott International Investments Co., Inc. Enhanced Liquidity Portfolio Guidelines dated as of July 21, 2008 (as amended through the Effective Date), or any other cash management guidelines approved by the Parent and the Administrative Agent;
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provided, however, that the maturities of all obligations of the type described in clauses (a), (b) and (c) above shall not exceed one year from the date of acquisition thereof.
Change of Control means any of the following:
(a) the Parent shall cease to own and control, directly, 100% of the issued and outstanding Voting Stock of the Term Borrower on a fully diluted basis;
(b) any person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof) (excluding the Parent and its Subsidiaries and excluding underwriters in the course of their distribution of Voting Stock in an underwritten registered public offering provided such underwriters shall not hold such Stock for longer than five Business Days) (i) shall own directly or indirectly, beneficially or of record, Stock representing more than 30% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Stock in the Parent or (ii) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors of the Parent; or
(c) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of the Parent (together with any new directors whose election by the board of directors of the Parent or whose nomination for election by the stockholders of the Parent was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office.
Code means the Internal Revenue Code of 1986 (or any successor legislation thereto).
Collateral means all property and interests in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted or purported to be granted under any Collateral Document.
Collateral Agent has the meaning specified in the preamble to this Agreement.
Collateral Documents means the Pledge and Security Agreement, the Mortgages and any other document executed and delivered by a Loan Party granting or perfecting a Lien on any of its property to secure payment of the Obligations.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Compliance Certificate has the meaning specified in Section 6.1(c).
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Consolidated Current Assets means the total assets of the Parent and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents.
Consolidated Current Liabilities means the total liabilities of the Parent and its Restricted Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of Long-Term Indebtedness.
Consolidated Excess Cash Flow means, for any Fiscal Year, an amount (if positive) equal to:
Section 1.2 the sum, without duplication, of the amounts for such Fiscal Year of (i) Consolidated Net Income, plus (ii) to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for (A) income, value added and similar taxes and (B) non-cash charges, including for depreciation and amortization (excluding any such non-cash charge to the extent that it represents an accrual or reserve for potential cash outlay in any future period or amortization of a prepaid cash gain that was paid in a prior period), plus (iii) the Consolidated Working Capital Adjustment for such Fiscal Year, minus
Section 1.3 the sum, without duplication, of (i) the amounts for such Fiscal Year paid from Internally Generated Cash of (A) scheduled repayments of Indebtedness for borrowed money and scheduled repayments of obligations under Capital Leases (excluding any interest expense portion thereof), (B)(1) the aggregate amount of Capital Expenditures made by the Parent and its Restricted Subsidiaries in cash during such Fiscal Year and (2) the aggregate consideration required to be paid in cash by the Parent and its Restricted Subsidiaries pursuant to binding contracts (the Contract Consideration) entered into prior to or during such Fiscal Year relating to Capital Expenditures to be consummated or made during the immediately succeeding Fiscal Year following such Fiscal Year (provided that to the extent the aggregate amount actually utilized to make such Capital Expenditures during such immediately succeeding Fiscal Year is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Consolidated Excess Cash Flow at the end of such immediately succeeding Fiscal Year), (C) the aggregate amount of cash consideration paid during such Fiscal Year by the Parent and its Restricted Subsidiaries to make Permitted Acquisitions and Investments of the type described in clauses (o) and (p) of Section 8.5, (D) the aggregate amount of Investments made in reliance on clauses (e) and (m) of Section 8.5 by the Parent and its Restricted Subsidiaries in cash during such Fiscal Year, and (E) the aggregate amount actually paid in cash by the Parent and its Restricted Subsidiaries in respect of income, value added and similar taxes for such Fiscal Year, plus (ii) other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash gain in any prior period). As used in this clause (b), scheduled repayments of Indebtedness does not include mandatory prepayments or voluntary prepayments.
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Consolidated Net Income means, for any period, the net income (or loss) of the Parent and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
Consolidated Working Capital means, as of any date, the excess of (a) Consolidated Current Assets as of such date over (b) Consolidated Current Liabilities as of such date.
Consolidated Working Capital Adjustment means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period. In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any Permitted Acquisition, the designation of any Unrestricted Subsidiary as a Restricted Subsidiary or any Restricted Subsidiary as an Unrestricted Subsidiary during such period; provided that (i) there shall be included with respect to any Permitted Acquisition during such period an amount (which may be a negative number) by which the Consolidated Working Capital acquired in such Permitted Acquisition as at the time of such acquisition exceeds (or is less than) Consolidated Working Capital at the end of such period, and (ii) there shall be included with respect to any Unrestricted Subsidiary that is designated as a Restricted Subsidiary during such period an amount (which may be a negative number) by which the Consolidated Working Capital gained in such designation as at the time of such designation exceeds (or is less than) Consolidated Working Capital at the end of such period.
Constituent Documents means, with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the by-laws, operating agreement or partnership agreement (or the equivalent governing documents) of such Person.
Contaminant means any material, substance or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including any petroleum or petroleum-derived substance or waste, asbestos and polychlorinated biphenyls.
Contract Consideration has the meaning given to such term in the definition of Consolidated Excess Cash Flow.
Contractual Obligation of any Person means any obligation, agreement, undertaking or similar provision of any Security issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding the Loan Documents) to which such Person is a party or by which it or any of its property is bound.
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Control Agreement means an agreement of the type described in Section 5.13 or Section 5.14 of the Pledge and Security Agreement, as applicable.
Customary Permitted Liens means, with respect to any Person, any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or governmental charges in each case that are not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP and, in the case of Collateral, there is no material risk of forfeiture of such property;
Liens of landlords arising by statute or lease contracts entered into in the ordinary course, inchoate, statutory or construction liens, maritime liens and liens of suppliers, mechanics, carriers, materialmen, warehousemen, producers, operators or workmen and other liens imposed by law created in the ordinary course of business for amounts not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves or other appropriate provisions are being maintained to the extent required by GAAP;
liens, pledges or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance or other types of social security benefits, taxes, assessments, statutory obligations or other similar charges or to secure the performance of bids, tenders, sales, leases, contracts (other than for the repayment of borrowed money) or in connection with surety, appeal, customs or performance bonds or other similar instruments;
encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of Real Property not materially detracting from the value of such Real Property and not materially interfering with the ordinary conduct of the business conducted at such Real Property;
encumbrances arising under leases or subleases of Real Property that do not, individually or in the aggregate, materially detract from the value of such Real Property or materially interfere with the ordinary conduct of the business conducted at such Real Property;
financing statements with respect to a lessors rights in and to personal property leased to such Person in the ordinary course of such Persons business;
liens, pledges or deposits relating to escrows established in connection with the purchase or sale of property otherwise permitted hereunder and the amounts secured thereby shall not exceed the aggregate consideration in connection with such purchase or sale (whether established for an adjustment in purchase price or liabilities, to secure indemnities, or otherwise); and
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bankers Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Parent or a Subsidiary of the Parent, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness.
DB 30 means the marine vessel McDermott Derrick Barge No. 30, which, as of the Effective Date, was owned by BMDL and flagged in the Republic of Panama.
Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default means any event that, with the passing of time or the giving of notice or both, would become an Event of Default.
Defaulting Lender means, subject to Section 2.20(b), any LC Lender that, as determined by the Administrative Agent:
(a) has failed to perform any of its funding obligations in respect of its participations in respect of Letters of Credit, within three Business Days of the date required to be funded by it hereunder;
(b) has notified either Borrower, the Administrative Agent or any Lender that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or generally under other agreements in which it commits to extend credit;
(c) has failed, within three Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder; or
(d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that an LC Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that LC Lender or any direct or indirect parent company thereof by a Governmental Authority.
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Disqualified Stock means with respect to any Person, any Stock that, by its terms (or by the terms of any Security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness of such Person, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Scheduled Term Maturity Date.
Disqualified Term Lender means (a) any Person specified by the Parent in writing to Goldman Sachs prior to March 2, 2014 as a Disqualified Lender (and its Affiliates reasonably identifiable by name) and (b) any Person that is a competitor or customer of the Parent or its Subsidiaries and that was specified by the Parent in writing to Goldman Sachs prior to March 2, 2014 as a Disqualified Lender (and its Affiliates reasonably identifiable by name) (in the case of this clause (b), excluding any such Affiliate that is a bona fide diversified debt fund (unless such Person was otherwise specified as a Disqualified Term Lender pursuant to clause (a))). Upon reasonable notice to the Administrative Agent, the Parent may supplement in writing the list of Disqualified Term Lenders for any Person that becomes a competitor or customer of the Parent and its Subsidiaries after the Effective Date, which supplement shall become effective two days after delivery to the Administrative Agent, but which shall not apply retroactively to disqualify any Term Lender that has previously acquired any rights and obligations under this Agreement (including a Term Commitment or Term Loans).
DLV 2000 means the Deepwater Lay Vessel 2000.
DLV 2000 Permitted Debt means (a) Indebtedness provided by the shipyard (or its financier) of the DLV 2000 and incurred to construct, equip and commission the DLV 2000 and (b) Indebtedness secured with the DLV 2000 (but no other Collateral other than the equity interests of the SPV that would own the DLV 2000) incurred to finance the costs of construction, equipping, and commissioning of the vessel in an amount of at least $200,000,000.00, but not to exceed $400,000,000.00.
Documentation Agent means BBVA Compass in its capacity as documentation agent for the LC Facility.
Dollar Equivalent means with respect to any Alternative Currency at the time of determination thereof, the equivalent of such currency in Dollars determined by using the rate of exchange quoted by (a) in the case the payment and reimbursement of a drawing under a Letter of Credit issued in an Alternative Currency, the Issuer of such Letter of Credit and (b) in all other cases, CA CIB in New York, New York at 11:00 a.m. (New York time) on the date of determination to prime banks in New York for the spot purchase in the New York foreign exchange market of such amount of Dollars with such Alternative Currency.
Dollars and the sign $ each mean the lawful money of the United States of America.
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Domestic Lending Office means, with respect to any Lender, the office of such Lender specified as its Domestic Lending Office from time to time to the Borrowers and the Administrative Agent.
EBITDA means, for any period:
(a) Consolidated Net Income for such period plus
(b) the sum of, in each case to the extent deducted in the calculation of such Consolidated Net Income, but without duplication:
(i) any provision for income taxes;
(ii) Interest Expense;
(iii) depreciation expense;
(iv) amortization of intangibles or financing or acquisition costs;
(v) any aggregate net loss from the sale, exchange or other disposition of any property, plant or equipment or any Stock of any Subsidiary by the Parent or its Subsidiaries;
(vi) dry dock amortization expense;
(vii) any loss of any Unrestricted Subsidiary;
(viii) each of the following to the extent it represents a non-cash charge or a non-cash loss, (A) pension amortization expense and any loss related to pension obligations; (B) stock-based compensation expense; (C) impairment of plant, property, and equipment (other than net losses from sale), intangible assets and goodwill; and (D) equity in losses of unconsolidated Affiliates; and
for any Fiscal Quarter ending on or before December 31, 2015, restructuring expenses (except as otherwise captured in the preceding clauses (b)(i), (b)(ii), (b)(iii), (b)(iv), and (b)(v)); provided that the aggregate amount added back to EBITDA in such Fiscal Quarter and each prior Fiscal Quarter ending in 2014 or 2015 pursuant to this clause (b)(viii) shall not exceed $52,000,000.00; minus
(c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication:
(i) any credit for income tax;
(ii) non-cash interest income;
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(iii) any other non-cash gains or income which have been added in determining Consolidated Net Income, including (A) equity in income of nonconsolidated Affiliates and (B) any gain related to pension obligations;
(iv) the income of any Subsidiary that is not a Guarantor to the extent that the declaration or payment of dividends or similar distributions or transfers or loans by such Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary;
(v) depreciation and amortization expense related to any Unrestricted Subsidiary;
(vi) the income of any Unrestricted Subsidiary or any Person (other than a Restricted Subsidiary) in which any other Person (other than the Parent or a Wholly-Owned Restricted Subsidiary or any director or other Person holding qualifying shares in accordance with applicable law) has an interest, except to the extent of the amount of dividends or other distributions or transfers or loans actually paid to the Parent or a Wholly-Owned Restricted Subsidiary by such Unrestricted Subsidiary or Person during such period; and
(vii) any aggregate net gains from the sale, exchange or other disposition of property, plant, or equipment or Stock of a Subsidiary by the Parent or its Subsidiaries.
EBITDA for a consecutive four-quarter period shall be calculated after giving effect, on a pro forma basis, to Acquisitions made by the Parent or its Subsidiaries during such period and the sale, exchange or other disposition of business units by the Parent or its Subsidiaries out of the ordinary course of business during such period (and subsequent to such period and on or before the date of incurrence of the Indebtedness giving rise to the need to calculate the Secured Leverage Ratio) as if such Acquisitions or sale, exchange or other disposition occurred on the first day of the period so long as the Parent provides to the Administrative Agent reconciliations and other detailed information relating to adjustments to the relevant financial statements (including copies of financial statements of the Person or assets acquired in such Acquisition) used in computing EBITDA (and the relevant elements thereof) sufficient to demonstrate such pro forma calculations in reasonable detail.
EBITDA Adjustment means, for any period (including any future period that includes such period as part of a trailing test), an amount identified by the Parent in its Compliance Certificate for the last Fiscal Quarter during such period as the EBITDA Adjustment for such period not exceeding (a) $40,000,000.00 less (b) the aggregate amount of all EBITDA Adjustments for prior periods.
Effective Date means April 16, 2014.
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Eligible Assignee means (a) with respect to an assignment of a Term Commitment or Term Loans, an Eligible Term Assignee and (b) with respect to an assignment of a Letter of Credit Facility Commitment or Letter of Credit Obligations, an Eligible LC Assignee.
Eligible LC Assignee means (a) an LC Lender or any Affiliate of an LC Lender or an Approved Fund with respect to an LC Lender, (b) a commercial bank having total assets in excess of $5,000,000,000.00, (c) a finance company, insurance company or any other financial institution or fund, in each case reasonably acceptable to the Administrative Agent and regularly engaged in making, purchasing or investing in loans and having a net worth, determined in accordance with GAAP, in excess of $500,000,000.00 or, to the extent net worth is less than such amount, a finance company, insurance company, other financial institution or fund, reasonably acceptable to the Administrative Agent, each Issuer and the Borrower (which consent shall, in each case, not be unreasonably withheld or delayed) or (d) a savings and loan association or savings bank organized under the laws of the United States or any State thereof having a net worth, determined in accordance with GAAP, in excess of $250,000,000.00; provided, that, the term Eligible LC Assignee shall exclude any competitor of the Parent or any of its Subsidiaries which is primarily engaged in an Eligible Line of Business and which has been previously identified as such by the Borrower to the Administrative Agent.
Eligible Term Assignee means (a) a Term Lender or any Affiliate of a Term Lender or an Approved Fund with respect to a Term Lender and (b) any other Person (other than, the case of each of clauses (a) and (b), (i) a natural person, (ii) the Parent, any Subsidiary of the Parent or any other Affiliate of the Parent or (iii) a Disqualified Term Lender.
Eligible Line of Business means the businesses and activities engaged in by the Parent and its Subsidiaries on the Effective Date, any other businesses or activities reasonably related or incidental thereto and any other businesses that, when taken together with the existing businesses of the Parent and its Subsidiaries, are immaterial with respect to the assets and liabilities of the Parent and its Subsidiaries, taken as a whole.
Employee Benefit Plan means any employee benefit plan as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates.
Environmental Laws means all applicable Requirements of Law now or hereafter in effect and as amended or supplemented from time to time, relating to pollution or the regulation and protection of human health, safety, the environment or natural resources, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C. § 1801 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. § 136 et seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.); the Toxic
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Substance Control Act, as amended (15 U.S.C. § 2601 et seq.); the Clean Air Act, as amended (42 U.S.C. § 7401 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.); the Occupational Safety and Health Act, as amended (29 U.S.C. § 651 et seq.); the Safe Drinking Water Act, as amended (42 U.S.C. § 300f et seq.); the Oil Pollution Act of 1990; and each of their state and local counterparts or equivalents.
Environmental Liabilities and Costs means, with respect to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any other Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute and arising under any Environmental Law, Permit, order or agreement with any Governmental Authority or other Person, in each case relating to and resulting from the past, present or future operations of, or ownership of property by, such Person or any of its Subsidiaries.
Environmental Lien means any Lien in favor of any Governmental Authority pursuant to any Environmental Law.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate means any trade or business (whether or not incorporated) under common control or treated as a single employer with the Parent, any of its Subsidiaries or any Subsidiary Guarantor within the meaning of Section 414(b), (c), (m) or (o) of the Code. Any former ERISA Affiliate of the Parent, any of its Subsidiaries or any Subsidiary Guarantor shall continue to be considered an ERISA Affiliate of the Parent, such Subsidiary or such Subsidiary Guarantor within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Parent, such Subsidiary or such Subsidiary Guarantor and with respect to liabilities arising after such period for which the Parent, such Subsidiary or such Subsidiary Guarantor could be liable under the Code or ERISA.
ERISA Event means (a) a reportable event described in Section 4043(b) or 4043(c) of ERISA with respect to a Title IV Plan, (b) the withdrawal of the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any ERISA Affiliate from a Title IV Plan subject to Section 4063 or Section 4064 of ERISA during a plan year in which any such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or the termination of any such Title IV Plan resulting, in either case, in a material liability to any such entity, (c) the complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any ERISA Affiliate from any Multiemployer Plan where the Withdrawal Liability is reasonably expected to exceed $1,000,000.00 (individually or in the aggregate), (d) notice of reorganization, insolvency, intent to terminate or termination of a Multiemployer Plan is received by the Parent, any of its Subsidiaries, any Subsidiary
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Guarantor or any ERISA Affiliate, (e) the filing of a notice of intent to terminate a Title IV Plan under Section 4041(c) of ERISA or the treatment of a plan amendment as a termination under Section 4041(e) of ERISA, where such termination constitutes a distress termination under Section 4041(c) of ERISA, (f) the institution of proceedings to terminate a Title IV Plan by the PBGC, (g) the failure to make any required contribution to a Title IV Plan or Multiemployer Plan or to meet the minimum funding standard of Section 412 of the Code (in either case, whether or not waived in accordance with Section 412(c) of the Code), (h) the imposition of a lien under Section 430 of the Code or Section 303 of ERISA on the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any ERISA Affiliate, (i) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, (j) the imposition of liability on the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA, (k) the occurrence of an act or omission which could reasonably be expected to give rise to the imposition on the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any employee pension plan (within the meaning of Section 3(2) of ERISA) or (l) receipt from the IRS of notice of the failure of any employee pension plan that is intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any such employee pension plan to qualify for exemption from taxation under Section 501(a) of the Code.
Eurodollar Lending Office means, with respect to any Term Lender, the office of such Term Lender specified as its Eurodollar Lending Office from time to time to the Term Borrower and the Administrative Agent.
Eurodollar Rate means (a) with respect to any Eurodollar Rate Loan for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period by reference to the ICE Benchmark Administration Limited LIBOR Rate, as published by Reuters (or other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time) (ICE LIBOR) for a period equal to such Interest Period and (b) for any interest calculation of the Eurodollar Rate with respect to a Base Rate Loan on any date, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to such date by reference to the ICE LIBOR for a term of one month commencing on that day; provided, however, that if the ICE LIBOR is not available to the Administrative Agent for any reason, then the applicable Eurodollar Rate for the relevant Interest Period shall instead be the average of the rates per annum at which deposits in Dollars are offered for such Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date which is two Business
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Days prior to the beginning of such Interest Period. Each determination by the Administrative Agent pursuant to this definition shall be conclusive absent manifest error. Notwithstanding the foregoing, in the case of the Term Loans, the Eurodollar Rate shall at no time be less than 1.00% per annum.
Eurodollar Rate Loan means any Term Loan that, for an Interest Period, bears interest based on the Eurodollar Rate.
Event of Default has the meaning specified in Section 9.1.
Excluded Swap Obligations means, with respect to any Loan Party (other than Parent), any Swap Obligation entered into after the Effective Date if, and to the extent that, after giving effect to the keepwell agreement in Section 2.7 of the Pledge and Security Agreement and any other keepwell, support, or other agreement among the Loan Parties for purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Partys failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation entered into after the Effective Date arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
Existing Credit Agreement means the Credit Agreement dated as of May 3, 2010 among the Parent, CA CIB, as administrative agent and collateral agent and the lenders and other parties party thereto (as amended).
Existing Letters of Credit means each letter of credit issued under the Existing Credit Agreement that is outstanding on the Effective Date and set forth on Schedule IV.
Extended Letter of Credit has the meaning specified in Section 2.4(b).
Extending Lenders has the meaning specified in Section 2.18(a).
Extension Agreement means an amendment to this Agreement, in form and substance reasonably satisfactory to the Administrative Agent and the Term Borrower, among the Parent, the Term Borrower, the Administrative Agent and one or more Extending Lenders, effecting one or more Extension Permitted Amendments and such other amendments hereto and to the other Loan Documents as may be required or advisable to effect the transactions contemplated by Section 2.18.
Extension Offer has the meaning specified in Section 2.18(a).
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Extension Permitted Amendment means an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 2.18, providing for an extension of the Scheduled Term Maturity Date applicable to the Term Loans and/or Term Commitments of the Extending Lenders (such Term Loans or Term Commitments being referred to as the Extended Term Loans or Extended Term Commitments, as applicable) and, which may also provide for the following with respect to any such Extended Term Loans or Extended Term Commitments:
an increase or decrease in the rate of interest accruing on such Extended Term Loans,
a modification of the scheduled amortization applicable thereto, provided that the weighted average life to maturity of such Extended Term Loans shall be no shorter than the remaining weighted average life to maturity (determined at the time of such Extension Offer) of the Term Loans which are being extended by such Extended Term Loans,
a modification of voluntary or mandatory prepayments applicable thereto (including prepayment premiums and other restrictions thereon), provided that such requirements may provide that such Extended Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the Term Loans, but may not provide for prepayment requirements that are more favorable than those applicable to the Term Loans,
an increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Term Loans or Extended Term Commitments, and/or
an addition of any affirmative or negative covenants applicable to the Parent, the Term Borrower and the Restricted Subsidiaries, provided that any such additional covenant with which the Parent, the Term Borrower and the Restricted Subsidiaries shall be required to comply prior to the latest Scheduled Term Maturity Date in effect immediately prior to such Extension Permitted Amendment for the benefit of the Extending Lenders providing such Extended Term Loans or Extended Term Commitments shall also be for the benefit of all other Term Lenders.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party; provided that, (a) for any determination of Fair Market Value in connection with an Asset Sale to be made pursuant to Section 8.4(h), (i) or (l) in which the Fair Market Value of the properties disposed of in such Asset Sale exceeds $10,000,000.00, the Parent shall provide evidence reasonably satisfactory to the Administrative Agent with respect to the calculation of such Fair Market Value and (b) for any determination of Fair Market Value of any marine vessel, for purposes of Section 5.3 or Section 5.4, the Fair Market Value of such marine vessel shall be the fair market value set forth for such marine vessel in the 2014 Appraisals or the updated appraisal most recently delivered pursuant to Section 6.2(e), as applicable.
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FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreements between the United States and another country which modify the provisions of the foregoing.
Federal Funds Rate means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Federal Reserve Board means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
Fee Letters means (a) the Fee Letter, dated March 30, 2014, addressed to the Parent from CA CIB and accepted by the Parent on March 31, 2014, (b) the Fee Letter, dated March 30, 2014, addressed to the Parent from CA CIB, Wells Fargo Securities, LLC, and Wells Fargo Bank, N.A. and accepted by the Parent on March 31, 2014, and (c) each other fee letter entered into by either Borrower in connection with this Agreement.
Financial Letter of Credit means a Letter of Credit other than a Performance Letter of Credit.
Financial Letter of Credit Sublimit means an amount equal to 25% of the aggregate Letter of Credit Facility Commitments.
Financial Statements means the financial statements of the Parent and its Subsidiaries delivered in accordance with Section 3.1(b), Section 4.4 or Section 6.1.
Fiscal Quarter means the fiscal quarter of the Parent ending on March 31, June 30, September 30 or December 31 of the applicable calendar year, as applicable.
Fiscal Year means the fiscal year of the Parent, which is the same as the calendar year.
Fronting Exposure means, at any time there is a Defaulting Lender, with respect to any Issuer, such Defaulting Lenders Ratable Portion of the outstanding Letter of Credit Obligations of such Issuer, other than Letter of Credit Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other LC Lenders or cash collateralized in accordance with the terms hereof.
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Fronting Fee means the Fronting Fee specified in Section 2.12(b)(i).
Fund means any Person (other than a natural person) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
GAAP means generally accepted accounting principles in the United States of America as in effect from time to time.
G-20 Countries means Argentina, Australia, Brazil, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, South Korea, Turkey, the United Kingdom, and the United States of America.
Global Intercompany Note means the global intercompany note substantially in the form of Exhibit G hereto.
Goldman Sachs means Goldman Sachs Lending Partners LLC.
Governmental Authority means any nation, sovereign or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any central bank.
Guarantee means the guarantees of the Obligations contained in Section 2 of the Pledge and Security Agreement.
Guarantors means (a) the Parent, in its capacity as guarantor of all Obligations in respect of the Term Loans as set forth in the Pledge and Security Agreement, and (b) each Subsidiary Guarantor.
Guaranty Obligation means, as applied to any Person, without duplication, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose of such Person in incurring such liability is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services,
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primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply funds to, or in any other manner invest in, such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if (and only if) in the case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the primary purpose or intent thereof is to provide assurance to the obligee of Indebtedness of any other Person that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof. The amount of any Guaranty Obligation shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported or, if such amount is not stated or otherwise determinable, the maximum reasonable anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. For the avoidance of doubt, the term Guaranty Obligation shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.
Hedging Contracts means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.
Hedging Obligations has the meaning given to such term in the definition of Obligations.
ICE LIBOR has the meaning given to such term in the definition of Eurodollar Rate.
Immaterial Guarantor means a Guarantor (other than the Parent or the Term Borrower) that does not satisfy the Threshold Amount.
Increase and Joinder Agreement has the meaning set forth in Section 2.21(c).
Increased Amount Date has the meaning specified in Section 2.21(b).
Indebtedness of any Person means, without duplication:
(a) all indebtedness of such Person for borrowed money;
all obligations of such Person evidenced by promissory notes, bonds, debentures or similar instruments;
all matured reimbursement obligations with respect to letters of credit, bankers acceptances, surety bonds, performance bonds, bank guarantees, and other similar obligations;
all other obligations with respect to letters of credit, bankers acceptances, surety bonds, performance bonds, bank guarantees and other similar obligations, whether or not matured, other than unmatured or undrawn, as applicable, obligations with respect to Performance Guarantees;
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all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue by more than 90 days or disputed in good faith;
all indebtedness of such Person created or arising under any conditional sale or other title retention agreement (other than operating leases) with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property);
all Capital Lease Obligations of such Person;
all Guaranty Obligations of such Person;
all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends;
net payments that such Person would have to make in the event of an early termination as determined on the date Indebtedness of such Person is being determined in respect of Hedging Contracts of such Person; and
all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, but amounts of such Indebtedness shall be the lesser of the value of the property owned by such Person securing such Indebtedness and the principal amount of such Indebtedness.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or other entity in which the liability of the joint venturer is limited) in which such Person is a general partner or a joint venturer, except to the extent such Persons liability for such Indebtedness is otherwise limited by applicable law or contract. For the avoidance of doubt, the term Indebtedness shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.
Indemnified Matters has the meaning specified in Section 11.4(a).
Indemnitees has the meaning specified in Section 11.4(a).
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Information means all information received from the Parent or any of its Subsidiaries relating to the Parent or any of its Subsidiaries or any of their respective businesses after the date hereof that is posted to IntraLinks or otherwise clearly identified at the time of delivery as confidential other than any such information that is available to the Administrative Agent, any Lender or any Issuer on a nonconfidential basis prior to disclosure by the Parent or any of its Subsidiaries.
Information Memorandum means the Confidential Information Memorandum related to this Agreement dated March, 2014.
Installment means each payment of the principal amount thereof due under Section 2.6(a) (including the payment due on the Scheduled Term Maturity Date).
Insurance/Condemnation Event means any casualty or other insured damage to, or any taking under the power of eminent domain or by condemnation or similar proceeding of, or any disposition under a threat of such taking of, all or any part of any assets of the Parent or any Restricted Subsidiary, resulting in aggregate Net Cash Proceeds exceeding $10,000,000.00.
Intercreditor Agreement means the Intercreditor Agreement dated as of the Effective Date, among the Collateral Agent, Wells Fargo Bank, National Association, as trustee and collateral agent for the holders of the Second Lien Notes, and the Loan Parties.
Interest Expense means, for the Parent for any period, total interest expense of the Parent and its Subsidiaries for such period, as determined on a consolidated basis in conformity with GAAP and including, in any event (without duplication for any period or any amount included in any prior period):
(a) net costs under Interest Rate Contracts for such period;
(b) any commitment fee (including the Letter of Credit Commitment Fee) accrued, accreted or paid by such Person during such period;
(c) any fees and other obligations (other than reimbursement obligations) with respect to letters of credit (including the Letter of Credit Participation Fees) and bankers acceptances (whether or not matured) accrued, accreted or paid by such Person for such period, plus (without duplication) any such amounts that are included in the cost of operations on the consolidated statement of operations of such Person prepared in conformity with GAAP; and
(d) the Fronting Fee.
For purposes of the foregoing, interest expense shall (i) be determined after giving effect to any net payments made or received by the Parent or any Subsidiary with respect to interest rate Hedging Contracts, (ii) exclude interest expense accrued, accreted or paid by the Parent or any Subsidiary of the Parent to the Parent or any Subsidiary of the Parent, and (iii) exclude credits to interest expense resulting from capitalization of
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interest related to amounts that would be reflected as additions to property, plant or equipment on a consolidated basis sheet of the Parent and its Subsidiaries prepared in conformity with GAAP. Notwithstanding the foregoing, the interest component of all payments associated with any lease that would have been accounted for as an operating lease on a balance sheet of such Person prepared in conformity with GAAP as in effect on the Effective Date shall be excluded from Interest Expense.
Interest Period means, in the case of any Eurodollar Rate Loan, (a) initially, the period commencing on the date such Eurodollar Rate Loan is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate Loan and ending one, three or six months thereafter or, with the prior written consent of all Term Lenders, twelve months thereafter, as selected by the Term Borrower in its Notice of Borrowing or Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.2 or 2.11, and (b) thereafter, if such Term Loan is continued, in whole or in part, as a Eurodollar Rate Loan pursuant to Section 2.11, a period commencing on the last day of the immediately preceding Interest Period therefor and ending one, three or six months thereafter or, with the prior written consent of all Term Lenders, twelve months thereafter, as selected by the Term Borrower in its Notice of Conversion or Continuation given to the Administrative Agent pursuant to Section 2.11; provided, however, that all of the foregoing provisions relating to Interest Periods in respect of Eurodollar Rate Loans are subject to the following:
if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless the result of such extension would be to extend such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;
any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month;
the Term Borrower may not select any Interest Period in respect of Term Loans having an aggregate principal amount of less than $5,000,000.00; and
there shall be outstanding at any one time no more than 10 Interest Periods in the aggregate.
Interest Rate Contracts means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance.
Internally Generated Cash means, with respect to any Fiscal Year, net cash of the Parent and its Restricted Subsidiaries provided by operating activities of the Parent and its Restricted Subsidiaries during such Fiscal Year, excluding (a) Net Cash Proceeds of any Specified Asset Sale or any Insurance/Condemnation Event, (b) proceeds of any incurrence or issuance of Indebtedness and (c) proceeds of any issuance or sale of Stock or Stock Equivalents in the Parent or any Restricted Subsidiary or any capital contributions to the Parent or any Restricted Subsidiary.
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Investment means, with respect to any Person, any investment of such Person so classified under GAAP, and whether or not so classified, any loan, advance, extension of credit that constitutes Indebtedness of the Person to whom it is extended, any direct or indirect guaranty in respect of the Indebtedness of another Person by such Person, or contribution of capital by such Person, and any stocks, bonds, mutual funds, partnership interests, notes (including structured notes), debentures or other securities owned by such Person; excluding, however, (a) capital expenditures of such Person determined in accordance with GAAP, (b) prepayments or deposits made in the ordinary course of business, (c) accounts receivable and similar items made or incurred in the ordinary course of business and (d) the payment of the operating expenses and capital expenditures of a Restricted Subsidiary, so long as such payment is in the ordinary course of business and consistent with past business practices with respect to such Subsidiary prior to the date hereof. For the avoidance of doubt, the term Investment shall not include reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees.
Inventory has the meaning specified in the Pledge and Security Agreement.
IRS means the Internal Revenue Service of the United States or any successor thereto.
ISP means, with respect to any Letter of Credit, the International Standby Practices 1998 published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of Issuance).
Issue means, with respect to any Letter of Credit, to issue, extend the expiry of, renew or increase the maximum stated amount (including by deleting or reducing any scheduled decrease in such maximum stated amount) of, such Letter of Credit. The terms Issued and Issuance shall have a corresponding meaning.
Issuer means each LC Lender or Affiliate of an LC Lender that (a) is listed on Schedule III, (b) hereafter becomes an Issuer with the approval of the Administrative Agent and the LC Borrower by agreeing pursuant to an agreement with and in form and substance satisfactory to the Administrative Agent and the LC Borrower to be bound by the terms hereof applicable to Issuers, or (c) solely with respect to Existing Letters of Credit, is an issuer of an Existing Letter of Credit.
Joint Venture means any Person (a) in which the Parent or a Subsidiary of the Parent, directly or indirectly, owns at least 25% of the Stock or Stock Equivalents of such Person and (b) that is not a Subsidiary of the Parent. As of the Effective Date, the Persons listed on Schedule 1.1 are Joint Ventures.
Junior Priority Indebtedness means (a) the Second Lien Notes, any other Permitted Second Lien Debt and, in each case, any Refinancing Indebtedness in respect thereof and (b) any other Indebtedness for borrowed money (excluding intercompany
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debt) of the Parent or any Restricted Subsidiary that is (i) secured by a Lien on the Collateral that is junior to the Lien on the Collateral that secures the Obligations, (ii) unsecured or (iii) expressly subordinated in right of payment to the Obligations.
Landlord Lien Waiver means a lien waiver signed by a landlord, substantially in the form of Exhibit I or such other form that is satisfactory to the Administrative Agent.
LC Borrower has the meaning specified in the preamble to this Agreement.
LC Facility means the letter of credit facility evidenced by this Agreement.
LC Lenders means Lenders having a Letter of Credit Facility Commitment or, if such Letter of Credit Facility Commitments have terminated, Lenders that are owed Letter of Credit Obligations.
Leases means, with respect to any Person, all of the leasehold estates in Real Property of such Person, as lessee, as such may be amended, supplemented or otherwise modified from time to time.
Lender means each financial institution or other entity that (a) is listed on the signature pages of the Agreement as a Lender or (b) from time to time becomes a party hereto as a Lender by execution of an Assignment and Acceptance or an Increase and Joinder Agreement. Unless the context otherwise requires, the term Lenders references the LC Lenders and the Term Lenders.
Letter of Credit means each letter of credit issued pursuant to Section 2.4 and shall include the Existing Letters of Credit.
Letter of Credit Commitment Fee has the meaning specified in Section 2.12(a).
Letter of Credit Commitment Increase has the meaning specified in Section 2.21(a).
Letter of Credit Exposure means, with respect to any LC Lender, at any time, such LC Lenders Ratable Portion of the Letter of Credit Obligations at such time.
Letter of Credit Facility Commitment means, with respect to each LC Lender, the commitment of such LC Lender to participate in Letters of Credit in the aggregate principal amount outstanding not to exceed the amount set forth opposite such LC Lenders name on Schedule I or in the Assignment and Acceptance or Increase and Joinder Agreement, as applicable, pursuant to which such LC Lender becomes a party hereto, as such amount may be adjusted from to time pursuant to this Agreement. Letter of Credit Facility Commitments means the aggregate of such commitments for all LC Lenders, and the aggregate amount of the Letter of Credit Facility Commitments on the Effective Date is $400,000,000.00.
Letter of Credit Facility Termination Date means the earliest of (a) the Scheduled Letter of Credit Facility Termination Date, (b) the date of termination of all the Letter of Credit Facility Commitments pursuant to Section 2.5 or Section 9.2 and (c) the date on which all the Obligations become due and payable pursuant to Section 9.2.
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Letter of Credit Issuer Commitment means (a) the amount set forth on the attached Schedule III for each Issuer or (b) such other amount as any Issuer and the LC Borrower may agree in a writing delivered to the Administrative Agent.
Letter of Credit Obligations means, at any time, without duplication, the aggregate amount of all liabilities at such time of the LC Borrower to all Issuers with respect to Letters of Credit, whether or not any such liability is contingent, including the sum of (a) the Reimbursement Obligations at such time (or, for any Reimbursement Obligations in any Alternative Currency, the Dollar Equivalent thereof at such time) and (b) the Letter of Credit Undrawn Amounts at such time.
Letter of Credit Participation Fee has the meaning specified in Section 2.12(b)(ii).
Letter of Credit Reimbursement Agreement has the meaning specified in Section 2.4(e).
Letter of Credit Request has the meaning specified in Section 2.4(c).
Letter of Credit Undrawn Amounts means, at any time, the aggregate undrawn face amount of all Letters of Credit outstanding at such time (or, for any Letter of Credit denominated in an Alternative Currency, the Dollar Equivalent thereof at such time).
Leverage Ratio Debt means Disqualified Stock of the Parent and, without duplication, Indebtedness of the Parent and its Restricted Subsidiaries of the type specified in clauses (a), (b), (c), (d), (e), (f), (g), (h) and (k) of the definition of Indebtedness determined on a consolidated basis in accordance with GAAP. For the avoidance of doubt, the term Leverage Ratio Debt shall not include (a) reimbursement or other obligations with respect to unmatured or undrawn, as applicable, Performance Guarantees and (b) Indebtedness of the Parent or any of its Restricted Subsidiaries that is owed to the Parent, any of its Restricted Subsidiaries or any Joint Venture that is a Guarantor.
Lien means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or the performance of any other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any effective financing statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor.
Liquidity means unrestricted cash and Cash Equivalents of the Parent and its Subsidiaries.
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Loan Documents means, collectively, this Agreement, the Notes (if any), each Letter of Credit Reimbursement Agreement, the Collateral Documents, the Global Intercompany Note, each Fee Letter, any agreement creating or perfecting rights in cash collateral pursuant to this Agreement and each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.
Loan Party means each Borrower and each Guarantor.
Long-Term Indebtedness means any Indebtedness of the Parent and its Restricted Subsidiaries that, in conformity with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
Material Adverse Effect means a material adverse effect upon (a) the condition (financial or otherwise), business, results of operations or properties of the Parent and the Subsidiary Guarantors taken as a whole; (b) the perfection or priority of the Liens granted pursuant to the Collateral Documents; (c) the Loan Parties ability to perform their respective obligations under the Loan Documents; or (d) the validity or enforceability against the Loan Parties of the Loan Documents or the rights or remedies of the Administrative Agent, the Lenders or the Issuers thereunder.
Material Intellectual Property has the meaning specified in the Pledge and Security Agreement.
Material Subsidiary means, with respect to any date of determination, (a) a Restricted Subsidiary contributing (or, if such Restricted Subsidiary was not a Subsidiary of the Parent for the entire Fiscal Year immediately preceding such date, that would have contributed) more than (i) 5% of the EBITDA or (ii) 5% of total assets (as determined in accordance with GAAP) of the Parent and its Restricted Subsidiaries on a consolidated basis, in each case in the Fiscal Year immediately preceding such date or (b) two or more Restricted Subsidiaries contributing (or, if any such Restricted Subsidiary was not a Subsidiary of the Parent for the entire Fiscal Year immediately preceding such date, that would have contributed) more than (i) 5% of the EBITDA or (ii) 5% of total assets (as determined in accordance with GAAP) of the Parent and its Restricted Subsidiaries on a consolidated basis, in each case in the Fiscal Year immediately preceding such date. Notwithstanding the foregoing, the Term Borrower shall at all times be a Material Subsidiary.
MNPI means material non-public information (within the meaning of the United States Federal, state or other applicable securities laws) with respect to the Parent and its Affiliates or their Securities.
Moodys means Moodys Investors Services, Inc.
Mortgaged Properties means each parcel of real property and the improvements thereto owned or leased by a Loan Party with respect to which a Mortgage is granted pursuant to Section 7.12.
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Mortgaged Vessel Owning Subsidiary means at any time any Subsidiary of the Parent that owns a marine vessel that is or is required to become a Mortgaged Vessel under the terms of this Agreement or the other Loan Documents. As of the Effective Date, the Mortgaged Vessel Owning Subsidiaries and the Mortgaged Vessels owned by each are as follows:
Mortgaged Vessel Owning Subsidiary |
Jurisdiction of Organization |
Mortgaged Vessel |
Vessel Flag | |||
J. Ray McDermott Holdings, LLC | Delaware | McDermott Derrick Barge No. 16 | U.S.A. | |||
Hydro Marine Services, Inc. | Panama | McDermott Derrick Barge No. 27 | Panama | |||
DB 101 |
Panama | |||||
Intermac 650 |
Panama | |||||
McDermott LB 32 |
Panama | |||||
J. Ray McDermott International Vessels, Ltd. | Cayman Islands | McDermott Derrick Barge No. 50 | Panama | |||
McDermott Gulf Operating Company, Inc. | Panama | Agile | Barbados | |||
Thebaud Sea |
Canada (bareboat registered in Barbados) | |||||
McDermott International Vessels, Inc. | Panama | Emerald Sea | Barbados | |||
McDermott, Inc. | Delaware | Intermac 600 | U.S.A. |
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Mortgaged Vessels means at any time the marine vessels of the Loan Parties that are subject to a lien under the Collateral Documents at such time, except, notwithstanding anything herein or in any other Collateral Document to the contrary, any marine vessel that is the subject of a Lien permitted under Section 8.2 (i) securing permitted Capital Leases or permitted purchase money Indebtedness incurred in connection with the acquisition of such marine vessel or (ii) existing at the time of (but not incurred in anticipation of) any such acquisition shall not be a Mortgaged Vessel. The Mortgaged Vessels shall consist of the following as of the Effective Date:
Vessel Name |
Flag | |
McDermott Derrick Barge No. 16 | U.S.A. | |
McDermott Derrick Barge No. 27 | Panama | |
McDermott Derrick Barge No. 50 | Panama | |
McDermott LB 32 | Panama | |
DB 101 | Panama | |
Intermac 650 | Panama | |
Agile | Barbados | |
Thebaud Sea | Canada (bareboat registered in Barbados) | |
Emerald Sea | Barbados | |
Intermac 600 | U.S.A. |
Mortgages means (a) the fee or leasehold mortgages or deeds of trust, assignments of leases and rents and other security documents granting a Lien on any Mortgaged Property to secure the Obligations and (b) the mortgages and other security documents granting a Lien on any Mortgaged Vessel to secure the Obligations, in the case of each of clauses (a) and (b) each in form and substance reasonably satisfactory to the Collateral Agent, as the same may be amended, supplemented, replaced or otherwise modified from time to time in accordance with this Agreement.
Multiemployer Plan means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Parent, any of its Subsidiaries, any Guarantor or any ERISA Affiliate has any obligation or liability, contingent or otherwise.
Net Book Value means with respect to any marine vessel under construction at any time, the costs of the construction, equipping and commissioning of such marine vessel less accumulated depreciation as of such time for such marine vessel, as such value would be set forth on the consolidated balance sheet of the Parent prepared in accordance with GAAP.
Net Cash Proceeds means, with respect to any event, proceeds received by the Parent or any Restricted Subsidiary after the Effective Date in cash or Cash Equivalents in respect of such event, net of (a) the reasonable cash costs (including underwriting commissions, legal, investment banking, brokerage and accounting and other professional fees and sales commissions) paid in connection with such event by the Parent or any Restricted Subsidiary to Persons that are not Affiliates of the Parent or any Restricted Subsidiary and (b) in the case of any Asset Sale or Insurance/Condemnation Event, taxes
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paid or reasonably estimated to be payable by the Parent or any Restricted Subsidiary as a result thereof (including, for the avoidance of doubt, as a result of any distribution of such proceeds to the Parent or any Restricted Subsidiary); provided, however, that evidence of each of clauses (a) and (b) above is provided to the Administrative Agent in form and substance reasonably satisfactory to it.
New Lender has the meaning specified in Section 2.21(b).
New Letter of Credit Facility Commitments has the meaning specified in Section 2.21(a).
NO 102 means the North Ocean 102 Vessel.
NO 105 means the North Ocean 105 Vessel.
Non-cash Consideration means the Fair Market Value of non-cash consideration received by the Parent or a Restricted Subsidiary in connection with an Asset Sale less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Non-cash Consideration.
Non-Consenting Lender has the meaning specified in Section 11.1(c).
Non-Defaulting Lender means an LC Lender that is not a Defaulting Lender.
Non-Recourse Indebtedness means Indebtedness of a Subsidiary of the Parent (in each case that is not a Loan Party) (a) that is on terms and conditions reasonably satisfactory to the Administrative Agent, (b) that is not, in whole or in part, Indebtedness of any Loan Party (and for which no Loan Party has created, maintained or assumed any Guaranty Obligation) and for which no holder thereof has or could have upon the occurrence of any contingency, any recourse against any Restricted Subsidiary or the assets thereof (other than the Stock or Stock Equivalents issued by the Subsidiary primarily obligated on such Indebtedness that are owned by a Restricted Subsidiary) for the repayment of such Indebtedness, and (c) owing to an unaffiliated third-party (which for the avoidance of doubt does not include the Parent, any Subsidiary thereof, any other Loan Party, any Joint Venture (or owner of any interest therein) and any Affiliate of any of them).
North Ocean Entities means, collectively, North Ocean II KS, a limited partnership organized and existing under the laws of Norway, North Ocean II AS, a private limited liability company organized and existing under the laws of Norway, and North Ocean 105 AS, a private limited liability company organized and existing under the laws of Norway. North Ocean Entity means any of the North Ocean Entities.
North Ocean Equipment means, (a) with respect to the NO 102, the equipment comprising the vertical lay system (including a tower with aligner and tensioner(s), product highway, level winder, deepwater lowering system, one crane, and related or ancillary components), (b) with respect to the NO 105, the equipment comprising the rigid reel system (including the vertical reel, level winder, tower with aligner,
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straightener and tensioner(s), abandonment and recovery winch, incremental power unit, and related or ancillary components), and (c) the land-based reel base to be purchased and/or constructed in connection with the foregoing, in each case including related assets that are utilized solely in connection with the foregoing equipment and proceeds of the foregoing.
Note means a promissory note of the Term Borrower payable to any Term Lender and its registered assigns evidencing the aggregate Indebtedness of the Term Borrower to such Term Lender resulting from the Term Loans owing to such Term Lender.
Notice of Borrowing has the meaning specified in Section 2.2(a).
Notice of Conversion or Continuation has the meaning specified in Section 2.11(a).
Obligations means the Term Loans, the Letter of Credit Obligations and all other amounts, obligations, covenants and duties owing by the Borrowers and the other Loan Parties to the Agents, any Lender, any Issuer, any Affiliate of any of them or any Indemnitee, of every type and description (whether by reason of an extension of credit, opening or amendment of a letter of credit or payment of any draft drawn thereunder, loan, guaranty, indemnification, foreign exchange or currency swap transaction, interest rate hedging transaction or otherwise), present or future, arising under (a) this Agreement or any other Loan Document, (b) any Treasury Management Arrangements that are (i) in effect on the Effective Date with a counterparty that is the Administrative Agent, a Lender or any Affiliate of either of the foregoing or (ii) entered into after the Effective Date with a counterparty that was, at the time such Treasury Management Agreements were entered into, the Administrative Agent, a Lender or any Affiliate of either of the foregoing (the Obligations described in this clause (b) being referred to herein as Treasury Management Obligations) or (c) any Hedging Contract that is (i) in effect on the Effective Date with a counterparty that is the Administrative Agent, a Lender or any Affiliate of either of the foregoing or (ii) entered into after the Effective Date with a counterparty that was, at the time such Hedging Contract was entered into, the Administrative Agent, a Lender or any Affiliate of either of the foregoing (the Obligations described in this clause (c) being referred to herein as Hedging Obligations), whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money, including all letter of credit and other fees (including, the Letter of Credit Commitment Fee and the Fronting Fee), interest (including post-petition interest, whether or not allowed in a bankruptcy proceeding), charges, expenses, attorneys fees and disbursements and other sums chargeable to any Borrower under this Agreement or any other Loan Document and all obligations of any Borrower under any Loan Document to provide cash collateral for Letter of Credit Obligations; provided that Obligations shall specifically exclude all Excluded Swap Obligations.
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Original Currency has the meaning specified in Section 11.19(a).
Original Indebtedness has the meaning given to such term in the definition of Refinancing Indebtedness.
Other Currency has the meaning specified in Section 11.19(a).
Other Taxes has the meaning specified in Section 2.16(b).
Outstandings means, at any particular time, the sum of the principal amount of the Term Loans outstanding at such time and the Letter of Credit Obligations outstanding at such time.
Ownership Adjusted Fair Market Value means, as of any day, (a) with respect to any Mortgaged Vessel, the Fair Market Value of such Mortgaged Vessel, and (b) with respect to any marine vessel of the Parent and its Subsidiaries that is not a Mortgaged Vessel (including any marine vessel that is under construction), so long as (x)(1) the Vessel Owning Subsidiary with respect to such marine vessel is a Guarantor, (2) the Parent is the direct parent of such Vessel Owning Subsidiary or (3) the Subsidiary that is the direct parent of such Vessel Owning Subsidiary is a Guarantor and (y) the Stock and Stock Equivalents of such Vessel Owning Subsidiary that are owned or otherwise controlled by the Loan Parties are subject to a Lien under the Collateral Documents (unless such Stock and Stock Equivalents are subject to a Lien securing Indebtedness of such Vessel Owning Subsidiary), the product of (i)(A) the Fair Market Value of such marine vessel (or, with respect to any marine vessel that is under construction, the Net Book Value of such marine vessel), minus (B) the Indebtedness of such Vessel Owning Subsidiary (other than the Obligations and the Permitted Second Lien Debt), multiplied by (ii) the percentage of the Stock and Stock Equivalents of such Vessel Owning Subsidiary that are owned or otherwise controlled by the Loan Parties. For purposes of this definition, as of the Effective Date, J. Ray McDermott, S.A. is the direct parent of BMD.
Parent has the meaning specified in the preamble to this Agreement.
Parents Accountants means the Parents accountants, which shall be Deloitte & Touche LLP or another firm of independent nationally recognized public accountants.
Participant has the meaning specified in Section 11.2(d).
Participant Register has the meaning specified in Section 11.2(d).
PBGC means the Pension Benefit Guaranty Corporation or any successor thereto.
Performance Guarantee of any Person means (a) any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support only trade payables or nonfinancial performance obligations of such Person, (b) any letter of credit, bankers acceptance,
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surety bond, performance bond, bank guarantee or other similar obligation issued for the account of such Person to support any letter of credit, bankers acceptance, surety bond, performance bond, bank guarantee or other similar obligation issued for the account of a Subsidiary or joint venture of such Person to support only trade payables or non-financial performance obligations of such Subsidiary or joint venture, and (c) any parent company guarantee or other direct or indirect liability, contingent or otherwise, of such Person with respect to trade payables or non-financial performance obligations of a Subsidiary or joint venture of such Person, if the purpose of such Person in incurring such liability is to provide assurance to the obligee that such contractual obligation will be performed, or that any agreement relating thereto will be complied with.
Performance Letter of Credit means (a) a letter of credit issued to secure ordinary course performance obligations in connection with marine installation, project engineering, procurement, construction, maintenance and other similar projects (including projects about to be commenced) or bids for prospective marine installation, project engineering, procurement, construction, maintenance and other similar projects, and (b) a letter of credit issued to back a bank guarantee, surety bond, performance bond or other similar obligations issued to support ordinary course performance obligations in connection with marine installation, project engineering, procurement, construction, maintenance and other similar projects (including projects about to be commenced) or bids for prospective marine installation, project engineering, procurement, construction, maintenance and other similar projects.
Permit means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law.
Permitted Acquisition means an Acquisition permitted under Section 8.3.
Permitted Second Lien Debt means (a) the Second Lien Notes (and Guaranty Obligations of the Subsidiary Guarantors in respect thereof) and any Refinancing Indebtedness in respect thereof and (b) any other senior second lien secured indebtedness (including, without limitation, promissory notes issued under an indenture or note purchase agreement and term loans issued under a credit agreement) of the Loan Parties in an aggregate principal amount for both the foregoing clauses (a) and (b) not to exceed $650,000,000.00, which indebtedness (other than the Second Lien Notes) (i) is on terms not materially more restrictive, taken as a whole, than the terms of the Loan Documents, (ii) does not impose any financial maintenance covenant that is more restrictive than those in Article V, (iii) contains grace periods for covenant breaches and payment defaults that expire no earlier than the corresponding grace periods in this Agreement, (iv) has cross acceleration (not cross default) to other indebtedness, (v) is secured with no assets other than Collateral and guaranteed by no Person other than the Subsidiary Guarantors, (vi) is subject to the Intercreditor Agreement or other intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which arrangements all Liens on Collateral securing such indebtedness shall be junior to the Liens securing the Obligations on terms acceptable to the Administrative Agent, (vii) by its terms matures at least one year after the Scheduled Term Maturity Date, and (viii) the
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terms of which are otherwise reasonably satisfactory to the Administrative Agent. The Administrative Agents execution of an intercreditor agreement in respect of any senior second lien secured indebtedness shall conclusively evidence its approval of the matters described in the preceding clauses (vi) and (viii).
Person means an individual, partnership, corporation (including a business trust), joint stock company, estate, trust, limited liability company, unincorporated association, joint venture or other entity, or a Governmental Authority.
Pledge and Security Agreement means the First Lien Pledge and Security Agreement dated as of the Effective Date executed by each Borrower, each Subsidiary Guarantor and the Administrative Agent, substantially in the form of Exhibit D.
Pledged Notes has the meaning specified in the Pledge and Security Agreement.
Pledged Stock has the meaning specified in the Pledge and Security Agreement.
Prime Rate means the rate of interest per annum established from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City. Each change in the Prime Rate shall be effective on the date such change is announced as being effective.
Projections means those financial projections of the Parent and its Subsidiaries delivered to the Administrative Agent by the Parent covering the Fiscal Years ending in 2014 and 2015.
Proposed Change has the meaning specified in Section 11.1(c).
Public-Side Lenders means Lenders that do not wish to receive MNPI.
Purchasing LC Lender has the meaning specified in Section 11.7(a)(ii)
Purchasing Lender has the meaning specified in Section 11.7(a)(ii).
Purchasing Term Lender has the meaning specified in Section 11.7(a)(i).
Ratable Portion or ratably means, subject to adjustment as provided in Section 2.12(d), Section 2.13(e) and Section 2.20(a)(iv):
(a) | for purposes of Section 10.5, with respect to any Lender at any time, the percentage obtained by dividing (a) the sum of (i) the Letter of Credit Facility Commitment of such Lender at such time plus (ii) the principal amount of such Lenders Term Exposure at such time by (b) the sum of (i) the aggregate Letter of Credit Facility Commitments of all Lenders at such time plus (ii) the aggregate Term Exposure of all Lenders at such time; provided that if such Letter of Credit Facility Commitments have been terminated, then the Ratable Portion of such Lender shall be |
35
determined based on the Ratable Portions of such Lender, and of all other Lenders, immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof; |
(b) | except as provided in clause (a) above, with respect to the Letter of Credit Facility Commitments or Letter of Credit Obligations of any LC Lender at any time, the percentage obtained by dividing (i) the Letter of Credit Facility Commitment of such LC Lender at such time by (ii) the aggregate Letter of Credit Facility Commitments of all Lenders at such time; provided that if such Letter of Credit Facility Commitments have been terminated, then the Ratable Portion of such LC Lender shall be determined based on the Ratable Portions of such LC Lender, and of all other LC Lenders, immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof; and |
(c) | except as provided in clause (a) above, with respect to the Term Commitments or the Term Loans of any Term Lender at any time, the percentage obtained by dividing (i) the Term Exposure of such Term Lender at such time by (ii) the Term Exposure of all Term Lenders at such time. |
Real Property means all Mortgaged Property and all other real property owned or leased from time to time by any Loan Party or any of its Restricted Subsidiaries.
Refinancing Indebtedness means, in respect of any Indebtedness (the Original Indebtedness), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount not greater than accrued and unpaid interest, fees and premiums (if any) with respect to such Original Indebtedness and reasonable fees and expenses arising from such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier, and the weighted average life to maturity of such Refinancing Indebtedness shall not be shorter, than that of such Original Indebtedness; (c) such Refinancing Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to the earlier of (i) the maturity of such Original Indebtedness and (ii) the date 91 days after the Scheduled Term Maturity Date, provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the weighted average life to maturity of such Refinancing Indebtedness shall be longer than the shorter of (A) the weighted average life to maturity of such Original Indebtedness
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remaining as of the date of such extension, renewal or refinancing and (B) the weighted average life to maturity of the Term Loans as of the date of such extension, renewal or refinancing; (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guaranty Obligation) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness, and shall not constitute an obligation of the Parent if the Parent shall not have been an obligor in respect of such Original Indebtedness, and, in each case, shall constitute an obligation of such Subsidiary or of the Parent only to the extent of their obligations in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; and (f) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or that would have been required to secure such Original Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Obligations, by any Lien that shall not have been contractually subordinated on terms not less favorable in any material respect to the Lenders.
Register has the meaning specified in Section 11.2(c).
Reimbursement Obligations means all matured reimbursement or repayment obligations of the LC Borrower to any Issuer with respect to amounts drawn under Letters of Credit.
Related Obligations has the meaning specified in Section 10.8.
Related Parties means, with respect to any Person, such Persons Affiliates and the partners, directors, officers, employees, agents, representatives, attorneys, consultants, advisors and trustees of such Person and of such Persons Affiliates.
Release means, with respect to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any Contaminant into the indoor or outdoor environment or into or out of any property owned by such Person, including the movement of Contaminants through or in the air, soil, surface water, ground water or property and, in each case, in violation of Environmental Law.
Remedial Action means all actions required by any applicable Environmental Law to (a) clean up, remove, treat or in any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release so that a Contaminant does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.
Repricing Transaction has the meaning specified in Section 2.8(c)(ii).
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Requirement of Law means, with respect to any Person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, including, without limitation, foreign exchange control, United States foreign assets control, and currency reporting laws and regulations, now or hereafter applicable, and all licensing and other formalities, necessary for the import, export and transport of any property, including, without limitation, those required by the regulations of the Export Administration of the Bureau of Industry and Security.
Requisite LC Lenders means, at any time, LC Lenders having Letter of Credit Exposure and unused Letter of Credit Facility Commitments representing at least a majority of the sum of all Letter of Credit Exposure outstanding and unused Letter of Credit Facility Commitments at such time; provided that the Letter of Credit Facility Commitments and Letter of Credit Exposure of any Defaulting Lender shall be excluded for purposes of making a determination of Requisite LC Lenders.
Requisite Lenders means, collectively, the Requisite LC Lenders and the Requisite Term Lenders.
Requisite Term Lenders means, at any time, Lenders having Term Exposure representing at least a majority of the sum of the Term Exposure of all Lenders at such time.
Responsible Officer means, with respect to any Person, any of the principal executive officers, managing members or general partners of such Person but, in any event, with respect to financial matters, the chief financial officer, treasurer or controller of such Person.
Restricted Payment means:
(a) any dividend or any other distribution or payment, whether direct or indirect, on account of any Stock or Stock Equivalents of the Parent or any of its Restricted Subsidiaries now or hereafter outstanding, except a dividend payable solely in Stock or Stock Equivalents (other than Disqualified Stock) or a dividend or distribution payable solely to the Parent or one or more Subsidiary Guarantors;
(b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalents of the Parent or any of its Subsidiaries now or hereafter outstanding other than one payable solely to the Parent or one or more Subsidiary Guarantors; and
(c) any Investment.
Restricted Subsidiary means a Subsidiary that is not an Unrestricted Subsidiary. For the avoidance of doubt, the Term Borrower shall at all times be a Restricted Subsidiary of the Parent.
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S&P means Standard & Poors Rating Services.
Sanctioned Country means, at any time, a country or territory which is the subject or target of any Sanctions.
Sanctioned Person means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.
Sanctions means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majestys Treasury of the United Kingdom.
Scheduled Letter of Credit Facility Termination Date means April 16, 2017.
Scheduled Term Maturity Date means April 16, 2019.
SEC means the U.S. Securities and Exchange Commission.
Second Lien Notes means (a) the 8.000% Senior Secured Notes due 2021, issued under the Second Lien Notes Indenture on the Effective Date and (b) any additional notes issued under the Second Lien Notes Indenture having identical terms and conditions to the Second Lien Notes issued on the Effective Date (other than with respect to the date of issuance, issue price, amount of interest payable on the first interest payment date applicable thereto, transfer restrictions, any registration rights agreement, additional interest with respect thereto and other customary terms and conditions for tack on additional notes, as the case may be), and, in the case of each of clauses (a) and (b), the Indebtedness represented thereby.
Second Lien Notes Documents means the Second Lien Notes Indenture and all other instruments, agreements and other documents evidencing or governing the Second Lien Notes or providing for any Liens, Guaranty Obligations or other rights in respect thereof.
Second Lien Notes Indenture means the Indenture dated as of the Effective Date, among Parent, the Subsidiary Guarantors and Wells Fargo Bank, National Association, as trustee for the holders of the Second Lien Notes.
Secured Leverage Ratio means, as of any day, the ratio of (a) Leverage Ratio Debt as of such day secured by a Lien on property of the Parent or any of its Restricted Subsidiaries to (b) EBITDA for the last four full Fiscal Quarters ending prior to such day.
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Secured Parties means the Lenders, the Issuers, each Agent and any other holder of any Obligation.
Security means any Stock, Stock Equivalent, voting trust certificate, bond, debenture, promissory note or other evidence of Indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, or any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Obligations.
Selling LC Lender has the meaning specified in Section 11.7(a)(ii).
Selling Lenders has the meaning specified in Section 11.7(a)(ii).
Selling Term Lender has the meaning specified in Section 11.7(a)(ii).
Solvent means, with respect to any Person, that the value of the assets of such Person (both at fair value and present fair saleable value) is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date and that, as of such date, such Person is able to pay all liabilities of such Person as such liabilities are expected to mature and does not have unreasonably small capital for its then current business activities. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Special Purpose Vehicle means any special purpose funding vehicle identified as such in writing by any Lender to the Administrative Agent and controlled by that Lender.
Specified Asset Sale means any Asset Sale made in reliance on clause (h), (i), (j) or (k) of Section 8.4, other than any such Asset Sale (or series of related Asset Sales) resulting in aggregate Net Cash Proceeds not exceeding $10,000,000.00 during any Fiscal Year. The term Specified Asset Sale shall not include any Insurance/Condemnation Event.
Specified LC Lender Event of Default has the meaning set forth in Section 9.1(d).
Specified Term Lender Event of Default has the meaning set forth in Section 9.1(d).
SPV means any Subsidiary of the Parent (other than the Term Borrower) that is designated as such in writing by the Parent, but only to the extent that:
(a) such Subsidiary owns (or promptly after such designation will own) the DLV 2000 and its primary purpose will be to own and operate the DLV 2000 and incur Indebtedness and other obligations in respect thereof;
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(b) such Subsidiary has no material assets other than the DLV 2000 and related assets;
(c) except as permitted pursuant to Section 8.8, such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Parent or any Restricted Subsidiary unless the terms of any such agreement or contract are, taken as a whole, no less favorable to the Parent or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent;
(d) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing; and
(e) immediately before and after such designation, the Parent shall be in pro forma compliance with Article V as of the most recent date of determination.
Any designation of a Subsidiary of the Parent as an SPV will be evidenced by a certificate of a Responsible Officer of the Parent certifying that such designation complied with the preceding conditions, and any such designation shall be effective as of the effective date of such certificate.
Stock means shares of capital stock (whether denominated as common stock or preferred stock), partnership or membership interests, equity participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or similar business entity, whether voting or non-voting.
Stock Equivalents means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable.
Subsidiary means, with respect to any Person, a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a Subsidiary, Restricted Subsidiary, Restricted Subsidiaries or Subsidiaries shall refer to a Subsidiary, Restricted Subsidiary, Restricted Subsidiaries or Subsidiaries of the Parent.
Subsidiary Guarantor means (a) the Term Borrower, in its capacity as guarantor of the Obligations (other than Obligations in respect of the Term Loans) as set forth in the Pledge and Security Agreement and (b) each other Subsidiary that is a party to the Pledge and Security Agreement. As of the Effective Date, each Subsidiary listed on Schedule V hereto is a Subsidiary Guarantor.
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Swap Obligation means, with respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a swap within the meaning of Section 1a(47) of the Commodity Exchange Act.
Syndication Agents means (a) Wells Fargo Bank, N.A., in its capacity as syndication agent for the LC Facility, and (b) Goldman Sachs, in its capacity as syndication agent for the Term Facility.
Tangible Equity Units means the 6.25% Tangible Equity Units issued by the Parent on April 7, 2014, and the Indebtedness represented thereby.
Tax Affiliate means, with respect to any Person, (a) any Subsidiary of such Person, and (b) any Affiliate of such Person with which such Person files or is eligible to file U.S. federal income tax returns.
Tax Return has the meaning specified in Section 4.8.
Taxes has the meaning specified in Section 2.16(a).
Term Borrower has the meaning specified in the preamble to this Agreement.
Term Commitment means, with respect to each Term Lender, the commitment of such Term Lender to make Term Loans to the Term Borrower in the aggregate principal amount outstanding not to exceed the amount set forth opposite such Term Lenders name on Schedule II or in the Assignment and Acceptance pursuant to which such Term Lender becomes a party hereto, as such amount may be adjusted from to time pursuant to this Agreement. Term Commitments means the aggregate of such commitments for all Term Lenders, and the aggregate amount of the Term Commitments on the Effective Date is $300,000,000.00.
Term Exposure means, with respect to any Term Lender, at any time, (a) prior to the making of Term Loans hereunder, the Term Commitment of such Term Lender at such time and (b) after the making of Term Loans hereunder, the aggregate principal amount of the outstanding Term Loans held by such Term Lender at such time.
Term Facility means the term loan facility evidenced by this Agreement.
Term Lenders means Lenders having a Term Commitment or if the Term Commitments have terminated, Lenders that are owed Term Loans.
Term Loan has the meaning specified in Section 2.1.
Term Loan Facility Collateral Coverage Ratio means, as of any date of determination, the ratio of (a) the aggregate Ownership Adjusted Fair Market Value of the marine vessels of the Parent and its Subsidiaries to (b) the sum of (i) the aggregate
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principal amount of all Term Loans (and any Refinancing Indebtedness in respect of the Term Loans) outstanding as of such day, plus (ii) the aggregate amount all Reimbursement Obligations (and any matured reimbursement or repayment obligations with respect to amounts drawn under letters of credit issued pursuant to any Refinancing Indebtedness in respect of the Letter of Credit Facility Commitments) outstanding as of such day.
Term Maturity Date means the earliest of (a) the Scheduled Term Maturity Date and (b) the date on which all the Obligations become due and payable pursuant to Section 9.2.
Threshold Amount means, on any date of determination, that such Subsidiary or Subsidiaries, together with its Subsidiaries, had either (a) $2,000,000.00 or more of EBITDA during the four-Fiscal Quarter period most recently ended or (b) had assets the aggregate net book value of which was $2,000,000.00 or more.
Title IV Plan means a pension plan, other than a Multiemployer Plan, covered by Title IV of ERISA and to which the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any ERISA Affiliate has any obligation or liability (contingent or otherwise).
Transactions means (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the creation of the Liens provided for in the Collateral Documents and, in the case of the Borrowers, the borrowing of Term Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder and (b) the execution, delivery and performance by each Loan Party of the Second Lien Notes Documents to which it is to be a party, the creation of the Liens provided for in the Second Lien Notes Documents and, in the case of the Parent, the issuance of the Second Lien Notes and the use of the proceeds thereof.
Treasury Management Arrangement means any arrangement for credit card, cash management, clearing house, wire transfer, depository, treasury or investment services in connection with any transfer or disbursement of funds through an automated clearinghouse or on a same day or immediate or accelerated availability basis (including all monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise of the Parent or any of its Subsidiaries arising out of any cash management, clearing house, wire transfer, depository, treasury or investment services) provided to the Parent or any of its Subsidiaries. The designation of any such arrangement as a Treasury Management Arrangement shall not create in favor of the counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral.
Treasury Management Obligations has the meaning given to such term in the definition of Obligations.
Treasury Rate means, as of any date, the yield to maturity as of such date of the United States Treasury securities with a constant maturity (as compiled and published in
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the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such date to the first anniversary of the Effective Date; provided, however, that if the period from such date to the first anniversary of the Effective Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Treasury Regulations means the final and temporary (but not proposed) income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
Type when used in reference to any Term Loan or Borrowing, refers to whether the rate of interest on such Term Loan, or on the Term Loans comprising such Borrowing, is determined by reference to the Eurodollar Rate or the Base Rate.
UCC means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term UCC shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.
Unrestricted Subsidiary means:
(a) any Captive Insurance Subsidiary;
(b) any North Ocean Entity until such time as such North Ocean Entity is a Wholly-Owned Subsidiary of the Parent; and
(c) any other Subsidiary of the Parent (other than the Term Borrower) that after the Effective Date is designated by the Board of Directors of the Parent as an Unrestricted Subsidiary pursuant to a resolution passed by the board of directors of the Parent, but only to the extent that:
such Subsidiary has no Indebtedness other than Non-Recourse Indebtedness;
except as permitted pursuant to Section 8.8, such Subsidiary is not party to any agreement, contract, arrangement or understanding with the Parent or any Restricted Subsidiary unless the terms of any such agreement or contract are, taken as a whole, no less favorable to the Parent or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Parent;
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except for equity contribution obligations in connection with Non-Recourse Indebtedness, such Subsidiary is a Person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Stock or Stock Equivalents or (ii) to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results;
the aggregate Fair Market Value of all outstanding Investments owned by the Parent and its Restricted Subsidiaries in the Subsidiary being so designated and any commitments to make any such Investments would be permitted under Section 8.5 as of the time of the designation;
immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing;
immediately before and after such designation, the Parent shall be in pro forma compliance with Article V as of the most recent date of determination;
such Subsidiary has also been designated an Unrestricted Subsidiary under the Permitted Second Lien Debt; and
such Subsidiary has not previously been designated as an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Parent as an Unrestricted Subsidiary after the Effective Date will be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution passed by the board of directors of the Parent giving effect to such designation and a certificate of a Responsible Officer of the Parent certifying that such designation complied with the preceding conditions, and any such designation shall be effective as of the effective date of such certificate.
If, at any time, any Unrestricted Subsidiary (other than a Captive Insurance Subsidiary or a North Ocean Entity) would fail to meet the requirements of clause (c)(i), (c)(ii), (c)(iii) or (c)(iv) above as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and the other Loan Documents and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date pursuant to Section 8.1, the Parent will be in default of such covenant.
The board of directors of the Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (i) such Indebtedness is permitted pursuant to Section 8.1; and (ii) no Default or Event of Default would be in existence following such designation. Upon any such designation of an Unrestricted Subsidiary as a Restricted Subsidiary, the redesignated Subsidiary will become a Guarantor pursuant to and if required by Section 7.11.
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USA Patriot Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended.
Vessel Owning Subsidiary means, with respect to any marine vessel, the Subsidiary that owns such marine vessel (or, in the case of any marine vessel that is under construction, the Subsidiary that is party to the construction agreement relating to such marine vessel). For purposes of the definition of Ownership Adjusted Fair Market Value, so long as (a) BMD directly owns 100% of the Stock and Stock Equivalents of BMDL and (b) BMDL owns the DB 30, (x) BMD shall be considered the Vessel Owning Subsidiary with respect to the DB 30 and (y) any Indebtedness of BMDL shall be considered Indebtedness of BMD.
Voting Stock means Stock of any Person having ordinary power to vote in the election of members of the board of directors, managers, trustees or similar controlling Persons of such Person (irrespective of whether, at the time, Stock of any other class or classes of such entity shall have or might have voting power by reason of the happening of any contingency).
Wholly-Owned means, in respect of any Person, any Subsidiary of such Person, all of the Stock of which (other than directors qualifying shares, and the like, as may be required by applicable law) is owned by such Person, either directly or indirectly through one or more Wholly-Owned Subsidiaries thereof.
Withdrawal Liability means, with respect to the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any ERISA Affiliate at any time, the aggregate liability incurred (whether or not assessed) with respect to all Multiemployer Plans pursuant to Section 4201 of ERISA.
Computation of Time Periods
In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word from means from and including and, where applicable, the words to and until each mean to but excluding and the word through means to and including.
Accounting Terms and Principles
Except as set forth below, all accounting terms not specifically defined herein shall be construed in conformity with GAAP and all accounting determinations required to be made pursuant hereto shall, unless expressly otherwise provided herein, be made in conformity with GAAP.
If any change in the accounting principles used in the preparation of the most recent Financial Statements referred to in Section 6.1 is hereafter required or
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permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by the Parent without objection from the Parents Accountants and results in a change in any of the calculations required by Article V or VIII had such accounting change not occurred, the parties hereto agree to enter into good faith negotiations in order to amend such provisions so as to equitably reflect such change with the desired result that the criteria for evaluating compliance with such covenants by the Parent shall be the same after such change as if such change had not been made; provided, however, that no change in GAAP that would affect a calculation that measures compliance with any covenant contained in Article V or VIII shall be given effect until such provisions are amended to reflect such changes in GAAP.
Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Account Standards 159 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Parent or any of its Subsidiaries at fair value, as defined therein.
Certain Terms
The words herein, hereof and hereunder and similar words refer to this Agreement as a whole, and not to any particular Article, Section, subsection or clause in this Agreement.
Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement, (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, and (iii) the words above and below, when following a reference to a clause or a sub-clause of any Loan Document, refer to a clause or sub-clause within, respectively, the same Section or clause.
Each agreement defined in this Article I shall include all appendices, exhibits and schedules thereto. References in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified, unless (i) the prior written consent of the Requisite Lenders is required hereunder for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained or (ii) it is otherwise specified that such reference refers to such agreement as of a particular date.
References in this Agreement to any statute shall be to such statute as amended or modified, together with any successor legislation, in each case in effect at the time any such reference is operative unless it is otherwise specified that such reference refers to such statute as of a particular date.
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The term including when used in any Loan Document means including without limitation except when used in the computation of time periods. The phrase in the aggregate, when used in any Loan Document, means individually or in the aggregate, unless otherwise expressly noted.
Upon the appointment of any successor Administrative Agent pursuant to Section 10.6(a), the reference to CA CIB in the definition of Dollar Equivalent shall be deemed to refer to the financial institution then acting as the Administrative Agent or one of its Affiliates if it so designates.
THE TERM LOANS AND LETTERS OF CREDIT
The Term Commitments
On the terms and subject to the conditions contained in this Agreement, each Term Lender severally agrees to make a term loan (each a Term Loan) to the Term Borrower on the Effective Date in Dollars in an aggregate principal amount not to exceed such Term Lenders Term Commitment. Each Term Lenders Term Commitment shall terminate immediately and without any further action upon the making of a Term Loan by such Term Lender or, if earlier, at 5:00 p.m., (New York City time) on the Effective Date. Amounts of Term Loans that are repaid or prepaid may not be reborrowed.
Borrowing Procedures for the Term Loans
Each Borrowing of Term Loans on the Effective Date shall be made on notice given by the Term Borrower to the Administrative Agent not later than 1:00 p.m. (New York time) (i) on the Effective Date, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days prior to the Effective Date, in the case of a Borrowing of Eurodollar Rate Loans. Each such notice shall be in substantially the form of Exhibit C (a Notice of Borrowing) (or shall be made by telephone and the same information shall be confirmed promptly thereafter in writing), specifying (A) the Effective Date as the date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (D) the initial Interest Period or Interest Periods for any such Eurodollar Rate Loans, and (E) remittance instructions. The Term Loans shall be made as Base Rate Loans unless, subject to Section 2.14, the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Each Borrowing of Term Loans shall be allocated ratably in accordance with each Term Lenders Term Commitment.
Unless the Administrative Agent shall have received notice from a Term Lender prior to the Effective Date that such Term Lender shall not make available to the Administrative Agent such Term Lenders Ratable Portion of the Borrowing to be made on such date (or any portion thereof), the Administrative Agent may assume that such Term Lender has made such Ratable Portion available to the Administrative Agent on the Effective Date in accordance with this Section 2.2 and the Administrative Agent may, in
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reliance upon such assumption, make available to the Term Borrower on such date a corresponding amount. If and to the extent that such Term Lender shall not have so made such Ratable Portion available to the Administrative Agent, such Lender and the Term Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Term Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Term Borrower, the interest rate applicable at the time to the Term Loans comprising such Borrowing and (ii) in the case of such Term Lender, the Federal Funds Rate for the first Business Day and thereafter at the interest rate applicable at the time to the Term Loans comprising such Borrowing. If such Term Lender shall repay to the Administrative Agent such corresponding amount, such corresponding amount so repaid shall constitute such Term Lenders Term Loan as part of such Borrowing for purposes of this Agreement. If the Term Borrower shall repay to the Administrative Agent such corresponding amount, such payment shall not relieve such Term Lender of any obligation it may have hereunder to the Term Borrower.
The failure of any Term Lender to make its Term Loan or any payment required by it on the date specified, shall not relieve any other Term Lender of its obligations to make its Term Loan or payment on such date but no such other Term Lender shall be responsible for the failure of any Term Lender to make a Term Loan or payment required under this Agreement.
Reserved
Letters of Credit
On the terms and subject to the conditions contained in this Agreement, each Issuer agrees to Issue one or more Letters of Credit at the request of, and for the account of, the LC Borrower to support obligations of the LC Borrower, any of its Subsidiaries or any Joint Ventures, from time to time on any Business Day during the period commencing on the Effective Date and ending on the date that is 30 days before the Scheduled Letter of Credit Facility Termination Date; provided, however, that no Issuer shall Issue any Letter of Credit upon the occurrence of any of the following:
any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuer from Issuing such Letter of Credit or any Requirement of Law applicable to such Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuer shall prohibit, or request that such Issuer refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuer with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuer is not otherwise compensated) not in effect on the date of this Agreement or result in any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuer as of the date of this Agreement and that such Issuer in good faith deems material to it;
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such Issuer shall have received written notice from the Administrative Agent, any LC Lender or the LC Borrower, on or prior to the requested date of Issuance of such Letter of Credit, that one or more of the applicable conditions contained in Section 3.1 (with respect to an Issuance on the Effective Date) or 3.2 is not then satisfied or duly waived in accordance with Section 11.1;
after giving effect to the Issuance of such Letter of Credit, the outstanding amount of Letter of Credit Obligations would exceed the Letter of Credit Facility Commitments in effect at such time, the aggregate outstanding amount of all Letters of Credit issued by such Issuer would exceed its Letter of Credit Issuer Commitment or the aggregate outstanding amount of all Financial Letters of Credit would exceed the Financial Letter of Credit Sublimit;
any fees due in connection with a requested Issuance have not been paid;
such Letter of Credit is requested to be issued in a form that is not acceptable to such Issuer, in its sole discretion exercised in a commercially reasonable manner; or
with respect to any requested Letter of Credit denominated in an Alternative Currency, (A) the Issuer or the Administrative Agent shall not have approved such Issuance or (B) the Issuer receives notice from the Administrative Agent at or before 11:00 a.m. (New York time) on the date of the proposed Issuance of such Letter of Credit that, immediately after giving effect to the Issuance of such Letter of Credit, the sum of the Dollar Equivalent of the Letter of Credit Obligations at such time in respect of each Letter of Credit denominated in an Alternative Currency would exceed $150,000,000.00 on the date of such proposed Issuance.
All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms hereof. None of the Lenders (other than the Issuers in their capacity as such) shall have any obligation to Issue any Letter of Credit.
In no event shall the expiration date of any Letter of Credit be later than the earlier of (i) the date that is 12 months from the date of Issuance thereof or such later date as the applicable Issuer may agree in its sole discretion and (ii) the fifth Business Day prior to the Scheduled Letter of Credit Facility Termination Date or, with the approval of the applicable Issuer at its discretion, any date that is after the Scheduled Letter of Credit Facility Termination Date; provided, however, that any Letter of Credit with a fixed term may provide for the auto-renewal thereof for additional periods of not more than 12 months each; provided, further, however, that if any Issuance or renewal occurs during the 12 month period prior to the Scheduled Letter of Credit Facility Termination Date or the LC Borrower requests (and the applicable Issuer approves) the Issuance of a Letter of Credit that expires after the Scheduled Letter of Credit Facility
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Termination Date, then on or before the date that is 95 days prior to the Scheduled Letter of Credit Facility Termination Date (or on the date of such Issuance, if the date of such Issuance is later than the 95th day prior to the Scheduled Letter of Credit Facility Termination Date and the relevant Issuer so consents), the LC Borrower shall provide cash collateral to the Collateral Agent in an amount equal to 105% of the face amount of each such Letter of Credit that expires after the Scheduled Letter of Credit Facility Termination Date (each such Letter of Credit an Extended Letter of Credit). On the Letter of Credit Facility Termination Date and if all Letter of Credit Obligations have been repaid in full, such Extended Letters of Credit shall for all purposes cease to be Letters of Credit hereunder and the obligations of the LC Lenders to fund their Ratable Portions of such Extended Letters of Credit pursuant to clause (h) below shall be terminated except to the extent that any Letter of Credit has an expiration date after the Letter of Credit Facility Termination Date and has not been cash collateralized as described above. After the Letter of Credit Facility Termination Date and the repayment in full of all Letter of Credit Obligations, the terms for release of such cash collateral shall be as agreed from time to time between the LC Borrower and such Issuer; provided that in the absence of such agreement between the LC Borrower and such Issuer, the terms of this Agreement shall, as between the LC Borrower and such Issuer, continue to govern the fees, costs and expenses payable in respect of such Extended Letters of Credit.
In connection with the Issuance of each Letter of Credit, the LC Borrower shall give the relevant Issuer at least two Business Days (unless the relevant Issuer otherwise agrees) prior written notice, in substantially the form of Exhibit E (or in such other written or electronic form as is acceptable to the Issuer), of the requested Issuance of such Letter of Credit (a Letter of Credit Request). Such notice shall be irrevocable on and after the Issuance of such Letter of Credit (and, prior to such Issuance, may be revoked only with the consent of the Issuer) and shall specify the Issuer of such Letter of Credit, the stated amount of the Letter of Credit requested, the date of Issuance of such requested Letter of Credit, the date on which such Letter of Credit is to expire (which date shall be a Business Day), and the Person for whose benefit the requested Letter of Credit is to be issued. Unless the Issuer otherwise agrees, such notice, to be effective, must be received by the relevant Issuer not later than 1:00 p.m. (New York time) on the second Business Day prior to the requested Issuance of such Letter of Credit.
Subject to the satisfaction of the conditions set forth in this Section 2.4, the relevant Issuer shall, on the requested date, Issue a Letter of Credit on behalf of the LC Borrower in accordance with such Issuers usual and customary business practices. No Issuer shall Issue any Letter of Credit in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any LC Lender that one or more of the conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. The relevant Issuer shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied in connection with the Issuance of any Letter of Credit.
If requested by the relevant Issuer, prior to the first Issuance of a Letter of Credit by such Issuer, and as a condition of such Issuance and of the participation of each
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Lender in the Letter of Credit Obligations arising with respect thereto, the LC Borrower shall have delivered to such Issuer a letter of credit reimbursement agreement, in such form as the Issuer may employ in its ordinary course of business for its own account (a Letter of Credit Reimbursement Agreement), signed by the LC Borrower, and such other documents or items as may be required pursuant to the terms thereof. In the event of any conflict between the terms of any Letter of Credit Reimbursement Agreement and this Agreement, the terms of this Agreement shall govern.
Each Issuer shall:
give the Administrative Agent written notice (or telephonic notice confirmed promptly thereafter in writing, which writing may be a telecopy or, if consented to by the Administrative Agent, electronic mail) of the Issuance or renewal of a Letter of Credit issued by it, of all drawings under a Letter of Credit issued by it, the payment (or the failure to pay when due) by the LC Borrower of any Reimbursement Obligation and of the cancellation, termination or expiration of any Letter of Credit (of which notice the Administrative Agent shall promptly notify each LC Lender);
upon the request of any LC Lender, furnish to such LC Lender copies of any Letter of Credit Reimbursement Agreement to which such Issuer is a party and such other documentation as may reasonably be requested by such LC Lender; and
no later than five Business Days following the last Business Day of each calendar quarter (commencing with the calendar quarter ending June 30, 2014), provide to the Administrative Agent (and the Administrative Agent shall provide a copy to each Lender requesting the same) and the LC Borrower a schedule of Letters of Credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the aggregate Letter of Credit Obligations outstanding at the end of each calendar quarter and any information requested by the LC Borrower or the Administrative Agent relating thereto.
Effective with respect to the Existing Letters of Credit upon the occurrence of the Effective Date, and otherwise effective immediately upon the Issuance by an Issuer of a Letter of Credit in accordance with the terms and conditions of this Agreement, each Issuer shall be deemed to have sold and transferred to each LC Lender and each LC Lender shall be deemed irrevocably and unconditionally to have purchased and received from each Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such LC Lenders Ratable Portion of the Letter of Credit Facility Commitments in such Letter of Credit and the obligations of the LC Borrower with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto.
The LC Borrower agrees to pay to the Issuer of any Letter of Credit the amount of all Reimbursement Obligations owing to such Issuer under any Letter of
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Credit issued for its account in Dollars (or the Dollar Equivalent of such payment if such payment was made in an Alternative Currency) no later than the date that is the next succeeding Business Day after the LC Borrower receives notice from such Issuer (or, if such notice is not received prior to 11:00 A.M. (New York Time) on any Business Day, then no later than 10:00 A.M. (New York Time) on the next succeeding Business Day) that payment has been made under such Letter of Credit, irrespective of any claim, set-off, defense or other right that the LC Borrower may have at any time against such Issuer or any other Person. If any Issuer makes any payment under any Letter of Credit and the LC Borrower shall not have repaid such amount to such Issuer pursuant to this clause (h) or any such payment by the LC Borrower in respect thereof is rescinded or set aside for any reason, such Reimbursement Obligation shall be payable on demand with interest thereon computed at the Base Rate plus 4.50% per annum, and such Issuer shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each LC Lender, of such failure, and each LC Lender shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuer the amount of such LC Lenders Ratable Portion in Dollars (or the Dollar Equivalent thereof if such payment was made in an Alternative Currency) and in immediately available funds. If the Administrative Agent so notifies such LC Lender prior to 11:00 a.m. (New York time) on any Business Day, such LC Lender shall make available to the Administrative Agent for the account of such Issuer its Ratable Portion of the amount of such payment on such Business Day in immediately available funds as set forth in the immediately preceding sentence. Whenever any Issuer receives from the LC Borrower a payment of a Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuer any payment from an LC Lender pursuant to this clause (h), such Issuer shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to such LC Lender in immediately available funds, an amount equal to such LC Lenders Ratable Portion of the amount of such payment adjusted, if necessary, to reflect the respective amounts the LC Lenders have paid in respect of such Reimbursement Obligation.
The Borrowers obligation to pay each Reimbursement Obligation and the obligations of the LC Lenders (except as otherwise set forth in the penultimate sentence of Section 2.4(b)) to make payments to the Administrative Agent for the account of the Issuers with respect to Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, including the occurrence of any Default or Event of Default, and irrespective of any of the following:
any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein;
any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any Loan Document;
the existence of any claim, set-off, defense or other right that the LC Borrower, any other party guaranteeing, or otherwise obligated with, the LC Borrower, any Subsidiary or other Affiliate thereof or any other Person may at
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any time have against the beneficiary under any Letter of Credit, any Issuer, the Administrative Agent, any LC Lender or any other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;
any draft or 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;
payment by the Issuer under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or
any other act or omission to act or delay of any kind of the Issuer, the Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or equitable discharge of the LC Borrowers obligations hereunder.
Any action taken or omitted to be taken by the relevant Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuer under any resulting liability to the LC Borrower or any Lender. In determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof, the Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit, the Issuer may rely exclusively on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever. Any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in any case, be deemed not to constitute willful misconduct or gross negligence of the Issuer. Notwithstanding the foregoing, nothing in this clause (i) shall be deemed to release any Issuer from liability with respect to its gross negligence or willful misconduct.
If and to the extent any Lender shall not have so made its Ratable Portion of the amount of the payment required by clause (h) above available to the Administrative Agent for the account of an Issuer, such LC Lender agrees to pay to the Administrative Agent for the account of such Issuer forthwith on demand any amount so unpaid together with interest thereon, for the first Business Day after payment was first due at the Federal Funds Rate, and thereafter until such amount is repaid to the Administrative Agent for the account of such Issuer, at the rate per annum applicable to
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Base Rate Loans. The failure of any LC Lender to make available to the Administrative Agent for the account of an Issuer its Ratable Portion of any such payment shall not relieve any other LC Lender of its obligation hereunder to make available to the Administrative Agent for the account of such Issuer its Ratable Portion of any payment on the date such payment is to be made, but no LC Lender shall be responsible for the failure of any other LC Lender to make available to the Administrative Agent for the account of the Issuer such other LC Lenders Ratable Portion of any such payment.
The Administrative Agent shall determine the Dollar Equivalent of the maximum stated amount of each Letter of Credit denominated in an Alternative Currency and each obligation due with respect thereto, and a determination thereof by the Administrative Agent shall be conclusive absent manifest error. The Dollar Equivalent of each Reimbursement Obligation with respect to a drawn Letter of Credit shall be calculated on the date the Issuer pays the draw giving rise to such Reimbursement Obligation. The Administrative Agent shall determine or redetermine the Dollar Equivalent of the maximum stated amount of each Letter of Credit denominated in an Alternative Currency, as applicable, on the date of each Issuance of such Letter of Credit and at any time, in the Administrative Agents sole discretion. The Administrative Agent may determine or redetermine the Dollar Equivalent of any Letter of Credit denominated in an Alternative Currency at any time upon request of any LC Lender or Issuer.
If the Issuer of a Letter of Credit is not the Person acting as Administrative Agent, the LC Borrower shall furnish the Administrative Agent with (i) a copy of such Letter of Credit promptly upon the Issuance or renewal of such Letter of Credit and (ii) a copy of any amendment to such Letter of Credit promptly upon the effectiveness of such amendment.
Notwithstanding anything in this Agreement to the contrary, no Issuer shall be under any obligation to Issue any Letter of Credit if any LC Lender is at that time a Defaulting Lender, unless the Issuer has entered into arrangements, including the delivery of cash collateral, satisfactory to the Issuer (in its sole discretion) with the LC Borrower or such LC Lender to eliminate the Issuers actual or potential Fronting Exposure (after giving effect to Section 2.20(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be Issued or that Letter of Credit and all other Letter of Credit Obligations as to which the Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
Unless otherwise expressly agreed by the applicable Issuer and the LC Borrower when a Letter of Credit is Issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of Issuance shall apply to each commercial Letter of Credit.
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Reduction and Termination of the Commitments
The applicable Borrower may, upon at least three Business Days prior notice to the Administrative Agent, terminate in whole or reduce in part the unused portions of the Letter of Credit Facility Commitments or the Term Commitments; provided, however, that (i) each partial reduction shall be in an aggregate amount that is an integral multiple of $5,000,000.00 and (ii) each such reduction shall be made ratably in accordance with each Lenders Letter of Credit Facility Commitment or Term Commitment, as applicable. A notice of termination of the Letter of Credit Facility Commitments or Term Commitments, as applicable, may state that such notice is conditioned upon the effectiveness of other credit facilities or other financing transactions, and if any notice so states it may be revoked by the applicable Borrower by notice to the Administrative Agent on or prior to the date specified for the termination of the Letter of Credit Facility Commitments or Term Commitments, as applicable, that the refinancing condition has not been met and the termination is to be revoked (it being understood that any Term Loans outstanding at the time of such notice will, upon such revocation, be continued as Base Rate Loans and, thereafter, may be converted to Eurodollar Rate Loans pursuant to Section 2.11).
Repayment of Term Loans
Subject to Section 2.6(b), the Term Borrower shall repay Term Loans on March 31, June 30, September 30 and December 31 of each year, commencing with September 30, 2014 and ending with the last such day to occur prior to the Scheduled Term Maturity Date, in an aggregate principal amount for each such date equal to 0.25% of the aggregate principal amount of the Term Loans made on the Effective Date.
Any voluntary or mandatory prepayments of the Term Loans shall be applied to reduce any subsequent Installments as provided in Section 2.8(b) and Section 2.9(g), respectively.
Prior to any repayment of any Term Loans under this Section 2.6, the Term Borrower shall select the Term Borrowings to be repaid and shall notify the Administrative Agent of such selection. Each such notice may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Each repayment of Term Loans shall be allocated among the Term Lenders holding such Term Loans in accordance with their applicable Ratable Portions.
The Term Borrower promises to repay (in cash, in full and in immediately available funds) the entire unpaid principal amount of the Term Loans on the Term Maturity Date (it being understood that other provisions of this Agreement may require all or part of such Obligations to be repaid earlier).
Evidence of Debt
Each Term Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Term Borrower to such Term Lender resulting from each Term Loan of such Term Lender from time to time, including the amounts of principal and interest payable and paid to such Term Lender from time to time under this Agreement.
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The Administrative Agent shall maintain accounts in accordance with its usual practice in which it shall record (i) the amount of each Term Loan made and, if a Eurodollar Rate Loan, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable by the Term Borrower to each Term Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Term Borrower, whether such sum constitutes principal or interest (and the type of Term Loan to which it applies), fees, expenses or other amounts due under the Loan Documents and each Term Lenders share thereof, if applicable.
The entries made in the accounts maintained pursuant to clauses (a) and (b) above shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations recorded therein; provided, however, that the failure of any Term Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Term Borrower to repay the Term Loans in accordance with their terms.
Notwithstanding any other provision of this Agreement, if any Term Lender requests that the Term Borrower execute and deliver a promissory note or notes payable to such Term Lender in order to evidence the Indebtedness owing to such Term Lender by the Term Borrower hereunder, the Term Borrower shall promptly execute and deliver a Note or Notes to such Term Lender evidencing any Term Loans of such Term Lender, substantially in the form of Exhibit B.
Voluntary Prepayments; Call Protection
Voluntary Prepayments. The Term Borrower may, at any time, prepay the outstanding principal amount of the Term Loans in whole or in part; provided, however, that if any prepayment of any Borrowing of Eurodollar Rate Term Loans is made by the Term Borrower other than on the last day of an Interest Period for such Borrowing, the Term Borrower shall also pay any amounts owing pursuant to Section 2.14(e); provided, further, that each partial prepayment shall be in an aggregate principal amount that is an integral multiple of $1,000,000.00. Upon the giving of such notice of prepayment, the principal amount of Term Loans specified to be prepaid shall become due and payable on the date specified for such prepayment; provided that a notice of prepayment of the outstanding principal amount of the Term Loans in whole or in part may state that such notice is conditioned upon the effectiveness of other credit facilities or other financing transactions, and if any notice so states it may be revoked by the Term Borrower by notice to the Administrative Agent on or prior to the date specified for such prepayment that the refinancing condition has not been met and the notice of such prepayment is to be revoked (it being understood that any Term Loans outstanding at the time of such notice will, upon such revocation, be continued as Base Rate Loans and, thereafter, may be converted to Eurodollar Rate Loans pursuant to Section 2.11).
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Application of Voluntary Prepayments. Any voluntary prepayment of the Term Loans shall be applied to reduce any subsequent Installments as directed by the Term Borrower (or, if the Term Borrower does not provide any directions, in the direct order of maturity).
Term Loan Call Protection.
In the event all or any portion of the Term Loans (A) are prepaid through any voluntary prepayments, (B) are repriced, including pursuant to any amendment, waiver, or consent with respect to this Agreement, (C) are prepaid pursuant to Section 2.9 (other than Section 2.9(b) or Section 2.9(d)) or (D) become due and payable pursuant to Section 9.2, in each case on or prior to the first anniversary of the Effective Date, such prepayments or repricings will be made at 100% of the principal amount so prepaid or repriced, together with a prepayment premium in an amount equal to the present value of the sum of (1) the Applicable Margin that would have been payable for Term Loans that are Eurodollar Rate Loans plus (2) the Eurodollar Rate for Term Loans (assuming an Interest Period of three months in effect on the date of the prepayment or repricing), in each case calculated as a rate per annum on the amount of the principal amount of such Term Loans prepaid or repriced from the date of such prepayment or repricing until the first anniversary of the Effective Date plus (3) 1.0% of the principal of such Term Loans prepaid or repriced (in each case, computed on the basis of actual days elapsed over a year of 360 days and using a discount rate equal to the Treasury Rate as of the date of such prepayment or repricing plus 50 basis points).
In the event that all or any portion of the Term Loans are (A) prepaid through any voluntary prepayments, (B) prepaid pursuant to Section 2.9(c) or (C) repriced (including pursuant to any amendment, waiver or consent with respect to this Agreement) (in each case, in connection with any amendment, waiver or consent with respect to this Agreement directed at, or the result of which would be, the lowering of the effective interest cost or the weighted average yield of the Term Loans (or portion thereof) or the incurrence of any Indebtedness having an effective interest cost or weighted average yield that is less than the effective interest cost or weighted average yield of the Term Loans (or portion thereof) so prepaid or repriced (a Repricing Transaction)) occurring after the first anniversary of the Effective Date, but on or prior to the second anniversary of the Effective Date, such prepayment or repricing will be made at 101.0% of the principal amount so prepaid or repriced. If all or any portion of the Term Loans held by any Term Lender are effectively prepaid, refinanced or replaced pursuant to Section 2.17 as a result of, or in connection with, such Term Lender not agreeing or otherwise consenting to any amendment, waiver, or consent referred to in clause (C) above (or otherwise in connection with a Repricing Transaction) occurring after the first anniversary of the Effective Date, but on or prior to the second anniversary of the Effective Date, such effective prepayment, refinancing or replacement will be made at 101.0% of the principal amount so prepaid, refinanced or replaced.
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Mandatory Prepayments
Not later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Cash Proceeds in respect of any Specified Asset Sale, the Term Borrower shall prepay the Term Loans in an aggregate amount equal to such Net Cash Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, the Term Borrower may, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer of the Parent to the effect that the Parent intends to cause such Net Cash Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets that are used or useful in the business of the Parent and its Restricted Subsidiaries within 365 days after the receipt of such Net Cash Proceeds, and certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case during such period the Term Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Cash Proceeds that are not so reinvested by the end of such period shall be applied to prepay the Term Loans promptly upon the expiration of such period (and, after the Term Loans shall have been repaid in full, the Letter of Credit Facility Commitments shall be reduced by the amount of any remaining Net Cash Proceeds).
Not later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary, or by the Administrative Agent as loss payee, of any Net Cash Proceeds in respect of any Insurance/Condemnation Event, the Term Borrower shall prepay the Term Loans in an aggregate amount equal to such Net Cash Proceeds; provided that, so long as no Default or Event of Default shall have occurred and be continuing, the Term Borrower may, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Responsible Officer of the Parent to the effect that the Parent intends to cause such Net Cash Proceeds (or a portion thereof specified in such certificate) to be reinvested in long-term assets that are used or useful in the business of the Parent and its Restricted Subsidiaries (including through the repair, restoration or replacement of the damaged, destroyed or condemned assets) on or prior to the date that is 365 days after the receipt of such Net Cash Proceeds (or, if the Parent or such Restricted Subsidiary has entered into a binding commitment with respect to any such reinvestment within such 365-day period, the date, if later, that is 180 days after the date of such commitment), and certifying that, as of the date thereof, no Default or Event of Default has occurred and is continuing, in which case during such period the Term Borrower shall not be required to make such prepayment to the extent of the amount set forth in such certificate; provided further that any such Net Cash Proceeds that are not so reinvested by the end of such period shall be applied to prepay the Term Loans promptly upon the expiration of such period (and, after the Term Loans shall have been repaid in full, the Letter of Credit Facility Commitments shall be reduced by the amount of any remaining Net Cash Proceeds).
Not later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Cash Proceeds from the incurrence of any Indebtedness (other than any Indebtedness permitted to be incurred pursuant to Section 8.1), the Term Borrower shall prepay the Term Loans in an aggregate amount equal to
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100% of such Net Cash Proceeds (and, after the Term Loans shall have been repaid in full, the Letter of Credit Facility Commitments shall be reduced by the amount of any remaining Net Cash Proceeds).
In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending December 31, 2014), the Term Borrower shall, not later than 90 days after the end of such Fiscal Year, prepay the Term Loans in an aggregate principal amount equal to (i) 50% (or (A) 25% if the Secured Leverage Ratio as of the end of such Fiscal Year shall have been equal to or less than 3.00:1.00 but greater than 2.00:1.00 or (B) 0% if the Secured Leverage Ratio as of the end of such Fiscal Year shall have been equal to or less than 2.00:1.00) of such Consolidated Excess Cash Flow minus (ii) the aggregate principal amount of the Term Loans voluntarily prepaid by the Term Borrower pursuant to Section 2.8 during such Fiscal Year, to the extent such prepayments have been made with Internally Generated Cash.
If, at any time, the aggregate principal amount of Letter of Credit Obligations exceeds the Letter of Credit Facility Commitments at such time, the LC Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 in an amount equal to 105% of such excess. If, at any time, the aggregate outstanding amount of all Financial Letters of Credit exceeds the Financial Letter of Credit Sublimit, the LC Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 in an amount equal to 105% of such excess.
Prior to or concurrently with any mandatory prepayment or reduction pursuant to this Section 2.9, the Term Borrower (i) shall notify the Administrative Agent of such prepayment or reduction and (ii) shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Parent setting forth the calculation of the amount of the applicable prepayment or reduction. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid (with such specification to be in accordance with Section 2.9(g)), or the effective date and the amount of any such reduction, as applicable, and may be given by telephone or in writing (and, if given by telephone, shall promptly be confirmed in writing). Promptly following receipt of any such notice, the Administrative Agent shall advise the Term Lenders of the details thereof. Each mandatory prepayment of any Term Loans shall be allocated among the Term Lenders holding such Term Loans in accordance with their applicable Ratable Portions.
Any mandatory prepayment of Term Loans pursuant to this Section 2.9 shall be applied to reduce the subsequent Installments to be made pursuant to Section 2.6 with respect to the Term Loans on a pro rata basis as directed by the Term Borrower (or, if the Term Borrower does not provide any directions, in accordance with the principal amounts of such Installments).
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Interest
Rate of Interest. All Term Loans and the outstanding amount of all other Obligations (other than Reimbursement Obligations) shall bear interest, in the case of Term Loans, on the unpaid principal amount thereof from the date such Term Loans are made and, in the case of such other Obligations, from the date such other Obligations are due and payable until, in all cases, paid in full, except as otherwise provided in clause (c) below, as follows:
if a Base Rate Loan or such other Obligation, at a rate per annum equal to the sum of (A) the Base Rate as in effect from time to time plus (B) the Applicable Margin for Base Rate Loans; and
if a Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Eurodollar Rate determined for the applicable Interest Period plus (B) the Applicable Margin for Eurodollar Rate Loans.
Interest Payments. (i) Interest accrued on each Base Rate Loan shall be payable in arrears (A) on the last Business Day of each calendar quarter and (B) if not previously paid in full, at maturity (whether by acceleration or otherwise) of such Base Rate Loan, (ii) interest accrued on each Eurodollar Rate Loan shall be payable in arrears (A) on the last day of each Interest Period applicable to such Term Loan and, if such Interest Period has a duration of more than three months, on each day during such Interest Period occurring every three months from the first day of such Interest Period, (B) upon the payment or prepayment thereof in full or in part and (C) if not previously paid in full, at maturity (whether by acceleration or otherwise) of such Eurodollar Rate Loan and (iii) interest accrued on the amount of all other Obligations shall be payable on demand from and after the time such Obligation becomes due and payable (whether by acceleration or otherwise).
Default Interest. Notwithstanding the rates of interest specified in clause (a) above or elsewhere herein, effective immediately upon the occurrence of an Event of Default and for as long thereafter as such Event of Default shall be continuing, the interest rate otherwise in effect (other than the interest rate applicable to Reimbursement Obligations as set forth in Section 2.4(h)) shall, upon the election of the Requisite Term Lenders (except if an Event of Default has occurred under Section 9.1(a) or (f), in which case such increase shall be immediate) increase 2.00% per annum.
Additional Reserve Requirements. The Term Borrower shall pay to each Term Lender, (i) as long as such Term Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as Eurocurrency liabilities), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Term Loan by such Term Lender (as determined by such Term Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the
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funding of the Eurodollar Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Term Loan by such Lender (as determined by such Term Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Term Loan provided the Term Borrower shall have received at least 10 days prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Term Lender. If a Term Lender fails to give notice 10 days prior to the relevant interest payment date, such additional interest or costs shall be due and payable 10 days from receipt of such notice.
Conversion/Continuation Option
The Term Borrower may elect (i) at any time on any Business Day to convert Base Rate Loans or any portion thereof to Eurodollar Rate Loans and (ii) at the end of any applicable Interest Period, to convert Eurodollar Rate Loans or any portion thereof into Base Rate Loans or to continue such Eurodollar Rate Loans or any portion thereof for an additional Interest Period; provided, however, that the aggregate amount of the Eurodollar Rate Loans for each Interest Period must be in an amount that is an integral multiple of $1,000,000.00. Each conversion or continuation shall be allocated among the Term Loans of each Term Lender in accordance with such Term Lenders Ratable Portion. Each such election shall be in substantially the form of Exhibit F (a Notice of Conversion or Continuation) and shall be made by giving the Administrative Agent at least three Business Days prior written notice (or telephonic notice promptly confirmed in writing) specifying, in each case, (A) the amount and Type of Term Loans being converted or continued, (B) in the case of a conversion to or a continuation of Eurodollar Rate Loans, the applicable Interest Period and (C) in the case of a conversion, the date of conversion.
The Administrative Agent shall promptly notify each Term Lender of its receipt of a Notice of Conversion or Continuation and of the options selected therein. Notwithstanding the foregoing, no conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans, and no continuation in whole or in part of Eurodollar Rate Loans upon the expiration of any applicable Interest Period, shall be permitted at any time during which (i) a Default or an Event of Default shall have occurred and be continuing or (ii) the continuation of, or conversion into, a Eurodollar Rate Loan would violate any provision of Section 2.14. If, within the time period required under the terms of this Section 2.11, the Administrative Agent does not receive a Notice of Conversion or Continuation from the Term Borrower containing a permitted election to continue any Eurodollar Rate Loans for an additional Interest Period or to convert any such Term Loans, then, upon the expiration of the applicable Interest Period, such Term Loans shall be automatically converted to Base Rate Loans. Each Notice of Conversion or Continuation shall be irrevocable.
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Fees
Letter of Credit Commitment Fees. The LC Borrower agrees to pay to the Administrative Agent for the account of each LC Lender (except for any Defaulting Lender) a commitment fee (the Letter of Credit Commitment Fee), accruing at a rate per annum equal to 0.50% on the actual daily amount by which the Letter of Credit Facility Commitment of such LC Lender exceeds such LC Lenders Ratable Portion of the outstanding amount of the Letter of Credit Obligations during the period from the Effective Date until the Letter of Credit Facility Termination Date, payable in arrears (i) on the third Business Day after the last Business Day of each calendar quarter (commencing with the calendar quarter ending June 30, 2014) and (ii) on the Letter of Credit Facility Termination Date.
Letter of Credit Fees. The LC Borrower agrees to pay the following amounts with respect to Letters of Credit issued by any Issuer:
to the Administrative Agent for the account of each Issuer of a Letter of Credit, with respect to each Letter of Credit issued by such Issuer, an issuance fee of 0.25% per annum (Fronting Fees) of the daily maximum amount available to be drawn under such Letter of Credit (in the case of Letters of Credit denominated in a currency other than Dollars, based on the Dollar Equivalent of such amount on the last Business Day of such calendar quarter), payable in arrears on the third Business Day after the last Business Day of each calendar quarter (commencing with the calendar quarter ending June 30, 2014) and (B) on the Letter of Credit Facility Termination Date;
to the Administrative Agent for the account and ratable benefit of the LC Lenders (except for any Defaulting Lender that has not provided cash collateral satisfactory to the applicable Issuers pursuant to Section 2.4(m)), with respect to each Letter of Credit (but excluding that portion of any Letter of Credit that has been cash collateralized by the LC Borrower pursuant to Section 2.4(m) as a result of any Defaulting Lender), a fee (the Letter of Credit Participation Fee) accruing at a rate per annum equal to (A) 4.50% if such Letter of Credit is a Financial Letter of Credit and (B) 2.25% if such Letter of Credit is a Performance Letter of Credit, in each case on the daily maximum amount available to be drawn under such Letter of Credit (in any case, in the case of any Letter of Credit denominated in a currency other than Dollars, based on the Dollar Equivalent of such amount on the last Business Day of such calendar quarter), payable in arrears (x) on the third Business Day after the last Business Day of each calendar quarter (commencing with the calendar quarter ending June 30, 2014) and (y) on the Letter of Credit Facility Termination Date; provided, however, that during the continuance of an Event of Default, such fee shall be increased, upon the election of the Requisite LC Lenders (except if an Event of Default has occurred under Section 9.1(a) or (f), in which case such increase shall be immediate), by 2.00% per annum and shall be payable on demand; and
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to the Issuer of any Letter of Credit, with respect to the Issuance, amendment or transfer of each Letter of Credit and each drawing made thereunder, documentary and processing charges in accordance with such Issuers standard schedule for such charges in effect at the time of Issuance, amendment, transfer or drawing, as the case may be.
The Term Borrower agrees to pay on the Effective Date to the Administrative Agent, for the account of each Term Lender, a closing fee in an amount equal to 0.25% of such Term Lenders Term Commitment (determined before giving effect to any reduction thereof on the Effective Date pursuant to Section 2.1).
Additional Fees. The Parent has agreed to pay to the Administrative Agent, the Arrangers and the Lenders additional fees, the amount and dates of payment of which are embodied in the Fee Letters and as may otherwise have been separately agreed upon.
Payment of Fees to LC Lenders. The Administrative Agent hereby agrees to pay to each LC Lender such LC Lenders Ratable Portion of the Letter of Credit Commitment Fee and the Letter of Credit Participation Fee, as applicable, received by the Administrative Agent in its capacity as such, promptly following receipt of each of the same from (and only to the extent each such fee is received from) the LC Borrower or any other Loan Party; provided that (i) the Ratable Portion of any Letter of Credit Commitment Fee shall be calculated without giving effect to the Letter of Credit Facility Commitment of any Defaulting Lender and (ii) any Letter of Credit Participation Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which neither such Defaulting Lender nor the LC Borrower has provided cash collateral satisfactory to the Issuer pursuant to Section 2.4(m) shall be payable, to the maximum extent permitted by applicable law, to the other LC Lenders in accordance with the upward adjustments in their respective Ratable Portions allocable to such Letter of Credit pursuant to Section 2.20(a)(iv), with the balance of such fee, if any, payable to the Issuer for its own account.
Payments and Computations
Each Borrower shall make each payment hereunder (including fees and expenses) not later than 3:00 p.m. (New York time) on the day when due, in Dollars, to the Administrative Agent at its address referred to in Section 11.8 in immediately available funds without set-off or counterclaim. The Administrative Agent shall promptly thereafter cause to be distributed immediately available funds relating to the payment of principal, interest or fees to the applicable Lenders, in accordance with the application of payments set forth in clauses (e) or (f) below, as applicable, for the account of their respective Applicable Lending Offices; provided, however, that amounts payable pursuant to Section 2.15, Section 2.16 or Section 2.14(c) or (d) shall be paid only to any affected Lender. Payments received by the Administrative Agent after 3:00 p.m. (New York time) shall be deemed (in the Administrative Agents sole discretion) to be received on the next Business Day.
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All computations of interest and of fees shall be made by the Administrative Agent on the basis of the actual number of days elapsed (in each case calculated to include the first day but exclude the last day) (i) over a year of 365 or 366 days, as the case may be, in the case of interest accruing at the Base Rate when the Base Rate is determined by reference to the Prime Rate, and (ii) over a year of 360 days at all other times. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be; provided, however, that if such extension would cause payment to be made in the next calendar month, such payment shall be made on the immediately preceding Business Day. All repayments of any Term Loans shall be applied as follows: first, to repay such Term Loans outstanding as Base Rate Loans and then, to repay such Term Loans outstanding as Eurodollar Rate Loans, with those Eurodollar Rate Loans having earlier expiring Interest Periods being repaid prior to those having later expiring Interest Periods.
Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each applicable Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that such Borrower shall not have made such payment in full to the Administrative Agent, each applicable Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon at the Federal Funds Rate, for the first three Business Days, and, thereafter, at the rate applicable to Base Rate Loans, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent.
Subject to the provisions of clause (f) below,
all payments and any other amounts received by the Administrative Agent from or for the benefit of the LC Borrower shall be applied as follows: first, to pay all Obligations (other than Obligations in respect of the Term Loans) then due and payable, and second, as the LC Borrower so designates. All payments of fees and all other payments in respect of any other Obligation (other than Obligations in respect of the Term Loans) shall be allocated among such of the LC Lenders and Issuers as are entitled thereto and, for such payments allocated to the LC Lenders, subject to Section 2.20, in proportion to their respective Ratable Portions (calculated (i) in the case of principal payments, without giving effect to the LC Exposure of any Defaulting Lender that has not fully funded its share of the Letter of Credit Obligations being repaid and (ii) in the case of fee payments, without giving effect to the LC
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Exposure of any Defaulting Lender for the amount of Letter of Credit Participation Fees or Letter of Credit Commitment Fees payable in respect of Letter of Credit Obligations for which such Defaulting Lender has not fully funded its share of the Letter of Credit Obligations) and as adjusted in accordance with Section 2.12(d) and Section 2.20(a)(iv).
all payments and any other amounts received by the Administrative Agent from or for the benefit of the Term Borrower shall be applied as follows: first, to pay principal of, and interest on, any portion of the Term Loans the Administrative Agent may have advanced pursuant to the express provisions of this Agreement on behalf of any Term Lender, for which the Administrative Agent has not then been reimbursed by such Term Lender or the Term Borrower, second, to pay all other Obligations (other than Letter of Credit Obligations) then due and payable, and third, as the Term Borrower so designates. Payments in respect of Term Loans received by the Administrative Agent shall be distributed to each Term Lender in accordance with such Term Lenders Ratable Portion thereof; and all payments of fees and all other payments in respect of any other Obligation (other than Letter of Credit Obligations) shall be allocated among such of the Term Lenders as are entitled thereto and, for such payments allocated to the Term Lenders, in proportion to their respective Ratable Portions.
Each Borrower hereby irrevocably waives the right to direct the application of any and all payments in respect of the Obligations and any net proceeds of Collateral after the occurrence and during the continuance of an Event of Default, whether from a Loan Partys sale of Collateral or the Collateral Agents or any Secured Partys receipt of proceeds from any exercise of remedies, and each Borrower and each Lender agrees that, during such time, the Administrative Agent and the Collateral Agent shall apply all payments in respect of any Obligations (other than payments from the Loan Parties of accrued interest and fees and scheduled principal payments) and all proceeds of Collateral, in the following order (subject to an adjustments under Section 2.20(a)(ii)):
first, to pay Reimbursement Obligations owed to any Issuer for which such Issuer has not then been reimbursed by any LC Lender or the LC Borrower;
second, to pay Obligations in respect of any expense reimbursements or indemnities (including fees and expenses in respect of cash management services) then due to the Administrative Agent and the Collateral Agent;
third, to pay Obligations in respect of any expense reimbursements or indemnities (including fees and expenses in respect of cash management services) then due to the Lenders and the Issuers;
fourth, to pay Obligations in respect of any fees then due to the Administrative Agent, the Collateral Agent, the Lenders and the Issuers;
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fifth, to pay interest then due and payable in respect of the Reimbursement Obligations;
sixth, to pay Reimbursement Obligations and other Obligations in respect of Treasury Management Obligations and Hedging Obligations and to provide cash collateral for outstanding Letter of Credit Undrawn Amounts in the manner described in Section 9.3, ratably to such Reimbursement Obligations, Treasury Management Obligations, Hedging Obligations and Letter of Credit Undrawn Amounts;
seventh, to pay interest then due and payable in respect of the Term Loans (ratably to the aggregate principal amount of such Term Loans);
eighth, to pay or prepay principal amounts on the Term Loans ratably to the aggregate principal amount of such Term Loans; and
ninth, to pay or prepay other outstanding Obligations.
provided, however, that if sufficient funds are not available to fund all payments to be made in respect of any Obligation described in any of clauses first through ninth above, the available funds being applied with respect to any such Obligation (unless otherwise specified in such clause) shall be allocated to the payment of such Obligations ratably, based on the proportion of the Administrative Agents and each Lenders or Issuers interest in the aggregate outstanding Obligations described in such clauses.
If any Secured Party collects or receives any amounts or obtains any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) on account of the Obligations to which it is not entitled under or in excess of the amount it would be entitled under this Section 2.13(f) if such payment had been received by the Administrative Agent or the Collateral Agent, such Secured Party shall hold the same in trust for the applicable Secured Parties entitled thereto and shall forthwith deliver the same to the Collateral Agent, for the account of such Secured Parties, to be applied in accordance this Section 2.13(f), in each case until the prior payment in full in cash of the applicable Obligations of such Secured Parties.
Special Provisions Governing Eurodollar Rate Loans
Determination of Interest Rate. The Eurodollar Rate for each Interest Period for Eurodollar Rate Loans shall be determined by the Administrative Agent pursuant to the procedures set forth in the definition of Eurodollar Rate. The Administrative Agents determination shall be presumed to be correct absent manifest error and shall be binding on the Term Borrower.
Interest Rate Unascertainable, Inadequate or Unfair. If (i) the Administrative Agent determines that adequate and fair means do not exist for ascertaining the applicable interest rates by reference to which the Eurodollar Rate then being determined is to be fixed or (ii) the Requisite Term Lenders notify the Administrative Agent that the Eurodollar Rate for any Interest Period will not adequately
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reflect the cost to the Term Lenders of making or maintaining such Term Loans for such Interest Period or calendar quarter, the Administrative Agent shall forthwith so notify the Term Borrower and the Term Lenders, whereupon each Eurodollar Rate Loan shall automatically, on the last day of the current Interest Period for such Term Loan, convert into a Base Rate Loan and the obligations of the Term Lenders to make Eurodollar Rate Loans or to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended until the Administrative Agent shall notify the Term Borrower that the Requisite Term Lenders have determined that the circumstances causing such suspension no longer exist, which notice shall be given promptly following such determination. Thereafter, the Term Borrowers right to request, and the Term Lenders obligations, if any, to make Eurodollar Rate Loans shall be restored.
Increased Costs. If at any time any Lender or an Issuer determines that the introduction of, or any change in or in the interpretation of, any law, treaty or governmental rule, regulation or order (including any change by way of imposition or increase of reserve requirements included in determining the Eurodollar Rate) or the compliance by such Lender or such Issuer with any guideline, request or directive from any central bank or other Governmental Authority (whether or not having the force of law), shall (i) have the effect of increasing the cost to such Lender or such Issuer of agreeing to make or making, funding or maintaining any Eurodollar Rate Loan, or (ii) subject any Lender or any Issuer to any Tax of any kind whatsoever with respect to any Eurodollar Rate Loan, or change the basis of taxation of payments to such Lender or such Issuer in respect thereof (except for Taxes or Other Taxes indemnifiable pursuant to Section 2.16, then the applicable Borrower shall from time to time, upon demand by such Lender or such Issuer (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender or such Issuer additional amounts sufficient to compensate such Lender or such Issuer for such increased cost. A certificate as to the amount of such increased cost shall be, together with supporting documents, submitted to the applicable Borrower and the Administrative Agent by such Lender or such Issuer and shall be conclusive and binding for all purposes, absent manifest error. Notwithstanding the foregoing, except to the extent, if any, the change (or compliance) referred to in such certificate shall be retroactive, the applicable Borrower shall not be required to compensate a Lender or an Issuer pursuant to this clause (c) for any increased costs or reduction incurred more than 180 days prior to the date of such certificate. The applicable Borrower shall pay such Lender or such Issuer the amount shown as due on any such certificate within 30 days after its receipt of the same.
Illegality. Notwithstanding any other provision of this Agreement, if any Term Lender determines that the introduction of, or any change in or in the interpretation of, any law, treaty or governmental rule, regulation or order after the date of this Agreement shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Term Lender or its Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor by such Term Lender to the Term Borrower through the Administrative Agent, (i) the obligation of such Term Lender to make or to continue Eurodollar Rate Loans and to convert Base Rate Loans into Eurodollar Rate Loans shall be suspended, and each such Term Lender shall make a Base Rate Loan as
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part of any requested Borrowing of Eurodollar Rate Loans and (ii) if the affected Eurodollar Rate Loans are then outstanding, the Term Borrower shall immediately convert each such Term Loan into a Base Rate Loan. If, at any time after a Term Lender gives notice under this Section 2.14(d), such Term Lender determines that it may lawfully make Eurodollar Rate Loans, such Term Lender shall promptly give notice of that determination to the Term Borrower and the Administrative Agent, and the Administrative Agent shall promptly transmit the notice to each other Term Lender. The Term Borrowers right to request, and such Term Lenders obligation, if any, to make Eurodollar Rate Loans shall thereupon be restored.
Breakage Costs. In addition to all amounts required to be paid by the Term Borrower pursuant to Section 2.10, the Term Borrower shall compensate each Term Lender, upon demand, for all losses, expenses and liabilities (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Term Lender to fund or maintain such Term Lenders Eurodollar Rate Loan to the Term Borrower, but excluding any loss of the Applicable Margin or other profit on the relevant Loans) that such Term Lender may sustain (i) if for any reason a proposed Borrowing or continuation of, or conversion into, Eurodollar Rate Loans does not occur on a date specified therefor in a Notice of Borrowing or a Notice of Conversion or Continuation given by the Term Borrower or in a telephonic request by it for borrowing or conversion or continuation or a successive Interest Period does not commence after notice therefor is given pursuant to Section 2.11, (ii) if for any reason any Eurodollar Rate Loan is prepaid by reason of a reduction in Term Commitments on a date that is not the last day of the applicable Interest Period, (iii) as a consequence of a required conversion of a Eurodollar Rate Loan to a Base Rate Loan as a result of any of the events indicated in clause (d) above, (iv) as a consequence of any failure by the Term Borrower to repay Eurodollar Rate Loans when required by the terms hereof, or (v) as a consequence of the assignment of any Eurodollar Rate Loan other than on the last day of an Interest Period therefor as a result of a request by the Term Borrower pursuant to Section 2.17 or Section 11.1(c). The Term Lender making demand for such compensation shall deliver to the Term Borrower concurrently with such demand a written statement as to such losses, expenses and liabilities, and this statement shall be conclusive as to the amount of compensation due to such Term Lender, absent manifest error.
Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers under this Section 2.14 shall survive the termination of the Letter of Credit Facility Commitments and the Term Commitments and the repayment, and the satisfaction or discharge of the Obligations.
Capital Adequacy
If at any time any Lender or any Issuer determines that (a) the introduction of, or any change in or in the interpretation of, any law, treaty or governmental rule, regulation or order after the date of this Agreement regarding capital adequacy, (b) compliance with any such law, treaty, rule, regulation or order or (c) compliance with any guideline or request or directive from any central bank or other Governmental Authority (whether or
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not having the force of law) shall have the effect of reducing the rate of return on such Lenders or such Issuers (or any Person controlling such Lenders or such Issuers) capital as a consequence of its obligations hereunder, under or in respect of any Letter of Credit to a level below that which such Lender or such Issuer or Person could have achieved but for such adoption, change, compliance or interpretation, then, upon demand from time to time by such Lender or such Issuer, the applicable Borrower shall pay to the Administrative Agent for the account of such Lender or such Issuer, from time to time as specified by such Lender or such Issuer, additional amounts sufficient to compensate such Lender or such Issuer for such reduction. A certificate as to such amounts setting forth in reasonable detail the basis for such demand and a calculation for such amount shall be submitted to the applicable Borrower and the Administrative Agent by such Lender or such Issuer and shall be conclusive and binding for all purposes absent manifest error. Notwithstanding the foregoing, except to the extent, if any, the change (or compliance) referred to in any such certificate shall be retroactive, the applicable Borrower shall not be required to compensate a Lender or such Issuer pursuant to this Section 2.15 for any reduction in rates of return with respect to any period prior to the date that is 180 days prior to the date of each such certificate. Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers under this Section 2.15 shall survive the termination of the Letter of Credit Facility Commitments and the Term Commitments and the repayment, and the satisfaction or discharge of the Obligations. For the avoidance of doubt, this Section 2.15 shall apply to all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any United States regulatory authority (i) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act and (ii) in connection with the implementation of the recommendations of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), regardless of the date adopted, issued, promulgated or implemented.
Taxes
All payments by a Borrower to or for the account of any Lender or the Administrative Agent, hereunder or under each Loan Document shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto except pursuant to a Requirement of Law (which for this purpose shall include FATCA as defined in clause (f) below). If a Borrower shall be required by law to deduct any taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent then, (i) such Borrower shall make such deductions, (ii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with the applicable Requirement of Law, and (iii) such Borrower shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof within 30 days after such payment is made. In addition, in the case of any taxes, excluding in the case of each Lender and the Administrative Agent (i) taxes measured by its net income, and franchise taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender or the Administrative Agent (as the case may be) is organized, (ii) any U.S. withholding taxes payable with respect to payments under the Loan Documents under
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laws (including any statute, treaty or regulation) in effect on the Effective Date (or, in the case of any Lender that became a Lender by assignment or transfer after the Effective Date, the effective date of such assignment or transfer, except to the extent that such Lenders assignor (if any) was entitled, at the time of assignment, to receive additional amounts from such Borrower pursuant to this Section 2.16) applicable to such Lender or the Administrative Agent (as the case may be), (iii) taxes measured by its net income, and franchise taxes imposed on it as a result of a present or former connection between such Lender and the jurisdiction of the Governmental Authority imposing such tax or any taxing authority thereof or therein (iv) any taxes attributable to a failure to comply with clause (e) below or (v) any U.S. federal withholding taxes imposed pursuant to FATCA (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as Taxes) or Other Taxes (as defined below), the sum payable by such Borrower shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.16) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made.
In addition, each Borrower shall pay any stamp or documentary taxes or any other excise or property taxes, charges or similar levies of the United States or any political subdivision thereof or any applicable foreign jurisdiction, and all liabilities with respect thereto, in each case arising from any payment made under any Loan Document or from the execution, delivery or registration of, or otherwise with respect to, any Loan Document (collectively, Other Taxes).
Each Borrower hereby agrees to indemnify the Administrative Agent and each Lender, for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 2.16) withheld by such Borrower or paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto whether or not such Taxes or Other Taxes were correctly or legally asserted. Payments due under this indemnification shall be made within 10 days of the date the Administrative Agent or such Lender makes demand therefor. A certificate as to the amount of such payment or liability delivered to the applicable Borrower by a Lender or the Administrative Agent on its own behalf or on behalf of a Lender or the Administrative Agent, shall be conclusive absent manifest error.
Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section 2.16 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Letter of Credit Facility Commitments and the Term Commitments and the repayment, and the satisfaction or discharge of the Obligations.
Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the relevant Borrower and the Administrative Agent, at the time or times reasonably requested by such Borrower or the Administrative Agent, such properly completed and
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executed documentation reasonably requested by such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clause (f) below) shall not be required if in the Lenders reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f), FATCA shall include any amendments made to FATCA after the date of this agreement.
For any period with respect to which a Lender has failed to provide the Borrowers or the Administrative Agent with the appropriate form or other document described in clause (e) or (f) above, as applicable (other than if such failure is due to a change in any applicable Requirement of Law occurring after the date on which a form originally was required to be provided, or if such form is not required under clause (f) above), such Lender shall not be entitled to indemnification under clause (a) or (c) above with respect to Taxes imposed by reason of such failure.
If any Lender or the Administrative Agent receives a refund in respect of any Taxes or Other Taxes as to which it has received a payment from or has been indemnified by a Borrower pursuant to this Section 2.16, which refund in solely the good faith judgment of such Lender or Administrative Agent, as the case may be, is attributable to such payment made by such Borrower, it shall notify such Borrower of such receipt and shall, within 30 days after the later of the receipt of a written request by such Borrower or the receipt of such refund (unless such Lender reasonably expects that is shall be required to repay such refund to the relevant Governmental Authority), pay the amount of such refund to such Borrower, net of all out-of-pocket expenses of such Lender and taxes imposed on the Lender or Administrative Agent with respect to such amounts, without interest thereon and subject to Section 11.6; provided, however, that such Borrower agrees to return such refund to such Lender or the Administrative Agent
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within 30 days after receipt of written notice in the event that such Lender or the Administrative Agent is required to repay such refund to the relevant Governmental Authority. Notwithstanding anything to the contrary in this paragraph (i), in no event will a Lender or the Administrative Agent be required to pay any amount to any Loan Party pursuant to this paragraph (i) the payment of which would place the Lender or Administrative Agent in a less favorable net after-Tax position than the Lender or Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. Nothing contained in this Section 2.16 shall require any Lender or the Administrative Agent to make available to either Borrower any Tax Return or any other document containing information that it deems to be confidential.
Substitution of Lenders
If (a)(i) any Lender makes a claim under Section 2.14(c) or 2.15, (ii) it becomes illegal for any Term Lender to continue to fund or make any Eurodollar Rate Loan and such Lender notifies the Term Borrower pursuant to Section 2.14(d), (iii) either Borrower is required to make any payment pursuant to Section 2.16 that is attributable to a particular Lender, or (iv) any LC Lender becomes a Defaulting Lender, (b) in the case of clause (a)(i) above, (i) if such Lender is a Term Lender, as a consequence of increased costs in respect of which such claim is made, the effective rate of interest payable to such Lender under this Agreement with respect to its Term Loans exceeds the effective average rate of interest payable to the Requisite Term Lenders and (ii) if such Lender is an LC Lender, as a consequence of increased costs in respect of which such claim is made, the effective rate of the Letter of Credit Commitment Fees and/or Letter of Credit Participation Fees payable to such Lender under this Agreement with respect to its Letter of Credit Exposure exceeds the effective average Letter of Credit fees payable to the Requisite LC Lenders, and (c) in the case of clauses (a)(i) and (ii) above, (i) if such Lender is a Term Lender, Term Lenders holding at least 75% of the outstanding Term Loans are not subject to such increased costs or illegality, payment or proceedings and (ii) if such Lender is an LC Lender, LC Lenders holding at least 75% of the Letter of Credit Exposure are not subject to such increased costs or illegality, payment or proceedings (any such Lender, an Affected Lender), the applicable Borrower may substitute another financial institution for such Affected Lender hereunder, upon reasonable prior written notice (which written notice must be given within 90 days following the notification to the applicable Borrower of any applicable event described in clauses (a)(i), (ii), (iii) or (iv) above) by the applicable Borrower to the Administrative Agent and the Affected Lender that such Borrower intends to make such substitution. A substitute financial institution (x) must be an Eligible Assignee and (y) if not already a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of a substitute LC Lender, each Issuer; provided, however, that, if more than one Lender claims increased costs, illegality or right to payment arising from the same act or condition and such claims are received by the applicable Borrower within 30 days of each other, then the applicable Borrower may substitute all, but not (except to the extent such Borrower has already substituted one of such Affected Lenders before the applicable Borrowers receipt of the other Affected Lenders claim) less than all, Lenders making
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such claims. If the proposed substitute financial institution or other entity meets the conditions set forth in clauses (x) and (y) above and the written notice was properly issued under this Section 2.17, the Affected Lender shall sell and the substitute financial institution or other entity shall purchase, at par plus accrued interest and Letter of Credit fees, all rights and claims of such Affected Lender under the Loan Documents and such substitute financial institution or other entity shall assume, and the Affected Lender shall be relieved of, its Letter of Credit Facility Commitments and all other prior unperformed obligations of the Affected Lender under the Loan Documents (other than in respect of any damages (other than exemplary or punitive damages, to the extent permitted by applicable law) in respect of any such unperformed obligations). Upon the effectiveness of such sale, purchase and assumption (that, in any event shall be conditioned upon the payment in full by the applicable Borrower in cash of all fees, unreimbursed costs and expenses and indemnities accrued and unpaid through such effective date to such Affected Lender), the substitute financial institution or other entity shall become an LC Lender or Term Lender, as applicable, hereunder for all purposes of this Agreement having, in the case of an LC Lender, a Letter of Credit Facility Commitment in the amount of such Affected Lenders Letter of Credit Facility Commitment, assumed by it and such Letter of Credit Facility Commitment of the Affected Lender shall be terminated and holding, in the case of a Term Lender, the amount of Term Loans held by the Affected Lender; provided, however, that all indemnities under the Loan Documents shall continue in favor of such Affected Lender. Each Affected Lender shall execute an Assignment and Acceptance to evidence such transfer; provided, however, that the failure of the Affected Lender to execute such Assignment and Acceptance shall not invalidate such assignment, and such Assignment and Acceptance shall be deemed to be executed upon receipt by such Affected Lender of such payment in full.
Extension Offers
The Term Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, an Extension Offer) to all the Term Lenders, on the same terms and conditions to each Term Lender, to make one or more Extension Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Term Borrower. Such notice shall set forth (i) the terms and conditions of the requested Extension Permitted Amendment and (ii) the date on which such Extension Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only with respect to the Term Loans and Term Commitments of the Term Lenders that accept the applicable Extension Offer (such Term Lenders, the Extending Lenders) and, in the case of any Extending Lender, only with respect to such Term Lenders Term Loans and Term Commitments as to which such Term Lenders acceptance has been made.
An Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Parent, the Term Borrower, each applicable Extending Lender and the Administrative Agent; provided that no Extension Permitted Amendment shall become effective unless (i) the conditions set forth in Section
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3.2(b) shall have been satisfied or waived with respect to such Extension Permitted Amendment before and after giving effect to such Extension Permitted Amendment and (ii) the Parent and the Term Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretarys certificates, officers certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Term Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.18, including any amendments necessary to treat the applicable Term Loans and/or Term Commitments of the Extending Lenders as a new Class of term loans and/or term loan commitments hereunder.
Cash Collateral
Certain Credit Support Events. At any time that there shall exist a Defaulting Lender, promptly (but in any event within five Business Days) after the request of the Administrative Agent or any Issuer, the LC Borrower shall deliver to the Collateral Agent cash collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.20(a)(iv) and any cash collateral provided by the Defaulting Lender).
Grant of Security Interest. All cash collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked deposit accounts at the Collateral Agent (including, in the case of cash collateral provided pursuant to Section 9.3, the Cash Collateral Account). To the extent provided by the LC Borrower, the LC Borrower, and to the extent provided by any LC Lender, such LC Lender, hereby grants to (and subjects to the control of) the Collateral Agent, for the benefit of the Collateral Agent, the Issuers and the LC Lenders, and agrees to maintain a first priority security interest in all such cash, deposit accounts and all balances therein, and in all proceeds of the foregoing, all as security for the obligations to which such cash collateral may be applied pursuant to clause (c) below. If at any time the Collateral Agent determines that cash collateral is subject to any right or claim of any Person other than the Collateral Agent as herein provided, or that the total amount of such cash collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the LC Borrower or the relevant Defaulting Lender will, promptly (but in any event within 5 Business Days) after demand by the Collateral Agent, pay or provide to the Collateral Agent additional cash collateral in an amount sufficient to eliminate such deficiency.
Application. Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under this Section 2.19 or Section 2.4, Section 2.5, Section 2.9, Section 2.13, Section 2.20, or Section 9.3 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific Letter of Credit Obligations, obligations to fund participations therein (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which such cash collateral was so provided, prior to any other application of such property as may be provided for herein.
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Release. Cash collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the Lender (or, as appropriate, its assignee following compliance with Section 11.2(b)(iv)) or (ii) the Collateral Agents good faith determination that there exists excess cash collateral; provided, however, that (x) cash collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.19 may be otherwise applied in accordance with Section 2.13(e) and (f), and (y) the Person providing cash collateral and the Issuer may agree that cash collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
Defaulting Lenders
Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any LC Lender becomes a Defaulting Lender, then, until such time as that LC Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
Waivers and Amendments. That Defaulting Lenders right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.1.
Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.9 or otherwise, and including any amounts made available to the Administrative Agent by the Defaulting Lender pursuant to Section 11.6, shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to an Issuer hereunder;
third, if so determined by the Administrative Agent or requested by an Issuer, to be held as cash collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit;
fourth, to the payment of any amounts owing to the other LC Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any LC Lender or any Issuer against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement;
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fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the LC Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; and
sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Reimbursement Obligations in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Reimbursement Obligations were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Reimbursement Obligations owed to, that Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any Letter of Credit Commitment Fee for any period during which that Lender is a Defaulting Lender (and the LC Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Participation Fees as provided in Section 2.12(b)(ii).
Reallocation of Ratable Portions to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to Section 2.4, the Ratable Portion of each Non-Defaulting Lender shall be computed without giving effect to the Letter of Credit Facility Commitments of that Defaulting Lender; provided, that, (i) each such reallocation shall be given effect only if, at the date the LC Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Letter of Credit Facility Commitments of that Non-Defaulting Lender minus (2) the aggregate outstanding Letter of Credit Obligations of that LC Lender.
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Defaulting Lender Cure. If the LC Borrower, the Administrative Agent and each Issuer agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that LC Lender will, to the extent applicable, take such actions as the Administrative Agent may determine to be necessary to cause the participations in Letters of Credit to be held on a pro rata basis by the LC Lenders in accordance with their Ratable Portions (without giving effect to clause (a)(iv) above), whereupon that LC Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the LC Borrower while that LC Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to LC Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders having been a Defaulting Lender.
Replacement of Defaulting Lenders. If any LC Lender is a Defaulting Lender, then the LC Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such LC Lender to be replaced in accordance with Section 2.17.
Incremental Letter of Credit Facility Commitments
(d) From time to time prior to the Letter of Credit Facility Termination Date, the LC Borrower may by written notice to the Administrative Agent request one or more increases to the existing Letter of Credit Facility Commitments (any such increase, a Letter of Credit Commitment Increase and, any additional Letter of Credit Facility Commitments provided pursuant to any Letter of Credit Commitment Increase, a New Letter of Credit Facility Commitment), by an amount (i) not in excess of (x) $100,000,000.00 in the aggregate for all New Letter of Credit Facility Commitments obtained before December 31, 2014 and (y) $200,000,000 in the aggregate for all New Letter of Credit Facility Commitments obtained since the Effective Date and (ii) not less than $25,000,000.00 with respect to the aggregate New Letter of Credit Facility Commitments obtained for any individual Letter of Credit Commitment Increase (or such lesser amount which shall be approved by Administrative Agent).
(e) Such notice shall specify (i) the date (each, an Increased Amount Date) on which the LC Borrower proposes that the applicable Letter of Credit Commitment Increase shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each LC Lender or other Person that is an Eligible Assignee (each such other Person, a New Lender) to whom the LC Borrower proposes any portion of such New Letter of Credit Facility Commitments be allocated and the amounts of such allocations; provided that any LC Lender approached to provide all or a portion of the New Letter of Credit Facility Commitments for any Letter of Credit Commitment Increase may elect or decline, in its sole discretion, to increase its existing Letter of Credit Facility Commitment by providing a New Letter of Credit Facility Commitment.
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(f) Such Letter of Credit Commitment Increase shall become effective, as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Letter of Credit Commitment Increase; (ii) the Parent shall be in pro forma compliance with each of the covenants set forth in Article V as of the most recent date of determination after giving effect to such Letter of Credit Commitment Increase; (iii) the Letter of Credit Commitment Increase shall be effected pursuant to an increase and joinder agreement (an Increase and Joinder Agreement) in form and substance acceptable to the Administrative Agent in its reasonable discretion, executed and delivered by the LC Borrower, any existing LC Lender providing a New Letter of Credit Facility Commitment, any New Lender providing a New Letter of Credit Facility Commitment and the Administrative Agent, and which shall be recorded in the Register and each New Lender shall be subject to the requirements set forth in Section 2.16(e) and (f); and (iv) the LC Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such Letter of Credit Commitment Increase.
(g) On the Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing LC Lenders shall assign to each of the New Lenders, and each of the New Lenders shall purchase from each of the existing LC Lenders, at the principal amount thereof (together with accrued interest), such interests in the Reimbursement Obligations outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Reimbursement Obligations will be held by existing LC Lenders and New Lenders ratably in accordance with their Letter of Credit Facility Commitments after giving effect to the applicable Letter of Credit Commitment Increase, (ii) each New Letter of Credit Facility Commitment shall be deemed for all purposes a Letter of Credit Facility Commitment, (iii) each New Lender shall become an LC Lender with respect to its New Letter of Credit Facility Commitment and all matters relating thereto and all other matters under this Agreement, and (iv) the Administrative Agent shall notify the LC Lenders (including any New Lenders) of the effectiveness of the applicable Letter of Credit Commitment Increase and each LC Lenders interests in the outstanding Reimbursement Obligations after giving effect to the assignments contemplated by this Section 2.21.
(h) The terms and provisions of the New Letter of Credit Facility Commitments shall be identical to the existing Letter of Credit Facility Commitments. Each Increase and Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provision of this Section 2.21.
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CONDITIONS TO LOANS AND LETTERS OF CREDIT
Conditions Precedent to Effectiveness
This Agreement, including the covenants and obligations of the Borrowers hereunder, the obligation of the Term Lenders to make the Term Loans and the obligation of each Issuer to Issue Letters of Credit shall not become effective until the date on which all of the following conditions precedent are satisfied or duly waived in accordance with Section 11.1:
Deliveries at Closing. The Administrative Agent shall have received (i) this Agreement, executed and delivered by a Responsible Officer of each Borrower, (ii) if requested by any Term Lender, Promissory Notes substantially in the form of Exhibit B, each executed and delivered by a Responsible Officer of the Term Borrower, (iii) each Collateral Document, executed and delivered by a Responsible Officer of each Borrower and each Subsidiary Guarantor, as applicable, and (iv) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 8.1(f) with respect to any outstanding intercompany obligations and advances owed to a Loan Party, executed and delivered by the obligor thereof.
Financial Statements. The Administrative Agent shall have received (i) the Projections, and (ii) GAAP audited consolidated balance sheets and related statements of income, stockholders equity and cash flows of the Parent for the 2013 Fiscal Year.
Existing Credit Agreement. Concurrently with the funding of Term Loans hereunder on the Effective Date, the Parent shall have repaid all amounts owed under the Existing Credit Agreement (other than the Existing Letters of Credit) and posted cash collateral or provided back-to-back letters of credit, in each case in amounts required under the Existing Credit Agreement to the issuers of letters of credit (other than the Existing Letters of Credit) outstanding under the Existing Credit Agreement and delivered to the Administrative Agent an executed payoff letter evidencing the termination and payoff on the Effective Date of the Existing Credit Agreement, together with all documents or instruments necessary to release all Liens securing the Existing Credit Agreement, each in form and substance reasonably satisfactory to the Administrative Agent.
Collateral Documents. The Administrative Agent shall have received the results of a recent Lien search in each relevant jurisdiction in the United States with respect to the Borrowers and those of the Subsidiaries that shall be Guarantors as of the Effective Date, and such search shall reveal no Liens on any of the assets of the Borrowers or any of such Subsidiaries except, in the case of Collateral other than Pledged Stock, for Liens expressly permitted by Section 8.2 and except for Liens to be discharged on or prior to the Effective Date pursuant to documentation reasonably satisfactory to the Administrative Agent. Subject to the last sentence of this Section 3.1, the Collateral Documents shall be in full force and effect on the Effective Date, and each document
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(including each Uniform Commercial Code financing statement and documentation relating to the Mortgaged Vessels) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the ratable benefit of the Secured Parties a valid, legal and perfected first-priority Lien on, and security interest in, the Collateral (subject to any Liens expressly permitted by Section 8.2) shall have been delivered to the Collateral Agent. The Pledged Stock and the Pledged Notes shall be duly and validly pledged under the Pledge and Security Agreement to the Administrative Agent for the ratable benefit of the Secured Parties, and certificates representing such pledged Collateral, accompanied by instruments of transfer and stock powers endorsed in blank, shall have been delivered to the Administrative Agent.
Legal Opinions. Subject to the last sentence of this Section 3.1, the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the other Agents, the Lenders and the Issuers, favorable written opinions of (a) Baker Botts L.L.P., counsel to the Loan Parties, (b) Liane K. Hinrichs, General Counsel of the Parent, (c) Arias Fabrega & Fabrega, special Panamanian counsel to certain of the Loan Parties, (d) Walkers, special Cayman Islands counsel to certain of the Loan Parties, (e) Parents special Canada counsel, (f) Parents special Barbados counsel, (g) Parents special Norwegian counsel, (h) Parents special Mexican counsel, and (i) each other special and local counsel to the Loan Parties as the Administrative Agent may reasonably request, in each case dated as of the Effective Date and addressed to the Administrative Agent, the Collateral Agent, the other Agents, the Lenders and the Issuers and addressing such other matters as any Lender through the Administrative Agent may reasonably request.
Certificates. The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or other formation documents, including all amendments thereto, of each Loan Party, certified, in the case of Loan Parties incorporated in Panama and the United States, as of a recent date by the appropriate governmental authority of the jurisdiction of its organization, and a certificate as to the good standing (if applicable in such jurisdiction) of each Loan Party (other than those Loan Parties organized in Mexico, Nigeria, Indonesia or Kazakhstan) as of a recent date, from such governmental authority; (ii) a certificate of an Authorized Officer, the Secretary or the Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or similar document of such Loan Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other formation documents of such Loan Party have not been amended since the date of the last amendment thereto furnished pursuant to clause (i) above and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Authorized Officer executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
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Solvency; Representations and Warranties; No Defaults; Litigation. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowers in the form of Exhibit J hereto (i) stating that the Borrowers and the Guarantors, taken as a whole, are Solvent immediately after giving effect to the Transactions and (ii) to the effect that (A) the conditions set forth in Section 3.2(b) have been satisfied and (B) as of the Effective Date, no litigation not listed on Schedule 4.7 shall have been commenced against the Parent or any of its Restricted Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
USA Patriot Act. To the extent requested, the Agents and the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act.
Fees and Expenses. There shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Lenders, as applicable, and to each Arranger, for its own account, all fees and expenses (including reasonable fees and expenses of counsel to the Administrative Agent, counsel to Goldman Sachs and FTI Consulting, Inc., in each case, to the extent the Borrowers receive invoices therefor at least one Business Day prior to the Effective Date) due and payable on or before the Effective Date.
Consents, Etc. The Parent and its Restricted Subsidiaries shall have received all consents and authorizations required pursuant to any enforceable and material Contractual Obligation with any other Person and shall have obtained all consents and authorizations of, and effected all notices to and filings with, any Governmental Authority, in each case, as may be necessary to allow each of the Parent and its Restricted Subsidiaries lawfully to execute, deliver and perform, in all material respects, their respective obligations hereunder and under and the Loan Documents to which each of them, respectively, is, or shall be, a party and each other agreement or instrument to be executed and delivered by each of them, respectively, pursuant thereto or in connection therewith.
Capital Raises. Since March 31, 2014, the Borrowers shall have received at least (a) $400,000,000.00 of gross cash proceeds from the issuance of Permitted Second Lien Debt, and (b) $250,000,000.00 of gross cash proceeds from the issuance of Tangible Equity Units (but in no case less than at least $900,000,000.00 of gross cash proceeds from the issuance of the combination of (i) the Term Loans, (ii) Permitted Second Lien Debt, and (iii) the Tangible Equity Units).
Conditions with respect to the Mortgaged Vessels. The Administrative Agent shall have received (i) abstracts of title or, at its discretion, a certificate of ownership or other similar document with respect to the Mortgaged Vessels and such abstracts of title, certificate of ownership or other similar document shall reveal no Liens
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on such Mortgaged Vessels (subject to any Liens expressly permitted by Section 8.2 and except for Liens to be discharged on or prior to the Effective Date) and (ii) with respect to each Mortgaged Vessel, copies of certificates of registries documentation.
Notwithstanding the foregoing, if the Parent and the Term Borrower shall have used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver (i) any legal opinion described in sub-clause (d), (e), (f), (g), (h) or (i) of Section 3.1(e) or (ii) any Control Agreement that is required to be delivered in order to satisfy the foregoing conditions precedent, such delivery shall not be a condition precedent to the obligations of the Lenders and the Issuers hereunder on the Effective Date, but shall be required to be accomplished as provided in Section 7.15.
Conditions Precedent to the Term Loans and each Letter of Credit
The obligation of the Term Lenders on the Effective Date to make the Term Loans and of each Issuer on any date (including the Effective Date) to Issue any Letter of Credit is subject to the satisfaction of each of the following conditions precedent:
Request for Borrowing of Term Loans or Issuance of Letter of Credit. With respect to the Term Loans, the Administrative Agent shall have received a duly executed Notice of Borrowing, and, with respect to any Letter of Credit, the Issuer shall have received a duly executed Letter of Credit Request.
Representations and Warranties; No Defaults. The following statements shall be true on the date of the Term Loans or such Issuance, both before and after giving effect thereto and, in the case of the Term Loans, to the application of the proceeds therefrom:
the representations and warranties set forth in Article IV and in the other Loan Documents that have no materiality or Material Adverse Effect qualification shall be true and correct in all material respects and the representations and warranties set forth in Article IV and in the other Loan Documents that have a materiality or Material Adverse Effect qualification shall be true and correct in all respects, in each case with the same effect as though made on and as of such date or, to the extent such representations and warranties expressly relate to an earlier date, as of such earlier date; and
no Default or Event of Default shall have occurred and be continuing.
No Legal Impediments. The making of the Term Loans or the Issuance of such Letter of Credit on such date does not violate any applicable Requirement of Law on the date of or immediately following the making of the Term Loans or Issuance of such Letter of Credit and is not enjoined, temporarily, preliminarily or permanently.
Alternative Currencies. Immediately after giving effect to any proposed Issuance of a Letter of Credit denominated in an Alternative Currency, the sum of the Dollar Equivalent of the Letter of Credit Obligations at such time in respect of each Letter of Credit denominated in an Alternative Currency would not exceed $150,000,000.00 as a result of such proposed Issuance.
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No Specified Term Lender Event of Default. Before and after giving effect to any proposed Issuance of a Letter of Credit, no Specified Term Lender Event of Default shall have occurred and be continuing.
Determinations of Initial Borrowing Conditions
For purposes of determining compliance with the conditions specified in Section 3.1, each Lender shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Effective Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lenders Ratable Portion of the Term Loans to be made on the Effective Date.
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Administrative Agent to enter into this Agreement, each Borrower represents and warrants each of the following to the Lenders, the Issuers and the Administrative Agent, on and as of the Effective Date and the making of the Term Loans and the other financial accommodations on the Effective Date and on and as of each date as required by Section 3.2(b)(i).
Corporate Existence; Compliance with Law
Each of the Parent and its Restricted Subsidiaries (a) is duly organized, validly existing and, except where the failure to be in good standing could not reasonably be expected to have a Material Adverse Effect, in good standing under the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign corporation and in good standing under the laws of each jurisdiction where such qualification is necessary, except where the failure to be so qualified or in good standing could not reasonably be expected to have a Material Adverse Effect, (c) has all requisite corporate or other organizational power and authority and the legal right to own, pledge, mortgage and operate its properties, to lease the property it operates under lease and to conduct its business as now or currently proposed to be conducted, (d) is in compliance with its Constituent Documents, (e) is in compliance with all applicable Requirements of Law except where the failure to be in compliance could not, in the aggregate, be reasonably expected to have a Material Adverse Effect and (f) has all necessary licenses, permits, consents or approvals from or by, has made all necessary filings with, and has given all necessary notices to, each Governmental Authority having jurisdiction, to the extent required for such ownership, operation and conduct, except for licenses, permits,
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consents, approvals or filings that can be obtained or made by the taking of ministerial action to secure the grant or transfer thereof or the failure of which to obtain or make could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Corporate Power; Authorization; Enforceable Obligations
The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party and the consummation of the Transactions:
are within such Loan Partys corporate, limited liability company, partnership or other organizational powers;
have been or, at the time of delivery thereof pursuant to this Agreement will have been duly authorized by all necessary corporate, limited liability company or partnership action, including the consent of shareholders, partners and members where required;
do not and will not (A) contravene such Loan Partys respective Constituent Documents, (B) violate any other Requirement of Law applicable to such Loan Party (including Regulations T, U and X of the Federal Reserve Board), or any order or decree of any Governmental Authority or arbitrator applicable to such Loan Party, (C) conflict with or result in the breach of, or constitute a default under, or result in or permit the termination or acceleration of, any lawful Contractual Obligation of such Loan Party or any of its Restricted Subsidiaries, other than in the case of this clause (C) any such conflict, breach, default, termination or acceleration that could not reasonably be expected to have a Material Adverse Effect, or (D) result in the creation or imposition of any Lien upon any property of such Loan Party, other than those in favor of the Secured Parties pursuant to the Collateral Documents; and
do not require the consent of, authorization by, approval of, notice to, or filing or registration with, any Governmental Authority or any other Person, other than resolutions of the board of directors or other similar authority of each Loan Party that have been or will be, prior to the Effective Date (or such later date upon which such Loan Party becomes a Subsidiary Guarantor), obtained or made, copies of which have been or will be delivered to the Administrative Agent, and each of which on the Effective Date (or such later date upon which such Loan Party becomes a Subsidiary Guarantor) will be in full force and effect and, with respect to the Collateral, filings required to perfect the Liens created by the Collateral Documents.
This Agreement has been, and each of the other Loan Documents will have been upon delivery thereof pursuant to the terms of this Agreement, duly executed and delivered by each Loan Party who is a party thereto. This Agreement is, and the other Loan Documents will be, when delivered, the legal, valid and binding obligation of each Loan Party who is a party thereto, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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Ownership of Borrowers; Subsidiaries
All of the outstanding capital stock of the Parent is validly issued, fully paid and non-assessable.
Set forth on Schedule 4.3 is a complete and accurate list showing, as of the Effective Date, all Subsidiaries of the Parent and, as to each such Subsidiary, the jurisdiction of its organization, the number of shares of each class of Stock authorized (if applicable), the number outstanding on the Effective Date and the percentage of the outstanding shares of each such class owned (directly or indirectly) by the Parent. Except as set forth on Schedule 4.3, as of the Effective Date no Stock of any Restricted Subsidiary of the Parent is subject to any outstanding option, warrant, right of conversion or purchase of any similar right. Except as set forth on Schedule 4.3, all of the outstanding Stock of each Subsidiary of the Parent owned (directly or indirectly) by the Parent has been validly issued, is fully paid and non-assessable (to the extent applicable) and is owned by the Parent or a Subsidiary of the Parent, free and clear of all Liens (other than the Lien in favor of the Secured Parties created pursuant to the Pledge and Security Agreement and Liens permitted under Section 8.2 securing Permitted Second Lien Debt), options, warrants, rights of conversion or purchase or any similar rights. As of the Effective Date, except as set forth on Schedule 4.3, neither the Parent nor any such Subsidiary is a party to, or has knowledge of, any agreement restricting the transfer or hypothecation of any Stock of any such Subsidiary, other than the Loan Documents and, with respect to any Subsidiary that is not a Wholly-Owned Subsidiary, the governing documents of such Subsidiary. The Parent does not own or hold, directly or indirectly, any Stock of any Person other than such Subsidiaries and Investments permitted by Sections 8.3 or 8.5. The Term Borrower does not own or hold, directly or indirectly, any Stock of any Person.
Financial Statements
The audited financial statements comprising the Financial Statements for the Parent for the fiscal year ended December 31, 2013, copies of which have been furnished to each Lender, fairly present in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at such dates and the consolidated results of the operations of the Parent and its Subsidiaries for the period ended on such dates, all in conformity with GAAP.
The Projections have been prepared by the Parent taking into consideration past operations of its business, and reflect, as of the Effective Date, projections for the period beginning approximately January 1, 2014 and ending approximately December 31, 2015 on a Fiscal Year by Fiscal Year basis. The Projections are based upon estimates and assumptions stated therein, all of which the Parent believes, as of the Effective Date, to be reasonable in light of current conditions and current facts known to the Parent (other than any necessary adjustments due to fees
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payable in accordance herewith) and, as of the Effective Date, reflect the Parents good faith estimates of the future financial performance of the Parent and its Subsidiaries and of the other information projected therein for the periods set forth therein.
Neither the Parent nor any of its Subsidiaries has, as of the Effective Date, any material obligation, contingent liability or liability for taxes, long-term leases (other than operating leases) or unusual forward or long-term commitment that is not reflected in the financial statements referred to in clause (a) above and not otherwise permitted by this Agreement.
Material Adverse Effect
Since December 31, 2013, there has been no event or development that could reasonably be expected to have Material Adverse Effect.
Solvency
Both before and after giving effect to the Transactions, the Loan Parties, taken as a whole, are Solvent.
Litigation
Except as set forth on Schedule 4.7, there are no pending or, to the knowledge of the Borrowers, threatened actions, investigations or proceedings against the Parent or any of its Subsidiaries before any court, Governmental Authority or arbitrator other than those that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Schedule 4.7 lists all litigation pending against any Loan Party as of the Effective Date that, if adversely determined, could be reasonably expected to have a Material Adverse Effect.
Taxes
All federal income and other material tax returns, reports and statements (collectively, the Tax Returns) required to be filed by each Borrower or any of its Tax Affiliates have been filed with the appropriate Governmental Authorities in all jurisdictions in which such Tax Returns are required to be filed, all such Tax Returns are true and correct in all material respects, and all material taxes, charges and other impositions reflected therein or otherwise due and payable have been paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for non-payment thereof (whether or not shown on any Tax Return) except where contested in good faith and by appropriate proceedings if adequate reserves therefor have been established on the books of such Borrower or such Tax Affiliate in conformity with GAAP. Each Borrower and each of its Tax Affiliates have withheld and timely paid to the respective Governmental Authorities all material amounts required to be withheld.
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Full Disclosure
The Information Memorandum and any other information prepared or furnished by or on behalf of any Loan Party and delivered to the Lenders in writing in connection with this Agreement or the consummation of the transactions contemplated hereunder or thereunder (in each case, taken as a whole) does not, as of the time of delivery of such information (with respect to the Information Memorandum, as of the Effective Date only), contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading; provided, however, that, to the extent any such information was based upon, or constituted, a forecast or projection, such Loan Party represents only, in respect of such projection or forecast, that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information.
Margin Regulations
No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Federal Reserve Board), and no proceeds of the Term Loans will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock in contravention of Regulation T, U or X of the Federal Reserve Board.
No Burdensome Restrictions; No Defaults
None of the Parent nor any of its Restricted Subsidiaries (i) is a party to any Contractual Obligation (x) the compliance with which could reasonably be expected to have a Material Adverse Effect or (y) the performance of which by any thereof would result in the creation of a Lien (other than a Lien permitted under Section 8.2) on the property or assets of any thereof or (ii) is subject to any charter restriction that could reasonably be expected to have a Material Adverse Effect.
Neither the Parent nor any of its Restricted Subsidiaries is in default under or with respect to any Contractual Obligation owed by it, other than, in either case, those defaults that could not reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
Investment Company Act
Neither the Parent nor any of its Subsidiaries is an investment company or an affiliated person of, or promoter or principal underwriter for, an investment company, as such terms are defined in the Investment Company Act of 1940, as amended.
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Use of Proceeds
The (a) proceeds of the Term Loans are being used solely by the Term Borrower to refinance Indebtedness under the Existing Credit Agreement, to pay fees and expenses in connection with the Transactions, and for general corporate purposes of the Parent and its Subsidiaries (including, without limitation, Capital Expenditures and Investments not prohibited by this Agreement), and (b) Letters of Credit are being used solely by the LC Borrower to support warranties, bid bonds, payment or performance obligations and for other general corporate purposes by the Parent, its Subsidiaries, Joint Ventures and Affiliates. The Borrowers will not request any Borrowing or Letter of Credit, and the Borrowers shall not use, and shall procure that their Subsidiaries and their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in either case in violation of any Sanctions applicable to such Borrower and its Subsidiaries, or (iii) in any manner that would result in the violation of any Sanctions applicable to any Loan Party or, to the knowledge of either Borrower, any other party hereto.
Insurance
All policies of insurance of any kind or nature currently maintained by the Parent or any of its Restricted Subsidiaries, including policies of fire, theft, property damage, other commercial general liability, employee fidelity and workers compensation, are in full force and effect and are of a nature and provide such coverage as is sufficient and as is customarily carried by businesses of the size and character of such Person.
Labor Matters
There are no strikes, work stoppages, slowdowns or lockouts pending or, to the knowledge of either Borrower, threatened against or involving the Parent or any of its Subsidiaries, other than those that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
There are no unfair labor practices, grievances or complaints pending, or, to the knowledge of either Borrower, threatened, against or involving the Parent or any of its Subsidiaries, nor, to the knowledge of either Borrower, are there any unfair labor practices, arbitrations or grievances threatened involving the Parent or any of its Subsidiaries, other than those that if resolved adversely to the Parent or any of its Subsidiaries, as applicable, could not reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 4.15, as of the Effective Date, there is no collective bargaining agreement covering any employee of the Parent or any of its Restricted Subsidiaries. Except as set forth on Schedule 4.15, with respect to employees
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of the Parent or any of its Restricted Subsidiaries not already covered by a collective bargaining agreement set forth on Schedule 4.15, as of the Effective Date no union representation question exists with respect to such employees and, to the knowledge of either Borrower, no union organization activity is taking place as of the Effective Date.
ERISA
Each Employee Benefit Plan that is intended to qualify under Section 401 of the Code has received a favorable determination letter from the IRS indicating that such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of such determination letter which could cause such Employee Benefit Plan to lose its qualified status. Any trust created under any Employee Benefit Plan is exempt from tax under the provisions of Section 501 of the Code, except where such failures could not reasonably be expected to have a Material Adverse Effect.
The Parent and its Restricted Subsidiaries, each Subsidiary Guarantor and each of their respective ERISA Affiliates is in material compliance with all applicable provisions and requirements of ERISA, the Code and applicable Employee Benefit Plan provisions with respect to each Employee Benefit Plan except for non-compliances that could not reasonably be expected to have a Material Adverse Effect.
With respect to each Title IV Plan and each Multiemployer Plan, the Parent and each of its Restricted Subsidiaries, and each of their respective ERISA Affiliates has made all contributions required under ERISA and the Code and are in material compliance with the minimum funding standard of Section 412 of the Code (in each case, whether or not waived in accordance with Section 412(c) of the Code).
There has not been, nor is there reasonably expected to occur, any ERISA Event other than those that, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except (i) to the extent required under Section 4980B of the Code or similar state laws, and (ii) with respect to which the aggregate liability, calculated on a FAS 106 basis as of December 31, 2013, does not exceed $25,000,000.00, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) to any retired or former employees, consultants or directors (or their dependents) of the Parent, any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates. None of the Parent or any of its Restricted Subsidiaries or any of their respective ERISA Affiliates has incurred or reasonably expects to incur any Withdrawal Liability with respect to any Multiemployer Plan. The Parent and each of its Restricted Subsidiaries and each of their respective ERISA Affiliates has complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and are not in material default (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
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Environmental Matters
The operations of the Parent and each of its Restricted Subsidiaries have been and are in compliance with all Environmental Laws, including obtaining and complying with all required environmental, health and safety Permits, other than non-compliances that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
None of the Parent or any of its Restricted Subsidiaries or any Real Property currently or, to the knowledge of either Borrower, previously owned, operated or leased by or for the Parent or any of its Restricted Subsidiaries is subject to any pending or, to the knowledge of either Borrower, threatened, claim, order, agreement, notice of violation, notice of potential liability or is the subject of any pending or threatened proceeding or governmental investigation under or pursuant to Environmental Laws other than those claims, orders, agreements, notices, proceedings or investigations that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
To the knowledge of each Borrower, there are no facts, circumstances or conditions arising out of or relating to the operations or ownership of the Parent or any of its Restricted Subsidiaries or of Real Property owned, operated or leased by the Parent or any of its Restricted Subsidiaries that are not specifically included in the financial information furnished to the Lenders other than those that, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Intellectual Property
Except where the failure to do so could not, taken as a whole, reasonably be expected to have a Material Adverse Effect, the Parent and its Restricted Subsidiaries own or license or otherwise have the right to use all licenses, permits, patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, copyright applications, franchises, authorizations and other intellectual property rights (including all Intellectual Property as defined in the Pledge and Security Agreement) that are necessary for the operations of their respective businesses, without infringement upon or conflict with the rights of any other Person with respect thereto. Except where the failure to do so could not, taken as a whole, reasonably be expected to have a Material Adverse Effect, no slogan or other advertising device, product, process, method, substance, part or component, or other material now employed, or now contemplated to be employed, by the Parent or any of its Restricted Subsidiaries infringes upon or conflicts with any rights owned by any other Person, and no claim or litigation regarding any of the foregoing is pending or threatened.
Title; Real Property
Each of the Parent and its Restricted Subsidiaries has valid and indefeasible title to, or valid leasehold interests in, all of its material properties and assets (including Real Property) and good title to, or valid leasehold interests in, all personal
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property, in each case that is purported to be owned or leased by it, including those reflected on the most recent Financial Statements delivered by the Parent, and none of such properties and assets is subject to any Lien, except Liens permitted under Section 8.2. The Parent and each of its Restricted Subsidiaries have received all deeds, assignments, waivers, consents, non-disturbance and recognition or similar agreements, bills of sale and other documents, and have duly effected all recordings, filings and other actions necessary to establish, protect and perfect the Parents and each of its Restricted Subsidiaries right, title and interest in and to all such property, other than those that could not reasonably be expected to result in a Material Adverse Effect.
Set forth on Schedule 4.19 is a complete and accurate list, as of the Effective Date, of all (a) owned Real Property with a reasonably estimated Fair Market Value in excess of $3,000,000.00 showing, as of the Effective Date, the street address, county (or other relevant jurisdiction or state) and the record owner thereof and (b) leased Real Property with annual lease payments in excess of $1,000,000.00 showing, as of the Effective Date, the street address and county (or other relevant jurisdiction or state) thereof.
No portion of any Real Property has suffered any material damage by fire or other casualty loss that has not heretofore been completely repaired and restored to its original condition other than those that could not reasonably be expected to have a Material Adverse Effect. As of the Effective Date, no portion of any Mortgaged Property is located in a special flood hazard area as designated by any federal Governmental Authority.
Except as could not reasonably be expected to have a Material Adverse Effect, (a) each Loan Party has obtained and holds all Permits required in respect of all Real Property and for any other property otherwise operated by or on behalf of, or for the benefit of, such Person and for the operation of each of its businesses as presently conducted and as proposed to be conducted, (b) all such Permits are in full force and effect, and each Loan Party has performed and observed all requirements of such Permits, (c) no event has occurred that allows or results in, or after notice or lapse of time would allow or result in, revocation or termination by the issuer thereof or in any other impairment of the rights of the holder of any such Permit, (d) no such Permits contain any restrictions, either individually or in the aggregate, that are materially burdensome to any Loan Party, or to the operation of any of its businesses or any property owned, leased or otherwise operated by such Person, (e) each Loan Party reasonably believes that each of its Permits will be timely renewed and complied with, without material expense, and that any additional Permits that may be required of such Person will be timely obtained and complied with, without material expense and (f) neither Borrower has any knowledge or reason to believe that any Governmental Authority is considering limiting, suspending, revoking or renewing on materially burdensome terms any such Permit.
None of the Parent or any of its Restricted Subsidiaries has received any notice, or has any knowledge, of any pending, threatened or contemplated condemnation proceeding affecting any Real Property or any part thereof, except those that could not reasonably be expected to have a Material Adverse Effect.
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Each of the Loan Parties, and, to the knowledge of each Borrower, each other party thereto, has complied with all obligations under all leases of Real Property to which it is a party other than those the failure with which to comply could not reasonably be expected to have a Material Adverse Effect and all such leases are legal, valid, binding and in full force and effect and are enforceable in accordance with their terms other than those the failure of which to so comply with the foregoing could not reasonably be expected to have a Material Adverse Effect. No landlord Lien has been filed, and, to the knowledge of each Borrower, no claim is being asserted, with respect to any lease payment under any lease of Real Property other than those that could not reasonably be expected to have a Material Adverse Effect.
There are no pending or, to the knowledge of either Borrower, proposed special or other assessments for public improvements or otherwise affecting any material portion of the owned Real Property, nor are there any contemplated improvements to such owned Real Property that may result in such special or other assessments, other than those that could not reasonably be expected to have a Material Adverse Effect.
Mortgaged Vessels
Each Mortgaged Vessel (i) is owned and operated by a Subsidiary Guarantor (other than the Term Borrower), (ii) that is operated, is operated in all material respects in compliance with all Requirements of Law (including, in the case of each Mortgaged Vessel that is in class on the Effective Date, compliance in all material respects with all requirements of such classification as required by the United States Coast Guard or other classification society of like standard approved by the Collateral Agent) and (iii) is maintained in all material respects in accordance with all requirements set forth in the Collateral Documents. Each Mortgaged Vessel is covered by all such insurance as is required by the respective Mortgage with respect to such Mortgaged Vessel.
Anti-Corruption Laws and Sanctions
The Parent has implemented and maintains in effect policies and procedures intended to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents (in their respective activities on behalf of the Parent and its Subsidiaries) with applicable Anti-Corruption Laws and applicable Sanctions, and the Parent and its Subsidiaries and to the knowledge of each Borrower its and their respective officers, employees, directors and agents (in their respective activities on behalf of the Parent and its Subsidiaries), are in compliance with applicable Anti-Corruption Laws and applicable Sanctions, in each case in all material respects. None of (a) the Parent, any Subsidiary or to the knowledge of each Borrower or such Subsidiary any of their respective directors, officers or employees, or (b) to the knowledge of each Borrower, any agent of the Parent or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person with whom the Parent or such Subsidiary, as applicable, is prohibited from transacting business pursuant to any applicable Sanction.
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FINANCIAL COVENANTS
The Parent agrees with the Lenders, the Issuers and the Administrative Agent to each of the following as long as any Obligation or any Letter of Credit Facility Commitment or Term Commitment remains outstanding:
Minimum EBITDA
The Parent shall not permit EBITDA plus any applicable EBITDA Adjustment (a) for the Fiscal Quarter ending March 31, 2014 to be less than $0.00, (b) for the two Fiscal Quarter period ending June 30, 2014 to be less than $37,000,000.00, (c) for the three Fiscal Quarter period ending September 30, 2014 to be less than $70,000,000.00, (d) for the four Fiscal Quarters ending December 31, 2014 to be less than $127,000,000.00, (e) for the four Fiscal Quarters ending March 31, 2015 to be less than $169,000,000.00, (f) for the four Fiscal Quarters ending June 30, 2015 to be less than $170,000,000.00, (g) for the four Fiscal Quarters ending September 30, 2015 to be less than $227,000,000.00, and (h) for the four Fiscal Quarters ending December 31, 2015 and for each four Fiscal Quarter period ending thereafter prior to the Letter of Credit Facility Termination Date to be less than $251,000,000.00.
Minimum Liquidity
The Parent shall not permit, as of the last day of any Fiscal Quarter, Liquidity to be less than $200,000,000.00.
LC Facility Collateral Coverage Ratio
The Parent shall not permit, as of the last day of any Fiscal Quarter or as of the date that any Mortgaged Vessel is disposed of in accordance with the terms hereof (after giving effect thereto), the ratio of (a) the aggregate Fair Market Value of the Mortgaged Vessels to (b) the sum of (i) the aggregate principal amount of Term Loans plus (ii) the aggregate face value of each Financial Letter of Credit on such day plus (iii) the Reimbursement Obligations on such day (or, for any Reimbursement Obligations in any Alternative Currency, the Dollar Equivalent thereof on such day) plus (iv) the mark-to-market foreign exchange exposure of the Parent and its Subsidiaries that is not secured by cash, as determined by Parent using market convention, to be less than 1.20:1.00.
Term Loan Facility Collateral Coverage Ratio
The Parent and the Term Borrower shall not permit, as of the last day of any Fiscal Quarter or as of the date that any marine vessel is disposed of in accordance with the terms hereof (after giving effect thereto), the Term Loan Facility Collateral Coverage Ratio to be less than 1.75:1.00.
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REPORTING COVENANTS
The Borrowers agree with the Lenders and the Administrative Agent to each of the following, as long as any Obligation or any Letter of Credit Facility Commitment or Term Commitment remains outstanding:
Financial Statements
The Parent shall furnish each of the following to the Administrative Agent, for delivery to (unless otherwise expressly provided herein) the LC Lenders and, except in the case of clause (e), the Term Lenders and Goldman Sachs:
Quarterly Reports. Within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year (unless such period is extended pursuant to applicable U.S. securities laws, rules, or regulations or SEC guidelines), consolidated unaudited balance sheets as of the close of such quarter and the related statements of income and cash flow for such quarter and that portion of the Fiscal Year ending as of the close of such quarter, setting forth in comparative form the figures for the corresponding period in the prior year, in each case certified by a Responsible Officer of the Parent as fairly presenting in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in accordance with GAAP (subject to the absence of footnote disclosure and normal year-end audit adjustments).
Annual Reports. Within 75 days after the end of each Fiscal Year (unless such period is extended pursuant to applicable U.S. securities laws, rules, or regulations or SEC guidelines), consolidated balance sheets of the Parent and its Subsidiaries as of the end of such Fiscal Year and related statements of income and cash flows of the Parent and its Subsidiaries for such Fiscal Year, all prepared in conformity with GAAP and certified, in the case of such consolidated financial statements, without qualification as to the scope of the audit or as to the Parent being a going concern by the Parents Accountants, together with the report of such accounting firm stating that (i) such financial statements fairly present in all material respects the consolidated financial condition of the Parent and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except for changes with which the Parents Accountants shall concur and that shall have been disclosed in the notes to the financial statements) and (ii) the examination by the Parents Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards.
Compliance Certificate. Together with each delivery of any financial statement pursuant to clause (a) or (b) above, a certificate of a Responsible Officer of the Parent substantially in the form of Exhibit H-1 for delivery to the LC Lenders only and Exhibit H-2 for delivery to the Term Lenders and Goldman Sachs only (each, a
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Compliance Certificate) (i) demonstrating compliance with (A) in the case of Exhibit H-1 only, each of the financial covenants contained in Section 5.1, Section 5.2 and Section 5.3 in reasonable detail and (B) in the case of Exhibit H-2 only, the financial covenant contained in Section 5.4 in reasonable detail, (ii) identifying any Asset Sale permitted by clauses (h), (i), or (j) of Section 8.4 during the Fiscal Quarter as to which such Compliance Certificate relates (or, in the case of any Compliance Certificate delivered in connection with the financial statements delivered pursuant to clause (b) above, in the last Fiscal Quarter of such Fiscal Year to which such Compliance Certificate relates) and identifying the aggregate consideration received in connection with each such identified Asset Sale if the aggregate consideration received for such Asset Sale exceeds $2,500,000.00 and (iii) stating that no Default or Event of Default has occurred and is continuing or, if a Default or an Event of Default has occurred and is continuing, stating the nature thereof and the action which the Parent has taken or proposes to take with respect thereto.
Budget. Not later than 90 days after the end of each Fiscal Year, and containing substantially the types of financial information contained in the Projections, the annual budget of the Parent for the Fiscal Year next succeeding such Fiscal Year then ended reviewed by the Board of Directors of the Parent, including a projected year-end consolidated balance sheet and income statement and statement of cash flows.
Cash Forecast. In form and substance reasonably satisfactory to the Administrative Agent, (i) on or before the last Business Day of each week until May 31, 2014, a cash forecast for the Parent and its Subsidiaries covering the following six weeks and (ii) thereafter, (A) on or before the last Business Day of each month, a cash forecast for the following 13 weeks (a 13 Week Cash Forecast) and (B) on or before the last Business Day of each week, a report comparing actual results to the results projected for such week in the most recently delivered 13 Weeks Cash Forecast, including a narrative explaining any significant variances. The information provided pursuant to this Section 6.1(e) shall be delivered by the Administrative Agent to the LC Lenders only.
The Parent, the Term Borrower and each Lender acknowledge that certain of the Lenders may be Public-Side Lenders and, if documents or notices required to be delivered pursuant to this Section 6.1 or otherwise are being distributed through IntraLinks, any document or notice that the Parent or the Term Borrower has indicated contains MNPI shall not be posted on the portion of IntraLinks that is designated for Public-Side Lenders. The Parent and the Term Borrower agree to clearly designate all information provided to the Administrative Agent by or on behalf of any Loan Party that is suitable to make available to Public-Side Lenders. If the Parent or the Term Borrower has not indicated whether a document or notice delivered pursuant to this Section 6.1 contains MNPI, the Administrative Agent reserves the right to post such document or notice solely on the portion of IntraLinks that is designated for Lenders that wish to receive MNPI.
Information required to be delivered pursuant to this Section 6.1 shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on IntraLinks or shall be available on the website of the SEC at http://www.sec.gov or on the website of
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the Parent (provided, in each case, that the Parent has notified the Administrative Agent that such information is available on such website and, if requested by the Administrative Agent, shall have provided hard copies to the Administrative Agent). Information required to be delivered pursuant to this Section 6.1 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
Collateral Reporting Requirements
The Parent shall furnish to the Administrative Agent each of the following:
Updated Corporate Chart. If requested by the Administrative Agent, together with each delivery of any financial statement pursuant to Section 6.1(b), a corporate organizational chart or other equivalent list, current as of the date of delivery, in form and substance reasonably acceptable to the Administrative Agent, setting forth, for each of the Loan Parties, all Persons subject to Section 7.11, all Subsidiaries of any of them and any Joint Ventures entered into by any of the foregoing, (i) its full legal name, (ii) its jurisdiction of organization and organizational number (if any) and (iii) the number of shares of each class of its Stock authorized (if applicable), the number outstanding as of the date of delivery, and the number and percentage of the outstanding shares of each such class owned (directly or indirectly) by the Parent.
Additional Information. (i) By the twentieth day of each calendar month before the Letter of Credit Facility Termination Date, an aging list of the accounts receivable included in the Collateral dated as of the last day of the previous calendar month in form and detail reasonably satisfactory to the Administrative Agent, (ii) for the first and second month of each Fiscal Quarter, by the twentieth day of each calendar month before the Letter of Credit Facility Termination Date (A) a jobs-in-progress report on a monthly basis, which report shall include information relating to change orders and cost overruns for material projects, (B) a report of financial and operating performance, including qualitative updates for key contracts identified by the Administrative Agent and (C) a report of actual financial results (including both profit and loss, working capital and cash flows) by reporting segment, each in form and detail reasonably satisfactory to the Administrative Agent in all respects, (iii) for the third month of each Fiscal Quarter, within 45 days after such quarter ending date, a report, including budget versus actual and by reporting segment where applicable, of profit and loss, working capital, and cash flows, capital expenditures, asset sales, and unapproved change orders, each in form and detail reasonably satisfactory to the Administrative Agent in all respects, and (iv) from time to time, other statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral, all as the Administrative Agent may reasonably request, and in reasonable detail. The information provided pursuant to this Section 6.2(b) shall be delivered by the Administrative Agent to the LC Lenders only.
Additional Filings. At any time and from time to time, upon the reasonable request of the Administrative Agent, and at the sole expense of the Loan Parties, duly executed, delivered and recorded instruments and documents for the purpose of obtaining or preserving the full benefits of this Agreement, the Pledge and Security
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Agreement and each other Loan Document and of the rights and powers herein and therein granted (and each Loan Party shall take such further action as the Administrative Agent may reasonably request for such purpose), including the filing of any financing or continuation statement under the UCC or other similar Requirement of Law in effect in any domestic jurisdiction with respect to the security interest created by the Pledge and Security Agreement.
Mortgaged Vessels. If requested by the Administrative Agent, an operating report for the Mortgaged Vessels showing the current customers of such vessels and the current locations of such vessels. In addition, if requested by the Administrative Agent, the Parent shall give the Administrative Agent written notice of (i) any Mortgaged Vessel commencing a new contract or moving to a work site outside the U.S. Gulf of Mexico and (ii) any bareboat charters of any Mortgaged Vessel and copies of such charter.
Appraisals. On or before March 1 of each year, updated appraisals for each Mortgaged Vessel and for each other marine vessel of the Parent and its Subsidiaries (other than any marine vessel that is under construction) included in the determination of the Term Loan Facility Collateral Coverage Ratio, in each case, in form and scope similar to the 2014 Appraisals performed by an internationally recognized appraiser reasonably satisfactory to the Administrative Agent (and in any event an appraiser that is a member of the National Association of Marine Surveyors and the American Society of Appraisers).
The reporting requirements set forth in this Section 6.2 are in addition to, and shall not modify and are not in replacement of, any rights and other obligation set forth in any Loan Document (including notice and reporting requirements) and satisfaction of the reporting obligations in this Section 6.2 shall not, by itself, operate as an update of any Schedule or any schedule of any other Loan Document and shall not cure, or otherwise affect in any way, any Default or Event of Default, including any failure of any representation or warranty of any Loan Document to be correct in any respect when made.
Default Notices
Promptly and in any event within five Business Days after a Responsible Officer of either Borrower obtains actual knowledge of the existence thereof, such Borrower shall give the Administrative Agent notice:
of any Default or Event of Default specifying the details of the occurrence referred to therein, describing with particularity any and all provisions of this Agreement and any other Loan Document that have been breached, the anticipated effect thereof, and stating what action such Borrower has taken and proposes to take with respect thereto; and
of any announcement by Moodys or S&P of any change in a corporate rating or corporate family rating with respect to the Parent or with respect to the Term Loans under this Agreement that has not been publicly announced or is not otherwise publicly available.
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Each notice pursuant to this Section 6.3, if given by telephone, shall be promptly confirmed in writing on or before the next Business Day.
Litigation
Promptly after a Responsible Officer of either Borrower obtains actual knowledge of the commencement thereof, such Borrower shall give the Administrative Agent written notice of the commencement of all actions, suits and proceedings before any domestic or foreign Governmental Authority or arbitrator, regarding the Parent, any of its Subsidiaries or any Joint Venture that (i) seeks injunctive or similar relief that, in the reasonable judgment of such Borrower, if adversely determined, could reasonably be expected to result in a Material Adverse Effect or (ii) in the reasonable judgment of such Borrower could expose the Parent, such Subsidiary or such Joint Venture to liability in an amount aggregating $35,000,000.00 or more or that, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
Labor Relations
Promptly after a Responsible Officer of either Borrower has actual knowledge of the same, such Borrower shall give the Administrative Agent written notice of (a) any material labor dispute to which the Parent or any of its Subsidiaries is a party, including any strikes, lockouts or other material disputes relating to any of such Persons plants and other facilities, provided that such dispute, strike or lockout involves a work stoppage exceeding 30 days, (b) any material Worker Adjustment and Retraining Notification Act or related liability incurred with respect to the closing of any plant or other facility of any such Person affecting 300 or more employees of the Parent and its Subsidiaries and (c) any union organization activity with respect to employees of the Parent or any of its Subsidiaries not covered by a collective bargaining agreement as of the Effective Date.
Tax Returns
Upon the reasonable request of any Lender through the Administrative Agent, the Parent shall provide copies of all federal, state, local and foreign tax returns and reports filed by the Parent, any of its Subsidiaries or any Joint Venture in respect of taxes measured by income (excluding sales, use and like taxes).
Insurance
As soon as is practicable and in any event within 90 days after the end of each Fiscal Year, the Parent shall furnish the Administrative Agent with a report on the standard Acord form outlining all material insurance coverage maintained as of the date of such report by the Parent and its Restricted Subsidiaries and the duration of such coverage.
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ERISA Matters
The Parent shall furnish the Administrative Agent with each of the following:
promptly and in any event within 30 days after a Responsible Officer of the Parent knows, or has reason to know, that any ERISA Event has occurred that, alone or together with any other ERISA Event, could reasonably be expected to result in liability of the Parent, any Subsidiary of the Parent, any Subsidiary Guarantor and/or any ERISA Affiliate in an aggregate amount exceeding $15,000,000.00, written notice describing the nature thereof, what action the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known by such Responsible Officer, any action taken or threatened by the IRS, the Department of Labor or the PBGC with respect to such event;
promptly and in any event within 10 days after a Responsible Officer of the Parent knows, or has reason to know, that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan, a written statement of an Authorized Officer of the Parent describing such waiver request and the action, if any, the Parent, its Subsidiaries and their respective ERISA Affiliates propose to take with respect thereto and a copy of any notice filed with the PBGC or the IRS pertaining thereto;
simultaneously with the date that the Parent, any of its Subsidiaries or any ERISA Affiliate files with the PBGC a notice of intent to terminate any Title IV Plan, if, at the time of such filing, such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, a copy of each notice; and
promptly, copies of (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates with the IRS with respect to each Title IV Plan; (ii) all notices received by the Parent, any of its Subsidiaries, any Subsidiary Guarantor or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event that, alone or together with any other ERISA Event, could reasonably be expected to result in liability of the Parent, any Subsidiary of the Parent, any Subsidiary Guarantor and/or any ERISA Affiliate in an aggregate amount exceeding $15,000,000.00; and (iii) copies of such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request.
Environmental Matters
Each Borrower shall provide the Administrative Agent promptly, and in any event within 10 Business Days after any Responsible Officer of such Borrower obtains actual knowledge of any of the following, written notice of each of the following:
that any Loan Party or any Mortgaged Vessel is or may be liable to any Person as a result of a Release or threatened Release that could reasonably be expected to subject such Loan Party to Environmental Liabilities and Costs of $10,000,000.00 or more;
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the receipt by any Loan Party of notification that any material real or personal property or any Mortgaged Vessel of such Loan Party is or is reasonably likely to be subject to any Environmental Lien;
the receipt by any Loan Party of any notice of violation of or potential liability under, or knowledge by a Responsible Officer of either Borrower that there exists a condition that could reasonably be expected to result in a violation of or liability under, any Environmental Law, except for violations and liabilities the consequence of which, in the aggregate, could not reasonably be expected to subject the Loan Parties collectively to Environmental Liabilities and Costs of $10,000,000.00 or more; and
promptly following reasonable written request by any Lender through the Administrative Agent, a report providing an update of the status of any environmental, health or safety compliance, hazard or liability issue identified in any notice or report delivered pursuant to this Section 6.9.
Patriot Act Information
Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrowers in accordance with the USA Patriot Act. The Borrowers shall promptly, following a request by any Agent or any Lender, provide all documentation and other information that such Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable know your customer and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act.
Other Information
The Borrowers shall promptly provide the Administrative Agent or any Lender with any information (including any work product) reasonably requested by the Administrative Agent or such Lender through the Administrative Agent relating to AlixPartners engagement by the Parent and/or its Subsidiaries (subject to the execution and delivery to AlixPartners of a customary non-reliance letter) and such other information respecting the business, properties, condition, financial or otherwise, or operations of the Parent, any of its Subsidiaries or any Joint Venture as the Administrative Agent or such Lender through the Administrative Agent may from time to time reasonably request. The Administrative Agent shall provide copies of any written information provided to it pursuant to this Article VI to any LC Lender requesting the same. The information provided pursuant to this Section 6.11 shall be delivered by the Administrative Agent to the LC Lenders only.
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Babcock Guaranties
The Parent and its Subsidiaries shall have no Guaranty Obligations in respect of any obligations of any of the Babcock Entities.
AFFIRMATIVE COVENANTS
The Borrowers agree with the Lenders and the Administrative Agent to each of the following, as long as any Obligation or any Letter of Credit Facility Commitment or Term Commitment remains outstanding:
Preservation of Corporate Existence, Etc.
The Parent shall, and shall cause each of its Subsidiaries to, preserve and maintain its legal existence, rights (charter and statutory) and franchises, except as permitted by Sections 8.4, 8.5 and 8.6 and except if, in the reasonable business judgment of the Parent, it is in the business interest of the Parent or such Subsidiary not to preserve and maintain such legal existence (except with respect to the Borrowers), rights (charter and statutory) and franchises, and such failure to preserve the same could not reasonably be expected to have a Material Adverse Effect and could not reasonably be expected to materially affect the interests of the Secured Parties under the Loan Documents or the rights and interests of any of them in the Collateral.
Compliance with Laws, Etc.
The Parent shall, and shall cause each of its Subsidiaries to, comply with all applicable Requirements of Law, Contractual Obligations and Permits, except where the failure so to comply could not reasonably be expected to have a Material Adverse Effect.
The Parent will maintain in effect and enforce policies and procedures intended to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws and applicable Sanctions, in each case in all material respects.
Conduct of Business
The Parent shall, and shall cause each of its Subsidiaries to, (a) conduct its business in the ordinary course (except for non-material changes in the nature or conduct of its business as carried on as of the Effective Date) and (b) use its reasonable efforts, in the ordinary course, to preserve its business and the goodwill and business of the customers, suppliers and others having business relations with the Parent or any of its Subsidiaries, except where the failure to comply with the covenants in each of clauses (a) and (b) above could not reasonably be expected to have a Material Adverse Effect.
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Payment of Taxes, Etc.
The Parent shall, and shall cause each of its Subsidiaries to, pay and discharge before the same shall become delinquent, all lawful governmental claims, taxes, assessments, charges and levies, except where (a) contested in good faith, by proper proceedings and adequate reserves therefor have been established on the books of the Parent or the appropriate Subsidiary in conformity with GAAP or (b) the failure to so pay and discharge could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Maintenance of Insurance
The Parent shall, and shall cause each of its Restricted Subsidiaries to, (a) maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as, in the reasonable determination of the Parent, is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Parent or such Subsidiary operates; provided, that, with respect to the Mortgaged Vessels, the Parent shall be required to provide or cause to be provided only such insurance as is required by the Collateral Documents, and (b) cause all property and general liability insurance policies to name the Collateral Agent on behalf of the Secured Parties as additional insured (with respect to liability and property policies), loss payee (with respect to property policies) or lenders loss payee (with respect to property policies), as appropriate, and to provide that no cancellation, material addition in amount or material change in coverage shall be effective until after 30 days written notice thereof to the Administrative Agent. Subject to Section 2.9(b), so long as an Event of Default is not then continuing, the Collateral Agent, on behalf of the Secured Parties, agrees to promptly release, endorse and turn over to the Parent or the applicable Subsidiary any insurance proceeds received by the Collateral Agent.
Access
The Parent shall from time to time during normal business hours permit the Administrative Agent and the Lenders, or any agents or representatives thereof (including FTI Consulting, Inc. in connection with its ongoing periodic financial review (including limited field-level reviews for the benefit of the LC Lenders only) of the Parent and its Subsidiaries), within two Business Days after written notification of the same (except that during the continuance of an Event of Default, no such notice shall be required) to (a) examine and make copies of and abstracts from the records and books of account of the Parent and each of its Subsidiaries, (b) visit the properties of the Parent and each of its Subsidiaries, (c) discuss the affairs, finances and accounts of the Parent and each of its Subsidiaries with any of their respective officers or directors (subject to their availability, taking into account business travel and vacations); provided, that the Parent will not be required to permit any examination or visit as set forth in clauses (a) and (b) above with
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respect to each of the Administrative Agent and the Lenders (or any agents or representatives thereof) unless such visit is coordinated through the Administrative Agent.
Keeping of Books
The Parent shall, and shall cause each of its Subsidiaries to, keep proper books of record and account, in which full and correct entries shall be made of the financial transactions and assets and business of the Parent and each of its Subsidiaries; provided that the consolidated books of the Parent and its Subsidiaries shall be in conformity with GAAP on a consolidated basis.
Maintenance of Properties, Etc.
The Parent shall, and shall cause each of its Subsidiaries to, maintain and preserve (a) in good working order and condition (ordinary wear and tear excepted) all of its properties necessary in the conduct of its business, (b) all rights, permits, licenses, approvals and privileges (including all Permits) necessary in the conduct of its business and (c) all Material Intellectual Property, except where failure to so maintain and preserve the items set forth in clauses (a), (b) and (c) above could not reasonably be expected to have a Material Adverse Effect; provided, that, with respect to the Mortgaged Vessels, the Parent will, or will cause the Mortgaged Vessel Owning Subsidiaries to, maintain and keep such Mortgaged Vessels in such condition, repair and working order as is required by the Collateral Documents.
Application of Proceeds; Proceeds from Second Lien Notes
The Term Borrower shall use the entire amount of the proceeds of the Term Loans as provided in Section 4.13.
All proceeds of the Term Loans and Second Lien Notes that are not used on the Effective Date to refinance Indebtedness under the Existing Credit Agreement or to pay fees and expenses in connection with the Transactions shall be deposited into one or more Deposit Accounts or Securities Accounts (each as defined in the Pledge and Security Agreement) that are subject to a Control Agreement. Notwithstanding the foregoing, if the Parent and the Term Borrower shall have used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver on the Effective Date the Control Agreement referred to in the immediately preceding sentence, such failure shall not give rise to a Default under this Section 7.9(b), but the Borrowers shall nonetheless be required to comply with the obligations set forth in Section 7.15.
The Parent and the Term Borrower shall reserve proceeds of the Term Loans and the Second Lien Notes in an aggregate amount equal to the amount required to be paid by the Parent and its Subsidiaries in connection with the exercise of the purchase option to acquire 100% of the Stock and Stock Equivalents of the Persons that own the NO 102 in accordance with the terms of such purchase option.
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Environmental
The Parent shall, and shall cause each of its Subsidiaries to, exercise reasonable due diligence in order to comply in all material respects with all Environmental Laws.
The Parent agrees that the Administrative Agent may, from time to time, retain, at the expense of the Parent, an independent professional consultant reasonably acceptable to the Parent to review any report relating to Contaminants prepared by or for the Parent and to conduct its own investigation (the scope of which investigation shall be reasonable based upon the circumstances) of any property currently owned, leased, operated or used by the Parent or any of its Subsidiaries, if (x) a Default or an Event of Default shall have occurred and be continuing, or (y) the Administrative Agent reasonably believes (1) that an occurrence relating to such property is likely to give rise to any Environmental Liabilities and Costs or (2) that a violation of an Environmental Law on or around such property has occurred or is likely to occur, which could, in either such case, reasonably be expected to result in Environmental Liabilities and Costs in excess of $10,000,000.00, provided that, unless an Event of Default shall have occurred and be continuing, such consultant shall not drill on any property of the Parent or any of its Subsidiaries without the Parents prior written consent. The Parent shall use its reasonable efforts to obtain for the Administrative Agent and its agents, employees, consultants and contractors the right, upon reasonable notice to Parent, to enter into or on to the facilities or Mortgaged Vessels currently owned, leased, operated or used by the Parent or any of its Subsidiaries to perform such tests on such property as are reasonably necessary to conduct such a review and/or investigation. Any such investigation of any property shall be conducted, unless otherwise agreed to by the Parent and the Administrative Agent, during normal business hours and shall be conducted so as not to unreasonably interfere with the ongoing operations at any such property or Mortgaged Vessel or to cause any damage or loss at such property or Mortgaged Vessel. The Parent and the Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of the Administrative Agent pursuant to this subsection will be obtained and shall be used by the Administrative Agent and the Lenders for the purposes of the Lenders internal credit decisions, to monitor the Term Loans and Letter of Credit Exposure and to protect the Lenders security interests created by the Loan Documents, and the Administrative Agent and the Lenders hereby acknowledge and agree any such report will be kept confidential by them to the extent permitted by law except as provided in the following sentence. The Administrative Agent agrees to deliver a copy of any such report to the Parent with the understanding that the Parent acknowledges and agrees that (i) it will indemnify and hold harmless the Administrative Agent and each Lender from any costs, losses or liabilities relating to the Parents use of or reliance on such report, (ii) neither Administrative Agent nor any Lender makes any representation or warranty with respect to such report, and (iii) by delivering such report to the Parent, neither the Administrative Agent nor any Lender is requiring or recommending the implementation of any suggestions or recommendations contained in such report.
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Promptly after a Responsible Officer of either Borrower obtains actual knowledge thereof, such Borrower shall advise the Administrative Agent in writing and in reasonable detail of (i) any Release or threatened Release of any Contaminants required to be reported by the Parent or its Subsidiaries, to any Governmental Authorities under any applicable Environmental Laws and which could reasonably be expected to have Environmental Liabilities and Costs in excess of $10,000,000.00, (ii) any and all written communications with respect to any pending or threatened claims under Environmental Law in each such case which, individually or in the aggregate, have a reasonable possibility of giving rise to Environmental Liabilities and Costs in excess of $10,000,000.00, (iii) any Remedial Action performed by the Parent or any other Person in response to (x) any Contaminants on, under or about any property, the existence of which has a reasonable possibility of resulting in Environmental Liabilities and Costs in excess of $10,000,000.00, or (y) any other Environmental Liabilities and Costs in excess of $10,000,000.00 that could result in Environmental Liabilities and Costs in excess of $10,000,000.00, (iv) discovery by the Parent or its Subsidiaries of any occurrence or condition on any material property that could cause the Parents or its Subsidiaries interest in any such property to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws or Environmental Liens, and (v) any written request for information from any Governmental Authority that fairly suggests such Governmental Authority is investigating whether the Parent or any of its Subsidiaries may be potentially responsible for a Release or threatened Release of Contaminants which has a reasonable possibility of giving rise to Environmental Liabilities and Costs in excess of $10,000,000.00.
The Parent shall promptly notify the Administrative Agent of (i) any proposed acquisition of Stock, assets, or property by the Parent or any of its Subsidiaries that could reasonably be expected to expose the Parent or any of its Subsidiaries to, or result in, Environmental Liabilities and Costs in excess of $10,000,000.00 and (ii) any proposed action to be taken by the Parent or any of its Subsidiaries to commence manufacturing, industrial or other similar operations that could reasonably be expected to subject the Parent or any of its Subsidiaries to additional Environmental Laws, that are materially different from the Environmental Laws applicable to the operations of the Parent or any of its Subsidiaries as of the Effective Date.
The Parent shall, at its own expense, provide copies of such documents or information as the Administrative Agent may reasonably request in relation to any matters disclosed pursuant to this Section 7.10.
To the extent required by Environmental Laws or Governmental Authorities under applicable Environmental Laws, the Parent shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all necessary Remedial Action in connection with the presence, handling, storage, use, disposal, transportation or Release or threatened Release of any Contaminants on, under or affecting any property in order to comply in all material respects with all applicable Environmental Laws and Governmental Authorizations. In the event the Parent or any of its Subsidiaries undertakes any Remedial Action with respect to the presence, Release or threatened Release of any Contaminants on or affecting any property, the Parent or any of its
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Subsidiaries shall conduct and complete such Remedial Action in material compliance with all applicable Environmental Laws, and in material accordance with the applicable policies, orders and directives of all relevant Governmental Authorities except when, and only to the extent that, the Parent or any such Subsidiaries liability for such presence, handling, storage, use, disposal, transportation or Release or threatened Release of any Contaminants is being contested in good faith by Borrower or any of such Subsidiaries. In the event the Parent fails to take required actions to address such Release or threatened Release of Contaminants or to address a violation of or liability under Environmental Law, the Administrative Agent may, upon providing the Parent with 5 Business Days prior written notice, enter the property and, at the Parents sole expense, perform whatever action the Administrative Agent reasonably deems prudent to rectify the situation.
Additional Collateral and Guaranties
To the extent not delivered to the Administrative Agent on or before the Effective Date, the Borrowers agree to do promptly each of the following:
execute and deliver to the Administrative Agent such amendments to the Collateral Documents or enter into such new Collateral Documents as the Administrative Agent deems necessary or advisable in order to grant to the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected first-priority security interest in the Stock and Stock Equivalents and other debt Securities of any Subsidiary that are owned by the Parent or any Subsidiary Guarantor (it being understood that such actions shall be required in the United States of America and, at the reasonable request of the Administrative Agent, any other jurisdiction);
deliver to the Administrative Agent the certificates (if any) representing such Stock and Stock Equivalents and other debt Securities, together with (A) in the case of such certificated Stock and Stock Equivalents, undated stock powers or other instruments of transfer endorsed in blank and (B) in the case of such certificated debt Securities, endorsed in blank, in each case executed and delivered by a Responsible Officer of the Parent or such Subsidiary, as the case may be;
in the case of any Wholly-Owned Subsidiary of any Loan Party that is a Restricted Subsidiary that has satisfied the Threshold Amount, cause such Wholly-Owned Subsidiary, (A) to become a party to the Pledge and Security Agreement and the applicable Collateral Documents and (B) to take such actions necessary or advisable to grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected security interest in the Collateral described in the Collateral Documents with respect to such Subsidiary, including the filing of UCC financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Administrative Agent (it being understood that such actions shall be required in the United States of America and, at the reasonable request of the Administrative Agent, any other jurisdiction);
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if any Loan Party acquires any marine vessel with a Fair Market Value in excess of $5,000,000.00 (other than a marine vessel acquired with Indebtedness permitted by Section 8.1(d), (l) or (m)), then such Loan Party shall, within 20 Business Days of such acquisition, execute and deliver such mortgages and other security instruments as shall be necessary to cause such vessel to become a Mortgaged Vessel subject to a perfected first-priority security interest;
if the Fair Market Value of any marine vessel owned by any Loan Party (other than a marine vessel acquired or improved with Indebtedness permitted by Section 8.1(d), (l) or (m)) increases to an amount in excess of $5,000,000.00 because of improvements to such marine vessel, then such Loan Party shall, within 20 Business Days of a Responsible Officer of the Parent learning of such increase in Fair Market Value, execute and deliver such mortgages and other security instruments as shall be necessary to cause such vessel to become a Mortgaged Vessel subject to a perfected first-priority security interest; and
if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Agent; provided that such legal opinions shall be no broader in form or scope than the legal opinions delivered on the Effective Date.
Real Property
With respect to any fee interest in any Real Property located in the U.S. with a reasonably estimated Fair Market Value of $3,000,000.00 or more, or any leasehold interest in any Real Property (other than an office lease) located in the U.S. leased for more than $1,000,000.00 annually, in each case acquired or leased after the Effective Date by the Parent or any other Loan Party (other than any such Real Property acquired with Indebtedness permitted by Section 8.1(d), or (m)), the Parent or the applicable Loan Party shall promptly (and, in any event, within five Business Days following the date of such acquisition or such later date permitted by the Administrative Agent in its sole discretion) (i) execute and deliver a first priority Mortgage (subject only to Liens permitted by this Agreement) in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such Real Property and complying with the provisions herein and in the Collateral Documents, (ii) if requested by the Administrative Agent and available in such jurisdiction, provide the Secured Parties with title insurance in an amount at least equal to the purchase price of such Real Property (or such other amount as the Administrative Agent shall reasonably specify), and if applicable, flood insurance and lease estoppel certificates, all in form and substance reasonably satisfactory to the Administrative Agent, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent and the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel,
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reasonably satisfactory to the Administrative Agent and the Collateral Agent; provided, that such legal opinions shall be no broader in form or scope than the legal opinions delivered on the Effective Date and (iv) if requested by the Administrative Agent, use commercially reasonable efforts to obtain Landlord Lien Waivers for each Real Property leasehold interest on which a manufacturing facility or warehouse or other facility (other than an office lease) where Collateral is stored or held; provided, however that no such Landlord Lien Waiver shall be required for any location at which Collateral is stored or located unless the aggregate value of Collateral stored or held at such location exceeds $1,000,000.00.
Rating of Term Loans
The Term Borrower shall use commercially reasonable efforts to maintain a rating of the Term Loans by each of S&P and Moodys.
Section 1.4 Lender Meetings
The Parent and the Term Borrower will participate in a meeting or telephonic conference with the Administrative Agent and the Lenders once during each Fiscal Year to be held at such location and at such time as may be agreed to by the Parent, the Term Borrower and the Administrative Agent.
Additional Collateral Perfection Undertakings
The Borrowers shall (a) deliver to the Administrative Agent each of the agreements, documents, instruments or certificates described on Schedule 7.15 and (b) perform each of the actions described on Schedule 7.15, in each case within the time periods set forth opposite each such item or action on Schedule 7.15.
Undertakings With Respect to the Lay Vessel 108 and DLV 2000.
The Parent shall, and shall cause its Subsidiaries to: (a) promptly (but in no event later than 30 days) after taking delivery thereof, execute and deliver such mortgages and other security instruments as shall be necessary to cause each of (i) the Lay Vessel 108 and (ii) until such time as such vessel secures DLV 2000 Permitted Debt, the DLV 2000 to become a Mortgaged Vessel subject to a perfected first-priority security interest (in each case, which vessels shall not be subject to any other Liens securing Indebtedness for borrowed money) and (b) prior to taking delivery thereof, to use commercially reasonable efforts to cause the counterparties under the construction agreements relating to the Lay Vessel 108 and, until such time as such vessel secures DLV 2000 Permitted Debt, the DLV 2000, to consent to the assignment of all of the rights of the Loan Parties under such agreements to the Collateral Agent, pursuant to consents to assignment reasonably satisfactory to the Collateral Agent.
Certain Purchase Options.
The Parent shall, and shall cause its Subsidiaries to, take all such actions to (a)(i) exercise the purchase option to acquire 100% of the Stock and Stock Equivalents in
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the Persons that own the NO 102 and (ii) exercise the purchase option to acquire 100% of the Stock and Stock Equivalents in the Person that owns the NO 105, in each case in accordance with the terms of such purchase options as in effect on the Effective Date or as hereafter amended or modified to the extent permitted by Section 8.21 (including, without limitation, any such amendment or modification that allows for the Parent or a Guarantor to acquire 100% of the NO 102 or the NO 105, as applicable, instead of the Stock and Stock Equivalents of the Person that owns the NO 102 or the NO 105, as applicable) and (b) in each case, within thirty (30) days (or such longer period permitted by the Administrative Agent in its sole discretion) following such acquisition, execute and deliver such mortgages and other security instruments as shall be necessary to cause each of the NO 102 and the NO 105 to become a Mortgaged Vessel subject to a perfected first-priority security interest (in each case, which vessels shall not be subject to any other Liens securing Indebtedness for borrowed money).
NEGATIVE COVENANTS
The Borrowers agree with the Lenders and the Administrative Agent to each of the following, as long as any Obligation or any Letter of Credit Facility Commitment or Term Commitment remains outstanding:
Indebtedness
The Parent shall not (x) and shall not permit any Captive Insurance Subsidiary or any of the Parents Restricted Subsidiaries to, directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness or (y) issue Disqualified Stock except for the following:
the Obligations;
Indebtedness existing on the Effective Date and disclosed on Schedule 8.1;
Guaranty Obligations incurred by any Loan Party in respect of Indebtedness of any Loan Party that is permitted by this Section 8.1;
secured Indebtedness of the Parent or any Restricted Subsidiary including Capital Lease Obligations and purchase money Indebtedness incurred by the Parent or a Restricted Subsidiary of the Parent to finance (concurrently with or within 90 days after) the acquisition of tangible property (including marine vessels) and Indebtedness in respect of sale and leaseback transactions permitted under Section 8.13, but excluding Indebtedness incurred or assumed in connection with an Acquisition, in an aggregate outstanding principal amount not to exceed $20,000,000.00 at any time;
Refinancing Indebtedness in respect of Indebtedness permitted by clause (b) above or this clause (e);
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Indebtedness arising from intercompany loans that are Investments permitted under, or not prohibited by, Section 8.5 (i) from any Loan Party to any other Loan Party; (ii) from any Subsidiary of the Parent to any Loan Party; (iii) from any Subsidiary of the Parent that is not a Loan Party to any Restricted Subsidiary of the Parent that is not a Loan Party; or (iv) from any Loan Party to any Restricted Subsidiary of the Parent that is not a Loan Party; provided, however, that
all such Indebtedness of the type described in clauses (i), (ii) and (iv) above is evidenced by promissory notes in the form of Exhibit G, subject to a first priority Lien pursuant to the Pledge and Security Agreement if the payee is a Loan Party,
all such Indebtedness of the type described in clause (ii) above may not be paid when an Event of Default exists, unless such payment is being made to a Loan Party, and
any payment by any Guarantor under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Guarantor to the applicable Borrower or to any of the other Loan Parties for whose benefit such payment is made;
(i) the Tangible Equity Units and (ii) other unsecured Indebtedness of the Parent and its Restricted Subsidiaries in an aggregate principal amount not to exceed $350,000,000.00, so long as no Default or Event of Default has occurred and is continuing or would result therefrom;
Indebtedness under or in respect of Hedging Contracts that are not speculative in nature;
Indebtedness in respect of Treasury Management Arrangements;
Indebtedness in respect of any insurance premium financing for insurance being acquired by the Parent or any Restricted Subsidiary under customary terms and conditions and not in connection with the borrowing of money;
Indebtedness secured with the North Ocean Equipment and listed on Schedule 8.1;
DLV 2000 Permitted Debt;
Indebtedness assumed in connection with an Acquisition permitted under Section 8.3;
Indebtedness in respect of matured or drawn Performance Guarantees, provided that such Indebtedness is reimbursed or extinguished within 5 Business Days of being matured or drawn;
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Indebtedness in respect of letters of credit in an aggregate outstanding amount not to exceed $300,000,000.00;
Indebtedness arising from loans, advances or extensions of credit to BMD and/or BMDL that are permitted by Section 8.5(s);
Permitted Second Lien Debt; and
Refinancing Indebtedness in respect of the Letter of Credit Facility Commitments and the Term Loans.
Liens, Etc.
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, create or suffer to exist any Lien upon or with respect to any of their respective properties or assets, whether now owned or hereafter acquired, or assign, or permit any of its Restricted Subsidiaries to assign, any right to receive income, except for the following:
Liens created pursuant to the Loan Documents;
Liens existing on the Effective Date and disclosed on Schedule 8.2;
Customary Permitted Liens;
Liens securing Indebtedness permitted under Section 8.1(d) or (m):
in assets that are not Collateral (other than equipment);
in property subject to and acquired or constructed with the proceeds of a Capital Lease or purchase money Indebtedness (including any sale and leaseback transaction permitted under Section 8.13, in each case if (A) the Indebtedness secured thereby and is incurred within 90 days after the date of such acquisition or construction of such property and does not exceed the lesser of the cost or Fair Market Value of such property at the time of such acquisition or construction and (B) such Liens do not apply to any other property (other than proceeds of such acquired or constructed property) or assets of the Parent or any of its Subsidiaries; or
to which any property is subject at the time, on or after the Effective Date, of the Parents or a Restricted Subsidiarys acquisition thereof in accordance with this Agreement if such Liens do not apply to any other property (other than proceeds of such acquired property) of the Parent or any of its Restricted Subsidiaries;
any Lien securing the renewal, extension, refinancing or refunding of any Indebtedness secured by any Lien permitted by clause (b) or (d) above or this clause (e) without any material change in the assets subject to such Lien;
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Liens in favor of lessors securing operating leases not prohibited hereunder;
Liens arising out of judgments or awards and not constituting an Event of Default under Section 9.1(g);
Liens encumbering inventory, work-in-process and related property in favor of customers or suppliers securing obligations and other liabilities (other than Indebtedness) to such customers or suppliers to the extent such Liens are granted in the ordinary course of business and are consistent with past business practices;
[Reserved];
Liens with respect to foreign exchange netting arrangements and other treasury or cash management arrangements to the extent incurred in the ordinary course of business and consistent with past business practices; provided, that the aggregate outstanding amount of all such obligations and liabilities secured by such Liens shall not exceed $30,000,000.00 at any time;
Liens securing insurance premium financing permitted under Section 8.1(j) under customary terms and conditions; provided, that no such Lien may extend to or cover any property other than the insurance being acquired with such financing, the proceeds thereof and any unearned or refunded insurance premiums related thereto;
Liens not otherwise permitted by the foregoing clauses of this Section 8.2 securing obligations or other liabilities (other than Indebtedness for borrowed money) of the Parent or any Restricted Subsidiary of the Parent; provided, however, that the aggregate outstanding amount of all such obligations and liabilities secured by such Liens shall not exceed $30,000,000.00 at any time;
Liens on North Ocean Equipment securing Indebtedness of any North Ocean Entity; provided that neither the Parent nor any of its Restricted Subsidiaries is the primary obligor on such Indebtedness (it being understood that the Parent and its Restricted Subsidiaries may guarantee such Indebtedness to the extent otherwise permitted by this Agreement);
Liens securing reimbursement obligations in respect of Extended Letters of Credit;
Liens on the DLV 2000 (plus improvements, accessions and proceeds thereof) and the equity (plus proceeds thereof) of the SPV that owns the DLV 2000, in each case securing DLV 2000 Permitted Debt;
Liens on the assets of BMD and/or BMDL securing Indebtedness permitted by Section 8.1(p);
Liens on Collateral securing Permitted Second Lien Debt;
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Liens on cash securing Indebtedness described in Section 8.1(h) and Section 8.1(o); provided that the aggregate amount of cash securing Indebtedness described in Section 8.1(h) shall not exceed $50,000,000.00 at any time; and
Subject to intercreditor arrangements on terms and conditions substantially the same as the terms and conditions of this Agreement and otherwise reasonably acceptable to the Administrative Agent, Liens on Collateral securing Refinancing Indebtedness in respect of the Letter of Credit Facility Commitments and Term Loans.
Acquisitions
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Acquisitions except any non-hostile Acquisition subject to the satisfaction of each of the following conditions:
(a) the aggregate consideration (excluding performance-based contingent consideration (including, without limitation, earn-out payments and royalty payments)) in respect of all such Acquisitions made after the Effective Date does not exceed (i) prior to the Scheduled Letter of Credit Facility Termination Date, $75,000,000.00 and (ii) after the Scheduled Letter of Credit Facility Termination Date, $150,000,000.00 (since the Effective Date);
(b) if any such Acquisition is in excess of $5,000,000.00, the Administrative Agent shall receive prior written notice of such Acquisition, which notice shall include, without limitation, a description of such Acquisition with such detail as the Administrative Agent shall reasonably require;
after giving effect to such Acquisition, Liquidity shall not be less than $200,000,000.00;
within 30 days (or, in respect of real estate matters, 45 days) after the closing of such Acquisition, the Parent (or the Restricted Subsidiary making such Acquisition) and the target of such Acquisition (unless it is a Subsidiary that has not satisfied the Threshold Amount) shall have executed such documents and taken such actions as may be required under Section 7.11 and Section 7.12;
if such Acquisition involves the acquisition of one or more marine vessels, in each case having a Fair Market Value in excess of $5,000,000.00, such vessel or vessels, except in the case where acquired using Indebtedness permitted by Section 8.1(m) that is the subject of a Lien permitted under Section 8.2 existing at the time of (but not incurred in anticipation of) any such acquisition, shall within 20 Business Days of such Acquisition, become Collateral pursuant to arrangements substantially similar to those made with respect to similar Mortgaged Vessels on the Effective Date; and
at the time of such Acquisition and after giving effect thereto, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the statement set forth in Section 3.2(b)(i) shall be true.
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Sale of Assets
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, sell, convey, transfer, lease or otherwise dispose of any of their respective assets or any interest therein (including the sale or factoring of any accounts) to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiarys Stock or Stock Equivalent (any such disposition in excess of $1,000,000.00 per transaction or series of related transactions, being an Asset Sale) except for the following:
the sale or disposition of inventory (including fabricated projects for customers, such as offshore production platforms and related components) in the ordinary course of business;
transfers resulting from any taking or condemnation of any property of the Parent or any of its Subsidiaries (or, as long as no Default or Event of Default has occurred and is continuing or would result therefrom, deed in lieu thereof);
as long as no Default or Event of Default is continuing or would result therefrom, the sale or disposition of equipment that the Parent reasonably determines is no longer useful in its or its Subsidiaries business, has become obsolete, damaged or surplus or is replaced in the ordinary course of business;
as long as no Default or Event of Default is continuing or would result therefrom, the lease or sublease or chartering of property not constituting a sale and leaseback, to the extent not otherwise prohibited by this Agreement or the Mortgages;
as long as no Default or Event of Default is continuing or would result therefrom, non-exclusive assignments and licenses of intellectual property of the Parent and its Subsidiaries in the ordinary course of business;
as long as no Default or Event of Default is continuing or would result therefrom, discounts, adjustments, settlements and compromises of Accounts and contract claims in the ordinary course of business;
any Asset Sale (i) to the Parent or any Wholly-Owned Loan Party or (ii) by any Restricted Subsidiary that is not a Loan Party to the Parent or another Restricted Subsidiary of the Parent;
as long as (x) no Default or Event of Default is continuing or would result therefrom and (y) immediately before and after giving effect to the Asset Sale, the Parent and the Term Borrower shall be in pro forma compliance with Sections 5.3 and 5.4 as of the most recent date of determination, and subject to Section 2.9(a), (i) any other Asset Sale (other than an Asset Sale in respect of a Mortgaged Vessel or Stock in a Mortgaged Vessel Owning Subsidiary) for Fair Market Value, at least 75% of which is payable in cash or Cash Equivalents upon such sale and (ii) any other Asset Sale for Fair Market Value so long as the Non-cash Consideration from such Asset Sale and all other Asset Sales made in reliance upon this clause (h)(ii) after the Effective Date does not exceed $30,000,000.00;
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any Asset Sale of one or more Mortgaged Properties or Mortgaged Vessels or Stock in a Mortgaged Vessel Owning Subsidiary or a Subsidiary which directly or indirectly owns a Mortgaged Vessel Owning Subsidiary, subject to Section 2.9(a), and so long as (i) no Default or Event of Default is continuing or would result therefrom, (ii) the Asset Sale is for Fair Market Value, (iii) except to the extent that a Loan Party receives one or more marine vessels from another Person in trade or exchange for such assets so disposed of, at least 75% of the consideration for such Asset Sale consists of cash or Cash Equivalents received at closing of such Asset Sale; provided that this clause (iii) shall not apply to any Asset Sale of the Mortgaged Vessel named McDermott Derrick Barge No. 16 if the Parent has provided the Administrative Agent with a summary of the terms of such Asset Sale at least 10 Business Days (or such shorter period of time permitted by the Administrative Agent in its sole discretion) before the date of such Asset Sale, (iv) any marine vessel received from another Person in trade or exchange for such assets so disposed of shall concurrently with its acquisition be added to the Collateral pursuant to arrangements substantially similar to those made with respect to the Mortgaged Vessels on the Effective Date, and (v) immediately before and after giving effect to the Asset Sale, the Parent and the Term Borrower shall be in pro forma compliance with Sections 5.3 and 5.4 as of the most recent date of determination;
as long as no Default or Event of Default is continuing or would result therefrom, any Asset Sale of the Stock of any Captive Insurance Subsidiary for Fair Market Value, at least 75% of which is payable in cash or Cash Equivalents upon such sale; and
Asset Sales permitted by Section 8.13.
Notwithstanding the foregoing, no Asset Sale shall be permitted hereunder if the assets being disposed of in such transaction or any series of related transactions would, in the aggregate, constitute a material portion of the business of the Parent and its Restricted Subsidiaries taken as a whole.
Restricted Payments
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, declare, order, pay or make any sum for any Restricted Payment except for:
Restricted Payments by the Parent to any other Loan Party;
Restricted Payments by (i) any Restricted Subsidiary of the Parent to any Loan Party or (ii) any Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is not a Loan Party;
Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary to any Loan Party and to any other direct or indirect holders of equity
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interests in such Restricted Subsidiary to the extent (i) such Restricted Payments are made pro rata among the holders of the equity interests in such Restricted Subsidiary or (ii) pursuant to the terms of the joint venture, charter, bylaws or other distribution agreement for such Restricted Subsidiary in form and substance approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed);
(i) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Stock or Stock Equivalents of the Parent or any of its Subsidiaries (x) made solely with the proceeds received from the exercise of any warrant or option or (y) that is deemed to occur upon the cashless exercise of stock options or warrants and (ii) the repurchase, redemption or other acquisition or retirement for value of any Stock or Stock Equivalents of the Parent or any Subsidiary held by any current or former officer, director or employee pursuant to any equity-based compensation plan, equity subscription agreement, stock option agreement, shareholders agreement or similar agreement in an aggregate amount not to exceed $30,000,000.00;
so long as no Default or Event of Default has occurred and is continuing, or would result therefrom, Restricted Payments made after the Effective Date in an aggregate amount not to exceed (i) prior to the Scheduled Letter of Credit Facility Termination Date, $25,000,000.00 during any Fiscal Year (plus the amount of Restricted Payments permitted to be made pursuant to this clause (e) in the prior Fiscal Year and not made in such prior Fiscal Year), and (ii) after the Scheduled Letter of Credit Facility Termination Date, $75,000,000.00;
Investments existing on the Effective Date and disclosed on Schedule 8.5, and any refinancings of such Investments to the extent constituting Indebtedness otherwise permitted under Section 8.1(b), provided such refinancing complies with the provisions of Section 8.1(e);
Investments in cash and Cash Equivalents;
Investments in accounts, contract rights and chattel paper (each as defined in the UCC), notes receivable and similar items arising or acquired from the sale of Inventory in the ordinary course of business consistent with the past practice of the Parent and its Subsidiaries;
Investments received in settlement of amounts due to the Parent or any Restricted Subsidiary of the Parent effected in the ordinary course of business;
Investments by (i) any Loan Party in any other Loan Party or (ii) a Restricted Subsidiary of the Parent that is not a Loan Party in the Parent or any other Restricted Subsidiary of the Parent;
loans or advances to employees of the Parent or any of its Subsidiaries (or guaranties of loans and advances made by a third party to employees of the Parent or any of its Subsidiaries) in the ordinary course of business in an aggregate outstanding principal amount not to exceed $1,000,000.00 at any time;
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Guaranty Obligations permitted by Section 8.1;
other than those disclosed on Schedule 8.5, direct or indirect Investments, including Letters of Credit and other credit support obligations, in Subsidiaries that are not Loan Parties or Joint Ventures that are not Loan Parties, but in each case are engaged in an Eligible Line of Business, made after the Effective Date in an aggregate amount not to exceed (i)(A) prior to the Scheduled Letter of Credit Facility Termination Date, $150,000,000.00 and (B) after the Scheduled Letter of Credit Facility Termination Date, $300,000,000.00 (since the Effective Date) plus (ii) an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash after the Effective Date in respect of Investments in Subsidiaries or Joint Ventures that are not Loan Parties (which amount shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
Investments constituting Acquisitions permitted by Section 8.3;
Investments to acquire the NO 102 or the Stock of one or more entities that directly or indirectly own an interest in the NO 102; provided that: (i) immediately after giving effect to such Investment, Liquidity shall not be less than $125,000,000.00; and (ii) immediately after giving effect to such Investment, (A) no Default or Event of Default shall have occurred and be continuing and (B) the statement set forth in Section 3.2(b)(i) shall be true; and (C) the aggregate amount of such Investments shall not exceed $50,000,000.00 (inclusive of the Parents pro rata portion of any Indebtedness (which, as of the Effective Date was approximately $15,700,000) of the entity that owns the NO 102 that will be repaid to a Subsidiary Guarantor in connection with such Investment);
Investments to acquire the NO 105 or the Stock of one or more entities that directly or indirectly own an interest in the NO 105; provided that: (i) if such Investment is made before the Scheduled Letter of Credit Facility Termination Date, immediately after giving effect to such Investment, Liquidity shall not be less than $125,000,000.00; and (ii) immediately after giving effect to such Investment, (A) no Default or Event of Default shall have occurred and be continuing and (B) the statement set forth in Section 3.2(b)(i) shall be true;
(i) contributions to Joint Ventures and Subsidiaries that are not Loan Parties of assets not constituting Collateral and not required to be Collateral (other than assets that are not Collateral or required to be Collateral under clause (i) of the definition of Excluded Asset in the Pledge and Security Agreement) and (ii) Hedging Contracts (and payments thereunder) that are not speculative in nature entered into on behalf of Joint Ventures and Subsidiaries, so long as any payment by the Parent or any Restricted Subsidiary under any such Hedging Contract is reimbursed by the applicable Joint Venture or Subsidiary in the ordinary course of business;
other than those disclosed on Schedule 8.5, direct or indirect Investments, including Letters of Credit and other credit support obligations, in Subsidiaries that are not Subsidiary Guarantors or Joint Ventures that are not Subsidiary Guarantors, but in
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each case are engaged in an Eligible Line of Business, in an aggregate amount not to exceed the lesser of (i) the Net Cash Proceeds received by the Parent and its Restricted Subsidiaries of Indebtedness permitted to be incurred hereunder (other than the Term Loans) and (ii) $200,000,000.00;
Investments constituting loans, advances or extensions of credit by the Parent and/or any of its Restricted Subsidiaries to BMD and/or BMDL in an aggregate outstanding principal amount not to exceed $30,000,000.00 at any time;
Investments resulting from any non-cash consideration received in an Asset Sale permitted by Section 8.4; and
repurchases, redemptions or other acquisitions or retirements for value of Stock of the Parent made in lieu of withholding taxes in connection with any vesting of restricted Stock or any exercise, vesting or exchange of stock options, warrants or other similar rights.
Restriction on Fundamental Changes
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, (a) merge or consolidate with any Person (provided that, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Wholly-Owned Restricted Subsidiary may merge into the Parent so long as the Parent is the surviving company, (ii) any Wholly-Owned Restricted Subsidiary may merge into or consolidate with any other Wholly-Owned Restricted Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Restricted Subsidiary and no Person other than the Parent or a Wholly-Owned Restricted Subsidiary receives any consideration (provided that if any party to any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party), (iii) any Restricted Subsidiary of the Parent may merge with another Person in a transaction constituting an Asset Sale permitted hereunder, and (iv) any Person (other than the Parent or the Term Borrower) may merge or consolidate with or into any Restricted Subsidiary (other than the Term Borrower) in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or consolidation is a Subsidiary Guarantor, is a Subsidiary Guarantor)) or (b) acquire or create any Subsidiary unless, after giving effect to such acquisition or creation, (i) the Parent is in compliance with Section 7.11 and (ii) the Investment in such Subsidiary is permitted under Section 8.5. Notwithstanding the foregoing, the Term Borrower shall not (a) merge or consolidate with any Person or (b) acquire or create any Subsidiary.
Change in Nature of Business
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than the Eligible Line of Business.
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Transactions with Affiliates
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any transaction of any kind with any Affiliate of the Parent, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Parent or such Restricted Subsidiary as would be obtainable by the Parent or such Restricted Subsidiary at the time in a comparable arms length transaction with a Person other than an Affiliate except (a) transactions among the Borrower and its Restricted Subsidiaries, (b) Restricted Payments otherwise permitted by this Agreement, (c) the payment of the operating expenses and capital expenditures of a Subsidiary of the Parent, so long as such payment is in the ordinary course of business and consistent with past business practices with respect to such Subsidiary prior to the date hereof and (d) transactions in accordance with the agreements listed on Schedule 8.8 hereto.
Restrictions on Subsidiary Distributions; No New Negative Pledge
Other than (a) pursuant to the Loan Documents or (b) pursuant to any secured Indebtedness or Capital Lease Obligations permitted by Section 8.1(b), (d), (e), (l), (m), (p), (q), or (r) so long as any prohibition or limitation is only effective against the assets securing such Indebtedness, the Parent shall not, and shall not permit any Restricted Subsidiaries to, (i) except as in effect on the date hereof and other than for Joint Ventures and Subsidiaries that are not Guarantors, agree to enter into or suffer to exist or become effective any consensual encumbrance or consensual restriction of any kind on the ability of such Subsidiary to pay dividends or make any other distribution or transfer of funds or assets or make loans or advances to or other Investments in, or pay any Indebtedness owed to, the Parent or any other Restricted Subsidiary of the Parent or (ii) other than customary non-assignment provisions in contracts entered into in the ordinary course of business, enter into or permit to exist or become effective any enforceable agreement prohibiting or limiting the ability of the Parent or any Restricted Subsidiary to create, incur, assume or permit to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, to secure the Obligations, including any agreement requiring any other Indebtedness or Contractual Obligation to be equally and ratably secured with the Obligations.
Modification of Constituent Documents
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, change its capital structure (including the terms of its outstanding Stock) or otherwise amend its Constituent Documents except those that do not materially and adversely affect the rights and privileges of the Parent or any of its Subsidiaries and do not materially and adversely affect the interests of the Secured Parties under the Loan Documents or the rights and interests of any of them in the Collateral.
Accounting Changes; Fiscal Year
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, (a) make any material change in its accounting treatment and reporting practices or tax reporting treatment, except as required by GAAP or any Requirement of Law and disclosed to the Lenders and the Administrative Agent or (b) change its Fiscal Year.
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Margin Regulations
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, use all or any portion of the proceeds of any credit extended hereunder to purchase or carry margin stock (within the meaning of Regulation U of the Federal Reserve Board) in contravention of Regulation U of the Federal Reserve Board.
Sale/Leasebacks
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction unless (a) the proceeds of such transaction received by the Loan Parties equal the Fair Market Value of the properties subject to such transaction, (b) such transaction does not involve a Mortgaged Vessel and (c) after giving effect to such sale and leaseback transaction, the aggregate Fair Market Value of all properties covered at any one time by all sale and leaseback transactions permitted hereunder (other than any sale and leaseback transaction of property entered into within 90 days of the acquisition of such property from a Person other than the Parent or any Affiliate thereof) does not exceed $10,000,000.00 in any Fiscal Year.
Capital Expenditures
The Parent shall not make or incur, or permit its Restricted Subsidiaries to make or incur, Capital Expenditures except that the Parent and its Restricted Subsidiaries may make or incur Capital Expenditures during (a) the Fiscal Year ending December 31, 2014 in excess of $400,000,000.00 in the aggregate, (b) the Fiscal Year ending December 31, 2015 in excess of an aggregate amount equal to (i) $450,000,000.00 plus (ii) the amount of Capital Expenditures permitted to be made pursuant to clause (a) in the prior Fiscal Year and not made in such prior Fiscal Year and (c) the Fiscal Year ending December 31, 2016 in excess of an aggregate amount equal to (i) $250,000,000.00 plus (ii) the amount of Capital Expenditures permitted to be made pursuant to clause (b) in the prior Fiscal Year and not made in such prior Fiscal Year.
Cancellation of Indebtedness Owed to It
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, cancel any material claim or Indebtedness owed to any of them except (a) in the ordinary course of business, or (b) if such Indebtedness is owed by a Guarantor to a Loan Party, and such Indebtedness is either (i) cancelled in exchange for Stock of such Guarantor, (ii) converted into Stock of such Guarantor or (iii) converted such that it increases the paid-in-capital of such Loan Party in such Guarantor.
No Speculative Transactions
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any material speculative transaction or in any material transaction involving the entry into of Hedging Contracts by such Person except for the sole purpose of hedging in the ordinary course of business.
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Post-Termination Benefits
Except to the extent required under Section 4980B of the Code or similar state laws, the Parent shall not, and shall not permit any of its Restricted Subsidiaries to, adopt any Employee Benefit Plan that provides health or welfare benefits (through the purchase of insurance or otherwise) to any retired or former employees, consultants or directors (or their dependents) of the Parent or any of its Subsidiaries.
Activities in Panama
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, invest the proceeds of any Term Loan in any activity within the territory of the Republic of Panama if such activity will (i) generate taxable income under Panamanian tax laws that will have to be paid by the Parent or any of its Subsidiaries to a Panamanian Governmental Authority; or (ii) cause any payment to a Lender or the Administrative Agent to be subject to Panamanian tax, including withholding tax.
Vessel Flags
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, change the flag under which any Mortgaged Vessel is registered or register a Mortgaged Vessel under any flag unless (i) the Parent shall have provided at least 10 Business Days (or such shorter period permitted by the Administrative Agent in its sole discretion) advance notice to the Administrative Agent, (ii) the flag under which such Mortgaged Vessel is to be registered is listed on Schedule 8.19 or is otherwise acceptable to the Administrative Agent in its sole discretion and (iii) the Parent otherwise complies with the requirements contained in the Mortgage applicable to the Mortgaged Vessel in question with respect to changing the flag of a Mortgaged Vessel or registering a Mortgaged Vessel under any flag.
Payments of Junior Priority Indebtedness
The Parent shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment or prepayment (including any redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment) on account of principal of any Junior Priority Indebtedness, except (a) regularly scheduled principal payments as and when due in respect of any Junior Priority Indebtedness, (b) refinancings of Junior Priority Indebtedness with the proceeds of other Indebtedness permitted under Section 8.1 and (c) so long as no Default or Event of Default has occurred and is continuing, or would result therefrom, prepayments in an aggregate amount not to exceed (i) prior to the Scheduled Letter of Credit Facility Termination Date, $50,000,000.00 and (ii) after the Scheduled Letter of Credit Facility Termination Date, $150,000,000.00 (since the Effective Date). For the avoidance of doubt, the prepayment of any Indebtedness owed by a North Ocean Entity that is existing on the Effective Date shall not be restricted by this Section 8.20.
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Amendments to Joint Venture Agreements.
The Parent shall not, and shall not permit any of its Subsidiaries to, amend (a) the purchase options contained in the joint venture agreements relating to Persons that own the NO 102 and the NO 105 or (b) any joint venture agreement in any manner, in either case if such amendment would be materially adverse to the interests of the Secured Parties.
Certain Matters Relating to the Term Borrower.
In addition to the restrictions set forth under Section 8.1 hereof, the Term Borrower will not incur any Indebtedness unless:
the LC Borrower is a co-obligor or guarantor of such Indebtedness, or
the net proceeds of the Indebtedness are either lent to the LC Borrower, used to acquire outstanding Indebtedness of the LC Borrower, or used, directly or indirectly, to refinance or discharge Term Loans or Indebtedness permitted under the limitation of this Section 8.22.
The Term Borrower will not engage in any business not related, directly or indirectly, to obtaining money or arranging financing for the LC Borrower or own a direct or indirect interest in any other Person.
EVENTS OF DEFAULT
Events of Default
Each of the following events shall be an Event of Default:
either Borrower shall fail to pay any principal of any Term Loan or any Reimbursement Obligation when the same becomes due and payable; or
either Borrower shall fail to pay any interest on any Term Loan, any fee under any of the Loan Documents or any other Obligation (other than one referred to in clause (a) above) and such non-payment continues for a period of three Business Days after the due date therefor; or
any representation or warranty made or deemed made by any Loan Party in any Loan Document shall prove to have been incorrect in any material respect when made or deemed made; or
any Loan Party shall fail to perform or observe (i) any term, covenant or agreement contained in Article V, Section 6.3, Section 7.1, Section 7.6, Section 7.17, or Article VIII; provided that, (x) in the case of any failure to perform or observe the
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covenants set forth in Section 5.1, 5.2, 5.3, 6.1(e), 6.2(b), 6.11 or 8.14 (each a Specified LC Lender Event of Default), such Specified LC Lender Event of Default shall not constitute an Event of Default with respect to the Term Loans unless and until the Requisite LC Lenders have declared all Letter of Credit Obligations to be immediately due and payable and all outstanding Letter of Credit Facility Commitments to be immediately terminated, in each case in accordance with this Agreement and such declaration has not been rescinded on or before such date, and (y) in the case of any failure to perform or observe the covenant set forth in Section 5.4 (a Specified Term Lender Event of Default), such Specified Term Lender Event of Default shall not constitute an Event of Default with respect to any Letter of Credit Obligations unless and until the Requisite Term Lenders have declared all Term Loans to be immediately due and payable and all outstanding Term Commitments to be immediately terminated, in each case in accordance with this Agreement and such declaration has not been rescinded on or before such date, or (ii) any other term, covenant or agreement contained in this Agreement or in any other Loan Document if such failure under this clause (ii) shall remain unremedied for 30 days after the earlier of (A) the date on which a Responsible Officer of either Borrower obtains actual knowledge of such failure and (B) the date on which written notice thereof shall have been given to the Parent by the Administrative Agent or any Lender; or
(i) either Borrower or any of the Parents Material Subsidiaries shall fail to make any payment on any recourse Indebtedness of such Borrower or any such Material Subsidiary (other than the Obligations) or any Guaranty Obligation in respect of Indebtedness of any other Person, and, in each case, such failure relates to Indebtedness having a principal amount of $55,000,000.00 or more when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), (ii) any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or (iii) any such Indebtedness shall become or be declared to be due and payable, or required to be prepaid or repurchased (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; provided that clauses (ii) and (iii) above shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(ii) either Borrower or any of the Parents Material Subsidiaries shall generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors, (ii) any proceeding shall be instituted by or against either Borrower or any of the Parents Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts, under any Requirement of Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee or other similar official for it or for any substantial part of its property; provided, however, that, in the case of any such proceedings instituted against either Borrower or any of the Parents Material Subsidiaries (but not instituted by the Parent or any of its Subsidiaries), either such
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proceedings shall remain undismissed or unstayed for a period of 60 days or more or an order or decree approving or ordering any of the foregoing shall be entered, or (iii) either Borrower or any of the Parents Material Subsidiaries shall take any corporate action to authorize any action set forth in clause (i) or (ii) above; or
one or more judgments, injunctions or orders (or other similar process) involving, in the case of a money judgment, an amount in excess of $50,000,000.00 in the aggregate (to the extent not covered by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage), shall be rendered against one or more of either Borrower and the Parents Material Subsidiaries and shall remain unpaid and either (x) enforcement proceedings shall have been commenced by any creditor upon such judgment, injunction or order or (y) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment, injunction or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(i) one or more ERISA Events shall occur and the amount of all liabilities and deficiencies resulting therefrom imposed on or which could reasonably be expected to be imposed directly on the Parent, any of its Subsidiaries or any Subsidiary Guarantor, whether or not assessed, when taken together with amounts of all such liabilities and deficiencies for all other such ERISA Events exceeds $50,000,000.00 in the aggregate, or (ii) there exists any fact or circumstance that reasonably could be expected to result in the imposition of a Lien or security interest under Section 430 of the Code or under ERISA; or
any provision of any Collateral Document or any other Loan Document shall for any reason, except as permitted by the Loan Documents, cease to be valid and binding on, or enforceable against, any Loan Party which is a party thereto, or any Loan Party shall so state in writing; or
any Collateral Document shall for any reason fail or cease to create a valid Lien on any Collateral with an aggregate value of $15,000,000.00 or more purported to be covered thereby or, except as permitted by the Loan Documents, such Lien shall fail or cease to be a perfected and first priority Lien or any Loan Party shall so state in writing;
there shall occur any Change of Control; or
the Parent or any of its Subsidiaries shall make payment or perform obligations under or in respect of any Guaranty Obligation in respect of the obligations of the Babcock Entities having an aggregate value for all such payments and performance on and after the Effective Date in excess of $15,000,000.00.
Remedies
During the continuance of any Event of Default, the Administrative Agent (a) may, and, at the request of the Requisite Lenders, shall, by notice to the Borrowers declare that all or any portion of the Letter of Credit Facility Commitments and Term Commitments be terminated, whereupon the obligation of each Term Lender to make any
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Term Loan and each Issuer to Issue any Letter of Credit shall immediately terminate and (b) may and, at the request of the Requisite Lenders, shall, by notice to the Borrowers, declare the Term Loans, all interest thereon and all other amounts and Obligations payable under this Agreement to be forthwith due and payable, whereupon the Term Loans, all such interest and all such amounts and Obligations shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, if, on or after the 90th day after an Event of Default has occurred and is continuing, the Requisite Lenders have not directed the Administrative Agent to take the actions set forth in clause (a) or (b) of the immediately preceding sentence, then either the Requisite Term Lenders or the Requisite LC Lenders shall be entitled to so direct the Administrative Agent; provided, further, that upon the occurrence of any Event of Default specified in Section 9.1(f) with respect to either Borrower, (x) the Term Commitments of each Term Lender to make Term Loans and the commitments of each LC Lender and Issuer to Issue or participate in Letters of Credit shall each automatically be terminated and (y) the Term Loans, all such interest and all such amounts and Obligations shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrowers. In addition to the remedies set forth above, the Administrative Agent and the Collateral Agent may exercise any remedies provided for by the Collateral Documents in accordance with the terms thereof or any other remedies provided by applicable law.
Notwithstanding the foregoing, (a) no Term Lender shall have any right to exercise, or direct the Administrative Agent to exercise or refrain from exercising, any right or remedy arising or available hereunder or under any other Loan Document upon the occurrence or during the continuance of an Event of Default if the only such Event of Default that shall have occurred and be continuing is a Specified LC Lender Event of Default and the Requisite LC Lenders have not declared all Letter of Credit Obligations to be immediately due and payable and all outstanding Letter of Credit Facility Commitments to be immediately terminated (and the Requisite LC Lenders shall be entitled to declare all Obligations hereunder to be immediately due and payable, terminate all outstanding Letter of Credit Facility Commitments and Term Commitments and direct the Administrative Agent to exercise any remedies provided for by the Collateral Documents in accordance with the terms thereof or any other remedies provided by applicable law upon the occurrence and during the continuance of a Specified LC Lender Event of Default), and (b) no LC Lender shall have any right to exercise, or direct the Administrative Agent to exercise or refrain from exercising, any right or remedy arising or available hereunder or under any other Loan Document upon the occurrence or during the continuance of an Event of Default if the only such Event of Default that shall have occurred and be continuing is a Specified Term Lender Event of Default and the Requisite Term Lenders have not declared all Term Loans to be immediately due and payable and all outstanding Term Commitments to be immediately terminated (and the Requisite Term Lenders shall be entitled to declare all Obligations hereunder to be immediately due and payable, terminate all outstanding Term Commitments and Letter of Credit Facility Commitments and direct the Administrative Agent to exercise any remedies provided for by the Collateral Documents in accordance with the terms thereof or any other remedies provided by applicable law upon the
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occurrence and during the continuance of a Specified Term Lender Event of Default). For the avoidance of doubt, nothing in this paragraph shall in any way limit or restrict the rights or remedies of (x) the Term Lenders in connection with any Default or Event of Default other than a Specified LC Lender Event of Default (whether arising before or after the occurrence of such Specified LC Lender Event of Default) or (y) the LC Lenders in connection with any Default or Event of Default other than a Specified Term Lender Event of Default (whether arising before or after the occurrence of such Specified Term Lender Event of Default).
Actions in Respect of Letters of Credit
Upon the Letter of Credit Facility Termination Date, the LC Borrower shall pay to the Administrative Agent in immediately available funds at the Administrative Agents office referred to in Section 11.8, for deposit in the Cash Collateral Account in accordance with Section 2.19(b), an amount equal to 105% of the sum of all outstanding Letter of Credit Obligations. The Administrative Agent may, from time to time after funds are deposited in any Cash Collateral Account with respect to Letters of Credit (and while an Event of Default has occurred and is continuing or after the acceleration of the Obligations), apply funds then held in such Cash Collateral Account to the payment of any amounts as shall have become or shall become due and payable by the LC Borrower to the Issuers or Lenders in respect of the Letter of Credit Obligations. The Administrative Agent shall promptly give written notice of any such application; provided, however, that the failure to give such written notice shall not invalidate any such application.
THE ADMINISTRATIVE AGENT AND OTHER AGENTS
Authorization and Action
Appointment and Authority. Each of the Lenders and each Issuer hereby irrevocably appoints CA CIB (i) to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto and (ii) to act on behalf of each Lender, each Issuer and the other Secured Parties as the Collateral Agent hereunder and under the Collateral Documents and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article X are solely for the benefit of the Administrative Agent, the Collateral Agent the Lenders and the Issuer, and neither the Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions or any obligations with respect thereto.
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Exculpatory Provisions. Neither the Administrative Agent nor the Collateral Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, neither the Administrative Agent nor the Collateral Agent: (i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing; (ii) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent or the Collateral Agent, as applicable, is required to exercise as directed in writing by the Requisite Lenders or, if applicable, the Requisite Term Lenders or Requisite LC Lenders (or such other number or percentage of the Lenders, Term Lenders or LC Lenders, as applicable, as shall be expressly provided for herein or in the other Loan Documents), provided that neither the Administrative Agent nor the Collateral Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable law; and (iii) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, nor shall be liable for the failure to disclose, any information relating to the Borrowers or any of their Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, the Collateral Agent or any Affiliates of the foregoing in any capacity.
Neither the Administrative Agent nor the Collateral Agent shall be liable for any action taken or not taken by it (A) with the consent or at the request of the Requisite Lenders or, if applicable, the Requisite Term Lenders or Requisite LC Lenders (or such other number or percentage of the Lenders, Term Lenders or LC Lenders, as applicable, as shall be necessary, or as the Administrative Agent or the Collateral Agent, as applicable, shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.1 and 9.2) or (B) in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent or the Collateral Agent, as applicable, by a Borrower, a Lender or an Issuer.
Neither the Administrative Agent nor the Collateral Agent shall be responsible for or have any duty to ascertain or inquire into (u) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (v) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (w) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (x) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (y) the value or the sufficiency of any Collateral, or (z) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Collateral Agent, as applicable.
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Delegation of Duties. The Administrative Agent and the Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent or the Collateral Agent, as applicable. The Administrative Agent, the Collateral Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of the Administrative Agent, the Collateral Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent or Collateral Agent, as applicable.
Administrative Agents Reliance, Etc.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Term Loan, or the Issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the Issuer prior to the making of such Term Loan or the Issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers or any other Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Agents Individually
The Person serving as each Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not such Agent and the term Lender or Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Persons serving as the Agents hereunder in such Persons individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders.
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Lender Credit Decision
Each Lender and each Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Indemnification
Each Lender agrees to indemnify the Administrative Agent, the Collateral Agent and each Issuer and each of their respective Affiliates, and each of their respective Related Parties (to the extent not reimbursed by the Borrowers), from and against such Lenders aggregate Ratable Portion (determined at the time such indemnity is made) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against, the Administrative Agent, the Collateral Agent or such Issuer or any of their respective Related Parties in any way relating to or arising out of this Agreement or the other Loan Documents or any action taken or omitted by the Administrative Agent, the Collateral Agent, or such Issuer under this Agreement or the other Loan Documents; provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agents, Collateral Agents or such Issuers or such Related Partys gross negligence or willful misconduct. Without limiting the foregoing, each Lender agrees to reimburse the Administrative Agent, the Collateral Agent, or each Issuer as applicable, promptly upon demand for its Ratable Portion (determined at the time such reimbursement is made) of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Administrative Agent, the Collateral Agent, or such Issuer as applicable, in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Loan Documents, to the extent that the Administrative Agent, the Collateral Agent, or such Issuer, as applicable, is not reimbursed for such expenses by the Borrowers or any other Loan Party.
To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered
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or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered the exemption from or reduction of withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with any all expenses incurred.
Successor Agents
The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuers and the Borrowers. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which shall be a bank with an office in the United States of America, or an Affiliate of any such bank with an office in the United States of America. If no successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrowers and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuer directly, until such time as the Requisite Lenders appoint a successor Administrative Agent as provided for above in this paragraph. Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Administrative Agents resignation hereunder and under the other Loan Documents, the provisions of this Article X and Sections 11.3 and 11.4 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
The Collateral Agent may at any time give notice of its resignation to the Lenders, the Issuers and the Borrowers. Upon receipt of any such notice of resignation, the Requisite Lenders shall have the right, in consultation with the Borrowers, to appoint
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a successor, which shall be a bank with an office in the United States of America, or an Affiliate of any such bank with an office in the United States of America. If no successor shall have been so appointed by the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may on behalf of the Lenders and the Issuers, appoint a successor Collateral Agent meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the Borrowers and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders or the Issuer under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Lender and each Issuer directly, until such time as the Requisite Lenders appoint a successor Collateral Agent as provided for above in this paragraph. Upon the acceptance of a successors appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrowers to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring Collateral Agents resignation hereunder and under the other Loan Documents, the provisions of this Article X and Sections 11.3 and 11.4 shall continue in effect for the benefit of such retiring Collateral Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent.
Concerning the Collateral and the Collateral Documents
Each Lender and each Issuer agrees that any action taken by the Administrative Agent, the Collateral Agent or the Requisite Lenders (or, where required by the express terms of this Agreement, a different proportion of the Lenders) in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by the Administrative Agent, the Collateral Agent or the Requisite Lenders (or, where so required, such other proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be deemed authorized by and shall be binding upon all of the Lenders, Issuers and other Secured Parties. Without limiting the generality of the foregoing, the Administrative Agent and the Collateral Agent, as applicable, shall have the sole and exclusive right and authority to (i) act as the disbursing and collecting agent for the Lenders and the Issuers with respect to all payments and collections arising in connection herewith and with the Collateral Documents, (ii) execute and deliver each Collateral Document and accept delivery of each such agreement delivered by the Parent or any of its Subsidiaries,
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(iii) act as collateral agent for the Lenders, the Issuers and the other Secured Parties for purposes of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such action as is necessary or desirable to maintain the perfection and priority of the security interests and Liens created or purported to be created by the Collateral Documents and (vi) except as may be otherwise specifically restricted by the terms hereof or of any other Loan Document, exercise all remedies given to the Administrative Agent, the Collateral Agent, the Lenders, the Issuers and the other Secured Parties with respect to the Collateral under the Loan Documents relating thereto, applicable law or otherwise.
Each of the Lenders and the Issuers hereby irrevocably consents, in accordance with the terms hereof, to the Collateral Agents release (or, in the case of clause (ii) below, release or subordination) of any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following:
all of the Collateral, upon termination or expiration of the Letter of Credit Facility Commitments and Term Commitments and payment in full of all Term Loans, Reimbursement Obligations and all other Obligations, including the cash collateralization of any Letter of Credit Exposure to the extent required under this Agreement (other than contingent indemnification obligations for which no claims has been asserted, any Treasury Management Obligations and any Hedging Obligations) that the Collateral Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back-up letter of credit has been issued, in either case on terms reasonably satisfactory to the Administrative Agent and the applicable Issuers);
any assets that are subject to a Lien permitted by Section 8.2(b), (d)(ii), (d)(iii) or (l) or any refinancings thereof permitted under Section 8.2(e); and
if such sale or disposition is permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement), any Collateral sold or disposed of by a Loan Party and/or the guaranty of any Subsidiary Guarantor which has been voluntarily sold or disposed of by a Loan Party or otherwise ceases to be a Subsidiary of the Parent as a result of a transaction permitted by this Agreement.
Each of the Lenders and the Issuers hereby irrevocably consents, in accordance with the terms hereof, to the Administrative Agents release any Subsidiary Guarantor from its obligations under the Pledge and Security Agreement if such release is permitted by Section 11.1(a)(viii). Each of the Lenders and the Issuers hereby irrevocably consents to the Collateral Agents execution, delivery and filing of such termination and partial release statements and such other things as are necessary to release Liens and guaranties to be released pursuant to this Section 10.7 promptly upon the effectiveness of any such release.
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The Administrative Agent and the Collateral Agent are hereby authorized to enter into intercreditor arrangements with holders of Permitted Second Lien Debt. A copy of any documents evidencing such intercreditor arrangements will be made available to each Secured Party upon request. Each Secured Party (by receiving the benefits thereunder) acknowledges and agrees to the terms of such intercreditor arrangements and agrees that the terms thereof shall be binding on such Secured Party and its successors and assigns as if it were a party thereto.
Collateral Matters Relating to Related Obligations
The benefit of the Loan Documents and of the provisions of this Agreement relating to the Collateral shall extend to and be available in respect of any Obligation that is otherwise owed to Persons other than the Administrative Agent, the Collateral Agent, the Lenders and the Issuers (collectively, Related Obligations) solely on the condition and understanding, as among the Collateral Agent and all Secured Parties, that (a) the Related Obligations shall be entitled to the benefit of the Loan Documents and the Collateral to the extent expressly set forth in this Agreement and the other Loan Documents and to such extent the Collateral Agent shall hold, and have the right and power to act with respect to, the Collateral Documents and the Collateral on behalf of and as agent for the holders of the Related Obligations, but the Collateral Agent is otherwise acting solely as agent for the Lenders and the Issuers and shall have no fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligation whatsoever to any holder of Related Obligations, (b) all matters, acts and omissions relating in any manner to the Collateral Documents, the Collateral, or the omission, creation, perfection, priority, abandonment or release of any Lien, shall be governed solely by the provisions of this Agreement and the other Loan Documents and no separate Lien, right, power or remedy shall arise or exist in favor of any Secured Party under any separate instrument or agreement or in respect of any Related Obligation, (c) each Secured Party shall be bound by all actions taken or omitted, in accordance with the provisions of this Agreement and the other Loan Documents, by the Administrative Agent, the Collateral Agent and the Requisite Lenders or, if applicable, the Requisite Term Lenders or Requisite LC Lenders (or such other group of the Lenders, Term Lenders or LC Lenders, as applicable, as shall be expressly provided for herein or in the other Loan Documents), each of whom shall be entitled to act at its sole discretion and exclusively in its own interest given its own Letter of Credit Facility Commitment and/or Term Commitment and its own interest in the Term Loans, Letter of Credit Obligations and other Obligations arising under this Agreement or the other Loan Documents, without any duty or liability to any other Secured Party or as to any Related Obligation and without regard to whether any Related Obligation remains outstanding or is deprived of the benefit of the Collateral or becomes unsecured or is otherwise affected or put in jeopardy thereby, and (d) no holder of Related Obligations and no other Secured Party (except the Administrative Agent, the Collateral Agent, the Lenders and the Issuers, to the extent set forth in this Agreement) shall have any right to be notified of, or to direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under this Agreement or the Loan Documents. Notwithstanding any other provision of any Loan Document to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under
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Treasury Management Agreements and Hedging Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Secured Party, as the case may be.
Other Agents
Anything herein to the contrary notwithstanding, none of the Syndication Agents, the Documentation Agent, the Arrangers or the Bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral Agent, a Lender or an Issuer hereunder.
MISCELLANEOUS
Amendments, Waivers, Etc.
Except as provided in Section 2.18 and Section 2.21, no amendment or waiver of any provision of this Agreement or any other Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrowers, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby (or the Administrative Agent with the consent thereof), do any of the following:
waive any condition specified in Section 3.1 or 3.2(b), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1, subject to the provisions of Section 3.3;
increase the Letter of Credit Facility Commitment or Term Commitment of such Lender;
extend the scheduled final maturity of any Term Loan owing to such Term Lender or any Reimbursement Obligation payable to such LC Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal of any such Term Loan or Reimbursement Obligation or for the reduction of such Lenders Letter of Credit Facility Commitment or Term Commitment, as the case may be;
reduce the principal amount of any Term Loan owing to such Lender or any Reimbursement Obligation payable to such LC Lender (in each case, other than by the payment or prepayment thereof);
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reduce the rate or amount of interest on any Term Loan outstanding to such Term Lender or any Reimbursement Obligations outstanding or any fee payable hereunder to such LC Lender; provided, however, that (A) only the consent of the Requisite LC Lenders shall be necessary to waive any obligation of the LC Borrower to pay interest on the Letter of Credit Obligations or Letter of Credit Participation Fees at the default rate set forth in Section 2.4(h) and Section 2.12(b)(ii), respectively, and (B) only the consent of the Requisite Term Lenders shall be necessary to waive any obligation of the Term Borrower to pay interest on the Obligations in respect of the Term Loans at the default rate set forth in Section 2.10(c);
postpone any scheduled date fixed for payment of such interest or fees owing to such Lender;
(x) alter the manner in which payments or prepayments of principal, interest or other amounts hereunder shall be applied as among the Lenders or (y) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
release all or substantially all of the Collateral except as provided in Section 10.7(b) or release any Borrower from its payment obligation to such Lender under this Agreement or the Notes owing to such Lender (if any) or release any Guarantor from its obligations under the Pledge and Security Agreement except, in the case of a Subsidiary Guarantor (other than the Term Borrower) only, in connection with the sale or other disposition of such Subsidiary Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); provided, however, that notwithstanding the foregoing, any Immaterial Guarantor may be released with the consent of the Administrative Agent; or
amend Section 2.13(e) or (f), Section 10.7(b), this Section 11.1, the sharing provisions of Section 11.7 or the definitions of the terms Requisite Lenders, Requisite LC Lenders, Requisite Term Lenders or Ratable Portion; and
provided, further, that notwithstanding the foregoing: (t) only the consent of the Requisite LC Lenders shall be required to waive, amend or modify Section 5.1, Section 5.2, Section 5.3, Section 6.1(e), Section 6.2(b), Section 6.11 or Section 8.14 or the definitions referenced therein to the extent solely affecting such Section or to waive any Specified LC Lender Event of Default, (u) only the consent of the Requisite Term Lenders shall be required to waive, amend or modify Section 5.4 or the definitions referenced therein to the extent solely affecting such Section or to waive any Specified Term Lender Event of Default, (v) no amendment shall be made to this clause (a) without the prior written consent of each Lender, (w) no amendment, waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant to Section 11.2(g), affect the grant or nature of such option or the right or duties of such
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Special Purpose Vehicle hereunder, (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the other Loan Documents, (y) no amendment, waiver or consent shall, unless in writing and signed by such Issuer, affect the rights or duties of any Issuer under this Agreement or the other Loan Documents and (z) each Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the Lenders other than Defaulting Lender), except that (x) the Letter of Credit Facility Commitments of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower in any case shall entitle such Borrower to any other or further notice or demand in similar or other circumstances.
If, in connection with any proposed amendment, modification, waiver or termination (a Proposed Change) requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 11.1(c) being referred to as a Non-Consenting Lender), then, at the Borrowers request, the Administrative Agent or an Eligible Assignee acceptable to the Administrative Agent shall have the right (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agents request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Letter of Credit Facility Commitments, Term Commitments and applicable Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all applicable Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto and other amounts due and payable hereunder through the date of sale, such purchase and sale to be consummated pursuant to an Assignment and Acceptance, and the Assignee shall pay any processing and recordation fee (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided, however, that the failure to execute such Assignment and Acceptance by the Non-Consenting Lender shall not invalidate such assignment, and such Assignment and Acceptance shall be deemed to be executed upon receipt by such Non-Consenting Lender of the proceeds of such sale and acceptance.
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Without limiting Section 7.11, the Secured Parties agree that the Administrative Agent may release the Subsidiary Guarantor owning the DLV 2000 from its obligations under the Pledge and Security Agreement and the other Collateral Documents concurrently with the incurrence by such Subsidiary Guarantor of DLV 2000 Permitted Debt.
Assignments and Participations
Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of clause (b) below, (ii) by way of participation in accordance with the provisions of clause (d) below or (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (f) below (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) below and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Arrangers, the Bookrunners, the Syndication Agents, the Documentation Agent, the Lenders, and the Issuers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Letter of Credit Facility Commitment, Term Commitment and the Term Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:
Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lenders Letter of Credit Facility Commitment or Term Commitment and the Term Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in clause (A) above, the aggregate amount of the Letter of Credit Facility Commitment (which for this purpose includes Letter of Credit Obligations outstanding thereunder) or, the Term Commitment or if the Term Commitment is not then in effect, the principal outstanding balance of the Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent or, if Trade Date is specified in the Assignment and Acceptance, as of the Trade Date) shall not be less than $1,000,000.00 unless the Administrative Agent and, in the case of assignments of the Letter of Credit Facility Commitments or Letter of Credit Obligations, so long as no Event of Default has occurred and is continuing, the LC Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
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Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Term Loans (or Term Commitment) or the Letter of Credit Facility Commitment.
Required Consents. No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) above and, in addition, in the case of assignments of the Letter of Credit Facility Commitments or Letter of Credit Obligations only: (A) the consent of the LC Borrower (such consent not to be unreasonably withheld) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to an LC Lender, an Affiliate of an LC Lender or an Approved Fund with respect to an LC Lender; provided that the LC Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof; (B) the consent of the Administrative Agent and each Issuer (such consent not to be unreasonably withheld or delayed) shall be required for assignments of any Letter of Credit Facility Commitment or Letter of Credit Obligations; and (C) the consent of each Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding).
Assignment and Acceptance. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500.00 (except in the case of assignments of the Term Commitments or Term Loans made by or to Goldman Sachs), and the assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
No Assignment to Borrower. No such assignment shall be made to either Borrower or any of the Parents Affiliates or Subsidiaries.
No Assignment to Natural Persons. No such assignment shall be made to a natural person.
No Assignment to Defaulting Lenders. In the case of an assignment of the Letter of Credit Facility Commitment or Letter of Credit Obligations only, no such assignment shall be made to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons.
No Assignment to Disqualified Term Lenders. In the case of an assignment of a Term Commitment or Term Loans only, no such assignment shall
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be made to any Disqualified Term Lender. Upon any Term Lenders written request to the Administrative Agent, the Administrative Agent shall make available to such Term Lender the list of the Disqualified Term Lenders.
Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all participations in Letters of Credit in accordance with its Ratable Portion. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) below, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.14, 11.4 and 11.5 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (d) below.
Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at its address referred to in Section 11.8 a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Letter of Credit Facility Commitments and Term Commitments of, and principal amounts of the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the
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Register information regarding the designation, and revocation of designation, of any LC Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrowers or any of the Parents Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Letter of Credit Facility Commitment, Term Commitment and/or the Term Loans owing to it); provided that (i) such Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the Issuers shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Term Loans or other obligations under the Loan Documents (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver which would (x) reduce the amount, or postpone any date fixed for any amount (whether of principal, interest or fees) payable to such Participant under the Loan Documents, to which such Participant would otherwise be entitled under such participation, (y) increase the commitment applicable to such Participant or (z) result in the release of all or substantially all of the Collateral or releasing any Guarantor that is not an Immaterial Guarantor other than pursuant to an exception described in Section 11.1(a)(viii). Subject to clause (e) below, the Borrowers agree that each Participant shall be entitled to the benefits of Section 2.14 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) above. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.6 as though it were a Lender, provided such Participant agrees to be subject to Section 11.7 as though it were a Lender.
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Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Sections 2.14(c), 2.15 and 2.16 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless, in the case of a participation of a Letter of Credit Facility Commitment or Letter of Credit Obligations, the sale of the participation to such Participant is made with the Borrowers prior written consent. A Participant shall be entitled to the benefits of Section 2.16 as if it were a Lender which received its interest pursuant to an assignment but only if the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 2.16(e) and (f) as though it were a Lender.
Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
In addition to the other assignment rights provided in this Section 11.2, each Lender may (i) grant to a Special Purpose Vehicle the option to make all or any part of any Term Loan that such Term Lender would otherwise be required to make hereunder and the exercise of such option by any such Special Purpose Vehicle and the making of Term Loans pursuant thereto shall satisfy (once and to the extent that such Term Loans are made) the obligation of such Term Lender to make such Term Loans thereunder, provided, however, that nothing herein shall constitute a commitment or an offer to commit by such a Special Purpose Vehicle to make Term Loans hereunder and no such Special Purpose Vehicle shall be liable for any indemnity or other Obligation (other than the making of Term Loans for which such Special Purpose Vehicle shall have exercised an option, and then only in accordance with the relevant option agreement), and (ii) assign, as collateral or otherwise, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to payments of principal or interest on the Term Loans) to (y) any trustee for the benefit of the holders of such Lenders Securities or any other holder of a Lenders debt obligations or representative of such holder or (z) to any Special Purpose Vehicle to which such Lender has granted an option pursuant to clause (i) above, in each case without notice to or consent of the Borrowers or the Administrative Agent; and provided, further, that no such assignment or grant shall release such Lender from any of its obligations hereunder except as expressly provided in clause (i) above. The parties hereto acknowledge and agree that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any such Special Purpose Vehicle, it will not institute against, or join any other Person in instituting against, any Special Purpose Vehicle that has been granted an option pursuant to this clause (g) any bankruptcy, reorganization, insolvency or liquidation proceeding (such agreement shall survive the payment in full of the Obligations).
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Any Issuer may, with, unless an Event of Default has occurred and is continuing, the prior written consent of the LC Borrower (such consent not to be unreasonably withheld or delayed) at any time assign its rights and obligations hereunder to any other LC Lender that is not a Defaulting Lender by an instrument in form and substance satisfactory to the LC Borrower, the Administrative Agent, such Issuer and such LC Lender. If any Issuer ceases to be an LC Lender hereunder by virtue of any assignment made pursuant to this Section 11.2(h), then, as of the effective date of such cessation, such Issuers obligations to Issue Letters of Credit pursuant to Section 2.4 shall terminate and such Issuer shall be an Issuer hereunder only with respect to outstanding Letters of Credit issued prior to such date.
Term Loan Repurchases. Notwithstanding anything to the contrary contained in this Section 11.2 or any other provision of this Agreement, the Term Borrower may repurchase outstanding Term Loans, and each Term Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loans to the Term Borrower, in each case, on the following basis:
Term Loan Repurchase Auctions. The Term Borrower may conduct one or more modified Dutch auctions (each, an Auction) to repurchase all or any portion of the Term Loans, provided that (1) the Term Borrower delivers a notice of such Auction to the Auction Manager and the Administrative Agent (for distribution to the Term Lenders) no later than 12:00 p.m. (New York City time) at least five Business Days in advance of a proposed commencement date of such Auction, which notice shall specify (x) the dates on which such Auction will commence and conclude, (y) the maximum principal amount of Term Loans that the Term Borrower desires to repurchase in such Auction and (z) the range of discounts to par at which the Term Borrower would be willing to repurchase the Term Loans, (2) the maximum dollar amount of such Auction shall be no less than an aggregate $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (3) such Auction shall be open for at least two Business Days after the date of the commencement thereof, (4) such Auction shall be open for participation by all the Term Lenders on a ratable basis, (5) a Term Lender that elects to participate in such Auction will be permitted to tender for repurchase all or a portion of such Term Lenders Term Loans, (6) each repurchase of Term Loans shall be of a uniform, and not varying, percentage of all rights of the assigning Term Lender hereunder with respect thereto, (7) at the time of the commencement and conclusion of such Auction, no Event of Default shall have occurred and be continuing and (8) such Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, so long as such procedures are consistent with this Section 11.2(i) and are reasonably acceptable to the Administrative Agent and the Term Borrower. In connection with any Auction, the Auction Manager and the Administrative Agent may request one or more certificates of a Responsible Officer of the Parent and the Term Borrower as to the satisfaction of the conditions set forth in clause (7) above and in Section 11.2(i)(ii).
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Representation as to MNPI. With respect to all Auctions commenced by the Term Borrower pursuant to this Section 11.2(i), the Parent and the Term Borrower shall represent that, as of the date of commencement of such Auction and the date of the conclusion thereof, the Parent and the Term Borrower are not aware of any information regarding the Parent and the Subsidiaries, their respective assets or the ability of any Loan Party to perform its Obligations, in each case, that (1) would reasonably be expected to be material to a decision by any Term Lender to participate in such Auction or to sell, assign and transfer its Term Loans pursuant thereto and (2) has not been previously disclosed in writing to the Administrative Agent and the Term Lenders (other than, as to any Term Lender, due solely to such Term Lenders election not to receive any MNPI).
Concerning the Repurchased Term Loans. Repurchases by the Term Borrower of Term Loans pursuant to this Section 11.2(i) shall not constitute voluntary prepayments for purposes of Section 2.6 or 2.8. The aggregate principal amount of the Term Loans repurchased by the Term Borrower pursuant to this Section 11.2(i) shall be applied to reduce the subsequent Installments to be paid pursuant to Section 2.6 with respect to the Term Loans in an inverse order of maturity. Upon the repurchase by the Term Borrower pursuant to this Section 11.2(i) of any Term Loans, such Term Loans shall, without further action by any Person, be deemed cancelled and no longer outstanding (and may not be resold by the Term Borrower) for all purposes of this Agreement and the other Loan Documents, including with respect to (1) the making of, or the application of, any payments to the Term Lenders under this Agreement or any other Loan Document, (2) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (3) the determination of Requisite Lenders or Requisite Term Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document. The Administrative Agent is authorized to make appropriate entries in the Register to reflect any cancellation of the Term Loans repurchased and cancelled pursuant to this Section 11.2(i). Any payment made by the Term Borrower in connection with a repurchase permitted by this Section 11.2(i) shall not be subject to the provisions of Section 2.13, Section 2.14(e) or Section 11.7. Failure by the Term Borrower to make any payment to a Term Lender required to be made in consideration of a repurchase of Term Loans permitted by this Section 11.2(i) shall not constitute a Default or an Event of Default under Section 9.1(a). Each Term Lender shall, to the extent that its Term Loans shall have been repurchased and assigned to the Term Borrower pursuant to this Section 11.2(i), relinquish its rights in respect thereof. Except as otherwise set forth in this Section 11.2(i), the provisions of this Section 11.2 shall not apply to any repurchase of Term Loans pursuant to this Section 11.2(i).
Costs and Expenses
The Borrowers jointly and severally agree upon demand to pay, or reimburse the Administrative Agent for all of the Administrative Agents reasonable external audit, appraisal, valuation, filing, document duplication and reproduction and
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investigation expenses and all of the Administrative Agents reasonable out-of-pocket legal expenses and for all other reasonable out-of-pocket costs and expenses of every type and nature (including, without limitation, the reasonable fees, expenses and disbursements of the Administrative Agents counsel, Bracewell & Giuliani LLP, local legal counsel, auditors, accountants, appraisers, printers, insurance and environmental advisors, and other consultants and agents, including any third party consultant engaged by the Administrative Agent to evaluate the Parent and its Subsidiaries) incurred by the Administrative Agent in connection with any of the following: (i) the Administrative Agents audit and investigation of the Parent and its Subsidiaries in connection with the preparation, negotiation or execution of any Loan Document or, if an Event of Default has occurred and is continuing, the Administrative Agents periodic audits of the Parent or any of its Subsidiaries (which audit expenses shall be reimbursed only if conducted when an Event of Default has occurred and is continuing), as the case may be, (ii) the preparation, negotiation, execution or interpretation of this Agreement (including, without limitation, the satisfaction or attempted satisfaction of any condition set forth in Article III, any Loan Document or any proposal letter or engagement letter issued in connection therewith, or the making of the Term Loans hereunder, (iii) the creation, perfection or protection of the Liens under any Loan Document (including any reasonable fees, disbursements and expenses for local counsel in various jurisdictions), (iv) the ongoing administration of this Agreement and the Term Loans and Letters of Credit, including consultation with attorneys in connection therewith and with respect to the Administrative Agents and the Collateral Agents rights and responsibilities hereunder and under the other Loan Documents, (v) the protection, collection or enforcement of any Obligation or the enforcement of any Loan Document, (vi) the commencement, defense or intervention in any court proceeding relating in any way to the Obligations, any Loan Party, any of the Parents Subsidiaries, this Agreement or any other Loan Document, (vii) the response to, and preparation for, any subpoena or request for document production with which any Agent is served or deposition or other proceeding in which any Agent is called to testify, in each case, relating in any way to the Obligations, any Loan Party, any of the Parents Subsidiaries, this Agreement or any other Loan Document or (viii) any amendment, consent, waiver, assignment, restatement, or supplement to any Loan Document or the preparation, negotiation, and execution of the same; provided, however, that the Borrowers shall not have any obligation under clauses (vi) and (vii) hereunder in connection with any action brought by one Secured Party against another Secured Party (except in its capacity as an Agent, if applicable). The LC Borrower also agrees upon demand to pay all reasonable out-of-pocket expenses incurred by an Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder. The Borrowers also jointly and severally agree upon demand to pay, or reimburse FTI Consulting, Inc. for, its reasonable out-of-pocket costs and expenses incurred in connection with its ongoing periodic financial review (including limited field-level reviews) of the Parent and its Subsidiaries. The Borrowers also jointly and severally agree upon demand to pay, or reimburse Goldman Sachs for, all reasonable out-of-pocket costs and expenses of every type and nature (including, without limitation, the reasonable fees, expenses and disbursements of Goldman Sachss counsel, Milbank, Tweed, Hadley & McCloy LLP) incurred by Goldman Sachs in connection with the preparation, negotiation or execution of any Loan Document or the marketing or syndication of the Term Facility.
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The Borrowers further jointly and severally agree to pay or reimburse each Agent and each of the Lenders and Issuers upon demand for all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys fees (including allocated costs of internal counsel and costs of settlement), incurred by such Agent, such Lenders or Issuers in connection with any of the following: (i) in enforcing any Loan Document or any security therefor or exercising or enforcing any other right or remedy available by reason of an Event of Default, (ii) in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a work-out or in any insolvency or bankruptcy proceeding, (iii) in commencing, defending or intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to the Obligations, any Loan Party, any of the Parents Subsidiaries and related to or arising out of the transactions contemplated hereby or by any other Loan Document or (iv) in taking any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) described in clause (i), (ii) or (iii) above; provided, however, that the Borrowers shall not have any obligation under clause (iii) hereunder in connection with any action brought by one Secured Party against another Secured Party (except in its capacity as an Agent, if applicable).
Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section 11.3 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Letter of Credit Facility Commitments and Term Commitments and the repayment, and the satisfaction or discharge of the Obligations
Indemnities
The Borrowers jointly and severally agree to and hereby do indemnify and hold harmless each Agent, each Lender and each Issuer and each of their respective Related Parties (including those retained in connection with the satisfaction or attempted satisfaction of any condition set forth in Article III) and each of their respective successors and assigns (each such Person being an Indemnitee) from and against any and all claims, damages, liabilities, obligations, losses, penalties, actions, judgments, suits, costs, disbursements and expenses of any kind or nature (including reasonable and customary fees, disbursements and expenses of financial and legal advisors to any such Indemnitee) that may be imposed on, incurred by or asserted against any such Indemnitee in connection with or arising out of any investigation, litigation or proceeding, whether or not any such Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by a Borrower or any of its Affiliates, whether direct, indirect, or consequential and whether based on any federal, state or local law or other statutory regulation, securities or commercial law or regulation, or under common law or in equity, or on contract, tort or otherwise, in any manner relating to or arising out of this Agreement, any other Loan Document, any Obligation, any Letter of Credit or any act, event or transaction related or attendant to any thereof, or the use or intended use of the
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proceeds of the Term Loans or Letters of Credit or in connection with any investigation of any potential matter covered hereby (collectively, the Indemnified Matters); provided, however, that the Borrowers shall not have any obligation under this Section 11.4 to an Indemnitee with respect to (i) any Indemnified Matter caused by or resulting from the gross negligence or willful misconduct of that Indemnitee, as determined by a court of competent jurisdiction in a final non-appealable judgment or order or order of an arbitral tribunal and (ii) any action brought by one Secured Party against another Secured Party (except in its capacity as an Agent, if applicable). Without limiting the foregoing, Indemnified Matters include (i) all Environmental Liabilities and Costs arising from or connected with the past, present or future operations of a Borrower or any of its Subsidiaries involving any property subject to a Collateral Document, or damage to real or personal property or natural resources or harm or injury alleged to have resulted from any Release of Contaminants on, upon or into such property or any contiguous real estate, (ii) any costs or liabilities incurred in connection with any Remedial Action concerning any Borrower or any of its Subsidiaries, (iii) any costs or liabilities incurred in connection with any Environmental Lien and (iv) any costs or liabilities incurred in connection with any other matter under any Environmental Law, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, (49 U.S.C. § 9601 et seq.) and applicable state property transfer laws, whether, with respect to any such matter, such Indemnitee is a mortgagee pursuant to any leasehold mortgage, a mortgagee in possession, the successor in interest to a Borrower or any of its Subsidiaries, or the owner, lessee or operator of any property of a Borrower or any of its Subsidiaries by virtue of foreclosure, except, with respect to those matters referred to in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred following foreclosure (or deed in lieu thereof) by the Administrative Agent, any Lender or any Issuer, or the Administrative Agent, any Lender or any Issuer having become the successor in interest to a Borrower or any of its Subsidiaries and (y) attributable solely to acts of the Administrative Agent, such Lender or such Issuer or any agent on behalf of the Administrative Agent, such Lender or such Issuer.
The Borrowers jointly and severally shall and do hereby indemnify each Agent, each Lender and each Issuer for, and hold each Agent, each Lender and each Issuer harmless from and against, any and all claims for brokerage commissions, fees and other compensation made against any Agent, any Lender and any Issuer for any broker, finder or consultant with respect to any agreement, arrangement or understanding made by or on behalf of any Loan Party or any of its Subsidiaries in connection with the transactions contemplated by this Agreement.
Promptly after receipt by an Indemnitee of service of any complaint or the commencement of any action or proceeding with respect to an Indemnified Matter, such Indemnitee will notify the Borrowers in writing of such complaint or of the commencement of such action or proceeding, but failure to so notify the Borrowers will relieve the Borrowers from the obligation to indemnify such Indemnitee only if and only to the extent that such failure results in the forfeiture by the Borrowers of substantial rights and defenses that actually and materially prejudice the Borrowers, and will not in any event relieve the Borrowers from any other obligation or liability that the Borrowers may have to any Indemnitee otherwise than in accordance with the provisions hereof. If
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the Borrowers so elect following their acknowledgment of their obligations to indemnify the Indemnitee, or if requested by such Indemnitee, the Borrowers will assume the defense of such action or proceeding, including the employment of counsel reasonably satisfactory to such Indemnitee and the payment of the fees and disbursements of such counsel. In the event, however, such Indemnitee reasonably determines in its judgment that having common counsel would present such counsel with a conflict of interest or if the defendants in or targets of any such action or proceeding include an Indemnitee and either or both Borrowers and such Indemnitee reasonably concludes that there may be legal defenses available to it or other Indemnitees that are different from or in addition to those available to either or both Borrowers, or if the Borrowers fail to assume the defense of the action or proceeding or to employ counsel reasonably satisfactory to such Indemnitee in a timely manner, then such Indemnitee may employ separate counsel to represent or defend it in any such action or proceeding and the Borrowers will pay the reasonable and customary fees and disbursements of such counsel; provided, however, that the Borrowers will not be required to pay the fees and disbursements of more than one separate counsel (in addition to local counsel) for such Indemnitee in any jurisdiction in any single action or proceeding. In any action or proceeding the defense of which the Borrowers assume, the Indemnitee will have the right to participate in such litigation and to retain its own counsel at such Indemnitees own expense.
The Borrowers agree that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 11.4) or any other Loan Document shall (i) survive payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Loan Document.
Limitation of Liability
The Borrowers agree that no Indemnitee shall have any liability (whether direct or indirect, in contract, tort or otherwise) to any Loan Party or any of their respective Subsidiaries or any of their respective equity holders or creditors for or in connection with the transactions contemplated hereby and in the other Loan Documents, except for direct damages (as opposed to special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings)) determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnitees gross negligence or willful misconduct. Each Borrower hereby waives, releases and agrees (for itself and on behalf of its Subsidiaries) not to sue upon any such claim for any special, indirect, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.
Right of Set-off
Upon the occurrence and during the continuance of any Event of Default, each Lender and each Affiliate of any of them is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other
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indebtedness at any time owing by such Lender or any of their respective Affiliates to or for the credit or the account of either Borrower against any and all of the Obligations now or hereafter existing whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and even though such Obligations may be unmatured. Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application made by such Lender or its respective Affiliates; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. In the event that any Defaulting Lender shall exercise any right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.20 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender under this Section 11.6 are in addition to the other rights and remedies (including other rights of set-off) that such Lender may have.
Sharing of Payments, Etc.
Subject to Section 2.13(f):
(iii) If any Term Lender obtains any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) of the Term Loans owing to it, any interest thereon, fees in respect thereof or other Obligations in respect of the Term Loans hereunder (other than payments pursuant to Section 2.14, 2.15 or 2.16) in excess of its Ratable Portion of all payments of such Obligations obtained by all the Term Lenders, such Term Lender (each, a Purchasing Term Lender) shall forthwith purchase from the other Term Lenders (each, a Selling Term Lender) such participations in their Term Loans as shall be necessary to cause such Purchasing Lender to share the excess payment ratably with each of them.
(ii) If any LC Lender obtains any payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) of the Letter of Credit Obligations owing to it, any interest thereon, fees in respect thereof or other Obligations (other than Obligations in respect of the Term Loans) hereunder (other than payments pursuant to Section 2.14, 2.15 or 2.16) in excess of its Ratable Portion of all payments of such Obligations obtained by all the LC Lenders, such LC Lender (each, a Purchasing LC Lender and, together with the Purchasing Term Lenders, the Purchasing Lenders) shall forthwith purchase from the other LC Lenders (each, a Selling LC Lender and, together with the Selling Term Lenders, the Selling Lenders) such participations in their Letter of Credit Obligations as shall be necessary to cause such Purchasing LC Lender to share the excess payment ratably with each of them.
If all or any portion of any payment received by a Purchasing Lender is thereafter recovered from such Purchasing Lender, such purchase from each applicable
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Selling Lender shall be rescinded and such Selling Lender shall repay to the Purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Selling Lenders ratable share (according to the proportion of (i) the amount of such Selling Lenders required repayment in relation to (ii) the total amount so recovered from the Purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Purchasing Lender so purchasing a participation from a Selling Lender pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Purchasing Lender were the direct creditor of such Borrower in the amount of such participation.
Notices, Etc.
All notices, demands, requests and other communications provided for in this Agreement shall be given in writing, or, if consented to by the Administrative Agent, by any telecommunication device capable of creating a written record (including electronic mail), and addressed to the party to be notified as follows:
if to a Borrower:
McDermott International, Inc.
757 North Eldridge Parkway
Houston, Texas 77079
Attention: Treasurer
Telecopy No.: (281) 870-5125
with a copy to:
McDermott International, Inc.
757 North Eldridge Parkway
Houston, Texas 77079
Attention: General Counsel
Telecopy No.: (281) 870-5697
and
BAKER BOTTS L.L.P.
910 Louisiana Street
Houston, TX 77002
Attention: Ted Paris, Esq.
Telecopy No.: (713) 229-7738
E-Mail Address: ted.paris@bakerbotts.com
if to any Lender, at its Domestic Lending Office;
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if to any Issuer, (i) at its Domestic Lending Office, if such Issuer is a Lender or (ii) otherwise, at the Domestic Lending Office of any Lender Affiliated therewith or, in each case at any other address set forth in a notice sent to the Administrative Agent and the Borrowers; and
if to the Administrative Agent:
CRÉDIT AGRICOLE CORPORATE
AND INVESTMENT BANK
1301 Avenue of the Americas
New York, NY 10019
Attention: Agnes Castillo
Telecopy No.: 917-849-5463 or 917-849-5456
or at such other address as shall be notified in writing (x) in the case of the Borrowers and the Administrative Agent, to the other parties and (y) in the case of all other parties, to the Borrowers and the Administrative Agent. All such notices and communications shall be effective upon personal delivery (if delivered by hand, including any overnight courier service), when deposited in the mails (if sent by mail), or when properly transmitted (if sent by a telecommunications device or through the Internet); provided, however, that notices and communications to the Administrative Agent pursuant to Article II or X shall not be effective until received by the Administrative Agent (unless otherwise expressly provided hereunder).
Each Public-Side Lender agrees to cause at least one individual at or on behalf of such Public-Side Lender to at all times have selected the Private-Side Information or similar designation on the content declaration screen of IntraLinks in order to enable such Public-Side Lender or its delegate, in accordance with such Public-Side Lenders compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the Public-Side Information portion of IntraLinks and that may contain MNPI. In the event that any Public-Side Lender has determined for itself to not access any information disclosed through IntraLinks or otherwise, such Public-Side Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither any Loan Party nor any Agent has any responsibility for such Public-Side Lenders decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
No Waiver; Remedies
No failure on the part of any Lender, any Issuer or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
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Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent and the Collateral Agent in accordance with Section 9.2 for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent or the Collateral Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent) hereunder and under the other Loan Documents, (b) the Issuers from exercising the rights and remedies that inure to their respective benefit (solely in their capacity as Issuers) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.6 (subject to the terms of Section 11.7, or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent or Collateral Agent hereunder and under the other Loan Documents, then (i) the Requisite Lenders (or the Requisite LC Lenders or Requisite Term Lenders, as applicable) shall have the rights otherwise ascribed to the Administrative Agent and the Collateral Agent pursuant to Section 9.2 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) above and subject to Section 11.7, any Lender may, with the consent of the Requisite Lenders, enforce any rights and remedies available to it and as authorized by the Requisite Lenders.
Binding Effect
This Agreement shall become effective when it shall have been executed by each of the parties hereto and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.
Governing Law
This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York, without regard to its conflicts of laws provisions.
Submission to Jurisdiction; Service of Process
Any legal action or proceeding with respect to this Agreement or any other Loan Document may be brought in the courts of the State of New York sitting in New York County or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, except that the Agents, Issuers or Lenders may bring legal action or proceedings in other appropriate jurisdictions with respect to the enforcement of its rights with respect to the Collateral. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.
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Each Borrower irrevocably consents to the service of any and all process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of copies of such process to J. Ray McDermott Holdings, LLC (at 757 North Eldridge Parkway, Houston, Texas 77079) or such Borrower at its address specified in Section 11.8. Each Borrower agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing contained in this Section 11.12 shall affect the right of the Administrative Agent or any Lender to serve process in any other manner permitted by law or commence legal proceedings or otherwise proceed against the Borrowers or any other Loan Party in any other jurisdiction.
To the extent that either Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), such Borrower hereby irrevocably waives such immunity in respect of its obligations hereunder.
Waiver of Jury Trial
EACH AGENT AND EACH OF THE LENDERS, THE ISSUERS AND EACH BORROWER WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
Marshaling; Payments Set Aside
None of the Administrative Agent, any Lender or any Issuer shall be under any obligation to marshal any assets in favor of either Borrower or any other party or against or in payment of any or all of the Obligations. To the extent that a Borrower makes a payment or payments to the Administrative Agent, the Lenders or the Issuers or any such Person receives payment from the proceeds of the Collateral or exercises its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, right and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
Section Titles
The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto, except when used to reference such section. If a numbered reference to a clause, sub-clause or subsection hereof is immediately followed by a reference in
153
parenthesis to the title of a section hereof containing such clause, sub-clause or subsection, the reference is only to such clause, sub-clause or subsection and not to the section generally. If a numbered reference to a section hereof is immediately followed by a reference in parenthesis to a section hereof, the title reference shall govern in case of direct conflict.
Execution in Counterparts
This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart hereof.
Entire Agreement
This Agreement, together with all of the other Loan Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. Delivery of an executed signature page of this Agreement by facsimile transmission or other electronic imaging means shall be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all parties shall be lodged with the Borrowers and the Administrative Agent.
Confidentiality
Each of the Administrative Agent, the Lenders and the Issuers agrees to maintain the confidentiality of the Information, except that Information may be disclosed (i) to its Affiliates and to its and its Affiliates respective Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations or (C) any Special Purpose Vehicle that is a grantee of any option described in Section 11.2(g) or to any
154
pledgee referred to in Section 11.2(f) or 11.2(g), (vii) with the consent of the Borrowers or (viii) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.18 or (y) becomes available to the Administrative Agent, any Lender, any Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Parent and its Subsidiaries. Any Person required to maintain the confidentiality of Information as provided in this Section 11.18 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Judgment Currency
If, for the purposes of obtaining or enforcing any judgment or award in any court, or for making or filing a claim or proof, it is necessary to convert a sum due hereunder in any currency (the Original Currency) into another currency (the Other Currency), the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, Administrative Agent could purchase the Original Currency with such Other Currency in New York, New York on the Business Day immediately preceding the day on which any such judgment, or any relevant part thereof, is given.
The obligations of the Borrowers in respect of any sum due from it to any Agent or Lender hereunder shall, notwithstanding any judgment or award in such Other Currency, be discharged only to the extent that on the Business Day following receipt by such Agent or Lender of any sum adjudged to be so due in such Other Currency such Agent or Lender may in accordance with normal banking procedures purchase the Original Currency with such Other Currency; if the Original Currency so purchased is less than the sum originally due such Agent or Lender in the Original Currency, the Borrowers agree, as a separate obligation and notwithstanding any such judgment, to indemnify such Agent or Lender against such loss, and if the Original Currency so purchased exceeds the sum originally due to such Agent or Lender in the Original Currency, such Agent or Lender shall remit such excess to the applicable Borrower.
Severability
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.20, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or any Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
McDermott International, Inc. as Parent and LC Borrower | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer and Investor Relations |
McDermott Finance L.L.C. as Term Borrower | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Treasurer |
Signature Page to Credit Agreement
Crédit Agricole Corporate and Investment Bank, as Administrative Agent, Collateral Agent, Issuer and Lender | ||
By: | /s/ MICHAEL WILLIS | |
Name: | Michael Willis | |
Title: | Managing Director |
By: | /s/ PAGE DILLEHUNT | |
Name: | Page Dillehunt | |
Title: | Managing Director |
Signature Page to Credit Agreement
Wells Fargo Bank, N.A. as Issuer and Lender | ||
By: | /s/ ROBERT CORDER | |
Name: | Robert Corder | |
Title: | Director |
Signature Page to Credit Agreement
Compass Bank as Lender | ||
By: | /s/ AARON LOYD | |
Name: | Aaron Loyd | |
Title: | Vice President |
Signature Page to Credit Agreement
Whitney Bank as Lender | ||
By: | /s/ PAUL W. COLE | |
Name: | Paul W. Cole | |
Title: | Senior Vice President |
Signature Page to Credit Agreement
Goldman Sachs Lending Partners LLC as Lender | ||
By: | /s/ ROBERT EHUDIN | |
Name: | Robert Ehudin | |
Title: | Authorized Signatory |
Signature Page to Credit Agreement
Schedule I
to the Credit Agreement
LETTER OF CREDIT FACILITY COMMITMENTS
LC Lender |
Letter of Credit Facility Commitment |
|||
Crédit Agricole Corporate and Investment Bank |
$ | 162,500,000 | ||
Wells Fargo Bank, N.A. |
$ | 162,500,000 | ||
Compass Bank |
$ | 50,000,000 | ||
Whitney Bank |
$ | 25,000,000 | ||
|
|
|||
Total |
$ | 400,000,000.00 | ||
|
|
Schedule I-1
Schedule II
to the Credit Agreement
TERM COMMITMENTS
Term Lender |
Term Commitment | |||
Goldman Sachs Lending Partners LLC |
$ | 300,000,000.00 | ||
|
|
|||
Total |
$ | 300,000,000.00 | ||
|
|
Schedule II-1
Schedule III
to the Credit Agreement
LETTER OF CREDIT ISSUER COMMITMENTS
Issuer |
Commitment | |||
Crédit Agricole Corporate and Investment Bank |
$ | 225,000,000.00 | ||
Wells Fargo Bank, N.A. |
$ | 225,000,000.00 |
Schedule III-1
Schedule IV
to the Credit Agreement
EXISTING LETTERS OF CREDIT
Letter of |
Issuer |
Beneficiary/Customer |
Applicant | |||
116137034 | Credit Agricole CIB | Nobel Energy EG Ltd. | McDermott, Inc. | |||
406337009 | Credit Agricole CIB | Perth Diocesan Trustees | McDermott Australia Pty Ltd | |||
406337010 | Credit Agricole CIB | Primewest Aus Pty Ltd | McDermott Australia Pty Ltd | |||
406337007 | Credit Agricole CIB | Primewest Aus Pty Ltd | McDermott Australia Pty Ltd | |||
015337016 | Credit Agricole CIB | ACE American Insurance | McDermott International Inc | |||
015337013 | Credit Agricole CIB | ACE American Insurance | McDermott International Inc | |||
406537008 | Credit Agricole CIB | Murphy Sabah Oil Co | Berlian McDermott Sdn Bhd | |||
819137014 | Credit Agricole CIB | Ministry Labor | McDermott Middle East Inc | |||
235437020 | Credit Agricole CIB | SAUDI ARAMCO | McDermott Middle East Inc | |||
101237044 | Credit Agricole CIB | Nobel Energy EG Ltd. | McDermott, Inc. | |||
221537004 | Credit Agricole CIB | Banco Bilbao Vizcaya Argentaria, S.A. | McDermott International Inc | |||
124237025 | Credit Agricole CIB | Oil & Natural Gas | McDermott Middle East Inc | |||
623736029 | Credit Agricole CIB | Citibank Dubai | McDermott Middle East Inc |
Schedule IV-1
Letter of |
Issuer |
Beneficiary/Customer |
Applicant | |||
118637033 | Credit Agricole CIB | BHP Billiton | McDermott Australia Pty Ltd | |||
625536002 | Credit Agricole CIB | Adm Portuaria Int | J Ray McDermott de Mexico | |||
330137016 | Credit Agricole CIB | Abu Dhabi Marine | McDermott Middle East Inc | |||
408737006 | Credit Agricole CIB | Qatar Shell | McDermott Eastern Hemisphere Limited | |||
835437005 | Credit Agricole CIB | Qatar Shell | McDermott Eastern Hemisphere Limited | |||
013737009 | Credit Agricole CIB | Chevron Australia Pty Ltd | P T McDermott Indonesia | |||
031637003 | Credit Agricole CIB | Min. of Labour Abu Dhabi | McDermott Middle East Inc | |||
408737007 | Credit Agricole CIB | Petronas Carigali Sdn | Berlian McDermott Sdn Bhd | |||
529136002 | Credit Agricole CIB | Ministry of Economy | McDermott Middle East Inc | |||
408737040 | Credit Agricole CIB | PT. Rekayasa | P T McDermott Indonesia | |||
400637028 | Credit Agricole CIB | Abu Dhabi Marine | McDermott Middle East Inc | |||
406337005 | Credit Agricole CIB | Vetco Gray Australia | P T McDermott Indonesia | |||
405137010 | Credit Agricole CIB | Cerep Ashley S.A.RL | McDermott Marine Construction Limited | |||
405537018 | Credit Agricole CIB | Inpex Operations Aus | McDermott Australia Pty Ltd | |||
405537017 | Credit Agricole CIB | Inpex Operations Aus | McDermott Australia Pty Ltd |
Schedule IV-2
Letter of |
Issuer |
Beneficiary/Customer |
Applicant | |||
336036005 | Credit Agricole CIB | U.S. Dept. Labor | McDermott International Inc | |||
107537009 | Credit Agricole CIB | Min. of Labour Abu Dhabi | McDermott Middle East Inc | |||
328936003 | Credit Agricole CIB | LA Workforce Commission | J. Ray McDermott Holdings LLC | |||
210737008 | Credit Agricole CIB | Petrobras N.B.V | J Ray McDermott S A | |||
408537014 | Credit Agricole CIB | Chevron USA | McDermott, Inc. | |||
408737041 | Credit Agricole CIB | PT. Rekayasa | P T McDermott Indonesia | |||
206037024 | Credit Agricole CIB | AGOC/KGOC | McDermott Arabia Company Limited | |||
101237029 | Credit Agricole CIB | Comm. of Central Excise | J. Ray McDermott Engineering Services Private Limited | |||
S31412T | Compass Bank | BG Trinidad & Tobago Ltd | McDermott, Inc. | |||
S31458T | Compass Bank | Discovery Gas Trans. LLC | McDermott, Inc. | |||
S31241T | Compass Bank | BG Trinidad & Tobago Ltd | McDermott, Inc. |
Schedule IV-3
Schedule V
to the Credit Agreement
SUBSIDIARY GUARANTORS
Name |
Jurisdiction of Organization | |||
1. | Chartering Company (Singapore) Pte. Ltd. | Singapore | ||
2. | DeepSea (Americas) LLC | Texas | ||
3. | Deepsea (Europe) Limited | United Kingdom | ||
4. | DeepSea (Holland) B.V. | Netherlands | ||
5. | Deepsea (UK) Limited | United Kingdom | ||
6. | Deepsea Group Limited | United Arab Emirates (Ras Al Kaimah Free Trade Zone) | ||
7. | Deepsea (US) Incorporated | Texas | ||
8. | Eastern Marine Services, Inc. | Panama | ||
9. | Global Energy McDermott Limited | British Virgin Islands | ||
10. | Hydro Marine Services, Inc. | Panama | ||
11. | J. Ray Holdings, Inc. | Delaware | ||
12. | International Vessels Ltd | Mauritius | ||
13. | J. Ray McDermott (Aust.) Holding Pty. Limited | Australia | ||
14. | J. Ray McDermott Canada Holding, Ltd. | Nova Scotia | ||
15. | J. Ray McDermott Canada, Ltd. | Nova Scotia | ||
16. | J. Ray McDermott (Caspian), Inc. | Panama | ||
17. | J. Ray McDermott Contractors, Inc. | Panama | ||
18. | J. Ray McDermott de Mexico, S.A. de C.V. | Mexico | ||
19. | J. Ray McDermott Engineering Services Private Limited | India | ||
20. | J. Ray McDermott Far East, Inc. | Panama | ||
21. | J. Ray McDermott Holdings, LLC | Delaware | ||
22. | J. Ray McDermott, S.A. | Panama | ||
23. | J. Ray McDermott International, Inc. | Panama | ||
24. | J. Ray McDermott International Vessels, Ltd. | Cayman Islands | ||
25. | J. Ray McDermott Investments B.V. | Netherlands | ||
26. | J. Ray McDermott Kazakhstan Limited Liability Partnership | Kazakhstan | ||
27. | J. Ray McDermott Logistic Services Private Limited | India | ||
28. | J. Ray McDermott (Luxembourg) S.ar.l. | Luxembourg | ||
29. | J. Ray McDermott (Nigeria) Limited | Nigeria | ||
30. | J. Ray McDermott (Norway), AS | Norway | ||
31. | J. Ray McDermott (Qingdao) Pte. Ltd. | Singapore | ||
32. | J. Ray McDermott Solutions, Inc. | Delaware | ||
33. | J. Ray McDermott Technology, Inc. | Delaware | ||
34. | J. Ray McDermott Underwater Services, Inc. | Panama | ||
35. | J. Ray McDermott West Africa Holdings, Inc. | Delaware |
Schedule V - 1
36. | J. Ray McDermott West Africa, Inc. | Delaware | ||
37. | Malmac Sdn. Bhd. | Malaysia | ||
38. | McDermott Asia Pacific Pte. Ltd. | Singapore | ||
39. | McDermott Australia Pty. Ltd. | Australia | ||
40. | McDermott Caspian Contractors, Inc. | Panama | ||
41. | McDermott Cayman Ltd. | Cayman Islands | ||
42. | McDermott Eastern Hemisphere, Ltd. | Mauritius | ||
43. | McDermott Engineering, LLC | Texas | ||
44. | McDermott Far East Inc. | Panama | ||
45. | McDermott Finance L.L.C. | Delaware | ||
46. | McDermott Gulf Operating Company, Inc. | Panama | ||
47. | McDermott Holdings (U.K.) Limited | United Kingdom | ||
48. | McDermott, Inc. | Delaware | ||
49. | McDermott International B.V. | Netherlands | ||
50. | McDermott International Investments Co., Inc. | Panama | ||
51. | McDermott Investments, LLC | Delaware | ||
52. | Mc Dermott International Marine Investments N.V. | Netherlands Antilles | ||
53. | McDermott International Management, S. de RL. | Panama | ||
54. | McDermott International Trading Co., Inc. | Panama | ||
55. | McDermott International Vessels, Inc. | Panama | ||
56. | McDermott Marine Construction Limited | United Kingdom | ||
57. | McDermott Marine Mexico, S.A. de C.V. | Mexico | ||
58. | McDermott Middle East, Inc. | Panama | ||
59. | McDermott Offshore Services Company, Inc. | Panama | ||
60. | McDermott Old JV Office, Inc. | Panama | ||
61. | McDermott Overseas, Inc. | Panama | ||
62. | MC Dermott Overseas Investment Co. N.V. | Netherland Antilles | ||
63. | McDermott Serviços Offshore do Brasil Ltda. | Brazil | ||
64. | McDermott Subsea Engineering, Inc. | Delaware | ||
65. | McDermott Trade Corporation | Delaware | ||
66. | North Atlantic Vessel, Inc. | Panama | ||
67. | Offshore Pipelines International, Ltd. | Cayman Islands | ||
68. | OPI Vessels, Inc. | Delaware | ||
69. | OPMI, Ltd. | Cayman Islands | ||
70. | PT. Baja Wahana Indonesia | Indonesia | ||
71. | Sabine River Realty, Inc. | Louisiana | ||
72. | Servicios de Fabricacion de Altamira, S.A. de C.V. | Mexico | ||
73. | Servicios Profesionales de Altamira, S.A. de C.V. | Mexico | ||
74. | Singapore Huangdao Pte. Ltd. | Singapore | ||
75. | SparTEC, Inc. | Delaware | ||
76. | Varsy International N.V. | Netherlands Antilles |
Schedule V - 2
Schedule 1.1
to the Credit Agreement
JOINT VENTURES
1. Deep Oil Technology, Inc.
2. Deepwater Marine Technology, L. L. C.
3. FloaTEC, LLC
4. FloaTEC Singapore Pte. Ltd.
5. FloaTEC de México, S.A. de C.V.
6. FloaTEC Offshore Servicos de Petroleo do Brasil Ltda.
7. McDermott Abu Dhabi Offshore Construction Company
8. Qingdao McDermott Wuchuan Offshore Engineering Co. Ltd.
9. Spars International, Inc.
10. WD 140 Platform LLC
11. CMO Construcao e Montagem Offshore S.A.1
12. THHE McDermott Engineering Sdn. Bhd.
13. THHE Fabricators Sdn. Bhd.
14. THHE McDermott Project Services Sdn. Bhd.
1 In process of being sold
Schedule 1.1- 1
Schedule 4.3
to the Credit Agreement
OWNERSHIP OF SUBSIDIARIES
Name |
Jurisdiction of Organization |
Number of Shares Authorized |
Number of Shares |
% of Shares Outstanding held by Parent (directly or indirectly) |
||||||
Berlian McDermott (L) Limited |
Malaysia | 125,000 ordinary 375,000 preferred |
125,000 ordinary 0 preferred |
70 | %2 | |||||
Berlian McDermott Sdn. Bhd. |
Malaysia | Unknown ordinary 100,000 preferred |
Unknown ordinary 100,000 preferred |
|
70 100 |
%3 % | ||||
Caspian Offshore Fabricators LLC |
Azerbaijan | n/a |
n/a |
50 | % | |||||
Chartering Company (Singapore) Pte. Ltd. |
Singapore | Unlimited |
25,000 |
100 | % | |||||
DeepSea (America) LLC |
Texas | N/A |
N/A |
100 | % | |||||
DeepSea (Asia Pacific) Limited |
Malaysia | 11,200 Class A
2,100 Class B
700 Class C |
900 Class A
100 Class B
0 Class C |
|
100
100
N/A |
%
%
| ||||
DeepSea (Europe) Limited |
United Kingdom | 1,000 |
102 |
100 | % | |||||
DeepSea (Holland) B.V. |
Netherlands | 9,000 |
1,800 |
100 | % | |||||
DeepSea (UK) Limited |
United Kingdom | 100 |
100 |
100 | % | |||||
DeepSea (US) Incorporated |
Texas | 1,000 |
1,000 |
100 | % | |||||
DeepSea Engineering (Thailand) Limited |
Thailand | 2,000 |
2,000 |
100 | % | |||||
DeepSea Engineering Malaysia Sendirian Berhad |
Malaysia | 100,000 |
2 |
100 | % | |||||
DeepSea Group Limited |
United Arab Emirates | 1,758 Class A
242 Class B |
1,758 Class A
242 Class B |
|
100
100 |
%
% | ||||
Delta Catalytic (Holland) B.V. |
Netherlands | 3,000,000 |
600,000 |
100 | % | |||||
DHEC Corporation |
Texas | 8,000 Common
48,000 Preferred |
1,750 Common
48,000 Preferred |
|
100
100 |
%
% | ||||
Eldridge Pte. Ltd. |
Singapore | 100 |
100 |
50 | % | |||||
Eastern Marine Services, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
Global Energy McDermott Limited |
British Virgin Islands | 500 Series A
500 Series B |
500 Series A
500 Series B |
|
100
100 |
%
% | ||||
Hudson Engineering (Canada), Ltd. |
Canada | Unlimited |
1,000 |
100 | % | |||||
Hydro Marine Services, Inc. |
Panama | 100,000 |
100,000 |
100 | % |
2 | Wholly-owned Subsidiary of Barmada McDermott Sdn. Bhd. |
3 | 25% is owned directly or indirectly by the Parent and 45% is owned by a trust for the benefit of the Parent. |
Schedule 4.1- 1
Name |
Jurisdiction of Organization |
Number of Shares Authorized |
Number of Shares |
% of Shares Outstanding held by Parent (directly or indirectly) |
||||||
International Vessels Ltd. |
Mauritius | 2 |
2 |
100 | % | |||||
J. Ray Holdings, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
J. Ray McDermott (Aust.) Holding Pty. Limited |
Australia | 1,000,000 |
1,000,000 |
100 | % | |||||
J. Ray McDermott (Caspian), Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
J. Ray McDermott (Luxembourg) S.ar.l. |
Luxembourg | 12,500 |
12,500 |
100 | % | |||||
J. Ray McDermott (Nigeria) Ltd. |
Nigeria | 5,000,000 |
5,000,000 |
100 | % | |||||
J. Ray McDermott (Norway), AS |
Norway | 100,000 |
100,000 |
100 | % | |||||
J. Ray McDermott (Qingdao) Pte. Ltd. |
Singapore | Unlimited |
1 |
100 | % | |||||
McDermott Asia Pacific Pte. Ltd. |
Singapore | Unlimited |
7,450,000 |
100 | % | |||||
J. Ray McDermott Canada Holding, Ltd. |
Nova Scotia | 100,000,000 |
3,868,301 |
100 | % | |||||
J. Ray McDermott Canada, Ltd |
Nova Scotia | 100,000 |
100,000 |
100 | % | |||||
J. Ray McDermott Contractors, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
J. Ray McDermott de Mexico, S.A. de C.V. |
Mexico | 1,116,000,000 com 1,957,778,141 var |
1,116,000,000 com 1,957,778,141 var |
|
100 100 |
% % | ||||
McDermott Eastern Hemisphere, Ltd. |
Mauritius | 7,000 |
6,502 |
100 | % | |||||
J. Ray McDermott Engineering Services Private Limited |
India | 50,000 |
10,000 |
100 | % | |||||
J. Ray McDermott Far East, Inc. |
Panama | 100,000 |
1,000 |
100 | % | |||||
J. Ray McDermott Holdings, LLC. |
Delaware | N/A |
N/A |
100 | % | |||||
J. Ray McDermott International, Inc. |
Panama | 100,000 |
1,000 |
100 | % | |||||
J. Ray McDermott Investments B.V. |
Netherlands | 1,360,000 |
272,268 |
100 | % | |||||
J. Ray McDermott International Vessels, Ltd. |
Cayman Islands | 100,000 |
100 |
100 | % | |||||
J. Ray McDermott Kazakhstan Limited Liability Partnership |
Kazakhstan | N/A |
N/A |
100 | % | |||||
J. Ray McDermott Logistic Services Private Limited |
India | 50,000 |
10,000 |
100 | % | |||||
McDermott Middle East, Inc. |
Panama | 1,000,000 |
10,000 |
100 | % | |||||
J. Ray McDermott Solutions, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
J. Ray McDermott Technology, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
J. Ray McDermott Underwater Services, Inc. |
Panama | 100,000 |
1,000 |
100 | % | |||||
J. Ray McDermott West Africa Holdings, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
J. Ray McDermott West Africa, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
J. Ray McDermott, S.A. |
Delaware | 500 |
500 |
100 | % | |||||
Boudin Insurance Company, Ltd. |
Bermuda | 120,000 |
120,000 |
100 | % | |||||
Malmac Sdn. Bhd. |
Malaysia | 5,000,000 |
5,000,000 |
100 | % | |||||
McDermott Arabia Company Limited |
Saudi Arabia | 2020 |
2020 |
34 | %4 | |||||
McDermott Arabia Holdings, Inc. |
Panama | 1,000 |
1,000 |
5.7 | % | |||||
McDermott Australia Pty. Ltd. |
Australia | 1,000,000 |
1,000,000 |
100 | % | |||||
McDermott Azerbaijan Marine Construction, Inc. |
Panama | 125,000 |
125,000 |
80 | % | |||||
McDermott Capital Malaysia Sdn. Bhd. |
Malaysia | 25,000,000 |
1,000 |
48 | % | |||||
McDermott Caspian Contractors, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
McDermott Cayman Ltd. |
Cayman Islands | 5,000,000 |
1,000 |
100 | % | |||||
McDermott Engineering L.L.C. and Khalid Suhail Al Shoaibi for Engineering Consultancy |
Saudi Arabia | 100 |
100 |
75 | % | |||||
McDermott Engineering, LLC |
Texas | n/a |
n/a |
100 | % | |||||
McDermott Far East Inc. |
Panama | 50,000 |
50,000 |
100 | % | |||||
McDermott Finance L.L.C. |
Delaware | N/A |
N/A |
100 | % |
4 | Consolidated for purposes of GAAP due to control. |
Schedule 4.1- 2
Name |
Jurisdiction of Organization |
Number of Shares Authorized |
Number of Shares |
% of Shares Outstanding held by Parent (directly or indirectly) |
||||||
McDermott Gulf Operating Company, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
McDermott Holdings (M) Sdn. Bhd. |
Malaysia | 100,000 |
100 |
1 | % | |||||
McDermott Holdings (U.K.) Limited |
United Kingdom | 50,000,000 |
29,005,333 |
100 | % | |||||
McDermott International B.V. |
Netherlands | 2,000,000 |
400,000 |
100 | % | |||||
McDermott International Investments Co., Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
McDermott International Management, S. de RL. |
Panama | 10,000 |
1,000 |
100 | % | |||||
Mc Dermott International Marine Investments N.V. |
Netherlands Antilles | 6,000 pref. 24,000 common |
6,000 pref. 24,000 common |
|
100 100 |
% % | ||||
McDermott International Marketing, Inc. |
Panama | 100,000 |
1,000 |
100 | % | |||||
McDermott International Trading Co., Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
McDermott International Vessels, Inc. |
Panama | 100,000 |
1,000 |
100 | % | |||||
McDermott Investments, LLC |
Delaware | N/A |
N/A |
100 | % | |||||
McDermott Marine Construction Limited |
United Kingdom | 10,000,000 |
10,000,000 |
100 | % | |||||
McDermott Marine Mexico, S.A. de C.V. |
Mexico | Unlimited |
130,050,000 |
100 | % | |||||
McDermott Offshore Services Company, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
McDermott Old JV Office, Inc. |
Panama | 1,000,000 |
1,000 |
100 | % | |||||
McDermott Oversea Investment Co. N.V. |
Netherlands Antilles | 6,000 Pref. A
24,000 Common B |
6,000 Pref. A
24,000 Common B |
|
100
100 |
%
% | ||||
McDermott Overseas, Inc. |
Panama | 10,000 |
10,000 |
100 | % | |||||
McDermott Serviços Offshore do Brasil Ltda. |
Brazil | 7,000,000 |
7,000,000 |
100 | % | |||||
McDermott Subsea Engineering, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
McDermott Trade Corporation |
Delaware | 1,000 |
1,000 |
100 | % | |||||
McDermott, Inc. |
Delaware | 2,000 |
2,000 |
100 | % | |||||
North Atlantic Vessel, Inc. |
Panama | 100,000 |
100,000 |
100 | % | |||||
North Ocean II AS |
Norway | 17,863,000 |
10,065,800 |
50 | % | |||||
North Ocean II KS |
Norway | 177,730 |
177,730 |
50.003 | % | |||||
North Ocean 105 AS |
Norway | 100,000 |
100,000 |
75 | % | |||||
Offshore Pipelines International, Ltd. |
Cayman Islands | 100,000 |
1,100 |
100 | % | |||||
Offshore Pipelines Nigeria Limited |
Nigeria | 500,000 |
500,000 |
60 | % | |||||
OPI Vessels, Inc. |
Delaware | 1,000 |
20 |
100 | % | |||||
OPMI, Ltd. |
Cayman Islands | 900,000 |
1,000 |
100 | % | |||||
P. T. McDermott Indonesia |
Indonesia | 17,340 |
17,340 |
75 | % | |||||
PT. Baja Wahana Indonesia |
Indonesia | 17,000 |
10,600 |
100 | % | |||||
PT. J. Ray McDermott Indonesia |
Indonesia | 1,000,000 |
1,000,000 |
75 | % | |||||
Sabine River Realty, Inc. |
Louisiana | 1,000 |
1,000 |
100 | % | |||||
Servicios de Fabricacion de Altamira, S.A. de C.V. |
Mexico | Unlimited |
50,000 |
100 | % | |||||
Servicios Profesionales de Altamira, S.A. de C.V. |
Mexico | Unlimited |
50,000 |
100 | % | |||||
Singapore Huangdao Pte. Ltd. |
Singapore | Unlimited |
1 |
100 | % | |||||
SparTEC, Inc. |
Delaware | 1,000 |
1,000 |
100 | % | |||||
Varsy International N.V. |
Netherlands Antilles | 6,000 pref. 24,000 common |
6,000 pref. 1 common |
|
100 100 |
% % |
Schedule 4.1- 3
Schedule 4.7
to the Credit Agreement
LITIGATION
1. Certain Underwriters at Lloyds London, et al. v. J. Ray McDermott, Inc., et al.
2. Boudreaux, et al. v. McDermott, Inc., et al.
3. Antoine et al. v. McDermott, Inc. et al.
4. In Re McDermott Class Action Securities Litigation
For further description on the above referenced matters, reference is hereby made to the Parents annual report on Form 10-K for the year ended December 31, 2013.
Schedule 4.7- 1
Schedule 4.15
to the Credit Agreement
LABOR MATTERS
1. | J. Ray McDermott, Inc. - International Union of Operating Engineers Local No. 406 (Morgan City Fabrication Yard) Expired June 4, 2006. Collective bargaining negotiations are not ongoing. |
2. | Collective Labour Agreement between PT. McDermott Indonesia and the All Indonesia Workers Union, dated October 26, 2012, expiring on October 26, 2014. |
3. | Labour Agreement between McDermott Australia Pty. Ltd. and the AMWU, AWU, and CEPU (the McDermott Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Project Agreement 2012-2015 Agreement) dated August 17, 2012, expiring on August 19, 2015. |
4. | J. Ray McDermott de Mexico, S.A. de C.V. Convenio de Revisión Salarial del Contrato Colectivo de Trabajo with the Sindicato Progresista de Trabajadores de la Industria de Construcción de la República Mexicana and the Sindicato Progresista Justo Sierra de Trabajadores de Servicios de la República Mexicana. |
5. | Servicios de Fabricación de Altamira, S.A. de C.V. Contrato Colectivo de Trabajo en Revisión Integral with the Sindicato Progresista Justo Sierra de Trabajadores de Servicios de la República Mexicana and the Sindicato Progresista Justo Sierra de Trabajadores de Servicios de la República Mexicana. |
6. | Servicios Profesionales de Altamira, S.A. de C.V. Contrato Colectivo de Trabajo en Revisión Integral with the Sindicato Progresista Justo Sierra de Trabajadores de Servicios de la República Mexicana and the Sindicato Progresista Justo Sierra de Trabajadores de Servicios de la República Mexicana. |
7. | McDermott Serviços Offshore do Brasil Ltda Acordo Coletivo de Trabalho with the SINDITOB Sindicato Trabalhadores Offshore do Brasil. |
Schedule 4.15- 1
Schedule 4.19
to the Credit Agreement
REAL PROPERTY
A) | Owned |
1. | Fabrication yard owned by J. Ray McDermott de Mexico, S.A. de C.V., located at Polygon 1 D which is 232, 511.663 square meters, located in the Port of Altamira, Tamaulipas, Mexico. |
B) | Leased |
1. | Leased corporate offices at 757 N. Eldridge Parkway, Houston, Harris County, Texas. Lessor is Behringer Harvard Eldridge Place LP as successor to S.V. Eldridge, L.P.; lessee is McDermott, Inc. |
2. | Leased fabrication facility occupying Berths 54, 55 and 56 in Jebel Ali Port in the Jebel Ali Free Trade Zone, Dubai, United Arab Emirates. Lessor is The Government of Dubai. |
3. | Leased corporate office space at 11 Lorong 3 Toa Payoh, Singapore, under a total of five separate leases. Lessor is Jackson International Pte. Ltd.; lessee is J. Ray McDermott Asia Pacific Pte. Ltd. |
4. | Leased corporate office space at 15-17 William Street, Perth, Western Australia, under a total of two separate leases. Lessor is PrimeWest; lessee is McDermott Australia Pty. Ltd. |
Schedule 4.19 -1
Schedule 7.15
to the Credit Agreement
ADDITIONAL COLLATERAL PERFECTION UNDERTAKINGS
1. | The Parent shall cause legal opinions, each in form and substance reasonably satisfactory to the Administrative Agent, from special counsel (Local Counsel) in each of the jurisdictions identified in the table below (each, a Local Counsel Legal Opinion) to be delivered to the Administrative Agent by the deadline specified therefor in the table below (or a later date agreed to by the Administrative Agent in its sole discretion). |
Jurisdiction |
Deadline | |
Australia | June 15, 2014 | |
Barbados | April 30, 2014 | |
Canada | May 15, 2014 | |
Cayman Islands | June 15, 2014 | |
Indonesia | June 30, 2014 | |
Malaysia | June 30, 2014 | |
Mexico | June 15, 2014 | |
Norway | June 15, 2014 | |
Panama | April 30, 2014 | |
Singapore | June 30, 2014 |
2. | Within 30 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall cause those steps necessary or desirable for the perfection or protection of the security interests in the pledged equity of the designated entities listed below, to occur in the manner so designated below: |
a. | J. Ray McDermott (Aust.) Holding Pty. Limited, McDermott Australia Pty. Ltd., and each other issuer of pledged equity organized in Australia, by (i) causing J. Ray McDermott (Aust.) Holding Pty. Limited (and/or the applicable Loan Party(ies)) to grant an Australian specific security agreement in respect of the security interest and (ii) causing any other steps to be taken as may be reasonably required for perfection and enforceability (including, without limitation, the |
Schedule 7.15 -1
payment of stamp duty and, to the extent not already in the possession of the Collateral Agent, delivery of share transfers and share certificates in J. Ray McDermott (Aust.) Holding Pty Ltd and McDermott Australia Pty Ltd to the Collateral Agent) under applicable law. |
b. | J. Ray McDermott Canada Holding, Ltd., J. Ray McDermott Canada, Ltd., and each other issuer of pledged equity organized in Canada, by ensuring that the pledges of equity in such entities are perfected in the jurisdiction where the Collateral Agent holds the pledged equity certificates by (i) delivering any pledged equity certificates that the Collateral Agent does not currently possess to the Collateral Agent, (ii) making any UCC filings that are necessary or desirable to perfect the equity pledges under the laws of the jurisdiction where the Collateral Agent holds the pledged equity certificates and (iii) causing any other steps to be taken as may be reasonably required for perfection under applicable law. |
c. | J. Ray McDermott International Vessels, Ltd., McDermott Cayman Ltd., Offshore Pipelines International, Ltd., OPMI, Ltd., and any other issuer of pledged equity organized in the Cayman Islands, by (i) delivering to the Collateral Agent any share certificates or other certificates of title in respect of such pledged equity; (ii) delivering to the Collateral Agent in respect of such pledged equity (A) a duly executed but undated share transfer form, (B) a proxy form to vote such pledged equity, (C) a notice to that issuer of such pledged equity, and (D) an acknowledgement of that notice signed by that issuer; (iii) to the extent the Grantor is incorporated in the Cayman Islands, causing the particulars of such security to be entered in such Grantors Register of Mortgages and Charges; (iv) causing particulars of such security to be noted in the Register of Members of each Cayman entity; and (v) causing any other steps to be taken as are reasonably required for perfection under applicable law. |
d. | P.T. J. Ray McDermott Indonesia, P.T. McDermott Indonesia, PT. Baja Wahana Indonesia (f/k/a P. T. Babcock & Wilcox Indonesia), and each other issuer of pledged equity organized in Indonesia, by (i) causing each Indonesian entity to execute Indonesian security documents in respect of the security interest, to include a notarized deed and notice to the obligor, (ii) effecting registration of the security interest via the fiducia registration office in Indonesia and (iii) causing any other steps to be taken as are reasonably required for perfection under applicable law. |
e. | Berlian McDermott Sdn. Bhd., DeepSea (AsiaPacific) Limited, DeepSea Engineering Malaysia Sendirian Berhad, Malmac Sdn. Bhd., and McDermott |
Schedule 7.15 -2
Capital Malaysia Sdn. Bhd., and each other issuer of pledged equity organized in Malaysia, by (i) confirming that the Collateral Agent holds the applicable certificates, stock transfers and related resolutions, (ii) causing the Pledge and Security Agreement to be stamped and registered, (iii) collaterally assigning the equity of Berlian McDermott Sdn. Bhd. that has been pledged to a Loan Party by McDermott Holdings (M) Sdn. Bhd. and (iv) causing any other steps, including without limitation executing Malaysian law-governed pledge and/or assignment agreements, to be taken as may be reasonably required for perfection under applicable law. |
f. | J. Ray McDermott de Mexico, S.A. de C.V., Servicios de Fabricación de Altamira, S.A. de C.V., McDermott Marine Mexico, S.A. de C.V., and each other issuer of pledged equity organized in Mexico, by (i) executing a pledge agreement pledging the pledged shares to the Collateral Agent, delivering the certificates evidencing the pledged shares to the Collateral Agent endorsed in guaranty in favor of the Collateral Agent, recording the pledge of pledged shares in the issuers share registries, and obtaining a certificate from the secretaries of the issuers certifying that the pledged share pledges have been duly registered in the issuers share registries and (ii) causing any other steps to be taken as may be reasonably required for perfection under applicable law. |
g. | J. Ray McDermott (Norway) AS (JRMA), North Ocean II AS, North Ocean II KS and each other issuer of pledged equity organized in Norway, by (i) causing JRMA to execute the Pledge & Security Agreement as Guarantor, pledging its shares (or partnership shares) in each of North Ocean II AS and North Ocean II KS, (ii) causing JRMA to serve notice on North Ocean II AS of the pledge of its shares, (iii) causing North Ocean II AS to include a reference to the shares being pledged in its shareholder registry, (iv) causing JRMA to serve notice on North Ocean II KS and North Ocean II AS (as general partner) of the pledge of the partnership shares of North Ocean II KS, (v) causing the North Ocean II KS partnership share certificates (in original) to be physically handed over to the Collateral Agent, (vi) causing a statement that the shares are pledged, (vii) causing notice to be served on JRMA that J. Ray McDermott International Inc. has pledged its shares in JRMA and (vii) causing JRMA to include a reference to its shares being pledged in its shareholder registry, and (viii) causing any other steps to be taken as may be reasonably required for perfection under applicable law. |
h. | Chartering Company (Singapore) Pte. Ltd., Eldridge Pte. Ltd., FloaTEC Singapore Pte. Ltd., J. Ray McDermott (Qingdao) Pte. Ltd., McDermott Asia Pacific Pte. Ltd. (f/k/a J. Ray McDermott South East Asia Pte. Ltd.), Singapore |
Schedule 7.15 -3
Huangdao Pte. Ltd., and each other issuer of charged shares (or other pledged equity) organized in Singapore (i) causing the relevant chargor to enter into a Singapore charge document over its shares in each relevant Singapore entity, (ii) causing each Singapore chargor to timely register such Singaporean law governed charge document with the Accounting and Corporate Regulatory Authority in Singapore, (iii) causing each Singaporean entity to pass any necessary corporate approvals to effect such charge, including amendments to its articles of association, (iv) causing each chargor to pass any necessary corporate approvals to authorize its entry into such charge document, (v) causing each Singapore charge document to be duly stamped in Singapore, (vi) causing the original share certificate(s) and the executed but unsigned share transfer form(s) in relation to the charged shares to be delivered to the chargee and (vii) causing any other steps to be taken as may be reasonably required for perfection under applicable law. |
3. | Within 30 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall cause those steps necessary or desirable for the perfection and enforceability (including, without limitation, the payment of stamp duty) of the security interests in the Inpex accounts receivable of McDermott Australia Pty. Ltd. (an Australian entity), by (a) causing McDermott Australia Pty. Ltd. to grant an Australian Specific Security Agreement in respect of such security interest and (b) effecting registration of the security interest on the Australian Personal Property Security Register. |
4. | Within 45 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall cause each Deposit Account that is a Material Account (as such terms are defined in the Pledge and Security Agreement) listed on Schedule 4.13 to the Pledge and Security Agreement to be subject to an agreement of the type described in Section 5.13 of the Pledge and Security Agreement. |
5. | Within 45 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall cause each Securities Account that is a Material Account (as such terms are defined in the Pledge and Security Agreement) listed on Schedule 4.13 to the Pledge and Security Agreement to be subject to an agreement of the type described in Section 5.14 of the Pledge and Security Agreement. |
6. | Within 60 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), J. Ray McDermott de Mexico, S.A. de C.V., Servicios de Fabricación de Altamira, S.A. de C.V., McDermott Marine Mexico, S.A. de C.V., Servicios Profesionales de Altamira, S.A. de C.V. and the Parent, as applicable, shall execute and deliver any documents or instruments necessary or desirable to perfect or protect the Collateral Agents security interest in substantially all equipment and related |
Schedule 7.15 -4
collateral located on the fabrication yards located in Altamira, Mexico, and Batam, Indonesia, it being understood that such steps shall not require the establishment of a collateral trust. |
7. | Within 30 days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall execute and deliver any documents or instruments necessary or desirable to perfect or protect the Collateral Agents security interest (and the Parent shall cause any other steps necessary or desirable for the perfection or protection of the Collateral Agents security interest) in all right, title and interest of J. Ray McDermott, S.A. (JRMSA) in and to the Credit and Guarantee Facility Agreement dated as of January 21, 2014 (as amended, restated, supplemented or otherwise modified, the NO 102 Facility Agreement), among North Ocean II KS, Oceanteam Shipping ASA and JRMSA and the other Finance Documents referred to in the NO 102 Facility Agreement. |
8. | The Parent shall promptly cause all such reasonable actions to be taken as may be necessary or desirable in order for Local Counsel to deliver the Local Counsel Legal Opinions in form and substance reasonably acceptable to Administrative Agent. |
9. | Within 5 Business Days of the Effective Date (or a later date agreed to by the Administrative Agent in its sole discretion), the Parent shall cause the execution and delivery of a Control Agreement over one or more Deposit Accounts or Securities Accounts (each as defined in the Pledge and Security Agreement) into which all proceeds of the Term Loans and Second Lien Notes that were not used on the Effective Date to refinance Indebtedness under the Existing Credit Agreement or to pay fees and expenses in connection with the Transactions are then deposited. |
Notwithstanding anything to the contrary contained herein, the Administrative Agent may waive any of the foregoing requirements if (a) such action would be unlawful under the laws of the applicable jurisdiction or (b) the Administrative Agent, in consultation with the Parent, makes a commercially reasonable determination that (i) the overall cost of such requirement (taking into account any adverse tax or other consequences to the Parent and its Affiliates (including the imposition of withholding, documentary, stamp or other material taxes)) is excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) such action would require the consent of a third party that cannot be obtained after using commercially reasonable efforts to obtain such consent.
Schedule 7.15 -5
Schedule 8.1
to the Credit Agreement
EXISTING INDEBTEDNESS
1. | Indebtedness in the principal amount of $53,103,544 owed by North Ocean 105 AS and guaranteed by the Parent, such Indebtedness incurred to acquire the NO 105, which Indebtedness is secured by the NO 105, certain North Ocean Equipment, and the equity of North Ocean 105 AS. |
2. | Indebtedness in the principal amount of $990,000 owed by McDermott, Inc. to CIT Finance LLC, such Indebtedness incurred as a capital lease for software. |
3. | Indebtedness in the principal amount of $466,666.66 owed by the Parent to Key Equipment Finance, Inc., such Indebtedness incurred as a capital lease for software. |
Schedule 8.1 -1
Schedule 8.2
to the Credit Agreement
EXISTING LIENS
1. | Liens granted by J. Ray McDermott (Norway), AS encumbering the equity of North Ocean 105 AS to secure the indebtedness of North Ocean 105 AS as described in item 1 of Schedule 8.1. |
2. | Liens granted by McDermott, Inc. to secure software in connection with the Indebtedness described in item 2 of Schedule 8.1. |
3. | Liens granted by the Parent to secure software in connection with the Indebtedness described in item 3 of Schedule 8.1. |
Schedule 8.2 -1
Schedule 8.5
to the Credit Agreement
EXISTING INVESTMENTS
1. | Investments in Subsidiaries and Joint Ventures of the Parent existing on the Effective Date. |
2. | Loan in the principal amount of $41,750,000, made by J. Ray McDermott, S.A. to P.T. McDermott Indonesia. |
3. | Loan in the principal amount of $8,500,000, made by McDermott Asia Pacific Pte. Ltd. to P.T. J. Ray McDermott Indonesia. |
4. | Loan in the principal amount of $31,373,265, made by J. Ray McDermott, S.A. to North Ocean II KS. |
5. | Loan in the principal amount of $489,909.90, made by J. Ray McDermott, S.A. to DeepSea Engineering (Thailand) Limited. |
6. | Loan in the principal amount of MYR 65,772,700, made by J. Ray McDermott, S.A. to McDermott Holdings (M) Sdn. Bhd. |
Schedule 8.5-1
Schedule 8.8
to the Credit Agreement
AFFILIATE AGREEMENTS
1. | Support Services Agreement dated as of January 2, 2000 among McDermott Incorporated, J. Ray McDermott, S.A. and certain Affiliates of J. Ray McDermott, S.A. |
2. | Omnibus Restructuring Agreement |
3. | Master Separation Agreement between McDermott International, Inc. and The Babcock & Wilcox Company |
4. | Transition Services Agreement between McDermott International, Inc. (as service provider) and The Babcock & Wilcox Company (as service receiver) |
5. | Transition Services Agreement between The Babcock & Wilcox Company (as service provider) and McDermott International, Inc. (as service receiver) |
6. | Transition Services Agreement for Hyperion Financial Consolidation System between McDermott International, Inc. (as service provider) and The Babcock & Wilcox Company (as service receiver) |
7. | Transition Services Agreement for SAP-HCM between The Babcock & Wilcox Company (as service provider) and McDermott International, Inc. (as service receiver) |
8. | Tax Sharing Agreement between J. Ray Holdings, Inc. and Babcock & Wilcox Holdings, Inc. |
9. | Employee Matters Agreement among McDermott International, Inc., McDermott Incorporated, The Babcock & Wilcox Company and Babcock & Wilcox Investment Company |
10. | Assignment and Loss Allocation Agreement by and among ACE American Insurance Company, acting for itself and the ACE Affiliates, McDermott International, Inc. and The Babcock & Wilcox Company |
Schedule 8.8 -1
Schedule 8.19
to the Credit Agreement
PERMITTED FLAGS
1. | The Republic of Liberia |
2. | The Republic of the Marshall Islands |
3. | The Republic of Vanuatu |
4. | The Commonwealth of the Bahamas |
5. | The Republic of Panama |
6. | The United States of America |
7. | Canada |
8. | Barbados |
9. | Isle of Man |
10. | Malta |
Schedule 8.19-1
EXHIBIT A
TO CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
This Assignment and Acceptance (this Assignment and Acceptance) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the Assignor) and [Insert name of Assignee] (the Assignee). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below, receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the Standard Terms and Conditions) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the Credit Agreement (including without limitation any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the Assigned Interest). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Acceptance, without representation or warranty by the Assignor.
Assignor: | ||
Assignee: | ||
[and is an Affiliate/Approved Fund of [identify Lender]1] | ||
Borrower(s): | [McDermott International, Inc.] [McDermott Finance L.L.C.] | |
Administrative Agent: | Crédit Agricole Corporate and Investment Bank, as the administrative agent under the Credit Agreement |
1 | If applicable. |
A-1
Credit Agreement: | the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among McDermott International, Inc., a Panamanian corporation, McDermott Finance L.L.C., a Delaware limited liability company, the Lenders (as defined in the Credit Agreement), the Issuers (as defined in the Credit Agreement) and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors pursuant to Section 10.6(a) of the Credit Agreement, the Administrative Agent) and collateral agent for the Lenders and the Issuers. |
Assigned Interest:
Facility Assigned2 |
Aggregate Amount of Term/ Letter of Credit Facility Commitments/Obligations for all Term/LC Lenders 3 |
Amount of Term/Letter of Credit Facility Commitments/Obligations Assigned |
Percentage Assigned of Term/Letter of Credit Facility Commitments/ Obligations4 |
|||||||||
$ | $ | % | ||||||||||
$ | $ | % |
[Trade Date: | 5 |
Effective Date: , 201 6
2 | Fill in appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this assignment (e.g., Term Loan or Letter of Credit). |
3 | Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. |
4 | Set forth, to at least 9 decimals, as a percentage of the Term Commitments and Term Loans of all Term Lenders, or Letter of Credit Facility Commitments and Letter of Credit Obligations of all LC Lenders, as applicable, thereunder. |
5 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
6 | To be inserted by Administrative Agent following receipt of a processing and recordation fee of $3,500 (except in the case of assignments of the Term Commitments or Term Loans made by or to Goldman Sachs) and an administrative questionnaire (if it is not a Lender), and which shall be the Effective Date of recordation of transfer in the register therefor. |
Schedule 8.19-1
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR | ||
[NAME OF ASSIGNOR] | ||
By: |
| |
Title: |
| |
ASSIGNEE | ||
[NAME OF ASSIGNEE] | ||
By: |
| |
Title: |
|
[Consented to: | ||
[CREDIT AGRICOLE CORPORATE | ||
AND INVESTMENT BANK, as Administrative Agent | ||
By: |
| |
Title:]7 | ||
[Consented to: | ||
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Title:]8 | ||
[NAME OF ISSUER | ||
By: |
| |
Title:]9 |
7 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
8 | To be added only if the consent of the LC Borrower is required by the terms of the Credit Agreement. |
9 | To be added only if the consent of the Issuers is required by the terms of the Credit Agreement. Duplicate Issuer signature blocks as needed. |
Schedule 8.19-1
Annex 1
to Assignment and Acceptance
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
SECTION 1. REPRESENTATIONS AND WARRANTIES.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of their Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender or Issuer (as applicable) under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender or Issuer (as applicable) thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender or Issuer (as applicable) thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, Issuer or any of their Related Parties, (v) attached to this Assignment and Acceptance is the documentation referred to in Section 2.16(e) or (f) (as applicable) of the Credit Agreement and any other documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee, (vi) it is not a Borrower nor is it an Affiliate or Subsidiary of the Parent, (vii) it is not a natural person, (viii) in the case of an assignment of Letter of Credit Facility Commitments or Letter of Credit Obligations, it is not a Defaulting Lender or a Subsidiary of a Defaulting Lender or a Person who, upon becoming a Lender under the Credit Agreement, would constitute any of the foregoing Persons and (ix) in the case of an assignment of Term Commitments or Term Loans, it is not a Disqualified Term Lender; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, Issuer or their Related Parties and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis and decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender or Issuer (as applicable).
SECTION 2. PAYMENTS. FROM AND AFTER THE EFFECTIVE DATE, THE ADMINISTRATIVE AGENT SHALL MAKE ALL PAYMENTS IN RESPECT OF THE ASSIGNED INTEREST (INCLUDING PAYMENTS OF PRINCIPAL, INTEREST, FEES AND OTHER AMOUNTS) TO THE ASSIGNOR FOR AMOUNTS WHICH HAVE ACCRUED TO BUT EXCLUDING THE EFFECTIVE DATE AND TO THE ASSIGNEE FOR AMOUNTS WHICH HAVE ACCRUED FROM AND AFTER THE EFFECTIVE DATE.
SECTION 3. GENERAL PROVISIONS. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE BINDING UPON, AND INURE TO THE BENEFIT OF, THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. THIS ASSIGNMENT AND ACCEPTANCE MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES IN SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT. SIGNATURE PAGES MAY BE DETACHED FROM MULTIPLE SEPARATE COUNTERPARTS AND ATTACHED TO A SINGLE COUNTERPART SO THAT ALL SIGNATURE PAGES ARE ATTACHED TO THE SAME DOCUMENT. DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE OF THIS ASSIGNMENT AND ACCEPTANCE BY TELECOPY OR BY OTHER ELECTRONIC IMAGING MEANS SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART THEREOF. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
EXHIBIT B
TO CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$[ ]
New York, NY
[ ]
FOR VALUE RECEIVED, the Term Borrower (as hereinafter defined) hereby unconditionally promises to pay to [ ] (the Term Lender) or its registered assigns at the office specified in the Credit Agreement (as hereinafter defined) in lawful money of the United States and in immediately available funds, on the Term Maturity Date the principal amount of (a) [ ] DOLLARS ($[ ]), or, if less, (b) the aggregate unpaid principal amount of all Term Loans made by the Term Lender to the Term Borrower pursuant to the Credit Agreement. The Term Borrower further agrees to pay interest in like money at such office specified in the Credit Agreement on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in Section 2.10 of the Credit Agreement.
The registered holder of this Note (this Note) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof, which shall be attached hereto and made a part hereof, the date, type and amount of each Term Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another type and, in the case of Eurodollar Rate Loans, the length of each Interest Period with respect thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information so endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Term Borrower in respect of any Term Loan.
This Note (a) is one of the promissory notes relating to Term Loans referred to in the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among McDermott International, Inc., a Panamanian corporation, McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors, the Administrative Agent) and collateral agent for the Lenders and the Issuers, (b) is subject to the provisions of the Credit Agreement and (c) is subject to prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the
B-1
security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the registered holder of this Note in respect thereof. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Loan Documents.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind, except as expressly set forth in the Credit Agreement.
The Term Borrower promises to pay all costs and expenses, including reasonable attorneys fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note. The Term Borrower and its successors or assigns hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.2 OF THE CREDIT AGREEMENT.
B-2
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
MCDERMOTT FINANCE L.L.C. | ||
By: |
| |
Name: |
| |
Title: |
|
B-3
Schedule A
to Promissory Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
Date |
Amount of Base Rate Loans |
Amount Converted to Base Rate Loans |
Amount of Principal of Base Rate Loans Repaid |
Amount of Base Rate Loans Converted to Eurodollar Rate Loans |
Unpaid Principal Balance of Base Rate Loans |
Notation Made By | ||||||
B-4
Schedule B
to Promissory Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE LOANS
Date |
Amount of Eurodollar Rate Loans |
Amount Converted to Eurodollar Rate Loans |
Interest Period and Eurodollar Rate with Respect Thereto |
Amount of Principal of Eurodollar Rate Loans Repaid |
Amount of Eurodollar Rate Loans Converted to Base Rate Loans |
Unpaid Principal Balance of Eurodollar Rate Loans |
Notation Made By | |||||||
B-5
EXHIBIT C
TO CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
Crédit Agricole Corporate and Investment Bank,
as Administrative Agent for
the Lenders referred to below,
1301 Avenue of the Americas
New York, NY 10019
[Date]
Attention of: [ ]
Ladies and Gentlemen:
The undersigned, McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), refers to the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement; terms used herein and not otherwise defined herein having the meanings attributed thereto in the Credit Agreement) among McDermott International, Inc., the Term Borrower, the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors, the Administrative Agent) and collateral agent for the Lenders and the Issuers, and hereby gives you irrevocable notice pursuant to Section 2.2(a) of the Credit Agreement that the undersigned hereby requests a Borrowing of Term Loans, and in connection with that request sets forth below the information relating to such Borrowing (the Proposed Borrowing) as required by Section 2.2(a) of the Credit Agreement:
(i) Date of Proposed Borrowing1: | ||||
(ii) Proposed Borrowing will be composed of: | [Base][Eurodollar] Rate Loans | |||
(iii) Aggregate amount of Proposed Borrowing: | $ | |||
(iv) Initial Interest Period2: |
(v) Funds are requested to be disbursed to the Term Borrowers account with (Account No. ).
1 | Notice of Borrowing must be received by the Administrative Agent not later than 1:00 p.m. (New York time) (i) on the Effective Date, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days prior to the Effective Date in the case of a Borrowing of Eurodollar Rate Loans. |
2 | Which shall be subject to the definition of Interest Period and Sections 2.10 and 2.11 of the Credit Agreement and end not later than the Scheduled Term Maturity Date (applicable for Eurodollar Rate Loans only). |
C-1
The Term Borrower hereby certifies that the following statements will be true on the date of the Proposed Borrowing, both before and after giving effect thereto and to any application of the proceeds therefrom on such date:
(A) (i) The representations and warranties contained in Article IV of the Credit Agreement and in the other Loan Documents that have no materiality or Material Adverse Effect qualification are true and correct in all material respects and (ii) the representations and warranties set forth in Article IV of the Credit Agreement and in the other Loan Documents that have a materiality or Material Adverse Effect qualification are true and correct in all respects, in each case with the same effect as though made on and as of such date or, to the extent such representations and warranties expressly relate to an earlier date, as of such earlier date; and
(B) No Default or Event of Default has occurred and is continuing.
Very truly yours, | ||
MCDERMOTT FINANCE L.L.C. | ||
By: |
| |
Name: | ||
Title: |
C-2
EXHIBIT D
TO CREDIT AGREEMENT
FORM OF PLEDGE AND SECURITY AGREEMENT
D-1
EXECUTION VERSION
FIRST LIEN PLEDGE AND SECURITY AGREEMENT
made by
MCDERMOTT INTERNATIONAL, INC.
and certain of its Subsidiaries
in favor of
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as Administrative Agent and Collateral Agent
Dated April 16, 2014
TABLE OF CONTENTS
Page | ||||||
SECTION 1. |
DEFINED TERMS |
1 | ||||
1.1. |
Definitions |
1 | ||||
1.2. |
Other Definitional Provisions |
8 | ||||
SECTION 2. |
GUARANTEE |
9 | ||||
2.1. |
Guarantee |
9 | ||||
2.2. |
Rights of Reimbursement, Contribution and Subrogation |
10 | ||||
2.3. |
Amendments, etc. with respect to the Borrowers Obligations |
12 | ||||
2.4. |
Guarantee Absolute and Unconditional |
12 | ||||
2.5. |
Reinstatement |
13 | ||||
2.6. |
Payments |
13 | ||||
2.7. |
Keepwell |
13 | ||||
SECTION 3. |
GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL |
13 | ||||
SECTION 4. |
REPRESENTATIONS AND WARRANTIES |
15 | ||||
4.1. |
Representations in Credit Agreement |
15 | ||||
4.2. |
Title; No Other Liens |
16 | ||||
4.3. |
Perfected First Priority Liens |
16 | ||||
4.4. |
Name; Jurisdiction of Organization, etc. |
17 | ||||
4.5. |
Inventory |
17 | ||||
4.6. |
Farm Products |
17 | ||||
4.7. |
Investment Property |
17 | ||||
4.8. |
Receivables |
18 | ||||
4.9. |
Intellectual Property |
18 | ||||
4.10. |
UCC Letters of Credit and UCC Letter of Credit Rights |
20 | ||||
4.11. |
Commercial Tort Claims |
21 | ||||
4.12. |
Contracts |
21 | ||||
4.13. |
Deposit Accounts; Securities Accounts |
21 | ||||
SECTION 5. |
COVENANTS |
21 | ||||
5.1. |
Covenants in Credit Agreement |
21 | ||||
5.2. |
Delivery and Control of Instruments, Chattel Paper, Negotiable Documents and Investment Property |
21 | ||||
5.3. |
Maintenance of Insurance |
23 | ||||
5.4. |
Payment of Obligations |
23 | ||||
5.5. |
Maintenance of Perfected Security Interest; Further Documentation |
24 | ||||
5.6. |
Changes in Locations, Name, Jurisdiction of Incorporation, etc. |
24 | ||||
5.7. |
Notices |
24 | ||||
5.8. |
Investment Property |
25 | ||||
5.9. |
Receivables |
26 | ||||
5.10. |
Intellectual Property |
26 | ||||
5.11. |
Contracts |
28 |
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TABLE OF CONTENTS
(CONTINUED)
5.12. |
Commercial Tort Claims |
29 | ||||
5.13. |
Deposit Accounts |
29 | ||||
5.14. |
Financial Assets |
29 | ||||
SECTION 6. |
REMEDIAL PROVISIONS |
30 | ||||
6.1. |
Certain Matters Relating to Receivables |
30 | ||||
6.2. |
Communications with Obligors; Grantors Remain Liable |
30 | ||||
6.3. |
Pledged Securities |
31 | ||||
6.4. |
Proceeds to be Turned Over to Collateral Agent |
32 | ||||
6.5. |
Application of Proceeds |
32 | ||||
6.6. |
Code and Other Remedies |
33 | ||||
6.7. |
Private Sales, etc. |
34 | ||||
6.8. |
Deficiency |
35 | ||||
6.9. |
Deposit Accounts/Securities Accounts |
35 | ||||
SECTION 7. |
THE COLLATERAL AGENT |
35 | ||||
7.1. |
Collateral Agents Appointment as Attorney-in-Fact, etc. |
35 | ||||
7.2. |
Duty of Collateral Agent |
37 | ||||
7.3. |
Execution of Financing Statements |
37 | ||||
7.4. |
Authority of Collateral Agent |
38 | ||||
7.5. |
Appointment of Co-Collateral Agents |
38 | ||||
SECTION 8. |
MISCELLANEOUS |
38 | ||||
8.1. |
Amendments in Writing |
38 | ||||
8.2. |
Notices |
38 | ||||
8.3. |
No Waiver by Course of Conduct; Cumulative Remedies |
38 | ||||
8.4. |
Enforcement Expenses; Indemnification |
39 | ||||
8.5. |
Successors and Assigns |
39 | ||||
8.6. |
Set-Off |
39 | ||||
8.7. |
Counterparts |
40 | ||||
8.8. |
Severability |
40 | ||||
8.9. |
Section Headings |
40 | ||||
8.10. |
Integration |
40 | ||||
8.11. |
APPLICABLE LAW |
40 | ||||
8.12. |
Submission to Jurisdiction; Waivers |
41 | ||||
8.13. |
Acknowledgments |
41 | ||||
8.14. |
Additional Grantors |
42 | ||||
8.15. |
Releases |
42 | ||||
8.16. |
WAIVER OF JURY TRIAL |
43 | ||||
8.17. |
Riders for Non-U.S. Jurisdictions |
43 |
ii
TABLE OF CONTENTS
(CONTINUED)
SCHEDULE 4.3 PERFECTED FIRST PRIORITY LIENS |
SCHEDULE 4.4 NAME; JURISDICTION OF ORGANIZATION, ETC. |
SCHEDULE 4.5 INVENTORY |
SCHEDULE 4.7 INVESTMENT PROPERTY |
SCHEDULE 4.9 INTELLECTUAL PROPERTY |
SCHEDULE 4.11 COMMERCIAL TORT CLAIMS |
SCHEDULE 4.12 EXCLUDED PLEDGED COLLATERAL |
SCHEDULE 4.13 DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS |
SCHEDULE 8.2 NOTICES |
EXHIBIT A ACKNOWLEDGEMENT AND CONSENT |
EXHIBIT B FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT |
ANNEX 1 FORM OF ASSUMPTION AGREEMENT |
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This First Lien Pledge and Security Agreement dated as of April 16, 2014 is made by each of the signatories hereto (together with any other grantor that may become a party hereto as provided herein, the Grantors), in favor of Crédit Agricole Corporate and Investment Bank (CA CIB), acting through one or more of its branches or affiliates, as administrative agent (in such capacity and together with its successors in such capacity, the Administrative Agent) and as collateral agent (in such capacity and together with its successors in such capacity, the Collateral Agent) for (i) the Lenders and the Issuers from time to time parties to the Credit Agreement, dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), among McDermott International, Inc., a Panamanian corporation (the LC Borrower), McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower and, together with the LC Borrower, the Borrowers), the Administrative Agent, the Collateral Agent, the Lenders and the Issuers from time to time parties thereto, and (ii) the other Secured Parties.
Each Grantor hereby agrees with the Administrative Agent and Collateral Agent, for the ratable benefit of the Secured Parties, as follows:
SECTION 4. DEFINED TERMS.
4.1. Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein have the meanings given to them in the Credit Agreement, and the following terms are used herein as defined in the New York UCC (and if defined in more than one Article of the New York UCC, such terms have the meanings given in Article 9 thereof): Accounts, Account Debtor, As-Extracted Collateral, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract, Commodity Intermediary, Documents, Deposit Account, Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures, General Intangibles, Goods, Instruments, Inventory, Money, Payment Intangibles, Securities Account, Securities Intermediary, Security, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b) The following terms shall have the following meanings:
Administrative Agent has the meaning assigned to such term in the preamble to this Agreement.
After-Acquired Intellectual Property has the meaning assigned to such term in Section 5.10(i).
Agreement means this First Lien Pledge and Security Agreement.
Borrowers has the meaning assigned to such term in the preamble to this Agreement.
Collateral has the meaning assigned to such term in Section 3.
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Collateral Account means any collateral account established by the Collateral Agent as provided in Sections 6.1 or 6.4.
Collateral Account Funds means, collectively, the following: all funds (including all trust monies) and investments (including all cash equivalents) credited to, or purchased with funds from, any Collateral Account and all certificates and instruments from time to time representing or evidencing such investments; all Money, notes, certificates of deposit, checks and other instruments from time to time hereafter delivered to or otherwise possessed by the Collateral Agent for or on behalf of any Grantor in substitution for, or in addition to, any or all of the Collateral; and all interest, dividends, cash, instruments and other property from time to time received in, receivable or otherwise distributed to the Collateral Account in respect of or in exchange for any or all of the items constituting Collateral.
Collateral Agent has the meaning assigned to such term in the preamble to this Agreement.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Contracts means all contracts and agreements between any Grantor and any other Person (in each case, whether written or oral, or third party or intercompany) as the same may be amended, assigned, extended, restated, supplemented, replaced or otherwise modified from time to time including (i) all rights of any Grantor to receive moneys due and to become due to it thereunder or in connection therewith, (ii) all rights of any Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) all rights of any Grantor to damages arising thereunder and (iv) all rights of any Grantor to terminate and to perform and compel performance of, such Contracts and to exercise all remedies thereunder.
Copyright Licenses means any agreement, whether written or oral, naming any Grantor as licensor or licensee (including those listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time)), granting any right in, to or under any Copyright, including the grant of rights to publicly perform, display, copy, prepare derivative works or distribute under any Copyright. This term shall exclude implied licenses and any rights obtained or granted under a copyright pursuant to the doctrines of first sale or estoppel.
Copyrights means (i) all copyrights arising under applicable Laws, whether registered or unregistered and whether published or unpublished (including those listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time)), all registrations and recordings thereof, and all applications in connection therewith and rights corresponding thereto throughout the world, including all registrations, recordings and applications in the United States Copyright Office, and all mask works (as defined in 17 USC 901), (ii) the right to, and to obtain, all extensions and renewals thereof, and the right to sue for past, present and future infringements of any of the foregoing, (iii) all proceeds of the foregoing, including license, royalties, income, payments, claims, damages, and proceeds of suit and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto.
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Credit Agreement has the meaning assigned to such term in the preamble to this Agreement.
Excluded Accounts means: (i) Deposit Accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of a Grantors employees (including, without limitation, pension fund accounts and 401(k) accounts); (ii) Deposit Accounts exclusively used for taxes (including, without limitation, sales taxes); (iii) Special Purpose Escrow Accounts, (iv) Restricted Cash Collateral Accounts; and (v) Fiduciary Accounts.
Excluded Assets means: (i) any lease, license, contract, property right (including, without limitation, interests in Inventory) or agreement to which any Grantor is a party or any of its rights or interests thereunder if and only for so long as the grant of a security interest hereunder shall constitute or result in a breach, termination or default under any such lease, license, contract, property right or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Laws or principles of equity); provided, however, that such security interest shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified above; (ii) all Excluded Accounts; (iii) all Stock and Stock Equivalents of each Captive Insurance Subsidiary; (iv) all Stock and Stock Equivalents of any SPV that has incurred DLV 2000 Permitted Debt that is secured by the Stock or Stock Equivalents of such SPV; and (v) all Stock and Stock Equivalents of North Ocean 105 AS to the extent that, and only for so long as, such Stock and Stock Equivalents are pledged to secure indebtedness (other than the Obligations) of North Ocean 105 AS.
Fiduciary Account means any fiduciary or trust account held by a Grantor which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
Grantors has the meaning assigned to such term in the preamble to this Agreement.
Guarantors means the collective reference to each Grantor herein other than (i) the Term Borrower with respect to the Obligations in respect of the Term Loans and (ii) the LC Borrower with respect to the Obligations in respect of the LC Facility.
Insurance means all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is named as additional insured or loss payee thereof).
Intellectual Property means the collective reference to all intellectual property rights arising under applicable Laws, including the Copyrights, the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses, and all other intellectual property of any type, including mask works and industrial designs.
Intellectual Property Security Agreement means an Intellectual Property Security Agreement in substantially the form of Exhibit B or such other form as may be approved by the Collateral Agent.
3
Intercompany Note means any promissory note evidencing Indebtedness permitted to be incurred pursuant to Section 8.1(f) (Indebtedness) of the Credit Agreement with respect to any outstanding intercompany obligations and advances owed by or to a Loan Party.
Investment Property means the collective reference to (i) all investment property as such term is defined in Section 9-102(a)(49) of the New York UCC, including all Certificated Securities and Uncertificated Securities, all Security Entitlements, all Commodity Contracts and all Commodity Accounts and (ii) whether or not otherwise constituting investment property, all Pledged Notes, all Pledged Equity Interests and all Pledged Commodity Contracts.
Laws means, collectively, all international (including any union of countries, or any political subdivision thereof), foreign (including for the avoidance of doubt the laws of any jurisdiction in which any Guarantor is incorporated or registered), federal, state or other political subdivision (including the District of Columbia and any territory or possession of the United States, including those specified in Section 5.2), county, municipal and local constitutions, statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities.
Licensed Intellectual Property has the meaning assigned to such term in Section 4.9(a).
Material Account means any Deposit Account (other than Excluded Accounts) or Securities Account of a Grantor (i) listed as such on Schedule 4.13, (ii) that serves as the functional replacement of a Deposit Account or Securities Account listed as a Material Account on Schedule 4.13, (iii) that regularly receives payments from customers on any material contract that are not transferred to another account that constitutes a Material Account within one Business Day of receipt thereof or (iv) with a minimum daily average balance of at least $5,000,000 (other than any disbursement account that is primarily used to make vendor or other third party payments and which does not receive payments from customers on any material contracts).
Material Contract means any Contract the termination of which could reasonably be expected to have a Material Adverse Effect.
Material Intellectual Property has the meaning assigned to such term in Section 4.9(b).
New York UCC means the Uniform Commercial Code as from time to time in effect in the State of New York.
Owned Intellectual Property has the meaning assigned to such term in Section 4.9(a).
Patent License means all agreements, whether written or oral, providing for the grant by or to any Grantor of any right to make, use, import, offer for sale, or sell any invention covered in whole or in part by a Patent, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a patent pursuant to the doctrines of exhaustion or estoppel.
4
Patents means (i) all United States patents, patents issued by any other country, union of countries or any political subdivision of any of the foregoing, and all reissues and extensions thereof, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (ii) all patent applications pending in the United States or any other country or union of countries or any political subdivision of any of the foregoing and all divisions, continuations and continuations-in-part thereof, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (iii) all rights to, and to obtain, any reissues or extensions of the foregoing and (iv) all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages and proceeds of suit.
Pledged Alternative Equity Interests means all interests of any Grantor in participation or other interests in any equity or profits of any business entity and the certificates, if any, representing such interests and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and any other warrant, right or option to acquire any of the foregoing; provided, however, that Pledged Alternative Equity Interests shall not include any Pledged Stock, Pledged Partnership Interests, Pledged LLC Interests or Pledged Trust Interests.
Pledged Commodity Contracts means all commodity contracts listed on Schedule 4.7 (as such schedule may be amended from time to time) and all other Commodity Contracts to which any Grantor is party from time to time.
Pledged Equity Interests means all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests, Pledged Trust Interests and Pledged Alternative Equity Interests.
Pledged LLC Interests means all interests of any Grantor now owned or hereafter acquired in any limited liability company, including all limited liability company interests listed on Schedule 4.7 hereto under the heading Pledged LLC Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such limited liability company interests and any interest of such Grantor on the books and records of such limited liability company and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and any other warrant, right or option to acquire any of the foregoing.
Pledged Notes means all promissory notes now owned or hereafter acquired by any Grantor, including those listed on Schedule 4.7 (as such schedule may be amended or supplemented from time to time) and all Intercompany Notes at any time issued to or held by any Grantor (other than (i) promissory notes in an aggregate principal amount not to exceed $1,000,000 at any time outstanding issued in connection with extensions of trade credit by any Grantor in the ordinary course of business and (ii) promissory notes constituting Cash Equivalents that are held by any Grantor).
Pledged Partnership Interests means all interests of any Grantor now owned or hereafter acquired in any general partnership, limited partnership, limited liability partnership or
5
other partnership, including all partnership interests listed on Schedule 4.7 hereto under the heading Pledged Partnership Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such partnership interests and any interest of such Grantor on the books and records of such partnership and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other warrant, right or option to acquire any of the foregoing.
Pledged Securities means the collective reference to the Pledged Notes and the Pledged Equity Interests.
Pledged Stock means all shares of capital stock now owned or hereafter acquired by any Grantor, including all shares of capital stock listed on Schedule 4.7 hereto under the heading Pledged Stock (as such schedule may be amended or supplemented from time to time), and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares and any other warrant, right or option to acquire any of the foregoing.
Pledged Trust Interests means all interests of any Grantor now owned or hereafter acquired in a Delaware business trust or other trust, including all trust interests listed on Schedule 4.7 hereto under the heading Pledged Trust Interests (as such schedule may be amended or supplemented from time to time) and the certificates, if any, representing such trust interests and any interest of such Grantor on the books and records of such trust or on the books and records of any Securities Intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such trust interests and any other warrant, right or option to acquire any of the foregoing.
Proceeds means all proceeds as such term is defined in Section 9-102(a)(64) of the New York UCC and, in any event, shall include all dividends or other income from the Investment Property, collections thereon or distributions or payments with respect thereto.
Qualified ECP Guarantor means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an eligible contract participant under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Receivable means all Accounts and any other right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance. References herein to Receivables shall include any Supporting Obligation or collateral securing such Receivable.
6
Restricted Cash Collateral Accounts means any restricted cash collateral account held by a Grantor where the deposits or proceeds of such account are used primarily to support letters of credit and exposure from Swap Obligations, and which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
Securities Act means the Securities Act of 1933, as amended.
Special Purpose Escrow Account means any escrow account held by a Grantor in connection with holdbacks for acquisitions or similar matters, and which is not a Material Account (other than as a result of clause (iv) of the definition thereof).
Swap Obligation means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a swap within the meaning of Section 1a(47) of the Commodity Exchange Act.
Trademark License means any agreement, whether written or oral, providing for the grant by or to any Grantor of any right in, to or under any Trademark, including any of the foregoing referred to in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a trademark pursuant to the doctrines of first sale or estoppel.
Trademarks means (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, designs and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country, union of countries, or any political subdivision of any of the foregoing, or otherwise, and all common-law rights related thereto, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time), (ii) the right to, and to obtain, all renewals thereof, (iii) the goodwill of the business symbolized by the foregoing and (iv) the right to sue for past, present and future infringements or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including royalties, income, payments, claims, damages and proceeds of suit.
Trade Secret License means any agreement, whether written or oral, providing for the grant by or to any Grantor of any right in, to or under any Trade Secret, including any of the foregoing listed in Schedule 4.9 (as such schedule may be amended or supplemented from time to time). This term shall exclude implied licenses and any rights obtained or granted under a trade secret pursuant to the doctrine of estoppel.
Trade Secrets means (i) all trade secrets and all other confidential or proprietary information and know-how whether or not reduced to a writing or other tangible form, (ii) all documents and things embodying, incorporating or describing such Trade Secrets, and (iii) the right to sue for past, present and future misappropriations of any Trade Secret, and all proceeds of the foregoing, including royalties, income, payments, claims, damages and proceeds of suit.
7
UCC Letter of Credit means Letter of Credit (and in plural, Letters of Credit) as defined in the New York UCC.
UCC Letter of Credit Rights means Letter-of-Credit Rights as defined in the New York UCC.
UETA has the meaning assigned to such term in Section 4.3.
4.2. Other Definitional Provisions.
(a) The words hereof, herein, hereto and hereunder and similar words refer to this Agreement as a whole, and not to any particular Article, Section, subsection or clause in this Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in this Agreement to an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in this Agreement and (ii) the words above and below, when following a reference to a clause or a sub-clause of this Agreement, refer to a clause or sub-clause within, respectively, the same Section or clause.
(c) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to the property or assets such Grantor has granted as Collateral or the relevant part thereof.
(d) The expressions payment in full, paid in full and any other similar terms or phrases when used herein with respect to the Obligations means the unconditional, final and irrevocable payment in full, in immediately available funds, of all of the Obligations, unless otherwise specified, other than indemnification and other contingent obligations not then due and payable.
(e) Each agreement defined in this Section 1 shall include all appendices, exhibits and schedules thereto. References in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified, unless (i) the prior written consent of the Requisite Lenders is required under the Credit Agreement for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained or (ii) it is otherwise specified that such reference refers to such agreement as of a particular date.
(f) References in this Agreement to any statute shall be to such statute as amended or modified, together with any successor legislation, in each case in effect at the time any such reference is operative unless it is otherwise specified that such reference refers to such statute as of a particular date.
(g) The term including when used in any Loan Document means including without limitation except when used in the computation of time periods. The phrase in the aggregate, when used in any Loan Document, means individually or in the aggregate, unless otherwise expressly noted. All references to the Lenders herein shall, where appropriate, include any Secured Party.
8
SECTION 5. GUARANTEE.
5.1. Guarantee.
(a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Borrowers Obligations.
(b) If and to the extent required in order for the Obligations of any Guarantor to be enforceable under applicable Laws relating to the insolvency or winding up of debtors, the maximum liability of such Guarantor hereunder shall be limited to the greatest amount which can lawfully be guaranteed by such Guarantor under such Laws, after giving effect to any rights of contribution, reimbursement and subrogation arising under Section 2.2. Each Guarantor acknowledges and agrees that, to the extent not prohibited by applicable Laws, (i) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right under such Laws to reduce, or request any judicial relief that has the effect of reducing, the amount of its liability under this Agreement, (ii) such Guarantor (as opposed to its creditors, representatives of creditors or bankruptcy trustee, including such Guarantor in its capacity as debtor in possession exercising any powers of a bankruptcy trustee) has no personal right to enforce the limitation set forth in this Section 2.1(b) or to reduce, or request judicial relief reducing, the amount of its liability under this Agreement, and (iii) the limitation set forth in this Section 2.1(b) may be enforced only to the extent required under such Laws in order for the obligations of such Guarantor under this Agreement to be enforceable under such Laws and only by or for the benefit of a creditor, representative of creditors or bankruptcy trustee of such Guarantor or other Person entitled, under such Laws, to enforce the provisions thereof.
(c) Each Guarantor agrees that the Borrowers Obligations may at any time and from time to time be incurred or permitted in an amount exceeding the maximum liability of such Guarantor under Section 2.1(b) without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of any Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until payment in full of the Obligations, subject to the provisions of clause (e) below, notwithstanding that from time to time during the term of the Credit Agreement the Borrowers may be free from any Obligations.
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(e) No payment made by any Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by any Secured Party from any Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Borrowers Obligations or any payment received or collected from such Guarantor in respect of the Borrowers Obligations), remain liable for the Borrowers Obligations up to the maximum liability of such Guarantor hereunder until the Borrowers Obligations (other than Obligations in respect of any Hedging Contracts and any Treasury Management Arrangements) are paid in full, no Letter of Credit shall be outstanding (other than Letters of Credit that have been cash collateralized or otherwise secured in accordance with the terms of the Credit Agreement) under the Credit Agreement and all commitments to extend credit under the Credit Agreement shall have been terminated or have expired.
5.2. Rights of Reimbursement, Contribution and Subrogation. In case any payment is made on account of the Obligations by any Grantor or is received or collected on account of the Obligations from any Grantor or its property:
(a) If such payment is made by any Borrower or from its property, then, if and to the extent such payment is made on account of Obligations arising from or relating to a Loan or other extension of credit made to the Borrowers or a Letter of Credit issued for the account of the Borrowers, the Borrowers shall not be entitled (i) to demand or enforce reimbursement or contribution in respect of such payment from any other Grantor or (ii) to be subrogated to any claim, interest, right or remedy of any Secured Party against any other Person, including any other Grantor or its property.
(b) If such payment is made by a Guarantor or from its property, such Guarantor shall be entitled, subject to and upon payment in full of the Obligations, (i) to demand and enforce reimbursement for the full amount of such payment from the Borrowers and (ii) to demand and enforce contribution in respect of such payment from each other Guarantor that has not paid its fair share of such payment, as necessary to ensure that (after giving effect to any enforcement of reimbursement rights provided hereby) each Guarantor pays its fair share of the unreimbursed portion of such payment. For this purpose, the fair share of each Guarantor as to any unreimbursed payment shall be determined based on an equitable apportionment of such unreimbursed payment among all Guarantors based on the relative value of their assets and any other equitable considerations deemed appropriate by a court of competent jurisdiction.
(c) If and whenever (after payment in full of the Obligations) any right of reimbursement or contribution becomes enforceable by any Grantor against any other Grantor under Sections 2.2(a) and 2.2(b), such Grantor shall be entitled, subject to and upon payment in full of the Obligations, to be subrogated (equally and ratably with all other Grantors entitled to reimbursement or contribution from any other Grantor as set forth in this Section 2.2) to any security interest that may then be held by the Collateral
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Agent upon any Collateral granted to it in this Agreement. Such right of subrogation shall be enforceable solely against the Grantors, and not against the Secured Parties, and neither the Collateral Agent nor any other Secured Party shall have any duty whatsoever to warrant, ensure or protect any such right of subrogation or to obtain, perfect, maintain, hold, enforce or retain any Collateral for any purpose related to any such right of subrogation. If subrogation is demanded by any Grantor, then (after payment in full of the Obligations) the Collateral Agent shall deliver to the Grantors making such demand, or to a representative of such Grantors or of the Grantors generally, an instrument reasonably satisfactory to the Collateral Agent transferring, on a quitclaim basis without any recourse, representation, warranty or obligation whatsoever, whatever security interest the Collateral Agent then may hold in whatever Collateral may then exist that was not previously released or disposed of by the Collateral Agent.
(d) All rights and claims arising under this Section 2.2 or based upon or relating to any other right of reimbursement, indemnification, contribution or subrogation that may at any time arise or exist in favor of any Grantor as to any payment on account of the Obligations made by it or received or collected from its property shall be fully subordinated in all respects to the prior payment in full of all of the Obligations. Until payment in full of the Obligations, no Grantor shall demand or receive any collateral security, payment or distribution whatsoever (whether in cash, property or securities or otherwise) on account of any such right or claim. If any such payment or distribution is made or becomes available to any Grantor in any bankruptcy case or receivership, insolvency or liquidation proceeding, such payment or distribution shall be delivered by the Person making such payment or distribution directly to the Collateral Agent, for application to the payment of the Obligations. If any such payment or distribution is received by any Grantor, it shall be held by such Grantor in trust, as trustee of an express trust for the benefit of the Secured Parties, and shall forthwith be transferred and delivered by such Grantor to the Collateral Agent, in the exact form received and, if necessary, duly endorsed.
(e) The obligations of the Grantors under the Loan Documents, including their liability for the Obligations and the enforceability of the security interests granted thereby, are not contingent upon the validity, legality, enforceability, collectibility or sufficiency of any right of reimbursement, contribution or subrogation arising under this Section 2.2. The invalidity, insufficiency, unenforceability or uncollectibility of any such right shall not in any respect diminish, affect or impair any such obligation or any other claim, interest, right or remedy at any time held by any Secured Party against any Guarantor or its property. The Secured Parties make no representations or warranties in respect of any such right and shall have no duty to assure, protect, enforce or ensure any such right or otherwise relating to any such right.
(f) Each Grantor reserves any and all other rights of reimbursement, contribution or subrogation at any time available to it as against any other Grantor, but (i) the exercise and enforcement of such rights shall be subject to Section 2.2(d) and (ii) neither the Collateral Agent nor any other Secured Party shall ever have any duty or liability whatsoever in respect of any such right, except as provided in Section 2.2(c).
(g) All references to payment in full of the Obligations in this Section 2.2 shall be deemed to refer to such payment after the Commitments have expired or are terminated.
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5.3. Amendments, etc. with respect to the Borrowers Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Borrowers Obligations made by any Secured Party may be rescinded by such Secured Party and any of the Borrowers Obligations continued, and the Borrowers Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, increased, extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured Party, and the Credit Agreement and the other Loan Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, as the parties thereto may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Borrowers Obligations may be sold, exchanged, waived, surrendered or released. No Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Borrowers Obligations or for the guarantee contained in this Section 2 or any property subject thereto.
5.4. Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Borrowers Obligations and notice of or proof of reliance by any Secured Party upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Borrowers Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between any of the Borrowers and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrowers or any of the Guarantors with respect to the Borrowers Obligations. Each Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance, not of collection, without regard to (a) the validity or enforceability of the Credit Agreement or any other Loan Document, any of the Borrowers Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance hereunder) which may at any time be available to or be asserted by any Borrower or any other Person against any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of such Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of such Borrower for any of the Borrowers Obligations, or of such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against any Borrower, any other Guarantor or any other Person or against any
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collateral security or guarantee for the Borrowers Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from any Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of any Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof demand shall include the commencement and continuance of any legal proceedings.
5.5. Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Borrowers Obligations is rescinded or must otherwise be restored or returned by any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
5.6. Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to the Collateral Agent without set-off or counterclaim in Dollars in immediately available funds at the office of the Collateral Agent as specified in the Credit Agreement.
5.7. Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Section 2 in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.7 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.7, or otherwise under this Agreement, voidable under applicable Laws relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until this Agreement is terminated in accordance with Section 8.15. Each Qualified ECP Guarantor intends that this Section 2.7 constitute, and this Section 2.7 shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
SECTION 6. GRANT OF SECURITY INTEREST; CONTINUING LIABILITY UNDER COLLATERAL.
(a) Each Grantor hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in such Grantors right, title and interest in and to the following property, in each case, wherever located and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the Collateral), as security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantors Obligations:
(i) all Accounts;
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(ii) all As-Extracted Collateral;
(iii) all cash and Cash Equivalents;
(iv) all Chattel Paper;
(v) all Collateral Accounts and all Collateral Account Funds;
(vi) all Commercial Tort Claims, including those from time to time specifically described on Schedule 4.11;
(vii) all Contracts;
(viii) all Documents;
(ix) all Equipment;
(x) all General Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Insurance;
(xiv) all Intellectual Property;
(xv) all Inventory;
(xvi) all Investment Property (it being understood that, to the extent such Investment Property constitutes shares issued by a company incorporated in the Cayman Islands, each Grantor holding such Investment Property hereby mortgages by way of first legal mortgage its right, title and interest in such Investment Property in favor of the Collateral Agent);
(xvii) all UCC Letters of Credit and UCC Letter of Credit Rights;
(xviii) all Financial Assets;
(xix) all Deposit Accounts;
(xx) all Securities Accounts;
(xxi) all Security Entitlements;
(xxii) all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer
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printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time pertain to or evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and
(xxiii) all Proceeds, goodwill, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing;
provided that, notwithstanding any other provision set forth in this Section 3, this Agreement shall not, at any time, constitute a grant of a security interest in any property that is, at such time, an Excluded Asset, and the term Collateral and each of the defined terms incorporated therein shall exclude the Excluded Assets.
(b) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under and in respect of the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any other Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including any Receivables, any Contracts and any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related hereto nor shall the Collateral Agent nor any other Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including any agreements relating to any Receivables, any Contracts or any agreements relating to Pledged Partnership Interests or Pledged LLC Interests and (iii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral, including any agreements relating to any Receivables, any Contracts and any agreements relating to Pledged Partnership Interests or Pledged LLC Interests.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
To induce the Agents, the Lenders, and the Issuers to enter into the Credit Agreement and to induce (i) the Lenders to make their respective extensions of credit thereunder and (ii) the Issuers to issue their respective Letters of Credit thereunder, each Grantor hereby represents and warrants to the Secured Parties that:
7.1. Representations in Credit Agreement. In the case of each Guarantor, the statement set forth in Section 3.2(b)(i) of the Credit Agreement is true as it relates to such Guarantor or to the Loan Documents to which such Guarantor is a party, provided that any reference therein to the Borrowers knowledge shall, for the purposes of this Section 4.1 be deemed to be a reference to such Guarantors knowledge.
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7.2. Title; No Other Liens. Such Grantor owns or licenses or otherwise has the right to use each item of the Collateral free and clear of any and all Liens, including Liens arising as a result of such Grantor becoming bound (as a result of merger or otherwise) as grantor under a security agreement entered into by another Person, except for Liens expressly permitted by Section 8.2 (Liens, Etc.) of the Credit Agreement. No effective financing statement, mortgage or other public notice indicating the existence of a Lien with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Collateral Agent pursuant to this Agreement or as are expressly permitted by the Credit Agreement.
7.3. Perfected First Priority Liens. The security interests granted pursuant to this Agreement (a) upon completion of the filings and other actions specified on Schedule 4.3 (all of which, in the case of all filings and other documents referred to on Schedule 4.3, have been (or shall be) delivered to the Collateral Agent in duly completed and duly executed form, as applicable, and may be filed by the Collateral Agent at any time) and payment of all filing fees, will constitute valid fully perfected security interests in all of the Collateral in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, as collateral security for such Grantors Obligations, enforceable in accordance with the terms hereof, to the extent such security interest in such Collateral can be perfected by (i) the filing of a financing statement under the Uniform Commercial Code of any jurisdiction, (ii) the filing with the United States Patent and Trademark Office or the United States Copyright Office of an Intellectual Property Security Agreement or other filing, (iii) the possession of such Collateral under applicable Laws of the United States and of any state (including the District of Columbia) thereof or (iv) execution and delivery by the applicable Grantor, the applicable Securities Intermediary or depositary institution, as applicable, and the Collateral Agent of an agreement granting control to the Collateral Agent over such Collateral that is a Material Account, and (b) are prior to all other Liens on the Collateral, except for Liens expressly permitted by Section 8.2 (Liens, Etc.) of the Credit Agreement. Without limiting the foregoing, within the time periods and to the extent required by the Credit Agreement (including, without limitation, Section 7.15 of the Credit Agreement) or this Agreement, each Grantor has taken, or shall take, all actions necessary or desirable under (x) the applicable Laws of the United States and any state (including the District of Columbia) thereof, (y) applicable Laws as required by Section 7.15 of the Credit Agreement and (z) such other applicable Laws as reasonably requested by the Administrative Agent in accordance with the Credit Agreement to establish (i) the Collateral Agents control (within the meanings of Sections 8-106 and 9-106 of the New York UCC or any analogous provision of the UCC) over any Securities Accounts included in the Collateral and over any portion of the Investment Property constituting Certificated Securities, Uncertificated Securities or Security Entitlements, in each case to the extent constituting a Material Account or a financial asset that is credited to a Material Account, (ii) the Collateral Agents control (within the meaning of Section 9-107 of the New York UCC or any analogous provision of the UCC) over all UCC Letter of Credit Rights, (iii) the Collateral Agents control (within the meaning of Section 9-105 of the New York UCC or any analogous provision of the UCC) over all Electronic Chattel Paper (iv) the Collateral Agents control (within the meaning of Section 16 of the Uniform Electronic Transaction Act (as in effect in the applicable jurisdiction, the UETA)) over all transferable records (as defined in UETA), (v) the Collateral Agents control (within the meaning of Section 9-104 of the New York UCC or any analogous provision of the UCC) over all Deposit Accounts included in the Collateral to the extent constituting a Material Account.
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7.4. Name; Jurisdiction of Organization, etc. On the Effective Date, such Grantors exact legal name (as indicated on the public record of such Grantors jurisdiction of formation or organization), jurisdiction of organization, organizational identification number, if any, and the location of such Grantors chief executive office or sole place of business are specified on Schedule 4.4. Each Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. Except as otherwise indicated on Schedule 4.4, for each Grantor organized or formed under the laws of any political subdivision of the United States, the jurisdiction of each such Grantors organization of formation is required to maintain a public record showing the Grantor to have been organized or formed. Except as specified on Schedule 4.4, as of the Effective Date no such Grantor has changed its name, jurisdiction of organization, chief executive office or sole place of business or its corporate structure in any way (e.g., by merger, consolidation, change in corporate form or otherwise) within the past five years and has not within the last five years become bound (whether as a result of merger or otherwise) as a grantor under a security agreement entered into by another Person, which has not heretofore been terminated.
7.5. Inventory.
(a) On the Effective Date, the Inventory of each Grantor (other than Inventory in transit, Inventory located outside the United States and Inventory which in the aggregate does not constitute a material portion of the Inventory included in the Collateral) is kept only at the locations listed on Schedule 4.5.
(b) Any Inventory now or hereafter produced by any Grantor included in the Collateral have been and will be produced in compliance in all material respects with the requirements of all applicable Laws, including the Fair Labor Standards Act, as amended.
(c) No material portion of the Inventory included in the Collateral is in the possession of an issuer of a negotiable document (as determined by Section 7-104 of the New York UCC) therefor or is otherwise in the possession of any bailee or warehouseman.
7.6. Farm Products. None of the Collateral constitutes, or is the Proceeds of, Farm Products.
7.7. Investment Property.
(a) Schedule 4.7 hereto sets forth under the headings Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests, respectively, all of the Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Trust Interests owned by any Grantor as of the Effective Date, and such Pledged Equity Interests constitute the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial interest of the respective issuers thereof indicated on such schedule. Schedule 4.7 sets forth under the heading Pledged Notes all of the Pledged Notes owned by any Grantor as of the Effective Date, and all of such Pledged Notes have been duly authorized, authenticated or issued, and delivered and are the legal, valid and
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binding obligation of the issuers thereof enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors rights generally and subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law, and constitute all of the issued and outstanding inter-company indebtedness evidenced by an Instrument or Certificated Security of the respective issuers thereof owing to such Grantor.
(b) The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of Stock owned by such Grantor in each issuer thereof.
(c) The Pledged Equity Interests have been duly and validly issued and, except as set forth on Schedule 4.7 hereto, are fully paid and nonassessable (to the extent applicable).
(d) Such Grantor is the record and beneficial owner of, and has good and marketable title to, the Investment Property pledged by it hereunder, free of any and all Liens or options in favor of, or claims of, any other Person, except Liens expressly permitted by Section 8.2 (Liens, Etc.) of the Credit Agreement, and except as set forth on Schedule 4.7, as of the Effective Date there are no outstanding warrants, options or other rights to purchase, or shareholder, equityholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests.
7.8. Receivables.
(a) No amount payable to such Grantor under or in connection with any Receivable that is included in the Collateral in excess of $1,000,000 is evidenced by any Instrument or Tangible Chattel Paper which has not been delivered to the Collateral Agent or constitutes Electronic Chattel Paper that has not been subjected to the control (within the meaning of Section 9-105 of the New York UCC) of the Collateral Agent.
(b) Each Receivable that is included in the Collateral (i) is and will be the legal, valid and binding obligation of the Account Debtor in respect thereof, representing an unsatisfied obligation of such Account Debtor, (ii) is and will be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors rights generally and subject to general principals of equity, regardless of whether considered in a proceeding in equity or at law, (iii) is not and will not be subject to any setoffs, defenses, taxes or counterclaims (except with respect to refunds, returns and allowances in the ordinary course of business) and (iv) is and will be in compliance with all applicable Laws, except where the failure to comply with this Section 4.8(b) with respect to each Receivable could not reasonably be expected to have a Material Adverse Effect.
7.9. Intellectual Property.
(a) Schedule 4.9 lists all Copyrights, Patents, and Trademarks which are registered with the U.S. Patent and Trademark Office or the U.S. Copyright Office or are
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the subject of an application for registration with any such Governmental Authority, in each case which is owned by such Grantor in its own name on the Effective Date (collectively, the Owned Intellectual Property). Except as set forth in Schedule 4.9, such Grantor is the exclusive owner of the entire and unencumbered right, title and interest in and to all material Owned Intellectual Property and is otherwise entitled to grant to others the right to use (and, where applicable, itself use) all such material Owned Intellectual Property. Such Grantor has a valid and enforceable right to use all Intellectual Property used by, or licensed to others by, such Grantor which is not Owned Intellectual Property (collectively, the Licensed Intellectual Property), in each case, which is material to such Grantors business, pursuant to one of the written material Copyright Licenses, Patent Licenses, Trademark Licenses, and/or Trade Secret Licenses listed on Schedule 4.9 and subject to the terms thereof.
(b) On the Effective Date, all Owned Intellectual Property and all Licensed Intellectual Property, in each case, which is material to such Grantors business (collectively, the Material Intellectual Property), is valid, subsisting, unexpired and enforceable and has not been abandoned. The operation of such Grantors business as currently conducted or as contemplated to be conducted does not infringe, constitute a misappropriation of, dilute, or otherwise violate the Intellectual Property of any other Person where the same could reasonably be expected to have a Material Adverse Effect.
(c) No claim has been asserted that the use of the Material Intellectual Property does or may infringe upon or constitute a misappropriation of the rights of any other Person.
(d) To such Grantors knowledge, no decision or judgment has been rendered by any Governmental Authority or arbitrator in the United States or outside the United States which would materially limit or cancel the validity or enforceability of, or such Grantors rights in, any Material Intellectual Property. Such Grantor is not aware of any uses of any item of Material Intellectual Property that could reasonably be expected to lead to such item becoming invalid or unenforceable including unauthorized trademark uses by third parties and uses which were not supported by the goodwill of the business connected with Trademarks and Trademark Licenses.
(e) No action or proceeding is pending, or, to such Grantors knowledge, threatened, on the Effective Date (i) seeking to limit, cancel or invalidate any Owned Intellectual Property, (ii) alleging that any services provided by, processes used by, or products manufactured or sold by such Grantor infringe any patent, trademark, copyright, or misappropriate any trade secret or violate any other right of any other Person, or (iii) alleging that any Material Intellectual Property is being licensed or sublicensed in violation of any intellectual property or any other right of any other Person, in each case, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. To such Grantors knowledge, no Person is engaging in any activity that infringes upon or misappropriates, or is otherwise an unauthorized use of, any Material Intellectual Property. The consummation of the transactions contemplated by this Agreement will not result in the termination of any of the Material Intellectual Property.
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(f) With respect to each Copyright License, Trademark License, Trade Secret License and Patent License which license constitutes Material Intellectual Property or the loss of which could otherwise have a Material Adverse Effect: (i) such license is binding and enforceable against the other party thereto; (ii) such license will not cease to be valid and binding and in full force and effect on terms identical to those currently in effect as a result of the rights and interests granted herein (including, but not limited to, the enforceability of such rights and interests with respect to each such license), nor will the grant of such rights and interests (or the enforceability thereof) constitute a breach or default under such license or otherwise give the licensor or licensee a right to terminate such license; (iii) such Grantor has not received any notice of termination or cancellation under such license; (iv) such Grantor has not received any notice of a breach or default under such license, which breach or default has not been cured; and (v) such Grantor is not in breach or default in any material respect, and no event has occurred that, with notice and/or lapse of time, would constitute such a breach or default or permit termination, modification or acceleration under such license.
(g) Except as set forth on Schedule 4.9, such Grantor has made all filings and recordations and paid all required fees and taxes to maintain each and every item of registered Material Intellectual Property in full force and effect and to protect and maintain its interest therein.
(h) To the knowledge of such Grantor, (i) none of the Trade Secrets that constitute Material Intellectual Property have been used, divulged, disclosed or appropriated to the detriment of such Grantor for the benefit of any other Person without permission of such Grantor; and (ii) no employee, independent contractor or agent of such Grantor has misappropriated any Trade Secrets of any other Person in the course of the performance of his or her duties as an employee, independent contractor or agent of such Grantor where the same could reasonably be expected to have a Material Adverse Effect.
(i) Such Grantor has taken commercially reasonable steps to exercise quality control over any licensee of such Grantors Trademarks.
7.10. UCC Letters of Credit and UCC Letter of Credit Rights. With respect to any UCC Letters of Credit that are by their terms transferable, each Grantor will, upon receipt of a written request from the Collateral Agent, use commercially reasonable efforts to cause all issuers and nominated Persons under UCC Letters of Credit in which the Grantor is the beneficiary or assignee to (a) consent to the assignment of such UCC Letter of Credit to the Collateral Agent and (b) agree that, upon receipt of written notice received from the Collateral Agent that an Event of Default has occurred and so long as such Event of Default is continuing, it shall cause all payments thereunder to be made to the Collateral Account. With respect to any UCC Letters of Credit that are not transferable, each Grantor shall, upon receipt of a written request from the Collateral Agent, use commercially reasonable efforts to obtain the consent of the issuer thereof and any nominated Person thereon to the assignment of the proceeds of such released UCC Letter of Credit to the Collateral Agent in accordance with Section 5-114(c) of the New York UCC.
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7.11. Commercial Tort Claims. As of the Effective Date, Schedule 4.11 hereto sets forth all Commercial Tort Claims of each Grantor that, to each such Grantors knowledge, has a value, individually or in the aggregate, in excess of $1,000,000.
7.12. Contracts. No amount payable to such Grantor under or in connection with any Contract that is included in the Collateral which has a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is evidenced by any Instrument or Tangible Chattel Paper which has not been delivered to the Collateral Agent or constitutes Electronic Chattel Paper that is not under the control (within the meaning of Section 9-105 of the New York UCC) of the Collateral Agent. Notwithstanding any representation, warranty, covenant or other provision contained herein to the contrary, the failure of any Grantor to deliver to the Collateral Agent the original Certificated Securities, Instruments and Tangible Chattel Paper described on Schedule 4.12 shall not constitute a breach, Default or an Event of Default hereunder.
7.13. Deposit Accounts; Securities Accounts. Set forth on Schedule 4.13, as of the Effective Date is a description of all Deposit Accounts and Securities Accounts of the Grantors, including the name of (A) the applicable Grantor, (B) in the case of a Deposit Account, the depository institution and whether such account is a Material Account or an Excluded Account, (C) in the case of a Securities Account, the Securities Intermediary or issuer, as applicable, and whether such account is a Material Account and (D) the jurisdiction where such account is located.
SECTION 8. COVENANTS.
Each Grantor covenants and agrees with the Secured Parties that, as of the Effective Date and until the termination of this Agreement in accordance with its terms:
8.1. Covenants in Credit Agreement.
Each Grantor shall take, or shall refrain from taking, as the case may be, each action that is within its control and is necessary to be taken or not taken, as the case may be, so that no Default or Event of Default is caused by the failure to take such action or to refrain from taking such action by such Grantor or any of its Subsidiaries.
8.2. Delivery and Control of Instruments, Chattel Paper, Negotiable Documents and Investment Property.
(a) If any of the Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become evidenced or represented by any Instrument, Certificated Security, Negotiable Document or Tangible Chattel Paper, such Instrument (other than checks received in the ordinary course of business), Certificated Security, Negotiable Documents or Tangible Chattel Paper shall be promptly delivered to the Collateral Agent, duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement. Without limiting the generality of the foregoing, all of such property owned by any Grantor as of the Effective Date and represented in such form shall be delivered on or before the Effective Date.
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(b) If any of the Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become Electronic Chattel Paper such Grantor shall ensure that (i) a single authoritative copy shall exist which is unique, identifiable, unalterable (except as provided in clauses (iii), (iv) and (v) of this paragraph), (ii) such authoritative copy identifies the Collateral Agent as the assignee and is communicated to and maintained by the Collateral Agent or its designee, (iii) copies or revisions that add or change the assignee of the authoritative copy can only be made with the participation of the Collateral Agent, (iv) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy and not the authoritative copy and (v) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.
(c) If any Collateral having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate is or shall become an Uncertificated Security, such Grantor shall cause the issuer thereof, if such issuer is a Subsidiary of any Borrower, either (i) to register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer or (ii) to agree in writing with such Grantor and the Collateral Agent that such issuer will comply with instructions with respect to such Uncertificated Security originated by the Collateral Agent without further consent of such Grantor, such agreement to be in substantially the form of Exhibit A, and such actions shall be taken on or prior to the Effective Date with respect to any such Uncertificated Securities owned as of the Effective Date by any Grantor.
(d) If any of the Collateral is or shall become evidenced or represented by a Commodity Contract having a value in excess of $1,000,000 individually or $5,000,000 in the aggregate, such Grantor shall, upon receipt of written request from the Collateral Agent, cause the Commodity Intermediary with respect to such Commodity Contract to agree in writing with such Grantor and the Collateral Agent that such Commodity Intermediary will apply any value distributed on account of such Commodity Contract as directed by the Collateral Agent without further consent of such Grantor, such agreement to be in form and substance reasonably satisfactory to the Collateral Agent.
(e) In addition to and not in lieu of the foregoing, if any issuer of any Investment Property is a Mortgaged Vessel Owning Subsidiary of any Borrower and is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Grantor shall take such additional actions, including causing such issuer to register the pledge on its books and records, as may be reasonably requested by the Collateral Agent, under the laws of such jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent. Notwithstanding anything herein to the contrary, each interest in any limited liability company or limited partnership that is a Subsidiary (other than any such Subsidiary that is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States) and pledged hereunder shall either (a) be represented by a certificate, shall be a security within the meaning of Article 8 of the New York UCC and shall be governed by Article 8 of the New York UCC, or (b) not be represented by a certificate, in which case, no Grantor shall take any action to cause such interest to be or become a security within the meaning of, or to be governed by, Article 8 of the UCC as in effect under the laws of any state having jurisdiction and shall not cause or permit any such limited liability company or limited partnership to opt in or to take any other action seeking to establish any interest in such limited liability
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company or limited partnership comprising the Collateral as a security or to become certificated, in each case, without promptly delivering all certificates evidencing such interest to the Collateral Agent in accordance with Section 5.2(a).
(f) In the case of any transferable UCC Letters of Credit in excess of $1,000,000 individually or $5,000,000 in the aggregate, each Grantor shall use commercially reasonable efforts to obtain the consent of any issuer thereof to the transfer of such UCC Letters of Credit to the Collateral Agent. In the case of any other UCC Letter of Credit Rights in excess of $1,000,000 individually or $5,000,000 in the aggregate, each Grantor shall use commercially reasonable efforts to obtain the consent of the issuer thereof and any nominated Person thereon to the assignment of the proceeds of the related UCC Letter of Credit in accordance with Section 5-114(c) of the New York UCC.
8.3. Maintenance of Insurance.
(a) Such Grantor will maintain insurance in accordance with Section 7.5 (Maintenance of Insurance) of the Credit Agreement, and furnish to the Collateral Agent, upon written request, with a copy of such insurance policies.
(b) Such Grantor will deliver to the Collateral Agent on behalf of the Secured Parties, (i) on the Effective Date, a certificate dated as of a recent date showing the amount and types of insurance coverage as of such date, (ii) upon reasonable request of the Collateral Agent from time to time, reasonably detailed information as to the insurance carried, (iii) promptly following receipt of notice from any insurer, a copy of any notice of cancellation or material change in coverage from that existing on the Effective Date and (iv) forthwith, notice of any cancellation or nonrenewal of coverage by such Grantor. To the extent applicable, the Collateral Agent shall be named as additional insured on all such liability insurance policies of such Grantor and the Collateral Agent shall be named as loss payee on all property and casualty insurance policies of such Grantor.
8.4. Payment of Obligations.
Such Grantor shall pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including claims for labor, materials and supplies) against or with respect to the Collateral, except that no such tax, assessment or charge need be paid if (i) the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Grantor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein, or (ii) the failure to so pay and discharge would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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8.5. Maintenance of Perfected Security Interest; Further Documentation.
(a) Except as otherwise expressly permitted by the Credit Agreement, such Grantor shall maintain each of the security interests created by this Agreement as a perfected security interest under (x) applicable Laws of the United States and of any state thereof, (y) applicable Laws as required by Section 7.15 of the Credit Agreement and (z) other applicable Laws to the extent otherwise reasonably required by the Administrative Agent in accordance with the Credit Agreement, having at least the priority described in Section 4.3 and shall defend such security interest against any claims and demands of any Persons (other than the Secured Parties), subject to the provisions of Section 8.15.
(b) Such Grantor shall furnish to the Secured Parties from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the assets and property of such Grantor as the Collateral Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor shall promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Collateral Agent may reasonably request to be taken, whether in the United States or outside the United States, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, the filing of any financing or continuation statements under the UCC (or other similar Laws) in effect in any jurisdiction within or without the United States with respect to the security interests created hereby and in the case of Investment Property and any other relevant Collateral, taking any actions necessary to enable the Collateral Agent to obtain control (within the meaning of the UCC) with respect thereto.
8.6. Changes in Locations, Name, Jurisdiction of Incorporation, etc. Such Grantor shall not, except upon at least 10 days prior written notice (or such shorter period consented to by the Collateral Agent in writing) to the Collateral Agent and delivery to the Collateral Agent of duly authorized and, where required, executed copies of all additional financing statements and other documents reasonably requested by the Collateral Agent to maintain the validity, perfection and priority of the security interests provided for herein:
(a) change its legal name, jurisdiction of organization or the location of its chief executive office or sole place of business from that referred to in Section 4.4; or
(b) change its legal name, identity or structure to such an extent that any financing statement filed by the Collateral Agent in connection with this Agreement would become misleading.
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8.7. Notices. Such Grantor shall advise the Collateral Agent promptly, in reasonable detail, of:
(a) any Lien on any of the Collateral (other than any Lien expressly permitted by Section 8.2 of the Credit Agreement) which would adversely affect the ability of the Collateral Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event of which such Grantor becomes aware that could reasonably be expected to have a Material Adverse Effect or a material adverse effect upon the aggregate value of the Collateral or on the security interests created hereby.
8.8. Investment Property.
(a) If such Grantor shall become entitled to receive or shall receive any stock or other ownership certificate (including any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights in respect of Pledged Equity Interests in any issuer thereof, whether in addition to, in substitution of, as a conversion of, or in exchange for, any shares of or other ownership interests in the Pledged Securities, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and promptly deliver the same to the Collateral Agent in the exact form received, duly endorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power or similar instrument of transfer covering such certificate duly executed in blank by such Grantor and with, if the Collateral Agent so requests, signature guaranteed, to be held by the Collateral Agent, subject to the terms hereof, as additional collateral security for the Obligations. Any sums paid upon or in respect of the Pledged Securities upon the liquidation or dissolution of any issuer thereof shall be paid over to the Collateral Agent to be held by it hereunder as additional collateral security for the Obligations if an Event of Default then exists, and in case any distribution of capital shall be made on or in respect of the Pledged Securities or any property shall be distributed upon or with respect to the Pledged Securities pursuant to the recapitalization or reclassification of the capital of any issuer thereof or pursuant to the reorganization thereof, the property so distributed shall, if an Event of Default then exists, and unless otherwise subject to a perfected security interest in favor of the Collateral Agent, be delivered to the Collateral Agent to be held by it hereunder as additional collateral security for the Obligations. If any sums of money or property so paid or distributed in respect of the Pledged Securities shall be received by such Grantor in violation of the immediately preceding sentence, such Grantor shall, until such money or property is paid or delivered to the Collateral Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Collateral Agent, such Grantor shall not (i) vote to enable, or take any other action to permit, any Subsidiary of any Borrower that is an issuer of Pledged Securities to issue any stock, partnership interests, limited liability company interests or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock, partnership interests, limited liability company interests or other equity securities
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of any nature of any such issuer (except, in each case, pursuant to a transaction expressly permitted by the Credit Agreement), (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, any of the Investment Property or Proceeds thereof or any interest therein (except, in each case, pursuant to a transaction expressly permitted by the Credit Agreement), (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Investment Property or Proceeds thereof, or any interest therein, except for the security interests created by this Agreement or any Lien expressly permitted thereon pursuant to Section 8.2 (Liens, Etc.) of the Credit Agreement, (iv) enter into any agreement or undertaking restricting the right or ability of such Grantor or the Collateral Agent to sell, assign or transfer any of the Investment Property or Proceeds thereof or any interest therein or (v) without the prior written consent of the Collateral Agent, cause or permit any Subsidiary of any Borrower that is an issuer of any Pledged Partnership Interests or Pledged LLC Interests which are not securities (for purposes of the New York UCC) on the Effective Date to elect or otherwise take any action to cause such Pledged Partnership Interests or Pledged LLC Interests to be treated as securities for purposes of the New York UCC; provided, however, notwithstanding the foregoing, if any issuer of any Pledged Partnership Interests or Pledged LLC Interests takes any such action in violation of the provisions in this clause (v) or any non-Subsidiary of any Borrower that is an issuer takes any of the foregoing actions, such Grantor shall promptly notify the Collateral Agent in writing of any such election or action and, in such event, shall take all steps necessary or advisable to establish the Collateral Agents control thereof.
(c) In the case of each Grantor which is an issuer of Pledged Securities, such Grantor agrees that (i) it shall be bound by the terms of this Agreement relating to the Pledged Securities issued by it and shall comply with such terms insofar as such terms are applicable to it, (ii) it shall notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section 5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the Pledged Securities issued by it. In addition, each Grantor which is either an issuer or an owner of any Pledged Security hereby consents to the grant by each other Grantor of the security interest hereunder in favor of the Collateral Agent and to the transfer of any Pledged Security to the Collateral Agent or its nominee following the occurrence and during the continuance of an Event of Default and to the substitution of the Collateral Agent or its nominee as a partner, member, shareholder or other equityholder of the issuer of the related Pledged Security.
8.9. Receivables. Other than in the ordinary course of business, such Grantor shall not, with respect to Receivables that constitute Collateral (i) grant any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could adversely affect the value thereof.
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8.10. Intellectual Property.
(a) Such Grantor (either itself or through licensees) shall, in the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, (i) continue to use each owned Trademark material to its business, (ii) maintain commercially reasonable quality of products and services offered under such Trademarks and take all necessary steps to ensure that all licensed users of such Trademarks comply with such Grantors quality control requirements and maintain reasonable quality, (iii) not adopt or use any mark which is confusingly similar or a colorable imitation of such Trademarks unless the Collateral Agent, for the ratable benefit of the Secured Parties, shall obtain a perfected security interest in such mark pursuant to this Agreement and the Intellectual Property Security Agreement, and (iv) not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby such Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not do any act, or omit to do any act, whereby any Patent owned by such Grantor material to its business may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not (and shall not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any material portion of Copyrights owned by such Grantor and material to its business may become invalidated or otherwise impaired. Such Grantor shall not (either itself or through licensees) do any act whereby any material portion of such Copyrights may fall into the public domain.
(d) Such Grantor shall notify the Collateral Agent promptly if it knows or suspects that any application or registration relating to any Material Intellectual Property owned by a Grantor may become forfeited, abandoned or dedicated to the public, or of any adverse determination (including the institution of, or any such determination in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court or tribunal in any country) regarding such Grantors ownership of, or the validity of, any such Material Intellectual Property or such Grantors right to register the same or to own and maintain the same.
(e) Upon request of the Collateral Agent, such Grantor shall execute and deliver, and have recorded in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, any and all agreements, instruments, documents, and papers as the Collateral Agent may request to evidence the Collateral Agents security interest in any Copyright, Patent, Trademark or other Intellectual Property of such Grantor.
(f) Such Grantor, subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall take reasonable and necessary steps, including in any proceeding before the United States Patent and Trademark Office or the United States Copyright Office, to maintain and
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pursue each application (and to obtain the relevant registration) and to maintain each registration of Material Intellectual Property, including the payment of required fees and taxes, the filing of responses to office actions issued by the United States Patent and Trademark Office and the United States Copyright Office, the filing of applications for renewal or extension, the filing of affidavits of use and affidavits of incontestability, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees, and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings.
(g) Such Grantor (either itself or through licensees), subject to the exercise of its reasonable business judgment, taking into account the Secured Parties interests under this Agreement, shall not, without the prior written consent of the Collateral Agent, discontinue use of or otherwise abandon any of its registered Owned Intellectual Property, or abandon any application or any right to file an application for any patent, trademark, or copyright, unless such Grantor shall have previously determined that such use or the pursuit or maintenance of such Intellectual Property is no longer desirable in the conduct of such Grantors business and that the loss thereof could not reasonably be expected to have a Material Adverse Effect.
(h) In the event that any Material Intellectual Property is infringed, misappropriated or diluted by a third party, such Grantor shall (i) take such actions as such Grantor shall reasonably deem appropriate under the circumstances to protect such Intellectual Property and (ii) promptly notify the Collateral Agent after it learns thereof and sue for infringement, misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation or dilution.
(i) Such Grantor agrees that, should it obtain an ownership interest in any item of intellectual property which is not, as of the Effective Date, a part of the Intellectual Property Collateral (the After-Acquired Intellectual Property), (i) the provisions of Section 3 shall automatically apply thereto and (ii) any such After-Acquired Intellectual Property, and in the case of trademarks, the goodwill of the business connected therewith or symbolized thereby, shall automatically become part of the Collateral.
(j) Such Grantor shall furnish to the Collateral Agent from time to time upon the Collateral Agents reasonable request therefor reasonably detailed statements and amended schedules further identifying and describing the Owned Intellectual Property and Licensed Intellectual Property and such other materials evidencing, or reports pertaining to, the Owned Intellectual Property and Licensed Intellectual Property as the Collateral Agent may from time to time reasonably request.
8.11. Contracts.
(a) Such Grantor shall perform and comply in all material respects with all its obligations under the Contracts that constitute Collateral, except where the failure to so perform and comply could not reasonably be expected to have a Material Adverse Effect.
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(b) Such Grantor shall not amend, modify, terminate, waive or fail to enforce any provision of any Contract that constitutes Collateral in any manner which could reasonably be expected to have a Material Adverse Effect.
(c) Such Grantor shall exercise promptly and diligently each and every material right which it may have under each Material Contract that constitutes Collateral (other than any right of termination), except where the failure to so exercise could not reasonably be expected to have a Material Adverse Effect.
(d) Such Grantor shall not permit to become effective in any document creating, governing or providing for any permit, lease, license or Material Contract that constitutes Collateral, a provision that would limit the creation, perfection or scope of, or exercise or enforcement of remedies in connection with, a Lien on such permit, lease, license or Material Contract in favor of the Collateral Agent for the ratable benefit of the Secured Parties unless such Grantor believes, in its reasonable judgment, that such prohibition is usual and customary in transactions of such type.
8.12. Commercial Tort Claims. Such Grantor shall advise the Collateral Agent promptly after such Grantor becomes aware of any Commercial Tort Claim held by such Grantor individually or in the aggregate in excess of $1,000,000 and shall promptly execute and deliver to the Collateral Agent a supplement to Schedule 4.11 in form and substance reasonably satisfactory to the Collateral Agent listing such Commercial Tort Claim, which supplement shall take effect without further action on the part of any party hereto or beneficiary hereof and shall make such Commercial Tort Claim collateral security subject to this Agreement.
8.13. Deposit Accounts. For each Deposit Account that is a Material Account, such Grantor shall (a) if such Grantor opens a Deposit Account that is reasonably expected to be (or at any time becomes or replaces) a Material Account, promptly notify the Collateral Agent thereof and (b) pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use commercially reasonable efforts to cause the depositary bank to comply at any time with instructions from the Collateral Agent to such depositary bank directing the disposition of funds from time to time credited to such Deposit Account, without further consent of such Grantor. The Collateral Agent agrees not to provide any such depositary bank any such instructions unless an Event of Default has occurred and is continuing.
8.14. Financial Assets. If any Securities, whether certificated or uncertificated, or other Investment Property now or hereafter acquired by any Grantor are held by such Grantor or its nominee through a Securities Intermediary in a Securities Account that is a Material Account, such Grantor shall (a) if such Grantor opens a Securities Account that is reasonably expected to be (or at any time becomes) a Material Account, promptly notify the Collateral Agent thereof and (b) pursuant to an agreement in form and substance satisfactory to the Collateral Agent use commercially reasonable efforts to cause such Securities Intermediary to agree to comply with entitlement orders or other instructions from the Collateral Agent to such Securities Intermediary as to such Securities or other Investment Property without further consent of such Grantor. The Collateral Agent agrees not to provide any such Securities Intermediary any such entitlement orders or other instructions unless an Event of Default has occurred and is continuing.
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SECTION 9. REMEDIAL PROVISIONS.
9.1. Certain Matters Relating to Receivables.
(a) The Collateral Agent shall have the right (but shall in no way be obligated), at its own expense if an Event of Default does not then exist, to make test verifications of the Receivables that are included in the Collateral in any manner and through any medium that it reasonably considers advisable, and each Grantor shall furnish all such assistance and information as the Collateral Agent may reasonably require in connection with such test verifications.
(b) Each Grantor hereby agrees to use its commercially reasonable efforts to continue to collect all amounts due or to become due to such Grantor under the Receivables and any Supporting Obligation and diligently exercise each material right it may have under any Receivable and any Supporting Obligation, in each case, at its own expense. If required by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be promptly (and, in any event, within two Business Days) deposited by such Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties only as provided in Section 6.5, and (ii) until so turned over, shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of Receivables shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.
(c) At the Collateral Agents request but subject to the confidentiality provisions set forth in the Credit Agreement, during the continuance of an Event of Default each Grantor shall make available to the Collateral Agent original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables that are included in the Collateral, including original orders, invoices and shipping receipts.
9.2. Communications with Obligors; Grantors Remain Liable.
(a) The Collateral Agent in its own name or in the name of others may at any time after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables and parties to the Contracts to verify with them to the Collateral Agents satisfaction the existence, amount and terms of any Receivables or Contracts that constitute Collateral
(b) The Collateral Agent may at any time after the occurrence and during the continuance of an Event of Default notify, or require any Grantor to so notify, the Account Debtor or counterparty on any Receivable or Contract that constitutes Collateral of the security interest of the Collateral Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Collateral Agent may upon written
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notice to the applicable Grantor, notify, or require any Grantor to notify, the Account Debtor or counterparty to make all payments under such Receivables and Contracts directly to the Collateral Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of the Receivables and Contracts that constitutes Collateral to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. No Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or Contract by reason of or arising out of this Agreement or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
9.3. Pledged Securities.
(a) Unless an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Grantor of the Collateral Agents intent to exercise its corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted to receive all cash dividends paid in respect of the Pledged Equity Interests and all payments made in respect of the Pledged Notes, to the extent not prohibited by the Credit Agreement, and to exercise all voting and corporate and other ownership (or other similar) rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or corporate or other ownership right exercised or other action taken which would materially impair the Collateral or which would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the Collateral Agent shall have given notice to the relevant Grantor of the Collateral Agents intent to exercise its rights pursuant to this Section 6.3(b): (i) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights; (ii) the Collateral Agent shall have the right, without notice to any Grantor (where permitted by applicable Laws), any such notice being expressly waived by each Grantor, to transfer all or any portion of the Investment Property to its name or the name of its nominee or agent; and (iii) the Collateral Agent shall have the right, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Property for certificates or instruments of smaller or larger denominations. In order to permit the Collateral Agent to exercise the voting and other
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consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth herein.
(c) Each Grantor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each such issuer shall be fully protected in so complying, and (ii) upon any such instruction following the occurrence and during the continuance of an Event of Default, pay any dividends or other payments with respect to the Investment Property, including Pledged Securities, directly to the Collateral Agent.
9.4. Proceeds to be Turned Over to Collateral Agent.
In addition to the rights of the Secured Parties specified in Section 6.1 with respect to payments of Receivables, if an Event of Default shall occur and be continuing, all Proceeds received by any Grantor consisting of cash, cash equivalents, checks and other near-cash items shall, if requested in writing by the Collateral Agent, be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the Secured Parties) shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until applied as provided in Section 6.5.
9.5. Application of Proceeds. At such intervals as may be agreed upon by any Borrower and the Collateral Agent, or, if an Event of Default shall have occurred and be continuing, at any time at the Collateral Agents election, the Collateral Agent may apply all or any part of the net Proceeds (after deducting fees and reasonable out-of-pocket expenses as provided in Section 6.6) constituting Collateral realized through the exercise by the Collateral Agent of its remedies hereunder, whether or not held in any Collateral Account, and any proceeds of the guarantee set forth in Section 2, in payment of the Obligations in the following order:
First, to the Collateral Agent, to pay incurred and unpaid fees and expenses of the Secured Parties under the Loan Documents;
Second, as set forth in Section 2.13(f) (Payments and Computations) of the Credit Agreement.
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9.6. Code and Other Remedies.
(a) If an Event of Default shall occur and be continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the New York UCC (whether or not the New York UCC applies to the affected Collateral) or its rights under any other applicable Laws or in equity. Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by applicable Laws referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, brokers board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by applicable Laws, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable Laws) all rights of redemption, stay or appraisal which it now has or may at any time in the future have under any Laws now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by applicable Laws, at least ten days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely effect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. To the extent permitted by applicable Laws, each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. Each Grantor further agrees, at the Collateral Agents request, to assemble the
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Collateral and make it available to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Grantors premises or elsewhere. To the extent permitted by applicable Laws, and so long as an Event of Default is continuing, the Collateral Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process.
(b) The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.6, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including reasonable attorneys fees and disbursements, to the payment in whole or in part of the Obligations and only after such application and after the payment by the Collateral Agent of any other amounts required by any provision of law, including Section 9-615(a) of the New York UCC, need the Collateral Agent account for the surplus, if any, to any Grantor. If the Collateral Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable Laws, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by any Secured Party of any rights hereunder.
(c) In the event of any disposition of any of the Intellectual Property, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall be included, and the applicable Grantor shall, to the extent commercially reasonable and feasible under the circumstances, supply the Collateral Agent or its designee with such Grantors know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Intellectual Property subject to such disposition, and such Grantors customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of such products and services.
9.7. Private Sales, etc.
(a) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Equity Interests, by reason of certain prohibitions contained in the Securities Act, applicable state securities laws or other applicable Laws, and may be compelled to resort to one or more private sales thereof, including, without limitation, to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Equity
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Interests for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act, under applicable state securities laws or other applicable Laws, even if such issuer would agree to do so.
(b) Each Grantor agrees to use commercially reasonable efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Equity Interests pursuant to this Section 6.7 valid and binding and in compliance with any and all other applicable Requirements of Law. Each Grantor further agrees that a breach of any of the covenants contained in this Section 6.7 will cause irreparable injury to the Secured Parties, that the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 6.7 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing under the Credit Agreement or a defense of payment.
9.8. Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the reasonable fees and disbursements of any outside attorneys employed by any Secured Party to collect such deficiency.
9.9. Deposit Accounts/Securities Accounts. Upon the occurrence of an Event of Default and during continuation thereof, the Administrative Agent may prevent withdrawals or other dispositions of funds in Deposit Accounts and Securities Accounts subject to control agreements or held with any Secured Party.
SECTION 10. THE COLLATERAL AGENT.
10.1. Collateral Agents Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or Contract or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due under any Receivable or Contract or with respect to any other Collateral whenever payable;
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(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may request to evidence the Secured Parties security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or 6.7, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; (7) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Copyright, Patent or Trademark pertains), throughout the world for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agents option and such Grantors expense, at any time, or from time to time, all acts and things which the Collateral Agent deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the Collateral Agent agrees that, except as provided in Section 7.1(b), it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing.
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(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement; provided, however, that unless an Event of Default has occurred and is continuing or time is of the essence, the Collateral Agent shall not exercise this power without first making demand on the Grantor and the Grantor failing to promptly comply therewith.
(c) The expenses of the Collateral Agent incurred in connection with actions undertaken as provided in this Section 7.1, together with interest thereon at a rate per annum equal to the rate per annum at which interest would then be payable on past due Revolving Loans that are Base Rate Loans under the Credit Agreement, from the date of payment by the Collateral Agent to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.
10.2. Duty of Collateral Agent. The Collateral Agents sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. Neither the Collateral Agent, nor any other Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Secured Parties hereunder are solely to protect the Secured Parties interests in the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers. The Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from their own gross negligence or willful misconduct in breach of a duty owed to such Grantor.
10.3. Execution of Financing Statements. Each Grantor acknowledges that pursuant to Section 9-509(b) of the New York UCC and any other applicable Laws, each Grantor authorizes the Collateral Agent to file or record financing or continuation statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral, without the signature of such Grantor, in such form and in such offices as the Collateral Agent
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reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Collateral Agent under this Agreement. Each Grantor agrees that such financing statements may describe the collateral in the same manner as described in this Agreement or as all assets, all personal property or words of similar effect, regardless of whether or not the Collateral includes all assets or all personal property of such Grantor, or such other description as the Collateral Agent, in its sole judgment, determines is necessary or advisable that is of an equal or lesser scope or with greater detail. A photographic or other reproduction of this Agreement shall, where permitted by applicable Laws, be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.
10.4. Authority of Collateral Agent. Each Grantor acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Agent and the Grantors, the Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
10.5. Appointment of Co-Collateral Agents. At any time or from time to time, in order to comply with any applicable requirement of law, the Collateral Agent may appoint another bank or trust company or one of more other Persons, either to act as co-agent or agents on behalf of the Secured Parties with such power and authority as may be necessary for the effectual operation of the provisions hereof and which may be specified in the instrument of appointment (which may, in the discretion of the Collateral Agent, include provisions for indemnification and similar protections of such co-agent or separate agent).
SECTION 11. MISCELLANEOUS.
11.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by each affected Grantor and the Collateral Agent or the Administrative Agent, as applicable, subject to any consents required under Section 11.1 (Amendments, Waivers, Etc.) of the Credit Agreement; provided that any provision of this Agreement imposing obligations on any Grantor may be waived by the Collateral Agent or Administrative Agent, as applicable, in a written instrument executed by such Agent.
11.2. Notices. All notices, requests and demands to or upon the Collateral Agent, Administrative Agent or any Grantor hereunder shall be effected in the manner provided for in Section 11.8 (Notices, Etc.) of the Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be addressed to such Guarantor at its notice address set forth on Schedule 8.2.
11.3. No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1), delay, indulgence, omission
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or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
11.4. Enforcement Expenses; Indemnification.
(a) Each Grantor agrees to pay or reimburse each Secured Party for its reasonable out-of-pocket costs and expenses incurred in collecting against such Grantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Grantor is a party, including the reasonable fees and disbursements of outside counsel to each Secured Party and outside counsel to the Collateral Agent and the Administrative Agent.
(b) Each Grantor agrees to pay, and to hold the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits and reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or Other Taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.
(c) Each Grantor agrees to pay, and to hold the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits and reasonable out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement to the extent any Borrower would be required to do so pursuant to Section 11.4 (Indemnities) of the Credit Agreement.
(d) The agreements in this Section shall survive repayment of the Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.
11.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Secured Parties and their permitted successors and assigns; provided that, except as otherwise permitted by the Credit Agreement, no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent or the Administrative Agent, as applicable, and any attempted assignment without such consent shall be null and void.
11.6. Set-Off. Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time, while an Event of Default shall have occurred and be continuing,
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without notice to such Grantor or any other Grantor, any such notice being expressly waived by each Grantor, to set-off and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, whether arising hereunder, under the Credit Agreement or under any other Loan Document, as such Secured Party may elect, whether or not any Secured Party has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. Each Secured Party shall notify such Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Secured Party under this Section are in addition to other rights and remedies (including other rights of set-off) which such Secured Party may have.
11.7. Counterparts. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart hereof.
11.8. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
11.10. Integration. This Agreement, together with all of the other Loan Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. Delivery of an executed signature page of this Agreement shall be as effective as delivery of a manually executed counterpart hereof.
11.11. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
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11.12. Submission to Jurisdiction; Waivers. Each Grantor hereby irrevocably and unconditionally:
(a) agrees that any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York sitting in New York County or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts, except that the Collateral Agent or any of the Secured Parties may, in their sole discretion, bring legal action or proceedings in other appropriate jurisdictions with respect to the enforcement of its rights with respect to the Collateral. Each Grantor hereby irrevocably waives any right to any other jurisdiction to which it may be entitled on account of domicile, residence or otherwise and waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that such Grantor may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions;
(b) consents to the service of any and all process in any such action or proceeding by the mailing (by registered or certified mail, postage prepaid) of copies of such process to such Grantor at its address referred to in Section 8.2 or to the Borrowers at their addresses specified in Section 8.2. Each Grantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Laws;
(c) agrees that nothing contained in this Section 8.12 shall affect the right of the Collateral Agent or any Secured Party to serve process in any other manner permitted by applicable Laws or commence legal proceedings or otherwise proceed against any Grantor in any other jurisdiction;
(d) to the extent that such Grantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), hereby irrevocably waives such immunity in respect of its obligations hereunder; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 8.12 any special, exemplary, punitive or consequential damages.
11.13. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
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(b) no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.
11.14. Additional Grantors. Each Subsidiary of a Borrower that is required to become a party to this Agreement pursuant to Section 7.11 (Additional Collateral and Guaranties) of the Credit Agreement shall become a Grantor and a Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
11.15. Releases
(a) At such time as the Loans and the other Obligations that the Collateral Agent has been notified in writing are then due and payable shall have been paid in full, the Commitments under the Credit Agreement have been terminated or expired and each Letter of Credit issued under the Credit Agreement has been cash collateralized, back-stopped or secured to the satisfaction of the applicable Issuers or no longer outstanding, the Collateral shall be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, Collateral Agent and each Grantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold or otherwise disposed of by any Grantor in a transaction permitted by the Credit Agreement, then the Collateral Agent, at the request and sole expense of such Grantor, shall execute and deliver to such Grantor all releases or other documents reasonably necessary for the release of the Liens created hereby on such Collateral. At the request and sole expense of the Borrowers, a Guarantor shall be released from its obligations hereunder in the event that all the Pledged Equity Interests in such Guarantor shall be sold or otherwise disposed of in a transaction permitted by the Credit Agreement; provided that the Borrowers shall have delivered to the Collateral Agent, at least three Business Days (or such lesser period permitted in writing by the Collateral Agent) prior to the date of the proposed release, a written request for such release identifying the relevant Guarantor and the terms of the relevant sale or other disposition in reasonable detail, including the price thereof and any expenses incurred in connection therewith, together with a certification by the Borrowers stating that such transaction is in compliance with the Credit Agreement and the other Loan Documents.
(c) Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement originally filed in connection herewith without the prior written consent of the Collateral Agent, subject to such Grantors rights under Sections 9-509(d)(2) and 9-518 of the New York UCC.
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11.16. WAIVER OF JURY TRIAL. EACH GRANTOR, THE ADMINISTRATIVE AGENT AND COLLATERAL AGENT WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
11.17. Riders for Non-U.S. Jurisdictions.
(a) Notwithstanding anything set out to the contrary in this Agreement or any other Loan Document to the contrary, the obligations and liabilities of J. Ray McDermott (Norway) AS under any provision of this Agreement or any other Loan Document to which it is a party shall not include any obligations or liabilities to the extent they would constitute unlawful financial assistance within the meaning of Section 8-7 and/or 8-10, cfr. Section 1-4, of the Norwegian Companies Act of 13 June 1997 no. 44, and the obligations and liabilities of J. Ray McDermott (Norway) AS under this Agreement or any other Loan Document only apply to the extent permitted by those provisions of the Norwegian Companies Act of 13 June 1997 no. 44.
(b) The total liability of J. Ray McDermott (Norway) AS under this Agreement or any other Loan Document to which it is a party shall never exceed $1,000,000,000 plus interest thereon and fees, costs and expenses as set out in this Agreement or any other Loan Document.
(c) Each Grantor of a security interest over Pledged Stock issued by a company incorporated in the Cayman Islands shall deliver to the Collateral Agent a duly executed and undated instrument of transfer in respect of such Pledged Stock at the times and in the manner stipulated in Schedule 7.15 to the Credit Agreement.
(d) Regarding the guarantee contained in Section 2, each Guarantor hereby irrevocably waives any right to require a proceeding first against any Borrower or any other Person, any right to request the division of their payment obligation among the Guarantors and any right to request that collateral be foreclosed upon, however such rights may be denominated under the laws of any jurisdiction.
[Remainder of page intentionally left blank]
43
IN WITNESS WHEREOF, each of the undersigned has caused this Pledge and Security Agreement to be duly executed and delivered as of the date first above written.
McDermott International, Inc. as Parent and LC Borrower | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer and Investor Relations | |
McDermott Finance, L.L.C. as Term Borrower | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer |
Signature Page to Pledge and Security Agreement
Chartering Company (Singapore) Pte. Ltd. | J. Ray McDermott West Africa Holdings, Inc. | |||
DeepSea (Americas) LLC | J. Ray McDermott West Africa, Inc. | |||
Deepsea (Europe) Limited | Malmac Sdn. Bhd. | |||
Deepsea Group Limited | McDermott Asia Pacific Pte. Ltd. | |||
Deepsea (UK) Limited | McDermott Australia Pty. Ltd. | |||
Deepsea (US) Incorporated | McDermott Caspian Contractors, Inc. | |||
Eastern Marine Services, Inc. | McDermott Eastern Hemisphere, Ltd. | |||
Global Energy - McDermott Limited | McDermott Engineering, LLC | |||
Hydro Marine Services, Inc. | McDermott Far East Inc. | |||
International Vessels Ltd | McDermott Gulf Operating Company, Inc. | |||
J. Ray Holdings, Inc. | McDermott International Investments Co., Inc. | |||
J. Ray McDermott (Aust.) Holding Pty. Limited | McDermott International Trading Co., Inc. | |||
J. Ray McDermott (Caspian), Inc. | McDermott International Vessels, Inc. | |||
J. Ray McDermott Canada Holding, Ltd. | McDermott Marine Construction Limited | |||
J. Ray McDermott Canada, Ltd. | ||||
J. Ray McDermott Contractors, Inc. | McDermott Middle East, Inc. | |||
McDermott Offshore Services Company, Inc. | ||||
J. Ray McDermott Engineering Services Private Limited | McDermott Old JV Office, Inc. | |||
J. Ray McDermott Far East, Inc. | McDermott Overseas, Inc. | |||
J. Ray McDermott International, Inc. | McDermott Subsea Engineering, Inc. | |||
J. Ray McDermott Kazakhstan Limited Liability Partnership | McDermott Trade Corporation | |||
J. Ray McDermott Logistic Services Private Limited | North Atlantic Vessel, Inc. | |||
J. Ray McDermott (Norway), AS | OPI Vessels, Inc. | |||
J. Ray McDermott (Qingdao) Pte. Ltd. | Sabine River Realty, Inc. | |||
J. Ray McDermott Solutions, Inc. | ||||
J. Ray McDermott Technology, Inc. | ||||
J. Ray McDermott Underwater Services, Inc. | SparTEC, Inc. | |||
By: |
| |||
Name: | Steven D. Oldham | |||
Title: | Treasurer |
Signature Page to Pledge and Security Agreement
J. Ray McDermott Holdings, LLC | ||
J. Ray McDermott, S.A. | ||
McDermott, Inc. | ||
McDermott Investments, LLC | ||
McDermott International Management, S. de RL. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Vice President and Treasurer | |
DeepSea (Holland) B.V. | ||
J. Ray McDermott (Luxembourg) S.ar.l. | ||
J. Ray McDermott (Nigeria) Limited | ||
J. Ray McDermott Investments B.V. | ||
McDermott Overseas Investment Co. N.V. | ||
McDermott Holdings (U.K.) Limited | ||
McDermott International B.V. | ||
Mc Dermott International Marine Investments N.V. | ||
McDermott Serviços Offshore do Brasil Ltda. | ||
PT. Baja Wahana Indonesia | ||
Singapore Huangdao Pte. Ltd. | ||
Varsy International N.V. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Authorized Person |
Signature Page to Pledge and Security Agreement
J. Ray McDermott de Mexico, S.A. de C.V. | ||
McDermott Marine Mexico, S.A. de C.V. | ||
Servicios de Fabrication de Altimira, S.A. de C.V. | ||
Servicios Profesionales de Altimira, S.A. de C.V. | ||
By: |
| |
Name: | Ana L. Mendez Burkart | |
Title: | Attorney-in-fact |
Signature Page to Pledge and Security Agreement
Executed as a Deed by | ||
J. Ray McDermott International Vessels, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | R.E. Stumph | |
Title: | Assistant Secretary | |
Executed as a Deed by | ||
McDermott Cayman Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | R.E. Stumph | |
Title: | Assistant Secretary | |
Executed as a Deed by | ||
Offshore Pipelines International, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | R.E. Stumph | |
Title: | Assistant Secretary |
Signature Page to Pledge and Security Agreement
Executed as a Deed by | ||
OPMI, Ltd. | ||
By: |
| |
Name: | Steven D. Oldham | |
Title: | Treasurer | |
Witnessed | ||
By: |
| |
Name: | R.E. Stumph | |
Title: | Assistant Secretary |
Signature Page to Pledge and Security Agreement
Crédit Agricole Corporate and Investment Bank, as Administrative Agent and Collateral Agent | ||
By: |
| |
Name: | Michael Willis | |
Title: | Managing Director | |
By: |
| |
Name: | Page Dillehunt | |
Title: | Managing Director |
Signature Page to Pledge and Security Agreement
SCHEDULE 4.3
TO PLEDGE AND SECURITY AGREEMENT
PERFECTED FIRST PRIORITY LIENS
UCC Filings
A UCC1 Financing Statement listing each Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the applicable governmental offices set forth below. Each such UCC1 Financing Statement will need to include a description of the Collateral that complies with Section 9-504 of the Uniform Commercial Code.
To perfect the Lien in Commercial Tort Claims, a UCC1 Financing Statement listing the applicable Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the applicable governmental offices set forth above. Each such UCC1 Financing Statement will need to include a description of the Commercial Tort Claims that complies with Section 9-108 of the Uniform Commercial Code.
To perfect the Lien in As-Extracted Collateral, a UCC1 Financing Statement listing the applicable Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the real property records of the county in which such As-Extracted Collateral is located. Each such UCC1 Financing Statement will need to include a legal description of the real property upon (or under) which such As-Extracted Collateral is located.
Actions with respect to Pledged Securities
The original of all Pledged Securities evidenced by either a Certificated Security or Instrument should be delivered to the Collateral Agent, together with an undated stock or note power, as applicable, duly executed in blank by the applicable Grantor.
At the Collateral Agents request, Grantors shall provide copies of documents relating to pledges underlying the Pledged Equity Interests, such as a pledged entitys organizational documents and share registry. Grantors shall make any revisions or execute any additional documents required to ensure the pledges are enforceable under applicable local laws.
Actions with respect to Patents and Trademarks
For Collateral consisting of Patents and Trademarks, the applicable Grantors should execute an Intellectual Property Security Agreement, and such agreement should be recorded with the United States Patent and Trademark Office.
Actions with respect to Copyrights
For Collateral consisting of Copyrights, the applicable Grantors should execute an Intellectual Property Security Agreement, and such agreement should be recorded with the United States Copyright Office.
Schedule 4.3 1
SCHEDULE 4.4
TO PLEDGE AND SECURITY AGREEMENT
NAME; JURISDICTION OF ORGANIZATION, ETC.
Exact Legal Name of Grantor |
Type of Organization |
Jurisdiction of Organization |
Organizational Identification |
Chief Executive Office | ||||
Prior Names during last 5 years:
Schedule 4.4 Page 1
SCHEDULE 4.5
TO PLEDGE AND SECURITY AGREEMENT
INVENTORY
Schedule 4.5 1
SCHEDULE 4.7
TO PLEDGE AND SECURITY AGREEMENT
INVESTMENT PROPERTY
Pledged Stock:
Legend:
Grantor |
Issuer | Type of Organization |
# of Shares Owned |
Total Shares Outstanding |
% of Interest 16 Pledged |
Certificate No. | Par Value | |||||||
Pledged LLC Interests:
Pledged Partnership Interests:
Pledged Trust Interests:
Pledged Notes:
Pledged Commodities Contracts:
16 | This value represents the percentage interest of the Issuer being pledged by the specific Grantor. |
Schedule 4.7 1
SCHEDULE 4.9
TO PLEDGE AND SECURITY AGREEMENT
INTELLECTUAL PROPERTY
(A) | Material Copyright Licenses |
(B) | Copyrights |
(C) | Material Patent Licenses |
(D) | Patents |
(E) | Material Trademark Licenses |
(F) | Trademarks |
(G) | Material Trade Secret Licenses |
Schedule 8.2
EXHIBIT A TO SCHEDULE 4.9
COPYRIGHTS
EXHIBIT B TO SCHEDULE 4.9
PATENTS
EXHIBIT C TO SCHEDULE 4.9
TRADEMARKS
SCHEDULE 4.11
TO PLEDGE AND SECURITY AGREEMENT
COMMERCIAL TORT CLAIMS
SCHEDULE 4.12
TO PLEDGE AND SECURITY AGREEMENT
EXCLUDED PLEDGED COLLATERAL
Schedule 4.12 1
SCHEDULE 4.13
TO PLEDGE AND SECURITY AGREEMENT
DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS
Schedule 4.13 1
SCHEDULE 8.2
TO PLEDGE AND SECURITY AGREEMENT
NOTICES
Schedule 8.2
Exhibit A
to First Lien Pledge and Security Agreement
FORM OF ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the First Lien Pledge and Security Agreement dated as of April 16, 2014 (as amended, restated, supplemented, or otherwise modified from time to time, the Agreement), made by the Grantors and Guarantors parties thereto for the benefit of Crédit Agricole Corporate and Investment Bank (CA CIB), as administrative agent and collateral agent (in its capacity as collateral agent and together with its successors, the Collateral Agent); capitalized terms used but not defined herein have the meanings given such terms therein. The undersigned agrees for the benefit of the Collateral Agent and the other Secured Parties as follows:
The undersigned will be bound by the terms of the Agreement applicable to issuers of Pledged Securities and will comply with such terms insofar as such terms are applicable to the undersigned.
The undersigned confirms the statements made in the Agreement with respect to the undersigned including, without limitation, in Section 4.7 and Schedule 4.7.
The undersigned will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in Section 5.8 of the Agreement.
The undersigned acknowledges Section 6.3(c) of the Agreement and agrees that it will comply with the instructions of each Grantor as set forth therein.
The undersigned agrees that Section 6.7 of the Agreement shall apply to it, mutatis mutandis, with respect to all actions that may be required of it pursuant to Section 6.7 of the Agreement.
[NAME OF ISSUER] | ||
By: |
| |
Name: |
| |
Title: |
| |
Address for Notices: | ||
| ||
| ||
Fax: |
|
A-1
Exhibit B
to First Lien Pledge and Security Agreement
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement dated as of [ ], 201 ] (as amended, supplemented or otherwise modified from time to time, the Intellectual Property Security Agreement) is made by each of the signatories hereto (collectively, the Grantors) in favor of Crédit Agricole Corporate and Investment Bank (CA CIB), as collateral agent (in such capacity and together with its successors in such capacity, the Collateral Agent) for the Secured Parties (as defined in the Pledge and Security Agreement).
WHEREAS, McDermott International, Inc. (the LC Borrower) and McDermott Finance, L.L.C. (the Term Borrower) have entered into the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), with the Lenders, the Issuers and CA CIB, as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors, the Administrative Agent) and collateral agent for the Lenders and the Issuers. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement; and
WHEREAS, in connection with the Credit Agreement, the LC Borrower, the Term Borrower and certain Subsidiaries of the LC Borrower have entered into the First Lien Pledge and Security Agreement, dated as of April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement) in favor of the Collateral Agent and the Administrative Agent for the benefit of the Secured Parties.
SECTION 1. Grant of Security. Each Grantor hereby grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in such Grantors right, title and interest in and to the following property, in each case, wherever located and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest, as security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantors Obligations:
(a) (i) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, designs and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country, union of countries, or any political subdivision of any of the foregoing, or otherwise, and all common-law rights related thereto, including any of the foregoing listed in Schedule 4.9 to the Pledge and Security Agreement (as such schedule may be amended or supplemented from time to time), (ii) the right to, and to obtain, all renewals thereof, (iii) the goodwill of the business symbolized by the foregoing, (iv) other source or business identifiers, designs and general intangibles of a like nature and (v) the right to sue for past, present and future infringements or dilution of any of the foregoing or for any injury to goodwill, and all proceeds of the foregoing, including royalties, income, payments, claims, damages and proceeds of suit (collectively, the Trademarks), including all Trademarks listed on Schedule I hereto under the heading Trademarks;
B-1
(b) (i) all United States patents, patents issued by any other country, union of countries or any political subdivision of any of the foregoing, and all reissues and extensions thereof, including any of the foregoing listed in Schedule 4.9 to the Pledge and Security Agreement (as such schedule may be amended or supplemented from time to time), (ii) all patent applications pending in the United States or any other country or union of countries or any political subdivision of any of the foregoing and all divisions, continuations and continuations-in-part thereof, including any of the foregoing listed in Schedule 4.9 to the Pledge and Security Agreement (as such schedule may be amended or supplemented from time to time), (iii) all rights to, and to obtain, any reissues or extensions of the foregoing and (iv) all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages and proceeds of suit (collectively, the Patents), including all Patents listed on Schedule I hereto under the heading Patents;
(c) (i) all copyrights arising under the laws of the United States, any other country, or union of countries, or any political subdivision of any of the foregoing, whether registered or unregistered and whether published or unpublished (including those listed in Schedule 4.9 to the Pledge and Security Agreement (as such schedule may be amended or supplemented from time to time)), all registrations and recordings thereof, and all applications in connection therewith and rights corresponding thereto throughout the world, including all registrations, recordings and applications in the United States Copyright Office, and all mask works (as defined in 17 USC 901), (ii) the right to, and to obtain, all extensions and renewals thereof, and the right to sue for past, present and future infringements of any of the foregoing, (iii) all proceeds of the foregoing, including license, royalties, income, payments, claims, damages, and proceeds of suit and (iv) all other rights of any kind whatsoever accruing thereunder or pertaining thereto (Copyrights), including all Copyrights listed on Schedule I hereto under the heading Copyrights; and
(d) All proceeds (as such term is defined in Section 9-102(a)(64) of the UCC as from time to time in effect in the State of New York), goodwill, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing.
SECTION 2. Recordation. Each Grantor authorizes and requests that the Register of Copyrights and the Commissioner of Patents and Trademarks record this Intellectual Property Security Agreement.
SECTION 3. Execution in Counterparts. This Intellectual Property Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart hereof.
B-2
SECTION 4. Governing Law. THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
SECTION 5. Conflict Provision. This Intellectual Property Security Agreement has been entered into in conjunction with the provisions of the Pledge and Security Agreement and the Credit Agreement. The rights and remedies of each party hereto with respect to the security interest granted herein are without prejudice to, and are in addition to those set forth in the Pledge and Security Agreement and the Credit Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Intellectual Property Security Agreement are in conflict with the Pledge and Security Agreement or the Credit Agreement, the provisions of the Pledge and Security Agreement or the Credit Agreement shall govern.
IN WITNESS WHEREOF, each of the undersigned has caused this Intellectual Property Security Agreement to be duly executed and delivered as of the date first above written.
[NAME OF GRANTOR] | ||
By: |
| |
Name: | ||
Title: |
B-3
, 201[ ]
State of
County of
Then personally appeared the above named , as of the [GRANTOR], and acknowledged the foregoing instrument to be her free act and deed as of the [GRANTOR], before me.
Notary Public |
My commission expires |
B-4
Schedule 1
to Intellectual Property Security Agreement
TRADEMARKS
PATENTS
COPYRIGHTS
Schedule 4.3 1
Annex 1
ASSUMPTION AGREEMENT
This Assumption Agreement dated as of [ , [201 ] (this Assumption Agreement), is made by [ ] (the Additional Grantor), in favor of Crédit Agricole Corporate and Investment Bank (CA CIB), as administrative agent (in such capacity and together with its successors in such capacity, the Administrative Agent) for the Lenders and the Issuers and collateral agent (in such capacity and together with its successors in such capacity, the Collateral Agent) for the Secured Parties.
WHEREAS, McDermott International, Inc., a Panamanian corporation (the Parent) and McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), entered into the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), with the Lenders, the Issuers and CA CIB, as administrative agent for the Lenders and the Issuers and collateral agent for the Secured Parties. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
WHEREAS, in connection with the Credit Agreement, the Parent, the LC Borrower and certain of their Subsidiaries (other than the Additional Grantor) have entered into the First Lien Pledge and Security Agreement dated as of April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement), in favor of the Collateral Agent and the Administrative Agent for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Pledge and Security Agreement as a Grantor (as defined in the Pledge and Security Agreement) and a Guarantor thereunder; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Pledge and Security Agreement as a Grantor and a Guarantor thereunder;
NOW, THEREFORE, IT IS AGREED:
1. Pledge and Security Agreement. By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 8.14 of the Pledge and Security Agreement, hereby becomes a party to the Pledge and Security Agreement as a Grantor and a Guarantor thereunder with the same force and effect as if originally named therein as a Grantor and a Guarantor. In accordance with the terms of the Pledge and Security Agreement and without limiting the generality of the foregoing, the Additional Grantor hereby expressly (a) assumes all obligations and liabilities of a Grantor and a Guarantor under the Pledge and Security Agreement; (b) guarantees the Borrowers Obligations pursuant to Section 2 of the Pledge and Security Agreement; and (c) grants to the Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in the Additional Grantors right, title and interest in and to the Collateral (as defined in the Pledge and Security Agreement), wherever located and
1
whether now owned or at any time hereafter acquired by the Additional Grantor or in which the Additional Grantor now has or at any time in the future may acquire any right, title or interest, as security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Additional Grantors Obligations. The information set forth in Annex 1 hereto is hereby added to the information set forth in Schedules [ ]17 to the Pledge and Security Agreement. The Additional Grantor hereby makes each of the representations and warranties contained in Section 4 of the Pledge and Security Agreement (as supplemented by, and after giving effect to, this Assumption Agreement and the Schedules attached hereto) as of the date hereof.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
[Remainder of this page intentionally left blank]
17 | Refer to each applicable Schedule to be supplemented. |
2
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR] | ||
By: |
| |
Name: | ||
Title: |
[Signature Page to Assumption Agreement]
SCHEDULE 4.3
TO PLEDGE AND SECURITY AGREEMENT
PERFECTED FIRST PRIORITY LIENS
UCC Filings
A UCC1 Financing Statement listing the Additional Grantor, as debtor, and the Collateral Agent, as secured party, should be filed in the governmental office set forth below. Each such UCC1 Financing Statement will need to include a description of the Collateral that complies with Section 9-504 of the Uniform Commercial Code.
Grantor |
Jurisdiction of Filing |
SCHEDULE 4.4
TO PLEDGE AND SECURITY AGREEMENT
NAME; JURISDICTION OF ORGANIZATION, ETC.
Exact Legal Name of Grantor |
Type of Organization |
Jurisdiction of Organization |
Organizational |
Chief Executive Office | ||||
Prior Names during last 5 years:
Prior Addresses during last 5 years:
SCHEDULE 4.5
TO PLEDGE AND SECURITY AGREEMENT
INVENTORY
SCHEDULE 4.7
TO PLEDGE AND SECURITY AGREEMENT
INVESTMENT PROPERTY
Pledged Stock:
Grantor |
Issuer | Type of Organization |
# of Shares Owned |
Total Shares Outstanding |
% of Interest Pledged |
Certificate No. |
Par Value | |||||||
Pledged LLC Interests:
Grantor |
Issuer | Type of Organization |
# of Shares Owned |
Total Shares Outstanding |
% of Interest Pledged |
Certificate No. |
Par Value | |||||||
Pledged Partnership Interests:
Grantor |
Issuer | Type of Organization |
# of Shares Owned |
Total Shares Outstanding |
% of Interest Pledged |
Certificate No. |
Par Value | |||||||
Pledged Trust Interests:
Pledged Notes:
Pledged Commodities Contracts:
SCHEDULE 4.9
TO PLEDGE AND SECURITY AGREEMENT
INTELLECTUAL PROPERTY
(A) | Material Copyright Licenses |
(B) | Copyrights |
(C) | Material Patent Licenses |
(D) | Patents |
(E) | Material Trademark Licenses |
(F) | Trademarks |
(G) | Material Trade Secret Licenses |
SCHEDULE 4.11
TO PLEDGE AND SECURITY AGREEMENT
COMMERCIAL TORT CLAIMS
SCHEDULE 4.12
TO PLEDGE AND SECURITY AGREEMENT
EXCLUDED PLEDGED COLLATERAL
SCHEDULE 4.13
TO PLEDGE AND SECURITY AGREEMENT
DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS
EXHIBIT E
TO CREDIT AGREEMENT
FORM OF LETTER OF CREDIT REQUEST
Reference is made to the Credit Agreement, dated as of April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement), by and among McDermott International, Inc., a Panamanian corporation (the LC Borrower), McDermott Finance L.L.C., a Delaware limited liability company, the Lenders, the Issuers, Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers and collateral agent for the Lenders and the Issuers. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.4 of the Credit Agreement, the LC Borrower requests a [Performance / Financial] Letter of Credit to be issued in accordance with the terms and conditions of the Credit Agreement on [ / /201 1] (the Credit Date) in an aggregate face amount of $[ , , ].
Attached hereto for each such Letter of Credit are the following:
(a) the requested Issuer of such Letter of Credit;
(b) the stated amount of such Letter of Credit;
(c) the name and address of the beneficiary;
(d) the expiration date;2 and
(e) either (i) the verbatim text of such proposed Letter of Credit or (ii) a description of the proposed terms and conditions of such Letter of Credit, including a precise description of any documents to be presented by the beneficiary which, if presented by the beneficiary prior to the expiration date of such Letter of Credit, would require the Issuer to make payment under such Letter of Credit.
1 | Unless the Issuer otherwise agrees, such notice, to be effective, must be received by the relevant Issuer not later than 1:00 p.m. (New York time) on the second Business Day prior to the Credit Date. |
2 | The expiration date must be a Business Day. |
E-1
The LC Borrower hereby certifies that the following statements will be true on the Credit Date, both before and after giving effect to the Issuance requested hereunder:
(A) (i) The representations and warranties contained in Article IV of the Credit Agreement and in the other Loan Documents that have no materiality or Material Adverse Effect qualification are true and correct in all material respects and (ii) the representations and warranties set forth in Article IV of the Credit Agreement and in the other Loan Documents that have a materiality or Material Adverse Effect qualification are true and correct in all respects, in each case with the same effect as though made on and as of such date or, to the extent such representations and warranties expressly relate to an earlier date, as of such earlier date;
(B) No Default or Event of Default has occurred and is continuing; and
(C) No Specified Term Lender Event of Default has occurred and is continuing.
Date: / /201 | MCDERMOTT INTERNATIONAL, INC. | |||||
By: |
| |||||
Name: | ||||||
Title: |
E-2
EXHIBIT F
TO CREDIT AGREEMENT
FORM OF NOTICE OF CONVERSION OR CONTINUATION
Reference is made to the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among McDermott International, Inc., a Panamanian corporation, McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers and collateral agent for the Lenders and the Issuers. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.11 of the Credit Agreement, the undersigned desires to convert or to continue the following Term Loans, each such conversion and/or continuation to be effective as of / /201 1:
$[ , , ] | Eurodollar Rate Loans to be continued with Interest Period of month(s) | |
$[ , , ] | Base Rate Loans to be converted to Eurodollar Rate Loans with Interest Period of month(s) | |
$[ , , ] | Eurodollar Rate Loans to be converted to Base Rate Loans |
1 | The Administrative Agent shall have at least three Business Days prior written notice. |
F-1
The Term Borrower hereby certifies that (a) as of the date hereof, no Default or Event of Default has occurred and is continuing or would result from the consummation of the conversion and/or continuation contemplated hereby and (b) to the knowledge of the Term Borrower, the conversion and/or continuation contemplated hereby will not violate any provision of Section 2.14 of the Credit Agreement.
Date: / /201
MCDERMOTT FINANCE L.L.C. | ||
By: |
| |
Name: | ||
Title: |
F-2
EXHIBIT G
TO CREDIT AGREEMENT
FORM OF AMENDED AND RESTATED GLOBAL INTERCOMPANY NOTE
New York, New York
[ ], 201[ ]
FOR VALUE RECEIVED, McDermott International, Inc., a Panamanian corporation (the Parent), and each of the Parents Restricted Subsidiaries which is a party (each, a Payor) to this Amended and Restated Global Intercompany Note (this Intercompany Note), hereby unconditionally promises to pay on demand to the order of the Parent and each of its Affiliates which is a party to this Intercompany Note as a payee (each, a Payee) at such place as such Payee may direct in writing, the principal amount of this Intercompany Note, determined as described below, together with interest thereon at the rate per annum as shall be agreed upon from time to time by any Payor and any Payee.
This Intercompany Note is the Global Intercompany Note referred to in the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among the Parent, McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower), the Lenders, the Issuers, and Crédit Agricole Corporate and Investment Bank, as administrative agent for the Lenders and the Issuers (in such capacity, and together with its successors, the Administrative Agent) and collateral agent for the Lenders and the Issuers (in such capacity, and together with its successors, the Collateral Agent). Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Each Payee by accepting or executing this Intercompany Note agrees that the indebtedness evidenced by this Intercompany Note is subordinated in right of payment to the prior payment in full in cash or cash equivalents of all Obligations and that such subordination is for the benefit of and enforceable by the Collateral Agent and the Administrative Agent under the Pledge and Security Agreement. Upon any payment or distribution of the assets of either Borrower to creditors upon a total or partial liquidation or a total or partial dissolution of either Borrower or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to either Borrower or its property, (i) the Collateral Agent, the Administrative Agent, the Lenders and the Issuers shall be entitled to receive payment in full in cash or cash equivalents of the Obligations before any Payee shall be entitled to receive any payment hereunder, and (ii) until the Obligations are paid in full in cash, any payment or distribution to which any Payee would be entitled but for this paragraph shall be made in lawful money of the United States of America and in immediately available funds, to holders of the Obligations as their interests may appear.
No Payor may pay the principal of or interest on this Intercompany Note at any time that an Event of Default under clauses (a), (b) or (f) of Section 9.1 of the Credit Agreement has occurred and is continuing unless the Payee is the Parent or a Subsidiary Guarantor. No Payor that is a Loan Party may pay the principal of or interest on this Intercompany Note at any time that an Event of Default has occurred and is continuing unless the Payee is a Loan Party.
G-1
No Payor that is the Parent or any of its Restricted Subsidiaries may pay the principal of or interest on this Intercompany Note to any Affiliate of the Parent (other than the Parent or any of its Restricted Subsidiaries) in violation of Section 8.5(e) of the Credit Agreement. If any payment or distribution is made to any Payee that because of this paragraph should not have been made to it or which such Payee is otherwise not entitled to retain under the provisions of this paragraph, such Payee shall hold it in trust for holders of the Obligations and pay it over to the Collateral Agent on their behalf as their interests may appear.
The aggregate principal amount of this Intercompany Note at any time shall be equal to the aggregate unpaid principal amount of all loans and extensions of credit to any Payor by any Payee, as adjusted on a regular basis to reflect any payments made by any Payor in respect of the principal of this Intercompany Note, any additional advances to any Payor from any Payee or any accrued interest which is added to the principal amount hereof in accordance with the terms hereof, in each case, as reflected on the books and records of the applicable Payee. Subject to the third and fourth paragraphs of this Intercompany Note (the Subordination Provision), loans hereunder may be prepaid at the option of the Payor. Principal not paid or prepaid pursuant to the terms hereof shall be payable on the date that is one year after the Term Maturity Date (the Maturity Date).
Subject to the Subordination Provision, payments of interest, if any, on this Intercompany Note shall be payable in the manner separately agreed by the Payor and the Payee.
Subject to the Subordination Provision, this Intercompany Note shall also be payable in full or in part pursuant to a written demand to a Payor (a Demand) from a Payee or, during the continuance of an Event of Default, the Administrative Agent, at which time the Payor shall make all payments of the amounts so demanded to the account designated in the Demand on the date specified in the Demand. Following delivery of a Demand, all payments shall be made in accordance with instructions in the Demand. If payment hereunder is due on a day that is not a Business Day, the date for such payment shall be the immediately succeeding Business Day.
The obligations of each Payor under this Note shall be absolute and each Payor hereby irrevocably waives any right (whether arising by operation of law or otherwise) to any setoff, counterclaim or reduction of its obligations with respect to any amounts payable under this Intercompany Note based on any claims that such Payor has against each Payee, its affiliates or any other person.
Each Payor hereby waives presentment for payment, demands, notice of dishonor and protest of this Intercompany Note and further agrees that none of its terms or provisions may be waived, altered, modified or amended except as each Payee may consent in a writing duly signed for and on its behalf. No failure or delay on the part of any Payee in exercising any of its rights, powers or privileges hereunder shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The remedies provided herein are cumulative and are not exclusive of any remedies provided by law.
G-2
Each Payor also agrees to pay on demand all costs and expenses (including fees and expenses of counsel) incurred by each Payee or its successors and assigns in enforcing this Intercompany Note.
This Intercompany Note is binding upon each Payor and its successors and assigns and is for the benefit of each Payee and its successors and assigns, except that the Payor may not assign or otherwise transfer its rights or obligations under this Intercompany Note except in connection with a transaction permitted by the Credit Agreement. Each Payor hereby acknowledges and consents to the assignment by each Payee that is a Grantor (as defined in the Pledge and Security Agreement) to the Collateral Agent of all of its right, title and interest in this Intercompany Note and all collateral security therefor in accordance with the Pledge and Security Agreement.
Each Payor and each Payee, by its acceptance hereof, agree for the benefit of the Administrative Agent and the Collateral Agent not to amend, modify or terminate the provisions of, or assign any of their respective rights or obligations under, this Intercompany Note without the prior written consent of the Administrative Agent and the Collateral Agent as long as any amounts are payable to the Administrative Agent, the Collateral Agent, the Lenders or the Issuers under the Loan Documents.
EACH PAYOR AND EACH PAYEE HEREBY (A) AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS INTERCOMPANY NOTE MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS INTERCOMPANY NOTE, EACH PAYOR AND EACH PAYEE HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND (B) IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. EACH PAYOR AND EACH PAYEE FURTHER WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INTERCOMPANY NOTE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. EACH PAYOR AND EACH PAYEE IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING (BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID) OF COPIES OF SUCH PROCESS TO MCDERMOTT INTERNATIONAL, INC. (AT 757 NORTH ELDRIDGE PARKWAY, HOUSTON, TEXAS 77079). EACH PAYOR AND EACH PAYEE AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING CONTAINED HEREIN SHALL AFFECT THE
G-3
RIGHT OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PAYOR OR ANY PAYEE IN ANY OTHER JURISDICTION. TO THE EXTENT THAT ANY PAYOR OR ANY PAYEE HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR OTHERWISE), SUCH PAYOR OR PAYEE (AS THE CASE MAY BE) HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS HEREUNDER.
All payments made under this Intercompany Note to holders of the Obligations shall be made in Dollars, and, if for any reason any payment made hereunder is made in a currency other than Dollars (the Other Currency), then to the extent that the payment actually received by any Payee when converted into Dollars at the Rate of Exchange (as defined below) on the date of payment (or as soon thereafter as it is practicable for such Payee to purchase Dollars, or, in the case of the liquidation, insolvency, bankruptcy or analogous process of the applicable Payor, at the Rate of Exchange on the latest date permitted by applicable law for the determination of liabilities in such liquidation, insolvency, bankruptcy or analogous process) falls short of the amount due hereunder, such Payor shall, as a separate and independent obligation of such Payor, indemnify such Payee and hold such Payee harmless against the amount of such shortfall. As used in this Intercompany Note, the term Rate of Exchange means the rate at which the applicable Payee is able on the relevant date to purchase Dollars with the Other Currency and shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, Dollars.
This Intercompany Note amends and restates (but does not novate or extinguish) that certain Intercompany Note dated as of May 3, 2010, among certain of the Payees and Payors, as supplemented prior to the Effective Date.
THIS INTERCOMPANY NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
[Signature Pages Follow]
G-4
IN WITNESS WHEREOF, each Payor and each Payee has caused this Intercompany Note to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: |
| |
Title: |
| |
[PAYOR/PAYEE] | ||
By: |
| |
Name: |
| |
Title: |
|
G-5
EXHIBIT H-1
TO CREDIT AGREEMENT
FORM OF LC FACILITY COMPLIANCE CERTIFICATE
For Fiscal [Quarter/Year] Ended [ ], 201[ ] (the Calculation Period)
This certificate dated as of [ ], 201[ ] is prepared pursuant to the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among McDermott International, Inc., a Panamanian corporation (the Parent), McDermott Finance L.L.C., a Delaware limited liability company, the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank, as administrative agent for the Lenders and the Issuers and collateral agent for the Lenders and the Issuers. The terms used herein and not otherwise defined herein have the meanings attributed thereto in the Credit Agreement.
The undersigned hereby certifies in his or her capacity as a Responsible Officer of the Parent and not in his or her individual capacity that (a) except as disclosed on Schedule [ ] hereto, during the Calculation Period, the Parent and its Restricted Subsidiaries have not undertaken any Asset Sale permitted by clauses (h), (i) or (j) of Section 8.4 of the Credit Agreement (and that such schedule identifies the aggregate consideration received in connection with such Asset Sale(s) if the such aggregate consideration exceeds $2,500,000.00), (b) that[, except as disclosed on Schedule [ ] hereto (including the nature thereof and the action with the Parent has taken or proposed to take with respect thereto)], no Default or Event of Default has occurred and is continuing, and (c) that as of the end of the Calculation Period, the following amounts and calculations were true and correct:
1. | Section 5.1 Minimum EBITDA |
EBITDA (plus any applicable EBITDA Adjustment) |
|
|||||
Minimum EBITDA1 |
|
|||||
Compliance | Yes | No |
1 | Insert the applicable minimum EBITDA for the relevant Calculation Period as follows: (a) for the Fiscal Quarter ending 3/31/2014 to be less than $0.00, (b) for the two Fiscal Quarter period ending 6/30/2014 to be less than $37,000,000.00, (c) for the three Fiscal Quarter period ending 9/30/2014 to be less than $70,000,000.00, (d) for the four Fiscal Quarters ending 12/31/2014 to be less than $127,000,000.00, (e) for the four Fiscal Quarters ending 3/31/2015 to be less than $169,000,000.00, (f) for the four Fiscal Quarters ending 6/30/2015 to be less than $170,000,000.00, (g) for the four Fiscal Quarters ending 9/30/2015 to be less than $227,000,000.00, and (h) for the four Fiscal Quarters ending 12/31/2015 and for each four Fiscal Quarter period ending thereafter prior to the Letter of Credit Facility Termination Date to be less than $251,000,000.00. |
H-1
2. | Section 5.2 Minimum Liquidity |
Liquidity2 |
|
|||||
Minimum Liquidity | $200,000,000.00 | |||||
Compliance | Yes | No |
3. | Section 5.3 LC Facility Collateral Coverage Ratio |
Aggregate Fair Market Value of the Mortgaged Vessels |
|
(a) | ||||
Aggregate principal amount of Term Loans |
|
(b) | ||||
Aggregate face value of each Financial Letter of Credit |
|
(c) | ||||
Reimbursement Obligations (or, for any Reimbursement Obligations in any Alternative Currency, the Dollar Equivalent thereof) |
|
(d) | ||||
The mark-to-market foreign exchange exposure of the Parent and its Subsidiaries that is not secured by cash |
|
(e) | ||||
LC Facility Collateral Coverage Ratio: |
a / (b + c + d + e) |
|
Minimum LC Facility Collateral Coverage Ratio | 1.20:1.00 | |||||
Compliance | Yes | No |
2 | Unrestricted cash and Cash Equivalents of the Parent and its Subsidiaries. |
H-2
IN WITNESS WHEREOF, I have hereto signed my name to this LC Facility Compliance Certificate as of the date first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: |
| |
Title: |
|
H-3
EXHIBIT H-2
TO CREDIT AGREEMENT
FORM OF TERM FACILITY COMPLIANCE CERTIFICATE
For Fiscal [Quarter/Year] Ended [ ], 201[ ] (the Calculation Period)
This certificate dated as of [ ], 201[ ] is prepared pursuant to the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among McDermott International, Inc., a Panamanian corporation (the Parent), McDermott Finance L.L.C., a Delaware limited liability company, the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank, as administrative agent for the Lenders and the Issuers and collateral agent for the Lenders and the Issuers. The terms used herein and not otherwise defined herein have the meanings attributed thereto in the Credit Agreement.
The undersigned hereby certifies in his or her capacity as a Responsible Officer of the Parent and not in his or her individual capacity that (a) except as disclosed on Schedule [ ] hereto, during the Calculation Period, the Parent and its Restricted Subsidiaries have not undertaken any Asset Sale permitted by clauses (h), (i) or (j) of Section 8.4 of the Credit Agreement (and that such schedule identifies the aggregate consideration received in connection with such Asset Sale(s) if the such aggregate consideration exceeds $2,500,000.00), (b) that[, except as disclosed on Schedule [ ] hereto (including the nature thereof and the action with the Parent has taken or proposed to take with respect thereto)], no Default or Event of Default has occurred and is continuing, and (c) that as of the end of the Calculation Period, the following amounts and calculations were true and correct:
1. | Section 5.4 Term Loan Facility Collateral Coverage Ratio |
Aggregate Ownership Adjusted Fair Market Value of the marine vessels of the Parent and its Subsidiaries |
|
(a) | ||||
Aggregate principal amount of all Term Loans (and any Refinancing Indebtedness in respect of the Term Loans) outstanding |
|
(b) | ||||
Aggregate amount of all Reimbursement Obligations (and any matured reimbursement or repayment obligations with Respect to amount drawn under letters of credit issued pursuant to any Refinancing Indebtedness in respect of the Letters of Credit Facility Commitments) outstanding |
|
(c) | ||||
Term Loan Facility Collateral Coverage Ratio: a / (b + c) |
|
|||||
Minimum Term Loan Facility Collateral Coverage Ratio | 1.75:1.00 | |||||
Compliance | Yes | No |
H-4
IN WITNESS WHEREOF, I have hereto signed my name to this Term Facility Compliance Certificate as of the date first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: |
| |
Title: |
|
H-5
EXHIBIT I
TO CREDIT AGREEMENT
FORM OF LANDLORD LIEN WAIVER1
RECORDING REQUESTED BY: Bracewell & Giuliani LLP
AND WHEN RECORDED MAIL TO: Bracewell & Giuliani LLP 1251 Avenue of the Americas 48th Floor New York, New York 10020 Attn: Jeris Diana Brunette, Esq.
Re: MCDERMOTT INTERNATIONAL, INC./ MCDERMOTT FINANCE L.L.C.
|
Space above this line for recorders use only
LANDLORD WAIVER AND CONSENT AGREEMENT
This LANDLORD WAIVER AND CONSENT AGREEMENT (this Agreement) is dated as of [mm/dd/yy] and entered into by [NAME OF LANDLORD] (Landlord), to and for the benefit of CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent and collateral agent (in such capacity Agent) for the Secured Parties (as defined in the Pledge and Security Agreement).
RECITALS:
WHEREAS, [NAME OF GRANTOR], a [Type of Person] (Tenant), has possession of and occupies all or a portion of the property described on Exhibit A hereto (the Premises);
WHEREAS, Tenants interest in the Premises arises under the lease agreement (the Lease) more particularly described on Exhibit B hereto, pursuant to which Landlord has rights, upon the terms and conditions set forth therein, to take possession of, and otherwise assert control over, the Premises;
WHEREAS, reference is made to the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement; capitalized terms used but not defined herein have the meanings ascribed in the Credit Agreement) among McDermott International, Inc., a Panamanian corporation, McDermott
1 | Any Landlord Lien Waiver delivered on or after the Effective Date shall be revised to include the Collateral Agent under the Second Lien Notes Documents. |
I-1
Finance L.L.C., a Delaware limited liability company, the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers and collateral agent for the Lenders and the Issuers, pursuant to which Tenant has executed a security agreement and certain other mortgages, deeds of trust, deeds to secure debt and assignments of rents and leases, and other collateral documents, as applicable, in connection with the Credit Agreement;
WHEREAS, Borrowers repayment of the extensions of credit made by the Secured Parties arising under the Credit Agreement and other obligations of Tenant as contemplated by the Credit Agreement and the other Loan Documents, will be secured, in part, by all Inventory (as defined in the UCC) of Tenant (including all Inventory of Tenant now or hereafter located on the Premises (the Collateral)); and
WHEREAS, Agent has requested that Landlord execute this Agreement as a condition to the extension of credit to the Borrowers under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby represents and warrants to, and covenants and agrees with, Agent as follows:
1. Landlord hereby (a) waives and releases unto Agent and its successors and assigns any and all rights granted by or under any present or future laws to levy or distraint for rent or any other charges which may be due to Landlord against the Collateral, and any and all other claims, liens and demands of every kind which it now has or may hereafter have against the Collateral, and (b) agrees that any rights it may have in or to the Collateral, no matter how arising (to the extent not effectively waived pursuant to clause (a) of this paragraph 1), shall be second and subordinate to the rights of Agent in respect thereof. Landlord acknowledges that the Collateral is and will remain personal property and not fixtures even though it may be affixed to or placed on the Premises.
2. Landlord certifies that (a) Landlord is the landlord under the Lease, (b) the Lease is in full force and effect and has not been amended, modified, or supplemented except as set forth on Exhibit B hereto, (c) to the knowledge of Landlord, there is no defense, offset, claim or counterclaim by or in favor of Landlord against Tenant under the Lease or against the obligations of Landlord under the Lease, (d) no notice of default has been given under or in connection with the Lease which has not been cured, and Landlord has no knowledge of the occurrence of any other default under or in connection with the Lease, and (e) except as disclosed to Agent, no portion of the Premises is encumbered in any way by any deed of trust or mortgage lien or ground or superior lease.
3. Landlord consents to the installation or placement of the Collateral on the Premises, and Landlord grants to Agent a license to enter upon and into the Premises to do any or all of the following with respect to the Collateral: assemble, have appraised, display, remove, maintain, prepare for sale or lease, repair, transfer, or sell (at public or private sale). In entering upon or into the Premises, Agent hereby agrees to indemnify, defend and hold Landlord harmless from and against any and all claims, judgments, liabilities, costs and expenses incurred by Landlord caused solely by Agents entering upon or into the Premises and taking any of the foregoing actions with respect to the Collateral. Such costs shall include any damage to the Premises made by Agent in severing and/or removing the Collateral therefrom.
I-2
4. Landlord agrees that it will not prevent Agent or its designee from entering upon the Premises at all reasonable times to inspect or remove the Collateral. In the event that Landlord has the right to, and desires to, obtain possession of the Premises (either through expiration of the Lease or termination thereof due to the default of Tenant thereunder), Landlord will deliver notice (the Landlords Notice) to Agent to that effect. Within the 45 day period after Agent receives the Landlords Notice, Agent shall have the right, but not the obligation, to cause the Collateral to be removed from the Premises. During such 45 day period, Landlord will not remove the Collateral from the Premises nor interfere with Agents actions in removing the Collateral from the Premises or Agents actions in otherwise enforcing its security interest in the Collateral. Notwithstanding anything to the contrary in this paragraph, Agent shall at no time have any obligation to remove the Collateral from the Premises.
5. Landlord shall send to Agent a copy of any notice of default under the Lease sent by Landlord to Tenant. In addition, Landlord shall send to Agent a copy of any notice received by Landlord of a breach or default under any other lease, mortgage, deed of trust, security agreement or other instrument to which Landlord is a party which may affect Landlords rights in, or possession of, the Premises.
6. All notices to Agent under this Agreement shall be in writing and sent to Agent at its address set forth on the signature page hereof by facsimile, by United States mail, or by overnight delivery service.
7. The provisions of this Agreement shall continue in effect until Landlord shall have received Agents written certification that the security interests referenced hereunder have been released.
8. This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without regard to its conflicts of laws provisions.
[Remainder of page intentionally left blank]
I-3
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered as of the day and year first set forth above.
[NAME OF LANDLORD] | ||
By: |
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Name | ||
Title: |
| ||
| ||
| ||
Attention: | ||
Telecopy: |
By its acceptance hereof, as of the day and year first set forth above, Agent agrees to be bound by the provisions hereof.
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||
as Agent | ||
By: |
| |
Name: | ||
Title: | ||
1301 Avenue of the Americas | ||
New York, NY 10019 | ||
Attention: | ||
Telecopy: |
[APPROPRIATE NOTARY BLOCK]
I-4
Exhibit A
to Landlord Lien Waiver
Legal Description of Premises
[ ]
I-5
Exhibit B
to Landlord Lien Waiver
Description of Lease
[ ]
I-6
EXHIBIT J
TO CREDIT AGREEMENT
FORM OF EFFECTIVE DATE CERTIFICATE
The undersigned hereby certifies as follows:
SECTION 1. I, [ ], am a Responsible Officer of each of McDermott International, Inc., a Panamanian corporation (the Parent) and McDermott Finance L.L.C., a Delaware limited liability company (the Term Borrower and, together with the Parent, the Borrowers).
This certificate is delivered pursuant to Section 3.1 of the Credit Agreement dated April 16, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement) among the Borrowers, the Lenders, the Issuers and Crédit Agricole Corporate and Investment Bank as administrative agent for the Lenders and the Issuers and as collateral agent for the Lenders and the Issuers. Terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
I have reviewed the terms of each of the Loan Documents and the definitions relating thereto, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.
Based upon my review and examination described in paragraph 3 above, I certify, on behalf of the Borrowers in my capacity as a Responsible Officer of each Borrower and not in my individual capacity, that:
both before and after giving effect to the Term Loans and Issuances on the Effective Date and, with respect to the Term Loans, to any application of the proceeds therefrom on the Effective Date:
(i) The representations and warranties contained in Article IV of the Credit Agreement and in the other Loan Documents that have no materiality or Material Adverse Effect qualification are true and correct in all material respects and (ii) the representations and warranties set forth in Article IV of the Credit Agreement and in the other Loan Documents that have a materiality or Material Adverse Effect qualification are true and correct in all respects, in each case with the same effect as though made on and as of such date or, to the extent such representations and warranties expressly relate to an earlier date, as of such earlier date; and
No Default or Event of Default has occurred and is continuing;
J-1
as of the Effective Date, no litigation not listed on Schedule 4.7 to the Credit Agreement has been commenced against the Parent or any of its Restricted Subsidiaries that could reasonably be expected to have a Material Adverse Effect; and
the Borrowers and the Guarantors, taken as a whole, are Solvent immediately after giving effect to the Transactions.
The foregoing certifications are made and delivered as of April [ ], 2014.
MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: |
| |
Title: |
| |
MCDERMOTT FINANCE L.L.C. | ||
By: |
| |
Name: |
| |
Title: |
|
J-2
Exhibit 4.4
EXECUTION VERSION
INTERCREDITOR AGREEMENT
dated as of
April 16, 2014
among
MCDERMOTT INTERNATIONAL, INC.,
as the Parent and a Company,
MCDERMOTT FINANCE L.L.C.
as a Company,
certain Subsidiaries of Parent party hereto,
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as First Priority Agent
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Second Priority Agent
THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN (A) THE INDENTURE DATED AS OF APRIL 16, 2014, AS AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME, AMONG MCDERMOTT INTERNATIONAL, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY THERETO AND WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE AND COLLATERAL AGENT, (B) THE CREDIT AGREEMENT DATED AS OF APRIL 16, 2014, AS AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME, AMONG MCDERMOTT INTERNATIONAL, INC., MCDERMOTT FINANCE L.L.C., THE LENDERS AND ISSUERS FROM TIME TO TIME PARTY THERETO AND CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, (C) THE OTHER LOAN DOCUMENTS REFERRED TO IN SUCH CREDIT AGREEMENT AND (D) THE OTHER COLLATERAL AGREEMENTS REFERRED TO IN SUCH INDENTURE.
TABLE OF CONTENTS
Page | ||||||
ARTICLE I. Definitions |
2 | |||||
Section 1.1. |
Certain Defined Terms | 2 | ||||
Section 1.2. |
Other Defined Terms | 2 | ||||
Section 1.3. |
Terms Generally | 8 | ||||
ARTICLE II. Lien Priorities |
9 | |||||
Section 2.1. |
Relative Priorities | 9 | ||||
Section 2.2. |
Prohibition on Contesting Liens | 9 | ||||
Section 2.3. |
No New Liens | 9 | ||||
Section 2.4. |
Similar Collateral | 10 | ||||
ARTICLE III. Enforcement of Rights; Matters Relating to Collateral |
10 | |||||
Section 3.1. |
Exercise of Rights and Remedies; Option to Purchase | 10 | ||||
Section 3.2. |
No Interference | 12 | ||||
Section 3.3. |
Rights as Unsecured Creditors | 15 | ||||
Section 3.4. |
Automatic Release of Second Priority Liens | 15 | ||||
Section 3.5. |
Release of First Priority Liens | 16 | ||||
Section 3.6. |
Insurance and Condemnation Awards | 16 | ||||
Section 3.7. |
Notification of Release of Collateral | 17 | ||||
ARTICLE IV. Payments |
17 | |||||
Section 4.1. |
Application of Proceeds | 17 | ||||
Section 4.2. |
Payment Over | 17 | ||||
Section 4.3. |
Certain Agreements with Respect to Unenforceable Liens | 18 | ||||
ARTICLE V. Bailment for Perfection of Certain Security Interests |
18 | |||||
ARTICLE VI. Insolvency or Liquidation Proceedings |
19 | |||||
Section 6.1. |
Finance and Sale Matters | 19 | ||||
Section 6.2. |
Relief from the Automatic Stay | 22 | ||||
Section 6.3. |
Reorganization Securities | 22 | ||||
Section 6.4. |
Post-Petition Interest | 22 | ||||
Section 6.5. |
Certain Waivers by the Second Priority Secured Parties | 23 | ||||
Section 6.6. |
Certain Voting Matters | 23 | ||||
ARTICLE VII. Other Agreements |
23 | |||||
Section 7.1. |
Matters Relating to Debt Documents | 23 |
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Section 7.2. |
Effect of Refinancing of Indebtedness under First Priority Debt Documents | 24 | ||||
Section 7.3. |
No Waiver by First Priority Secured Parties | 24 | ||||
Section 7.4. |
Reinstatement | 24 | ||||
Section 7.5. |
Authorization of Collateral Agents | 25 | ||||
Section 7.6. |
Automatic Amendments to Second Priority Security Documents | 25 | ||||
Section 7.7. |
Further Assurances | 25 | ||||
ARTICLE VIII. Representations and Warranties |
26 | |||||
Section 8.1. |
Representations and Warranties of Each Party | 26 | ||||
Section 8.2. |
Representations and Warranties of Each Collateral Agent | 26 | ||||
ARTICLE IX. No Reliance; No Liability; Obligations Absolute |
26 | |||||
Section 9.1. |
No Reliance; Information | 26 | ||||
Section 9.2. |
No Warranties or Liability | 27 | ||||
Section 9.3. |
Obligations Absolute | 28 | ||||
Section 9.4. |
No Impairment of Security Interests | 28 | ||||
ARTICLE X. Miscellaneous |
28 | |||||
Section 10.1. |
Notices | 28 | ||||
Section 10.2. |
Conflicts | 29 | ||||
Section 10.3. |
Effectiveness; Survival; Termination | 29 | ||||
Section 10.4. |
Severability | 30 | ||||
Section 10.5. |
Amendments; Waivers | 30 | ||||
Section 10.6. |
Postponement of Subrogation | 30 | ||||
Section 10.7. |
Applicable Law; Jurisdiction; Consent to Service of Process | 31 | ||||
Section 10.8. |
Waiver of Jury Trial | 31 | ||||
Section 10.9. |
Parties in Interest | 31 | ||||
Section 10.10. |
Specific Performance | 32 | ||||
Section 10.11. |
Headings | 32 | ||||
Section 10.12. |
Counterparts | 32 | ||||
Section 10.13. |
Provisions Solely to Define Relative Rights | 32 |
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INTERCREDITOR AGREEMENT dated as of April 16, 2014 (this Agreement), among MCDERMOTT INTERNATIONAL, INC., a Panamanian corporation (the Parent), MCDERMOTT FINANCE L.L.C., a Delaware limited liability company (the Term Borrower and together with the Parent, collectively, the Companies and each, a Company), the Subsidiaries of the Parent party hereto, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as collateral agent for the First Priority Secured Parties (as defined below) (in such capacity and together with any successor or assigns, the First Priority Agent), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent for the Second Priority Secured Parties (as defined below) (in such capacity and together with any successor or assigns, the Second Priority Agent).
PRELIMINARY STATEMENT
Reference is made to (a) the Credit Agreement dated as of April 16, 2014 (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, the First Priority Debt Agreement), among the Companies, the lenders and issuers from time to time party thereto (the First Priority Creditors), Crédit Agricole Corporate and Investment Bank, as administrative agent and the First Priority Agent, (b) the Indenture dated as of April 16, 2014 (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, the Second Priority Debt Agreement and, together with the First Priority Debt Agreement, the Debt Agreements) among the Parent, certain of the Parents subsidiaries, Wells Fargo Bank, National Association, as Trustee (in such capacity, the Second Priority Trustee) and the Second Priority Agent, (c) the First Lien Pledge and Security Agreement dated as of April 16, 2014 (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, the First Priority Security Agreement) among the Companies, certain of the Parents subsidiaries and the First Priority Agent, (d) the Second Lien Pledge and Security Agreement dated as of April 16, 2014 (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, the Second Priority Security Agreement) among the Parent, certain of the Parents subsidiaries and the Second Priority Agent, (e) the other Loan Documents as defined, and referred to, in the First Priority Debt Agreement and (f) the other Collateral Agreements as defined, and referred to, in the Second Priority Debt Agreement.
RECITALS
A. The First Priority Creditors have agreed to make loans and other extensions of credit to the Companies pursuant to the First Priority Debt Agreement on the condition, among others, that the First Priority Claims (such term and each other capitalized term used but not defined in the preliminary statement or these recitals having the meaning given to it in Article I) shall be secured by first priority Liens on, and security interests in, the Collateral.
B. The Second Priority Creditors have agreed to purchase and/or hold the notes issued by the Parent from time to time pursuant to the Second Priority Debt Agreement on the condition, among others, that the Second Priority Claims shall be secured by second priority Liens on, and security interests in, the Collateral.
C. The Debt Agreements require, among other things, that the parties thereto set forth in this Agreement, among other things, their respective rights, obligations and remedies with respect to the Collateral.
Accordingly, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Certain Defined Terms. Capitalized terms used in this Agreement and not otherwise defined herein shall, except to the extent the context otherwise requires, have the meanings set forth in the First Priority Debt Agreement (as in effect on the date hereof) or the First Priority Security Agreement (as in effect on the date hereof), as applicable.
Section 1.2. Other Defined Terms. As used in the Agreement, the following terms shall have the meanings specified below:
Bankruptcy Code shall mean Title 11 of the United States Code entitled Bankruptcy, as now and hereinafter in effect, or any successor statute.
Bankruptcy Law shall mean the Bankruptcy Code and any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law.
Capital Stock shall mean:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a person or entity the right to receive a share of the profits and losses of, or distributions of assets of, another person or entity that has issued such interest or participation.
Collateral shall mean, collectively, all Collateral, as defined in each of the First Priority Debt Agreement or any other First Priority Debt Document and the Second Priority Debt Agreement or any other Second Priority Debt Document.
Collateral Agents shall mean the First Priority Agent and the Second Priority Agent.
Companies and Company shall have the meaning assigned to such term in the preliminary statement to this Agreement.
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Debt Agreements shall have the meaning assigned to such term in the preliminary statement of this Agreement.
Debt Documents shall mean the First Priority Debt Documents and the Second Priority Debt Documents.
DIP Financing shall have the meaning assigned to such term in Section 6.1(a).
DIP Financing Liens shall have the meaning assigned to such term in Section 6.1(a).
Discharge of First Priority Claims shall mean, subject to Sections 7.2 and 7.4, the occurrence of all of the following:
(a) termination or expiration of all commitments to extend credit that would constitute First Priority Claims;
(b) payment in full in cash of the principal of and interest and premium (if any) on all First Priority Claims (other than any undrawn Letters of Credit but including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding);
(c) discharge or cash collateralization (at the lower of (i) 105% of the aggregate undrawn amount and (ii) the percentage as may be agreed to by applicable issuer of such Letters of Credit) of all outstanding Letters of Credit constituting First Priority Claims on terms satisfactory to the applicable issuer of such Letters of Credit;
(d) payment of Hedging Obligations constituting First Priority Claims (and, with respect to any particular Hedge Agreement, termination of such position and agreements evidencing such position and payment in full in cash of all obligations thereunder or such other arrangements as have been made by the counterparty thereto and communicated to the First Priority Agent); and
(e) payment in full in cash of all other First Priority Claims (other than inchoate contingent indemnification or expense reimbursement obligations) that are outstanding and unpaid.
Discharge of Second Priority Claims shall mean, subject to Section 7.4, (a) payment in full in cash of the principal of and interest (including interest accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on all Indebtedness outstanding under the Second Priority Debt Documents to the extent constituting Second Priority Claims and (b) payment in full of all First Priority Claims acquired by the Second Priority Agent and/or any of the Second Priority Secured Parties as contemplated by Section 10.6 hereof.
Disposition shall mean any sale, lease, exchange, transfer or other disposition. Dispose shall have a correlative meaning.
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First Priority Agent shall have the meaning assigned to such term in the preamble to this Agreement.
First Priority Claims shall mean (1) all Indebtedness under the First Priority Debt Documents and all other Obligations (other than principal) related to such Indebtedness and owing under the First Priority Debt Documents (including all reimbursement obligations (if any) and interest thereon with respect to any Letters of Credit or similar instruments issued pursuant to the First Priority Debt Documents), including any guarantees of the foregoing, to the extent the foregoing is incurred (and permitted to be incurred) pursuant to clause (1) of the definition of Permitted Indebtedness of the Second Priority Debt Agreement and to the extent purportedly secured by the Collateral, (2) all Hedging Obligations to the extent such obligations are secured under the First Priority Debt Documents and (3) all Treasury Management Obligations to the extent such obligations are secured under the First Priority Debt Documents, in each case whether accrued or incurred before or after the commencement of an Insolvency or Liquidation Proceeding, and whether or not allowed or allowable in such proceeding.
First Priority Collateral shall mean all Collateral, as defined in the First Priority Debt Agreement or any other First Priority Debt Document, and any other assets of any Grantor now or at any time hereafter subject to Liens which secure, but only to the extent securing, any First Priority Claim.
First Priority Creditors shall have the meaning assigned to such term in the preliminary statement of this Agreement.
First Priority Debt Agreement shall have the meaning assigned to such term in the preliminary statement of this Agreement.
First Priority Debt Documents shall mean the Loan Documents, as defined in the First Priority Debt Agreement.
First Priority Liens shall mean all Liens on the First Priority Collateral to the extent such Liens secure the First Priority Claims, whether created under the First Priority Security Documents or acquired by possession, statute (including any judgment lien), operation of law, subrogation or otherwise.
First Priority Mortgages shall mean, collectively, each mortgage, deed of trust, leasehold mortgage, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which a Lien on real property is granted by any Grantor to secure any First Priority Claims or under which rights or remedies with respect to any such Lien are governed.
First Priority Secured Parties shall mean, at any time, (a) the First Priority Creditors, (b) the First Priority Agent, (c) each other Person to whom any of the First Priority Claims is owed (including any Affiliate of a First Priority Creditor to whom any First Priority Claims of the type described in clause (2) or clause (3) of the definition thereof is owed) and (d) the successors and assigns of each of the foregoing.
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First Priority Security Agreement shall have the meaning assigned to such term in the preliminary statement of this Agreement.
First Priority Security Documents shall mean the First Priority Debt Agreement, the First Priority Mortgages, the First Priority Security Agreement and any other agreement, document or instrument pursuant to which a Lien is granted by any Grantor to secure any First Priority Claims or under which rights or remedies with respect to any such Lien are governed.
Grantors shall mean the Parent and each Subsidiary that shall have created or purported to create any First Priority Lien or Second Priority Lien on all or any part of its assets to secure any First Priority Claims or any Second Priority Claims.
Guarantors shall mean, collectively, each Subsidiary that shall have guaranteed any First Priority Claims or any Second Priority Claims, whether by executing and delivering the applicable Debt Agreement, or a separate guaranty thereof, or a supplement thereto, or otherwise.
Hedging Obligations of any Person shall mean the obligations of such Person under option, swap, cap, collar, forward purchase or similar agreements or arrangements intended to manage exposure to interest rates or currency exchange rates or commodity prices, either generally or under specific contingencies.
Indebtedness shall mean and includes all obligations that constitute Indebtedness, as defined in the First Priority Debt Agreement or the Second Priority Debt Agreement, as applicable.
Insolvency or Liquidation Proceeding shall mean (a) any voluntary or involuntary proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any voluntary or involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Grantor or for a substantial part of the property or assets of any Grantor, (c) any voluntary or involuntary winding-up or liquidation of any Grantor, or (d) a general assignment for the benefit of creditors by any Grantor.
Issue Date shall mean the date on which the notes under the Second Priority Debt Documents are originally issued.
Letter of Credit shall have the meaning assigned to such term in the First Priority Debt Agreement.
Lien shall mean, with respect to any asset, any mortgage, deed of trust, lien (statutory or other), pledge, lease, easement, restriction, covenant, charge, security interest or other encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement; provided, however, that for the avoidance of doubt, the interest of a Person as owner or lessor under charters or leases of property shall not constitute Liens on or in respect of such property.
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Liquidation Sale shall mean a so-called bulk sale, liquidation sale or going out of business sale conducted either by any Secured Party or a Grantor in respect to all or a substantial portion of such Grantors Collateral following the occurrence and during the continuance of an Event of Default under, and as defined in, either the First Priority Debt Documents or Second Priority Debt Documents.
New First Priority Agent shall have the meaning assigned to such term in Section 7.2.
New First Priority Claims shall have the meaning assigned to such term in Section 7.2.
New First Priority Debt Documents shall have the meaning assigned to such term in Section 7.2.
Obligations means any principal, interest, penalties, fees, indemnification, reimbursements, costs, expenses, damages and other liabilities payable under the documentation governing any Indebtedness.
Parent shall have the meaning assigned to such term in the preliminary statement to this Agreement.
Person means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, mutual fund trust or government or other agency or political subdivision thereof or other legal entity of any kind.
Pledged or Controlled Collateral shall have the meaning assigned to such term in Article V.
Refinance shall mean, in respect of any Indebtedness, to refinance, extend, renew, restructure (including by the amendment and restatement of any instrument or agreement evidencing such Indebtedness) or replace or to issue other Indebtedness in exchange or replacement for, such Indebtedness, in whole or in part. Refinanced and Refinancing shall have correlative meanings.
Refinancing Notice shall have the meaning assigned to such term in Section 7.2.
Release shall have the meaning assigned to such term in Section 3.4.
Second Priority Agent shall have the meaning assigned to such term in the preamble to this Agreement.
Second Priority Claims shall mean all Obligations of the Parent and the Guarantors arising under the Second Priority Debt Documents plus interest and all fees, costs, charges and expenses, including legal fees and expenses payable by the Parent or any of the Guarantors thereunder, in each case whether accrued or incurred before or after the commencement of an Insolvency or Liquidation Proceeding, and whether or not allowed or allowable in such proceeding; provided that the term Second Priority Claims shall only include Obligations relating to any additional notes under the Second Priority Debt Documents that are actually issued to the extent the issuance of such additional notes was permitted under the Second Priority Debt Agreement.
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Second Priority Collateral shall mean all Collateral, as defined in any Second Priority Debt Document, and any other assets of any Grantor now or at any time hereafter subject to Liens which secure, but only to the extent securing, any Second Priority Claims.
Second Priority Creditors shall mean the Holders, as defined in the Second Priority Debt Agreement.
Second Priority Debt Agreement shall have the meaning assigned to such term in the preliminary statement of this Agreement.
Second Priority Debt Documents shall mean the Indenture Documents, as defined in the Second Priority Debt Agreement.
Second Priority Liens shall mean all Liens on the Second Priority Collateral securing the Second Priority Claims, whether created under the Second Priority Security Documents or acquired by possession, statute (including any judgment lien), operation of law, subrogation or otherwise.
Second Priority Mortgages shall mean, collectively, each mortgage, deed of trust, leasehold mortgage, assignment of leases and rents, modifications and any other agreement, document or instrument pursuant to which any Lien on real property is granted by any Grantor to secure any Second Priority Claims or under which rights or remedies with respect to any such Lien are governed.
Second Priority Permitted Actions shall have the meaning assigned to such term in Section 3.1(a).
Second Priority Secured Parties shall mean, at any time, (a) the Second Priority Creditors, (b) the Second Priority Trustee, (c) the Second Priority Agent, (d) each other Person to whom any of the Second Priority Claims is owed and has agreed to the appointment of the Second Priority Agent under the terms of the Second Priority Debt Agreement, and (e) the successors and assigns of each of the foregoing.
Second Priority Security Agreement shall have the meaning assigned to such term in the preliminary statement of this Agreement.
Second Priority Security Documents shall mean the Collateral Agreements, as defined in the Second Priority Debt Agreement, including the Second Priority Mortgages and the Second Priority Security Agreement, and any other agreement, document or instrument pursuant to which a Lien is granted by any Grantor to secure any Second Priority Claims or under which rights or remedies with respect to any such Lien are governed.
Secured Parties shall mean, as the context may require, the First Priority Secured Parties and/or the Second Priority Secured Parties.
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Security Documents shall mean the First Priority Security Documents and the Second Priority Security Documents.
Standstill Period shall have the meaning assigned to such term in Section 3.2(a).
Subsidiary shall mean, with respect to any Person, (1) any corporation, limited liability company, association, trust or other business entity of which more than 50.0% of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors thereof (or the functional equivalent of the board of directors thereof) is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof) and (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or of one or more Subsidiaries of such Person (or any combination thereof).
Term Borrower shall have the meaning assigned to such term in the preliminary statement to this Agreement.
Treasury Management Arrangement means any arrangement for credit card, cash management, clearing house, wire transfer, depository, treasury or investment services in connection with any transfer or disbursement of funds through an automated clearinghouse or on a same day or immediate or accelerated availability basis (including all monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise of the Parent or any of its Subsidiaries arising out of any cash management, clearing house, wire transfer, depository, treasury or investment services) provided to the Parent or any of its Subsidiaries. The designation of any such arrangement as a Treasury Management Arrangement shall not create in favor of the counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral.
Treasury Management Obligations shall mean all Obligations in respect of Treasury Management Arrangements.
Uniform Commercial Code or UCC shall mean the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in any applicable jurisdiction.
Section 1.3. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified, (b) any reference herein (i) to any Person shall be construed to include such Persons successors and assigns and (ii) to any Company or any other Grantor shall be construed to include such Company or such Grantor as debtor and debtor-in-possession and any receiver or trustee for such Company or any other Grantor, as the case may be, in any Insolvency or
8
Liquidation Proceeding or Liquidation Sale, (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles or Sections shall be construed to refer to Articles or Sections of this Agreement and (e) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
ARTICLE II.
LIEN PRIORITIES
Section 2.1. Relative Priorities. Notwithstanding the date, manner or order of grant, attachment or perfection of any Second Priority Lien or any First Priority Lien, and notwithstanding any provision of the UCC or any other applicable law or the provisions of any Security Document or any other Debt Document or any other circumstance whatsoever, each Collateral Agent, for itself and on behalf of the Secured Parties on whose behalf it acts in such capacity therefor, hereby agrees that, so long as the Discharge of First Priority Claims has not occurred, (i) any First Priority Lien on any Collateral now or hereafter held by or for the benefit of any First Priority Secured Party shall be senior in right, priority, operation, effect and all other respects to any and all Second Priority Liens on any Collateral, and (ii) any Second Priority Lien on any Collateral now or hereafter held by or for the benefit of any Second Priority Secured Party shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all First Priority Liens on any Collateral, and the First Priority Liens on any Collateral shall be and remain senior in right, priority, operation, effect and all other respects to any Second Priority Liens on any Collateral for all purposes, whether or not any First Priority Lien is subordinated in any respect to any other Lien securing any other Obligation of any Company, any other Grantor or any other Person.
Section 2.2. Prohibition on Contesting Liens. Each Collateral Agent, for itself and on behalf of the other Secured Parties on whose behalf it acts in such capacity therefor, agrees that it will not, and hereby waives any right to, contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the priority, validity or enforceability of any Second Priority Lien or any First Priority Lien, as the case may be; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent or any other Secured Party to enforce this Agreement to the extent provided hereby.
Section 2.3. No New Liens. The parties hereto agree that, so long as the Discharge of First Priority Claims has not occurred, none of the Grantors shall, nor shall any Grantor permit any of its Subsidiaries to, (i) grant or permit any additional Liens on any asset of a Grantor to secure any Second Priority Claim unless it has granted, or concurrently therewith grants, a Lien on such asset of such Grantor to secure the First Priority Claims or (ii) grant or permit any additional Liens on any asset of a Grantor to secure any First Priority Claims unless, to the extent permitted by applicable law, it has granted, or within 10 Business Days thereafter grants, a Lien on such asset of a Grantor to secure the Second Priority Claims, with each such Lien to be subject to the provisions of this Agreement. To the extent that the provisions of the immediately
9
preceding sentence are not complied with for any reason, without limiting any other right or remedy available to the First Priority Agent or the other First Priority Secured Parties, the Second Priority Agent agrees, for itself and on behalf of the other Second Priority Secured Parties, that any amounts received by or distributed to any Second Priority Secured Party pursuant to or as a result of any Lien granted in contravention of this Section 2.3 shall be subject to Section 4.2. Notwithstanding anything to the contrary contained in this Agreement, cash and cash equivalents may be pledged to secure reimbursement obligations in respect of Letters of Credit issued under the First Priority Debt Documents (up to an aggregate amount of 105% of the aggregate undrawn amount of such Letters of Credit) without granting a Lien thereon to secure any Second Priority Claim.
Section 2.4. Similar Collateral. The parties hereto acknowledge and agree that it is their intention that the First Priority Collateral and the Second Priority Collateral be identical. In furtherance of the foregoing, (i) the Second Priority Agent, on behalf of itself and the other Second Priority Secured Parties hereby agrees that Second Priority Security Documents shall be in substantially the same form as the First Priority Security Documents (other than with respect to the priority of the respective Liens on the Collateral, the control of Collateral that is perfected by control (to the extent that such control cannot be granted to the Second Priority Agent after using commercially reasonably efforts) and the delivery of possessory Collateral, and except that such Second Priority Security Documents may omit certain representations and covenants not customarily included in security documents for second Lien bond financings), and (ii) the parties hereto agree to cooperate in good faith in order to determine, upon any reasonable request by the First Priority Agent or the Second Priority Agent, the specific assets included in the First Priority Collateral and the Second Priority Collateral, the steps taken to perfect the First Priority Liens and the Second Priority Liens thereon and the identity of the respective parties obligated under the First Priority Debt Documents and the Second Priority Debt Documents in respect of the First Priority Claims and the Second Priority Claims, respectively.
ARTICLE III.
ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL
Section 3.1. Exercise of Rights and Remedies; Option to Purchase. (a) The First Priority Agent and the other First Priority Secured Parties shall, at all times prior to the Discharge of First Priority Claims (whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced), have the exclusive right to enforce rights and exercise remedies (including any right of setoff) with respect to the Collateral (including making determinations regarding the release, Disposition or restrictions with respect to the Collateral), or to commence or seek to commence any action or proceeding with respect to such rights or remedies (including commencing or seeking to commence any foreclosure action or proceeding or commencing or seeking to commence any Insolvency or Liquidation Proceeding or Liquidation Sale), in each case, without any consultation with or the consent of the Second Priority Agent or any other Second Priority Secured Party; provided that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation Proceeding, Second Priority Secured Party may file a proof of claim or statement of interest with respect to the Second Priority Claims; (ii) any Second Priority Secured Party may take any action to preserve or protect the validity and enforceability of the Second Priority Liens, provided that no such action is (A) adverse to the
10
First Priority Liens or the rights of the First Priority Agent or any other First Priority Secured Party to exercise remedies in respect thereof or (B) inconsistent with the terms of this Agreement, including the automatic release of Second Priority Liens provided in Section 3.4; (iii) the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including any claims secured by the Collateral or otherwise make any agreements or file any motions pertaining to the Second Priority Claims, in each case, to the extent not inconsistent with the terms of this Agreement; (iv) the Second Priority Secured Parties may exercise rights and remedies as unsecured creditors, as provided in Section 3.3; (v) subject to Section 6.6, the Second Priority Secured Parties may vote on any plan of reorganization in any Insolvency or Liquidation Proceeding; and (vi) subject to Section 3.2, the Second Priority Agent and the other Second Priority Secured Parties may enforce any of their rights and exercise any of their remedies with respect to the Collateral after the termination of the Standstill Period (the actions described in this proviso being referred to herein as the Second Priority Permitted Actions). Except for the Second Priority Permitted Actions, unless and until the Discharge of First Priority Claims has occurred, the sole right of the Second Priority Agent and the other Second Priority Secured Parties with respect to the Collateral shall be the right to receive the proceeds of the Collateral, if any, remaining after the Discharge of First Priority Claims has occurred and in accordance with the Second Priority Debt Documents and applicable law.
(b) In exercising rights and remedies with respect to the Collateral, the First Priority Agent and the other First Priority Secured Parties may enforce the provisions of the First Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and to exercise all the rights and remedies of a secured creditor under applicable law.
(c) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Priority Security Document or any other Second Priority Debt Document (other than, in each case, this Agreement) shall be deemed to restrict in any way the rights and remedies of the First Priority Agent or the other First Priority Secured Parties with respect to the Collateral as set forth in this Agreement and the other First Priority Debt Documents.
(d) Notwithstanding anything in this Agreement to the contrary, following the acceleration of the Indebtedness then outstanding under the First Priority Debt Agreement, the Second Priority Creditors may (but shall not be obligated to), at their sole expense and effort, upon notice to the Parent and the First Priority Agent, require the First Priority Secured Parties to transfer and assign to the Second Priority Creditors, without warranty or representation or recourse, all (but not less than all) of the First Priority Claims; provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, and (y) the Second Priority Creditors shall have paid to the First Priority Agent, for the account of the First Priority Secured Parties, in immediately available funds, an amount equal to 100% of the principal of such Indebtedness plus all accrued and
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unpaid interest thereon (including default interest) plus all accrued and unpaid fees (including legal fees and expenses) (plus all the other First Priority Claims then outstanding (which shall include, with respect to (i) the aggregate face amount of the Letters of Credit outstanding under the First Priority Debt Documents, posting cash collateral in an amount equal to 105% thereof on terms and documentation reasonably satisfactory to the applicable issuer of such Letter of Credit, and (ii) each hedging, cap, collar, swap or other similar agreement that has been terminated and which evidences any Hedging Obligations included in such First Priority Claims, 100% of the aggregate amount of such First Priority Claims, after giving effect to any netting arrangements, that the applicable Grantor is required to pay using the market quotation method) and (z) with respect to each hedging, cap, collar, swap or other similar agreements that have not been terminated, the Second Priority Secured Parties shall have caused such agreements to be assigned or novated on terms and subject to documentation satisfactory to the applicable First Priority Secured Party that is the counterparty thereto. In order to effectuate the foregoing, the First Priority Agent shall calculate, upon the written request of the Second Priority Agent from time to time, the amount in cash that would be necessary so to purchase the First Priority Claims. If the right set forth in this Section 3.1(d) is exercised, the parties shall endeavor to close promptly thereafter but in any event within ten (10) Business Days of the request set forth in the first sentence of this Section 3.1(d) at which time the right to purchase will expire. If the Second Priority Secured Parties exercise the right set forth in this Section 3.1(d), it shall be exercised pursuant to documentation mutually acceptable to each of the First Priority Agent and the Second Priority Agent (acting upon the direction of the purchasing Second Priority Creditors).
(e) In exercising rights and remedies with respect to the Collateral, the Second Priority Agent may enforce the provisions of the Second Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in its sole discretion, in each case, to the extent that such enforcement or exercise is not otherwise prohibited under this Agreement. Such exercise and enforcement shall, in each case, to the extent that such enforcement or exercise is not otherwise prohibited under this Agreement, include (i) the rights of an agent appointed by it to Dispose of Collateral upon foreclosure, to incur expenses in connection with any such Disposition and (ii) the right to exercise all the rights and remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. The Second Priority Agent agrees to provide at least ten (10) Business Days prior written notice to the First Priority Agent of its intention to foreclose upon or Dispose of any Collateral.
Section 3.2. No Interference. The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the Second Priority Secured Parties:
(a) except for Second Priority Permitted Actions, will not, so long as the Discharge of First Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any rights or remedies (including any right of setoff) with respect to any Collateral (including the enforcement of any right under any account control agreement, landlord waiver or bailees letter or any similar agreement or arrangement to which the Second Priority Agent or any other Second Priority Secured Party is a party) or (B) commence or join with any Person (other than the First Priority Agent) in commencing, or petition for or vote in favor of any
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resolution for, any action or proceeding with respect to such rights or remedies (including any foreclosure action); provided, however, that the Second Priority Agent may enforce or exercise any or all such rights and remedies, or commence, join with any Person in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, after a period of 180 days has elapsed (which period shall be tolled during any period in which the First Priority Agent shall not be entitled to enforce or exercise any rights or remedies with respect to any Collateral as a result of (x) any injunction issued by a court of competent jurisdiction or (y) the automatic stay or any other stay in any Insolvency or Liquidation Proceeding) since the date on which the Second Priority Agent has delivered to the First Priority Agent written notice of the acceleration of the Indebtedness then outstanding under the Second Priority Debt Agreement (the Standstill Period); provided further, however, that (1) notwithstanding the expiration of the Standstill Period or anything herein to the contrary, in no event shall the Second Priority Agent or any other Second Priority Secured Party enforce or exercise any rights or remedies with respect to any Collateral, or commence, join with any Person at any time in commencing, or petition for or vote in favor of any resolution for, any such action or proceeding, if the First Priority Agent or any other First Priority Secured Party shall have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies with respect to any material portion of the Collateral or any such action or proceeding (prompt written notice thereof to be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of the Standstill Period, so long as neither the First Priority Agent nor any of the First Priority Secured Parties have commenced any action to enforce their Lien on any material portion of the Collateral, in the event that and for so long as the Second Priority Secured Parties (or the Second Priority Agent on their behalf) have commenced any actions to enforce their Liens with respect to any material portion of the Collateral to the extent permitted hereunder (prompt written notice thereof to be given to the First Priority Agent by the Second Priority Agent) and are diligently pursuing such actions, neither the First Priority Secured Parties nor the First Priority Agent shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Agreement (including the turnover provisions of Article IV) are complied with;
(b) will not contest, protest or object to any foreclosure action or proceeding brought by the First Priority Agent or any other First Priority Secured Party, or any other enforcement or exercise by any First Priority Secured Party of any rights or remedies relating to the Collateral under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds thereof subject to the relative priorities set forth in Section 2.1;
(c) will not object to the forbearance by the First Priority Agent or any other First Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any other enforcement or exercise of any rights or remedies with respect to the Collateral;
(d) will not, so long as the Discharge of First Priority Claims has not occurred and except for Second Priority Permitted Actions, take or receive any Collateral, or any proceeds thereof or payment with respect thereto, in connection with the exercise of any right or enforcement of any remedy (including any right of setoff) with respect to any Collateral or in connection with any insurance policy award under a policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;
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(e) will not take, or cause to be taken any action that would, or could reasonably be expected to, restrain, hinder, limit, delay or otherwise interfere with, in any manner and whether by judicial proceedings or otherwise, any exercise of remedies under the First Priority Debt Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise;
(f) will not object to the manner in which the First Priority Agent or any other First Priority Secured Party may seek to enforce or collect the First Priority Claims or the First Priority Liens, regardless of whether any action or failure to act by or on behalf of the First Priority Agent or any other First Priority Secured Party is, or could be, adverse to the interests of the Second Priority Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or other similar right that may be available under applicable law with respect to the Collateral or any similar rights a junior secured creditor may have under applicable law;
(g) will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge or question the validity or enforceability of any First Priority Claim or any First Priority Security Document, including this Agreement, or the validity or enforceability of the priorities, rights or obligations established by this Agreement;
(h) will not take or cause to be taken any action the purpose or effect of which is, or could be, to make any Lien securing the Second Priority Claims pari passu with, or to give such Second Priority Secured Party any preference or priority relative to, any First Priority Claim with respect to the Collateral or any part thereof;
(i) will not challenge or question in any proceeding the validity or enforceability of any First Priority Claim or First Priority Debt Document, or the validity, attachment, perfection or priority of any First Priority Lien, or the validity or enforceability of the priorities, rights or duties established by the provisions of this Agreement;
(j) will have no right to (A) direct the First Priority Agent or any other First Priority Secured Party to exercise any right, remedy or power with respect to any Collateral (except with respect to Collateral that is in the possession or under the control of the First Priority Agent or other First Priority Secured Party in connection with any permitted enforcement or exercise of rights or remedies by the Second Priority Agent or any other Second Priority Secured Party against the Collateral after the end of the Standstill Period (including any tolling thereof) or (B) consent to the exercise by the First Priority Agent or any other First Priority Secured Party of any right, remedy or power with respect to any Collateral; and
(k) will not institute any suit or assert in any suit or Insolvency or Liquidation Proceeding any claim against the First Priority Agent or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to, and neither the First Priority Agent nor any other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Priority Agent or other First Priority Secured Party with respect to any Collateral in a manner consistent with this Agreement.
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Section 3.3. Rights as Unsecured Creditors. The Second Priority Agent and the other Second Priority Secured Parties may, in accordance with the terms of the Second Priority Debt Documents and applicable law, enforce rights and exercise remedies against any Grantor as unsecured creditors; provided that (i) no such action is otherwise inconsistent with the terms of this Agreement or (ii) the Second Priority Agent and any other Second Priority Secured Parties would not otherwise be restricted or prohibited from taking such action in their respective capacities as Second Priority Secured Parties under this Agreement. Without limiting the generality of the foregoing sentence, the Second Priority Secured Parties shall be entitled to prosecute litigation against any Grantor or any other Person liable in respect of the Second Priority Claims, notwithstanding whether any Standstill Period is then in effect, but shall be prohibited from taking any action to enforce any judgment against the Collateral until the lapse of any applicable Standstill Period (including any tolling thereof). Nothing in this Agreement shall prohibit the receipt by the Second Priority Agent or any other Second Priority Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Priority Debt Documents so long as such receipt is not the direct or indirect result of the enforcement or exercise by the Second Priority Agent or any other Second Priority Secured Party of rights or remedies in contravention of this Agreement (including any right of setoff) against Collateral or enforcement in contravention of this Agreement of any Second Priority Lien against Collateral (including any judgment lien resulting from the exercise of remedies available to an unsecured creditor).
Section 3.4. Automatic Release of Second Priority Liens.
(a) If, the First Priority Agent, for itself and on behalf of the other First Priority Secured Parties, (x) releases any of the First Priority Liens or (y) releases any Guarantor from its obligations under its guarantee of the First Priority Claims (in each case, a Release), in each case in connection with (i) any Disposition of any Collateral permitted under the terms of the First Priority Debt Documents, (ii) any Disposition of the Capital Stock in any Guarantor in a transaction permitted under the First Priority Debt Documents, or any transaction permitted under the terms of the First Priority Debt Documents that otherwise results in a Guarantor ceasing to guarantee all of the First Priority Claims, other than as a result of payment thereunder and provided that no Default has occurred and is continuing under the Second Priority Debt Agreement, or (iii) the enforcement or exercise of any rights or remedies with respect to the Collateral, including any Disposition of Collateral, other than, in each case of the foregoing clauses (i)-(iii), any such Release granted in connection with the occurrence of the Discharge of First Priority Claims, then the Second Priority Liens on such Collateral, and the obligations of such Guarantor under its guarantee of the Second Priority Claims, shall be automatically, unconditionally and simultaneously released, and the Second Priority Agent shall, for itself and on behalf of the other Second Priority Secured Parties, promptly execute and deliver to the First Priority Agent, the Companies or such Guarantor, as the case may be, such termination statements, releases and other documents as the First Priority Agent, the Companies or such Guarantor, as the case may be, may reasonably request to effectively confirm such Release.
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(b) Until the Discharge of First Priority Claims occurs, the Second Priority Agent, for itself and on behalf of each other Second Priority Secured Party, hereby appoints the First Priority Agent, and any officer or agent of the First Priority Agent, with full power of substitution, as the attorney-in-fact of each Second Priority Secured Party for the purpose of carrying out the provisions of this Section 3.4 and taking any action and executing any instrument that the First Priority Agent may deem necessary or advisable to accomplish the purposes of this Section 3.4 (including any endorsements or other instruments of transfer or release), which appointment is irrevocable and coupled with an interest but may only be exercised if the First Priority Agent requests that the Second Priority Agent (or applicable Second Priority Secured Party) execute such instrument and such request is declined.
Section 3.5. Release of First Priority Liens. If, in connection with the enforcement or exercise of any rights or remedies with respect to the Collateral after the expiration of the Standstill Period that is permitted in accordance with clause (2) of the second proviso to Section 3.2(a), including any Disposition of Collateral, the Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, intends to (x) release any of the Second Priority Liens, or (y) release any Guarantor from its obligations under its guarantee of the Second Priority Claims (in each case, a Second Priority Release), then, upon written notice to the First Priority Agent from the Second Priority Agent (acting at the direction of the Second Priority Creditors) and subject to the provisos set forth below, the First Priority Agent shall, for itself and on behalf of the other First Priority Secured Parties, promptly release the First Priority Liens on such Collateral, and the obligations of such Guarantor under its guarantee of the First Priority Claims, and the First Priority Agent shall, for itself and on behalf of the other First Priority Secured Parties, promptly execute and deliver to the Second Priority Agent, the Companies, or such Guarantor such termination statements, releases and other documents as the Second Priority Agent, the Companies or such Guarantor may reasonably request to effectively confirm such release; provided that (i) no First Priority Liens on such Collateral or the obligations of such Guarantor shall be released unless concurrently therewith, the applicable Second Priority Release is effectuated, and (ii) so long as the Discharge of First Priority Claims has not occurred, the proceeds of, or payments with respect to, any Second Priority Release that are received by the Second Priority Agent or any other Second Priority Secured Party, shall be segregated and held in trust and forthwith transferred or paid over to the First Priority Agent for the benefit of the First Priority Secured Parties in accordance with Section 4.2.
Section 3.6. Insurance and Condemnation Awards. So long as the Discharge of First Priority Claims has not occurred, the First Priority Agent and the other First Priority Secured Parties shall have the exclusive right, subject to the rights of the Grantors under the First Priority Debt Documents, to settle and adjust claims in respect of Collateral under policies of insurance covering Collateral and to approve any award granted in any condemnation or similar proceeding, or any deed in lieu of condemnation, in respect of the Collateral. All proceeds of any such policy and any such award, or any payments with respect to a deed in lieu of condemnation, shall (a) first, prior to the Discharge of First Priority Claims and subject to the rights of the Grantors under the First Priority Debt Documents, be paid to the First Priority Agent for the benefit of First Priority Secured Parties pursuant to the terms of the First Priority Debt Documents, (b) second, after the Discharge of First Priority Claims and subject to the rights of the Grantors under the Second Priority Debt Documents, be paid to the Second Priority Agent for the benefit of the Second Priority Secured Parties pursuant to the terms of the Second Priority
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Debt Documents, and (c) third, be paid to the owner of the subject property or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Priority Claims has occurred, if the Second Priority Agent or any other Second Priority Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award or payment, it shall transfer and pay over such proceeds to the First Priority Agent in accordance with Section 4.2.
Section 3.7. Notification of Release of Collateral. Each of the First Priority Agent and the Second Priority Agent shall give the other prompt written notice of the Disposition or Release by it of the Lien on any Collateral. Such notice shall describe in reasonable detail the subject Collateral, the parties involved in such Disposition or Release, the place, time manner and method thereof, and the consideration, if any, received therefor; provided, however, that the failure to give any such notice shall not in and of itself in any way impair the effectiveness of any such Disposition or Release.
ARTICLE IV.
PAYMENTS
Section 4.1. Application of Proceeds. Any Collateral or proceeds thereof received by any Secured Party in connection with any Disposition of, or collection on, such Collateral upon the enforcement or exercise of any right or remedy (including any right of setoff or the release of liens in respect of any Disposition of Collateral) will be applied as follows:
first, to the payment of costs and expenses of the First Priority Agent, Second Priority Agent, and other Secured Parties in connection with such enforcement or exercise to the extent such enforcement or exercise is not prohibited under this Agreement,
second, after all such costs and expenses have been paid in full in cash, to the payment of and other provision (including cash collateralization) for the First Priority Claims in accordance with the First Priority Debt Documents; and
third, after all such costs and expenses and First Priority Claims have been paid in full in cash and the Discharge of First Priority Claims has occurred, to the payment of the Second Priority Claims in accordance with the Second Priority Debt Documents.
After all such costs and expenses and First Priority Claims and Second Priority Claims have been paid in full in cash, any surplus Collateral or proceeds then remaining will be returned to the applicable Company, the applicable Guarantor or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
Section 4.2. Payment Over. So long as the Discharge of First Priority Claims has not occurred, any Collateral or any proceeds thereof (and any assets or proceeds subject to Liens referred to in the penultimate sentence of Section 2.3) received by the Second Priority Agent or any other Second Priority Secured Party, including in connection with any Disposition of, or collection on, such Collateral upon the enforcement or the exercise of any right or remedy (including any right of setoff) with respect to the Collateral, or in connection with any insurance
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policy claim or any condemnation award (or deed in lieu of condemnation) with respect to the Collateral, shall be segregated and held in trust and forthwith transferred or paid over to the First Priority Agent for the benefit of the First Priority Secured Parties in the same form as received, together with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Priority Claims occurs, the Second Priority Agent, for itself and on behalf of each other Second Priority Secured Party, hereby appoints the First Priority Agent, and any officer or agent of the First Priority Agent, with full power of substitution, the attorney-in-fact of each Second Priority Secured Party for the purpose of carrying out the provisions of this Section 4.2 and taking any action and executing any instrument that the First Priority Agent may deem necessary or advisable to accomplish the purposes of this Section 4.2, which appointment is irrevocable and coupled with an interest.
Section 4.3. Certain Agreements with Respect to Unenforceable Liens. Notwithstanding anything to the contrary contained herein, if in any Insolvency or Liquidation Proceeding a determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then the Second Priority Agent for itself and on behalf of each other Second Priority Secured Party agrees that, any distribution or recovery they may receive with respect to, or allocable to, the value of the assets constituting Collateral subject to an enforceable Lien in favor of the Second Priority Secured Parties or any proceeds thereof shall (for so long as the Discharge of First Priority Claims has not occurred) be segregated and held in trust and forthwith paid over to the First Priority Agent for the benefit of the First Priority Secured Parties in the same form as received but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Priority Claims occurs, the Second Priority Agent, for itself and on behalf of each other Second Priority Secured Party, hereby appoints the First Priority Agent, and any officer or agent of the First Priority Agent, with full power of substitution, the attorney-in-fact of each Second Priority Secured Party for the limited purpose of carrying out the provisions of this Section 4.3 and taking any action and executing any instrument that the First Priority Agent may deem necessary or advisable to accomplish the purposes of this Section 4.3, which appointment is irrevocable and coupled with an interest.
ARTICLE V.
BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS
(a) The parties agree that if the First Priority Agent shall at any time hold a First Priority Lien on any Collateral that can be perfected or the priority of which can be enhanced by the possession or control of such Collateral or of any account in which such Collateral is held, and if such Collateral or any such account is in fact in the possession or under the control of the First Priority Agent, or of agents or bailees of the First Priority Agent (such Collateral being referred to herein as the Pledged or Controlled Collateral), the First Priority Agent shall, solely for the purpose of perfecting the Second Priority Liens granted under the Second Priority Debt Documents and subject to the terms and conditions of this Article V, also (i) hold and/or maintain control of such Pledged or Controlled Collateral as gratuitous bailee for and representative (as defined in Section 1-201(35) of the Uniform Commercial Code as in effect in the State of New York) of, or as agent for, the Second Priority Agent, (ii) with respect to any securities accounts included in the Collateral, have control (within the meaning of Section 8-106(d)(3) of the UCC) of such securities accounts on behalf of the Second Priority Agent and (iii) with respect to any deposit accounts included in the Collateral, act as agent for the Second Priority Agent.
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(b) So long as the Discharge of First Priority Claims has not occurred, the First Priority Agent shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of this Agreement and the other First Priority Debt Documents as if the Second Priority Liens did not exist. The obligations and responsibilities of the First Priority Agent to the Second Priority Agent and the other Second Priority Secured Parties under this Article V shall be limited solely to holding or controlling the Pledged or Controlled Collateral as gratuitous bailee and representative (as defined in Section 1-201(35) of the Uniform Commercial Code as in effect in the State of New York) in accordance with this Article V. Without limiting the foregoing, the First Priority Agent shall have no obligation or responsibility to ensure that any Pledged or Controlled Collateral is genuine or owned by any of the Grantors. The First Priority Agent acting pursuant to this Article V shall not, by reason of this Agreement, any other Security Document or any other document, have a fiduciary relationship in respect of any other First Priority Secured Party, the Second Priority Agent or any other Second Priority Secured Party.
(c) Upon the Discharge of First Priority Claims, the First Priority Agent shall transfer the possession and control of the Pledged or Controlled Collateral, together with any necessary endorsements but without recourse or warranty, to the Second Priority Agent, and if no Second Priority Claims are outstanding at such time, to the applicable Grantor, in each case so as to allow such Person to obtain possession and control of such Pledged or Controlled Collateral. In connection with any transfer under the immediately preceding sentence, the First Priority Agent agrees, at the expense of the Grantors, to take all actions in its power as shall be reasonably requested by the Second Priority Agent to permit the Second Priority Agent to obtain, for the benefit of the Second Priority Secured Parties, a first priority security interest in the Pledged or Controlled Collateral.
(d) After the Discharge of First Priority Claims and upon the Discharge of Second Priority Claims, the Second Priority Agent shall transfer the possession and control of the Pledged or Controlled Collateral, together with any necessary endorsements but without recourse or warranty, to the applicable Grantor, in each case so as to allow such Person to obtain possession and control of such Pledged or Controlled Collateral.
ARTICLE VI.
INSOLVENCY OR LIQUIDATION PROCEEDINGS
Section 6.1. Finance and Sale Matters. (a) Until the Discharge of First Priority Claims has occurred, the Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties agrees that, in the event of any Insolvency or Liquidation Proceeding, the Second Priority Secured Parties:
(i) will not oppose or object to the use of any Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, unless the First Priority Secured Parties, or a representative authorized by the First Priority Secured Parties, shall oppose or object to such use of cash collateral;
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(ii) will not oppose or object to any post-petition financing, whether provided by the First Priority Secured Parties or any other Person, under Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law (a DIP Financing), or the Liens securing any DIP Financing (DIP Financing Liens), unless the First Priority Secured Parties, or a representative authorized by the First Priority Secured Parties, shall then oppose or object to such DIP Financing or such DIP Financing Liens, and, to the extent that such DIP Financing Liens are senior to, or rank pari passu with, the First Priority Liens, the Second Priority Agent will, for itself and on behalf of the other Second Priority Secured Parties, subordinate the Second Priority Liens to the First Priority Liens, if applicable, and the DIP Financing Liens on the terms of this Agreement; provided that, this clause (ii) will only be binding on the Second Priority Secured Parties with respect to any DIP Financing to the extent the principal amount of such DIP Financing, when taken together with the aggregate principal amount of the First Priority Claims (other than Hedging Obligations and Treasury Management Obligations), does not exceed the sum of $100 million plus the aggregate amount of Indebtedness permitted to be outstanding pursuant to clause (1) of the definition of Permitted Indebtedness of the Second Priority Debt Agreement (as in effect on the Issue Date), without giving effect to the proviso at the end thereof;
(iii) except to the extent permitted by paragraph (b) of this Section 6.1, in connection with the use of cash collateral as described in clause (i) above or a DIP Financing, will not request adequate protection with respect to any Collateral or any other relief in connection with such use of cash collateral, DIP Financing or DIP Financing Liens;
(iv) will not oppose or object to any Disposition of any Collateral free and clear of the Second Priority Liens or other claims under Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, if the First Priority Secured Parties, or a representative authorized by the First Priority Secured Parties, shall consent to, or not oppose or object to, such Disposition free and clear of First Priority Liens, so long as the proceeds are applied in accordance with this Agreement; and
(v) without the prior written consent of the First Priority Agent, no Second Priority Secured Party will (nor will any of Second Priority Secured Party join with or support any third party in opposing, objecting to or contesting, as the case may be), in any Insolvency or Liquidation Proceeding involving any of the Companies or any Subsidiary, (i) oppose, object to or contest the determination of the extent of any Liens held by any First Priority Secured Party or the value of any claims of any such holder under Section 506(a) of the Bankruptcy Code or (ii) oppose, object to or contest the payment to the First Priority Secured Party of interest, fees or expenses under Section 506(b) of the Bankruptcy Code.
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(b) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees that no Second Priority Secured Party shall contest, or support any other Person in contesting, (i) any request by the First Priority Agent or any other First Priority Secured Party for adequate protection in respect of any First Priority Claims or (ii) any objection, based on a claim of a lack of adequate protection with respect of any First Priority Claims, by the First Priority Agent or any other First Priority Secured Party to any motion, relief, action or proceeding. Notwithstanding the immediately preceding sentence, if, in connection with any DIP Financing or use of cash collateral, (A) any First Priority Secured Party seeks or requests adequate protection in the form of a Lien on additional collateral, the Second Priority Agent may, for itself and on behalf of the other Second Priority Secured Parties, seek or request adequate protection in the form of a Lien on such additional collateral, which Lien will be subordinated to the First Priority Liens and DIP Financing Liens on the same basis as the other Second Priority Liens are subordinated to the First Priority Liens under this Agreement or (B) any Second Priority Secured Party is granted adequate protection in the form of a Lien on additional collateral, the First Priority Agent shall, for itself and on behalf of the other First Priority Secured Parties, be granted adequate protection in the form of a Lien on such additional collateral that is senior to such Second Priority Lien as security for the First Priority Claims.
(c) Notwithstanding anything to the contrary in this Agreement but subject to clause (d) below, the holders of the Second Priority Debt Documents retain their rights under the Bankruptcy Code to make post-petition financing proposals, and such proposals shall not be deemed to be an objection to any other DIP Financing proposals, so long as (x) any court order approving such post-petition financing proposed by any such Second Priority Secured Party requires that the Discharge of First Priority Claims shall have occurred as a condition to any payment being due with respect to such post-petition financing, and (y) the Discharge of First Priority Claims occurs prior to the date of any payment being due with respect to such post-petition financing.
(d) Without the prior written consent of the First Priority Agent, the Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees not to propose, support or enter into any DIP Financing, if the effect of such DIP Financing would be that the Second Priority Claims would no longer be subordinated to the First Priority Claims in the manner set forth in this Agreement, or the Second Priority Secured Parties would recover any payments they are not otherwise entitled to under this Agreement, including by way of adequate protection.
(e) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, waives any claim that may be had against the First Priority Agent or any other First Priority Secured Party arising out of any DIP Financing Liens (granted in a manner that is not inconsistent with this Agreement) or administrative expense claim under Section 364 of the Bankruptcy Code.
(f) Notwithstanding anything to the contrary contained in any Debt Document, if in any Insolvency or Liquidation Proceeding a determination is made that any Lien encumbering any Collateral is not enforceable for any reason, then the Second Priority Agent for itself and on behalf of each other Second Priority Secured Party, agrees that, any distribution or recovery they may receive with respect to, or allocable to, the value of the assets constituting
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Collateral subject to an enforceable Lien in favor of the Second Priority Secured Parties or any proceeds thereof shall (for so long as the Discharge of First Priority Claims has not occurred) be segregated and held in trust and forthwith paid over to the First Priority Agent for the benefit of the First Priority Secured Parties in the same form as received but with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Priority Claims occurs, the Second Priority Agent, for itself and on behalf of each other Second Priority Secured Party, hereby appoints the First Priority Agent, and any officer or agent of the First Priority Agent, with full power of substitution, the attorney-in-fact of each Second Priority Secured Party for the limited purpose of carrying out the provisions of this clause (f) and taking any action and executing any instrument that the First Priority Agent may deem necessary or advisable to accomplish the purposes of this clause (f), which appointment is irrevocable and coupled with an interest.
Section 6.2. Relief from the Automatic Stay. The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees that, so long as the Discharge of First Priority Claims has not occurred, no Second Priority Secured Party shall, without the prior written consent of the First Priority Agent, seek or request relief from or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of any part of the Collateral, any proceeds thereof or any Second Priority Lien.
Section 6.3. Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of the First Priority Claims and the Second Priority Claims, then, to the extent the debt obligations distributed on account of the First Priority Claims and on account of the Second Priority Claims, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
Section 6.4. Post-Petition Interest. (a) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees that no Second Priority Secured Party shall oppose or seek to challenge any claim by the First Priority Agent or any other First Priority Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Priority Claims consisting of post-petition interest, fees or expenses to the extent of the value of the First Priority Liens (it being understood and agreed that such value shall be determined without regard to the existence of the Second Priority Liens on the Collateral).
(b) The First Priority Agent, for itself and on behalf of the other First Priority Secured Parties, agrees that the Second Priority Agent or any other Second Priority Secured Party may make a claim for allowance in any Insolvency or Liquidation Proceeding of Second Priority Claims consisting of post-petition interest, fees or expenses to the extent of the value of the Second Priority Liens; provided, however, that if the First Priority Secured Parties shall have made any such claim, such claim (A) shall have also have been approved or (B) will be approved contemporaneous with the approval of any such claim by any Second Priority Secured Party.
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Section 6.5. Certain Waivers by the Second Priority Secured Parties. The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, waives any claim any Second Priority Secured Party may have against any First Priority Secured Party arising out of (a) the election by any First Priority Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, or (b) any use of cash collateral or financing arrangement, or any grant of a security interest in the Collateral, in any Insolvency or Liquidation Proceeding.
Section 6.6. Certain Voting Matters. Each of the First Priority Agent, on behalf of the First Priority Secured Parties and the Second Priority Agent on behalf of the Second Priority Secured Parties, agrees that, without the prior written consent of the other, it will not seek to vote with the other as a single class in connection with any plan of reorganization in any Insolvency or Liquidation Proceeding. The Second Priority Agent, for itself and on behalf of each other Second Priority Secured Party, agrees that neither the Second Priority Agent nor any Second Priority Secured Party shall support or vote for any plan of reorganization or disclosure statement of any Company or any other Grantor unless (i) such plan is accepted by the class of First Priority Secured Parties in accordance with Section 1126(c) of the Bankruptcy Code or otherwise provides for the Discharge of First Priority Claims (including the payment of all post-petition interest, fees and expenses, whether or not allowed or available under the Bankruptcy Code) on the effective date of such plan of reorganization, or (ii) such plan provides on account of the First Priority Secured Parties for the retention by the First Priority Agent, for the benefit of the First Priority Secured Parties, of the Liens on the Collateral securing the First Priority Claims, and on all proceeds thereof, and such plan also provides that any Liens retained by, or granted to, the Second Priority Agent are only on property securing the Second Priority Claims and shall have the same relative priority with respect to the Collateral or other property, respectively, as provided in this Agreement with respect to the Collateral, and to the extent such plan provides for deferred cash payments, or for the distribution of any other property of any kind or nature, on account of the First Priority Claims or the Second Priority Claims, such plan provides that any such deferred cash payments or other distributions in respect of the Second Priority Claims shall be delivered to the First Priority Agent and distributed in accordance with the priorities provided in this Agreement. Except as provided in this Agreement, the Second Priority Secured Parties shall remain entitled to vote their Second Priority Claims in any such Insolvency or Liquidation Proceeding.
ARTICLE VII.
OTHER AGREEMENTS
Section 7.1. Matters Relating to Debt Documents. The Parent and the Second Priority Agent agrees that the Second Priority Debt Agreement and each Second Priority Security Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by the First Priority Agent, which approval shall not be unreasonably withheld or delayed. Each of the Parent and the Second Priority Agent further agrees that each Second Priority Mortgage covering any Collateral shall contain such other language as the First Priority Agent may reasonably request to reflect the subordination of such Second Priority Mortgage to the First Priority Security Document covering such Collateral pursuant to this Agreement.
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Section 7.2. Effect of Refinancing of Indebtedness under First Priority Debt Documents. If, substantially contemporaneously with the Discharge of First Priority Claims, the Grantors Refinance Indebtedness outstanding under the First Priority Debt Documents and provided that (a) such Refinancing is permitted hereby and (b) either Company gives to the Second Priority Agent written notice (the Refinancing Notice) electing the application of the provisions of this Section 7.2 to such Refinancing Indebtedness, then (i) such Discharge of First Priority Claims shall automatically be deemed not to have occurred for all purposes of this Agreement, (ii) such Refinancing Indebtedness and all other obligations under the documents evidencing such Indebtedness (the New First Priority Claims) shall automatically be treated as First Priority Claims for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, (iii) the Debt Agreement and the other documents evidencing such Refinancing Indebtedness (the New First Priority Debt Documents) shall automatically be treated as the First Priority Debt Agreement and the First Priority Debt Documents and, in the case of New First Priority Debt Documents that are security documents pursuant to which any Grantor has granted a Lien to secure any New First Priority Claim, as the First Priority Security Documents for all purposes of this Agreement, (iv) the collateral agent under the New First Priority Debt Documents (the New First Priority Agent) shall be deemed to be the First Priority Agent for all purposes of this Agreement and (v) the lenders under the New First Priority Debt Documents shall be deemed to be the First Priority Creditors for all purposes of this Agreement. Upon receipt of a Refinancing Notice, which notice shall include the identity of the New First Priority Agent, the Second Priority Agent shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as any Company or such New First Priority Agent may reasonably request in order to provide to the New First Priority Agent the rights and powers contemplated hereby, in each case consistent in all material respects with the terms of this Agreement. Either Company shall cause the agreement, document or instrument pursuant to which the New First Priority Agent is appointed to provide that the New First Priority Agent agrees to be bound by the terms of this Agreement. In furtherance of Section 2.3, if the New First Priority Claims are secured by assets of the Grantors that do not also secure the Second Priority Claims, the applicable Grantors shall promptly grant a Second Priority Lien on such assets to secure the Second Priority Claims.
Section 7.3. No Waiver by First Priority Secured Parties. Other than with respect to the Second Priority Permitted Actions, nothing contained herein shall prohibit or in any way limit the First Priority Agent or any other First Priority Secured Party from opposing, challenging or objecting to, in any Insolvency or Liquidation Proceeding or otherwise, any action taken, or any claim made, by the Second Priority Agent or any other Second Priority Secured Party, including any request by the Second Priority Agent or any other Second Priority Secured Party for adequate protection or any exercise by the Second Priority Agent or any other Second Priority Secured Party of any of its rights and remedies under the Second Priority Debt Documents or otherwise.
Section 7.4. Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or part of any payment with respect to the First Priority Claims previously made shall be rescinded or otherwise required to be paid over to any Company or any Subsidiary for any reason whatsoever, then the First Priority Claims shall be reinstated to the extent of the amount so rescinded or paid and the Discharge of First Priority Claims is deemed not to have occurred for all purposes under this Agreement and, if theretofore terminated, this Agreement
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shall be reinstated in full force and effect and such prior termination shall not diminish, release, discharge, impair or otherwise affect the Lien priorities and the relative rights and obligations of the First Priority Secured Parties and the Second Priority Secured Parties provided for herein. The Second Priority Agent, for itself and on behalf of each other Second Priority Secured Parties, agrees that if, at any time, it receives notice of any such rescission or payment, the Second Priority Agent or such other Second Priority Secured Party shall promptly pay over to the First Priority Agent any payment in respect of the Collateral or any Collateral received by it and then in its possession or under its control, and the provisions set forth in this Agreement shall be reinstated as if such payment had not been made, until the Discharge of First Priority Claims.
Section 7.5. Authorization of Collateral Agents. By accepting the benefits of this Agreement and the other First Priority Security Documents, each First Priority Secured Party hereby authorizes the First Priority Agent to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith. By accepting the benefits of this Agreement and the other Second Priority Security Documents, each Second Priority Secured Party hereby authorizes the Second Priority Agent to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith.
Section 7.6. Automatic Amendments to Second Priority Security Documents. In the event the First Priority Agent or the other First Priority Secured Parties and the relevant Grantors enter into any amendment, waiver or consent in respect of any of the First Priority Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provision thereof, such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable Second Priority Security Documents without any action by or consent of the Second Priority Agent or the other Second Priority Secured Parties, provided, that, (A) any such amendment, waiver or consent that effects the release of Liens on Collateral shall not apply to the Second Priority Security Documents unless such release is required by this Agreement, (B) any such amendment, waiver or consent that materially and adversely affects the rights of the Second Priority Secured Parties and does not affect the First Priority Secured Parties in a like or similar manner (including permitting Liens on the Collateral (other than DIP Financing Liens) that are not permitted under the Second Lien Debt Documents) shall not apply to the Second Priority Security Documents, and (C) any such amendment, waiver or consent that affects the rights or duties of the Second Priority Agent shall not apply to the Second Priority Security Documents without the Second Priority Agents written consent, and (D) notice of such amendment, waiver or consent shall be given to the Second Priority Agent no later than 10 Business Days after its effectiveness; provided that the failure to give such notice shall not affect the effectiveness and validity thereof.
Section 7.7. Further Assurances. Each of the First Priority Agent, for itself and on behalf of the other First Priority Secured Parties, and the Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, and each Grantor party hereto, for itself and on behalf of its Subsidiaries, agrees that it will execute, or will cause to be executed, any and all further documents, agreements and instruments, and take all such further actions, as may be required under any applicable law, or which the First Priority Agent or the Second Priority Agent may reasonably request, to effectuate the terms of this Agreement, including the relative Lien priorities provided for herein.
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ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
Section 8.1. Representations and Warranties of Each Party. Each party hereto represents and warrants to the other parties hereto as follows:
(a) Such party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly executed and delivered by such party and constitutes a legal, valid and binding obligation of such party, enforceable in accordance with its terms.
(c) The execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority (except as contemplated hereby) and (ii) will not violate any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of such party or any order of any governmental authority or any provision of any indenture, agreement or other instrument applicable to or binding upon such party.
Section 8.2. Representations and Warranties of Each Collateral Agent. Each Collateral Agent represents and warrants to the other parties hereto that it has been authorized by the Secured Parties under and as defined in the First Priority Debt Agreement or the Second Priority Debt Agreement, as applicable, to enter into this Agreement. In accordance with the terms of the Second Priority Debt Agreement, the holders of a majority of the principal amount of outstanding Second Priority Claims have the right to direct the Second Priority Agent on behalf of the Second Priority Secured Parties in accordance with the terms hereof and of the Second Priority Debt Documents (i) with respect to the exercise of rights and remedies and (ii) to take other actions with respect to the Collateral, and the other Second Priority Secured Parties have no rights to take any action with respect to the Collateral under this Agreement (other than at the direction or with the consent of the Second Priority Agent).
ARTICLE IX.
NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE
Section 9.1. No Reliance; Information. The First Priority Secured Parties and the Second Priority Secured Parties shall have no duty to disclose to any Second Priority Secured Party or to any First Priority Secured Party, respectively, any information relating to any Company or any of the Grantors, or any other circumstance bearing upon the risk of nonpayment of any of the First Priority Claims or the Second Priority Claims, as the case may be, that is known or becomes known to any of them or any of their Affiliates. In the event any First Priority Secured Party or any Second Priority
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Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to, respectively, any Second Priority Secured Party or any First Priority Secured Party, it shall be under no obligation (i) to make, and shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of the information so provided, (ii) to provide any additional information or to provide any such information on any subsequent occasion or (iii) to undertake any investigation.
Section 9.2. No Warranties or Liability. (a) The First Priority Agent, for itself and on behalf of the other First Priority Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article VIII, neither the Second Priority Agent nor any other Second Priority Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the Second Priority Debt Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, acknowledges and agrees that, except for the representations and warranties set forth in Article VIII, neither the First Priority Agent nor any other First Priority Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Priority Debt Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon.
(b) The Second Priority Agent and the other Second Priority Secured Parties shall have no express or implied duty to the First Priority Agent or any other First Priority Secured Party, and the First Priority Agent and the other First Priority Secured Parties shall have no express or implied duty to the Second Priority Agent or any other Second Priority Secured Party, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of a default or an event of default under any First Priority Debt Document and any Second Priority Debt Document (other than, in each case, this Agreement), regardless of any knowledge thereof which they may have or be charged with.
(c) The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, agrees no First Priority Secured Party shall have any liability to the Second Priority Agent or any other Second Priority Secured Party, and hereby waives any claim against any First Priority Secured Party, arising out of any and all actions which the First Priority Agent or the other First Priority Secured Parties may take or permit or omit to take with respect to (i) the First Priority Debt Documents (other than this Agreement), (ii) the collection of the First Priority Claims or (iii) the maintenance of, the preservation of, the foreclosure upon or the Disposition of any Collateral.
(d) The Second Priority Agent shall not at any time be deemed or imputed to have any knowledge of or receipt of any notices, information, correspondence or materials in the possession of or given to the First Priority Agent, in its capacity as First Priority Agent or as a lender under the First Priority Debt Agreement. First Priority Agent shall not at any time be deemed or imputed to have any knowledge of or receipt of any notices, information, correspondence or materials in the possession of or given to the Second Priority Agent, in its capacity as Second Priority Agent or as any other Second Priority Secured Party.
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Section 9.3. Obligations Absolute. The Lien priorities provided for herein and the respective rights, interests, agreements and obligations hereunder of the First Priority Agent and the other First Priority Secured Parties and the Second Priority Agent and the other Second Priority Secured Parties shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Debt Document;
(b) any change in the time, place or manner of payment of, or in any other term of (including, subject to the limitations set forth in Section 7.2, the Refinancing of), all or any portion of the First Priority Claims, it being specifically acknowledged that a portion of the First Priority Claims consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed;
(c) any change in the time, place or manner of payment of, or, subject to the limitations set forth in Section 7.2, in any other term of, all or any portion of the First Priority Claims;
(d) any amendment, waiver or other modification, whether by course of conduct or otherwise, of any Debt Document;
(e) the securing of any First Priority Claims or Second Priority Claims with any additional collateral or guarantees, or any exchange, release, voiding, avoidance or non-perfection of any security interest in any Collateral or any other collateral or any release of any guarantee securing any First Priority Claims or Second Priority Claims;
(f) the commencement of any Insolvency or Liquidation Proceeding or Liquidation Sale in respect of any Company or any other Grantor; or
(g) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Company or any other Grantor in respect of the First Priority Claims or this Agreement, or any of the Second Priority Secured Parties in respect of this Agreement.
Section 9.4. No Impairment of Security Interests. Each Company and each Grantor will not, and will not permit its Subsidiaries to, take any action, or knowingly omit to take any action, which action or omission would have the result of materially impairing the validity, perfection or priority of the security interest in the Collateral created by the First Priority Security Documents or the Second Priority Security Documents, except as permitted by the Debt Documents.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Notices. Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax, as follows:
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(a) if to any Company or any other Grantor, to it, at McDermott International, Inc., 757 North Eldridge Parkway, Houston, Texas 77079, Attention: Treasurer (Fax No. (281) 870-5125) with a copy to: McDermott International, Inc., 757 North Eldridge Parkway, Houston, Texas 77079, Attention: General Counsel (Fax No. (281) 870-5755);
(b) if to the First Priority Agent, to Crédit Agricole Corporate and Investment Bank, as First Priority Agent, 1301 Avenue of the Americas, New York, NY 10019, Attention: Agnes Castillo (Fax No. 917-849-5463 or 917-849-5456); and
(c) if to the Second Priority Agent, to Wells Fargo Bank, National Association, as Second Priority Agent, 750 N. Saint Paul Place, Suite 1750, Dallas, Texas 75201, Attention: Patrick Giordano (Fax No. 214-756-7401).
All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 10.1 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 10.1. As agreed to between any Company and any Collateral Agent from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.
The First Priority Agent and the Second Priority Agent agree to use diligent efforts to provide each other with copies of any notices of default or acceleration or similar notices which they give to any Company under the First Priority Debt Documents and Second Priority Debt Documents respectively; provided, however, that in the event that either of such parties fails to provide the other with such notice, such failure shall not affect their respective obligations hereunder or the effectiveness of any such notice.
Section 10.2. Conflicts. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS AGREEMENT AND THE PROVISIONS OF THE OTHER DEBT DOCUMENTS, THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL.
Section 10.3. Effectiveness; Survival; Termination. This Agreement shall become effective when executed and delivered by the parties hereto. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. The Second Priority Agent, for itself and on behalf of the other Second Priority Secured Parties, hereby waives any and all rights the Second Priority Secured Parties may now or hereafter have under applicable law to revoke this Agreement or any of the provisions of this Agreement. This Agreement shall terminate and be of no further force and effect, (i) subject to compliance with its obligations to take certain actions upon Discharge of the Second Priority Claims pursuant to Article V and Section 3.1(d), with respect to the Second Priority Agent, the Second Priority Secured Parties and the Second Priority Claims, upon the
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later of (1) the date upon which the obligations under the Second Priority Debt Agreement terminate if there are no other Second Priority Claims outstanding on such date and (2) if there are other Second Priority Claims outstanding on such date, the date upon which such Second Priority Claims terminate and (ii) subject to Section 7.2 and compliance with its obligations to take certain actions upon Discharge of the First Priority Claims pursuant to Article V, with respect to the First Priority Agent, the First Priority Secured Parties and the First Priority Claims, the date of Discharge of First Priority Claims, subject to the rights of the First Priority Secured Parties under Section 7.4.
Section 10.4. Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 10.5. Amendments; Waivers. (a) No failure or delay on the part of any party hereto in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 10.5, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the First Priority Agent and the Second Priority Agent; provided that no such agreement shall amend, modify or otherwise affect the rights or obligations of any Grantor without such Persons prior written consent.
Section 10.6. Postponement of Subrogation. The Second Priority Agent, for itself and on behalf of each other Second Priority Secured Parties, agrees that no payment or distribution to any First Priority Secured Party pursuant to the provisions of this Agreement shall entitle any Second Priority Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of First Priority Claims shall have occurred. Following the Discharge of First Priority Claims, each First Priority Secured Party agrees to execute such documents, agreements, and instruments as any Second Priority Secured Party may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the First Priority Claims resulting from payments or distributions to such First Priority Secured Party by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by such First Priority Secured Party are paid by such Person upon request for payment thereof.
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Section 10.7. Applicable Law; Jurisdiction; Consent to Service of Process. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Supreme Court for New York County, New York or in The United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined only in such New York court or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (i) any right to any other jurisdiction to which it may be entitled on account of domicile, residence or otherwise and (ii) any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York court or in any such Federal court. Each party hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 10.1. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
Section 10.8. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.8.
Section 10.9. Parties in Interest. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First Priority Secured Parties and Second Priority Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement. No other Person shall have or be entitled to assert rights or benefits hereunder.
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Section 10.10. Specific Performance. Each Collateral Agent may demand specific performance of this Agreement and, on behalf of itself and the respective other Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action which may be brought by the respective Secured Parties.
Section 10.11. Headings. Article and Section headings used herein and the Table of Contents hereto are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
Section 10.12. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 10.3. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
Section 10.13. Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Priority Secured Parties, on the one hand, and the Second Priority Secured Parties, on the other hand. None of any Company, any other Grantor, any Guarantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement, and none of any Company, any other Grantor or any Guarantor may rely on the terms hereof except as expressly provided in this Agreement. Nothing in this Agreement is intended to or shall impair the obligations of any Company or any other Grantor or any Guarantor, which are absolute and unconditional, to pay the First Priority Claims and the Second Priority Claims as and when the same shall become due and payable in accordance with their terms.
(Signatures appear on following pages)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers or other representatives as of the day and year first above written.
COMPANIES: | ||
McDERMOTT INTERNATIONAL, INC. a Panamanian corporation | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Vice President, Treasurer and Investor Relations | |
McDERMOTT FINANCE L.L.C. a Delaware limited liability company | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Treasurer |
Signature Page to Intercreditor Agreement McDermott International, Inc.
GUARANTORS:
Chartering Company (Singapore) Pte. Ltd. | McDermott Australia Pty. Ltd. | |
DeepSea (Americas) LLC | McDermott Caspian Contractors, Inc. | |
Deepsea (Europe) Limited | McDermott Cayman Ltd. | |
Deepsea Group Limited | McDermott Eastern Hemisphere, Ltd. | |
Deepsea (UK) Limited | McDermott Engineering, LLC | |
Deepsea (US) Incorporated | McDermott Far East Inc. | |
Eastern Marine Services, Inc. | McDermott Finance L.L.C. | |
Global EnergyMcDermott Limited | McDermott Gulf Operating Company, Inc. | |
Hydro Marine Services, Inc. | McDermott International Investments Co., Inc. | |
International Vessels Ltd | McDermott International Trading Co., Inc. | |
J. Ray Holdings, Inc. | McDermott International Vessels, Inc. | |
J. Ray McDermott (Aust.) Holding Pty. Limited | McDermott Marine Construction Limited | |
J. Ray McDermott (Caspian), Inc. | ||
J. Ray McDermott Canada Holding, Ltd. | McDermott Middle East, Inc. | |
J. Ray McDermott Canada, Ltd. | McDermott Offshore Services Company, Inc. | |
J. Ray McDermott Contractors, Inc. | McDermott Old JV Office, Inc. | |
McDermott Overseas, Inc. | ||
J. Ray McDermott Engineering Services Private Limited | McDermott Subsea Engineering, Inc. | |
J. Ray McDermott Far East, Inc. | ||
J. Ray McDermott International, Inc. | McDermott Trade Corporation | |
J. Ray McDermott International Vessels, Ltd. | North Atlantic Vessel, Inc. | |
J. Ray McDermott Kazakhstan Limited Liability Partnership | Offshore Pipelines International, Ltd. | |
J. Ray McDermott Logistic Services Private Limited | OPI Vessels, Inc. | |
J. Ray McDermott (Norway), AS | OPMI, Ltd. | |
J. Ray McDermott (Qingdao) Pte. Ltd. | Sabine River Realty, Inc. | |
J. Ray McDermott Solutions, Inc. | ||
J. Ray McDermott Technology, Inc. | ||
J. Ray McDermott Underwater Services, Inc. | SparTEC, Inc. | |
J. Ray McDermott West Africa Holdings, Inc. | ||
J. Ray McDermott West Africa, Inc. | ||
Malmac Sdn. Bhd. | ||
McDermott Asia Pacific Pte. Ltd. |
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Treasurer |
Signature Page to Intercreditor Agreement McDermott International, Inc.
J. Ray McDermott Holdings, LLC | ||
J. Ray McDermott, S.A. | ||
McDermott, Inc. | ||
McDermott Investments, LLC | ||
McDermott International Management, S. de RL. | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Vice President and Treasurer | |
DeepSea (Holland) B.V. | ||
J. Ray McDermott (Luxembourg) S.ar.l. | ||
J. Ray McDermott (Nigeria) Limited | ||
J. Ray McDermott Investments B.V. | ||
McDermott Overseas Investment Co. N.V. | ||
McDermott Holdings (U.K.) Limited | ||
McDermott International B.V. | ||
Mc Dermott International Marine Investments N.V. | ||
McDermott Serviços Offshore do Brasil Ltda. | ||
PT. Baja Wahana Indonesia | ||
Singapore Huangdao Pte. Ltd. | ||
Varsy International N.V. | ||
By: | /s/ STEVEN D. OLDHAM | |
Name: | Steven D. Oldham | |
Title: | Authorized Person |
Signature Page to Intercreditor Agreement McDermott International, Inc.
J. Ray McDermott de Mexico, S.A. de C.V. | ||
McDermott Marine Mexico, S.A. de C.V. | ||
Servicios de Fabricacion de Altamira, S.A. de C.V. | ||
Servicios Profesionales de Altamira, S.A. de C.V. | ||
By: | /s/ ANA L. MENDEZ BURKART | |
Name: | Ana L. Mendez Burkart | |
Title: | Attorney-in-fact |
Signature Page to Intercreditor Agreement McDermott International, Inc.
FIRST PRIORITY AGENT: | ||
Crédit Agricole Corporate and Investment Bank, | ||
as First Priority Agent | ||
By: | /s/ MICHAEL WILLIS | |
Name: | Michael Willis | |
Title: | Managing Director | |
By: | /s/ PAGE DILLEHUNT | |
Name: | Page Dillehunt | |
Title: | Managing Director |
Signature Page to Intercreditor Agreement McDermott International, Inc.
SECOND PRIORITY AGENT: | ||
Wells Fargo Bank, N.A. as Second Priority Agent | ||
By: | /s/ PATRICK T. GIORDANO | |
Name: | Patrick T. Giordano | |
Title: | Vice President |
Signature Page to Intercreditor Agreement McDermott International, Inc.
Annex I
Provision for the Second Priority Debt Agreement
THIS INDENTURE AND THE COLLATERAL AGREEMENTS ARE SUBJECT TO THE TERMS, LIMITATIONS AND CONDITIONS SET FORTH IN THE INTERCREDITOR AGREEMENT. THE TRUSTEE AND EACH HOLDER OF A NOTE, BY ITS ACCEPTANCE THEREOF, IS DEEMED TO HAVE AUTHORIZED AND INSTRUCTED THE COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON ITS BEHALF.
Provision for the Second Priority Security Documents
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF APRIL 16, 2014 (AS AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE INTERCREDITOR AGREEMENT), AMONG MCDERMOTT INTERNATIONAL, INC. (THE PARENT), MCDERMOTT FINANCE L.L.C., THE SUBSIDIARIES OF THE PARENT FROM TIME TO TIME PARTY THERETO, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, AS FIRST PRIORITY AGENT (AS DEFINED THEREIN), AND WELLS FARGO BANK, NATIONAL ASSOCIATION, AS SECOND PRIORITY AGENT (AS DEFINED THEREIN). NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE PROVISIONS OF THIS AGREEMENT OR THE OTHER INDENTURE DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.
Signature Page to Intercreditor Agreement McDermott International, Inc.
Exhibit 99.1
McDermott International, Inc. NEWS RELEASE |
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McDermott International, Inc. Announces $500 Million Offering of
Second-Lien Senior Secured Notes
HOUSTON March 28, 2014 McDermott International, Inc. (MDR) today announced that it intends, subject to market and other conditions, to offer $500 million aggregate principal amount of its second-lien senior secured notes due 2021.
The notes will be offered only to qualified institutional buyers under Rule 144A under the Securities Act of 1933, as amended (the Securities Act) and to certain non-U.S. persons in transactions outside the United States under Regulation S under the Securities Act.
McDermott intends to use the net proceeds from the offering of the notes, together with other financing sources (including proceeds expected to be received in connection with the refinancing of its outstanding credit agreement with a new first-lien credit facility), to refinance revolving credit facility indebtedness outstanding under its existing credit agreement and for other general corporate purposes, including the funding of working capital requirements and capital expenditures. The new first-lien credit facility may include a term loan of up to $400 million and, potentially, a letter of credit facility.
The notes will be unconditionally guaranteed, jointly and severally, on a senior secured second-lien basis, by McDermotts existing and future subsidiaries that guarantee indebtedness under its credit agreement.
The notes and the guarantees will be secured on a second-lien basis by pledges of capital stock of certain subsidiaries of McDermott and mortgages and other security interests covering (1) substantially all personal property of McDermott and substantially all of its wholly owned subsidiaries, subject to certain exceptions, and (2) certain vessels owned by McDermotts wholly owned subsidiaries.
There can be no assurance that the financing transactions described in this press release will occur, and, even if they do occur, there can be no assurance as to what their terms will be. In addition, McDermott reserves the right to pursue other financing transactions in place of, or in addition to, the transactions described in this press release.
The notes have not been and will not be registered under the Securities Act or any state securities laws; and unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
This press release is for informational purposes only and shall not constitute an offer to sell or the solicitation of an offer to buy the notes or any other securities, nor shall there be any sale of notes or any other securities in any jurisdiction in which such offer, solicitation or sale would be unlawful.
McDermott International, Inc. NEWS RELEASE |
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Forward-Looking Statements
All statements other than statements of historical fact included in this release are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements in this press release relate to, among other things, the offering of the notes and the expected use of proceeds from such offering and proceeds from other transactions. Although we believe that the expectations reflected in those forward-looking statements are reasonable, we can give no assurance that those expectations will prove to have been correct. Those statements are made by using various underlying assumptions and are subject to various uncertainties. This news release reflects expectations as of the date hereof. Except to the extent required by applicable law, McDermott undertakes no obligation to update or revise any forward-looking statement.
CONTACT McDERMOTT
Investors, Analysts and Financial Media:
Steven D. Oldham
Vice President, Treasurer and Investor Relations
(281) 870-5147
soldham@mcdermott.com
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Exhibit 99.2
McDermott International, Inc. NEWS RELEASE |
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McDermott International, Inc. Announces Pricing of $500 Million
8.00% Second-Lien Senior Secured Notes Due 2021
HOUSTON April 10, 2014 McDermott International, Inc. (NYSE: MDR) today announced the pricing of $500 million in aggregate principal amount of 8.00% second-lien senior secured notes due 2021 (the Notes). Settlement of the offering is expected to occur on April 16, 2014, subject to customary closing conditions. At closing, the Notes will be issued at a price of 100.00% of the principal amount.
The Notes will be offered only to qualified institutional buyers under Rule 144A under the Securities Act of 1933, as amended (the Securities Act) and to certain non-U.S. persons in transactions outside the United States under Regulation S under the Securities Act.
The private placement is expected to result in net proceeds to McDermott of approximately $491 million. McDermott intends to use the net proceeds from the offering of the Notes, together with other financing sources (including proceeds expected to be received in connection with the refinancing of its outstanding credit agreement with a new first-lien credit facility), to refinance revolving credit facility indebtedness outstanding under its existing credit agreement and for other general corporate purposes, including the funding of working capital requirements and capital expenditures.
The Notes have not been and will not be registered under the Securities Act or any state securities laws; and unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
This press release is for informational purposes only and shall not constitute an offer to sell or the solicitation of an offer to buy the Notes or any other securities, nor shall there be any sale of Notes or any other securities in any jurisdiction in which such offer, solicitation or sale would be unlawful.
Forward-Looking Statements
All statements other than statements of historical fact included in this release are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements in this press release relate to, among other things, the timing of the closing, the expected use of proceeds and other aspects of the offering and expected proceeds from other transactions. Although we believe that the expectations reflected in those forward-looking statements are reasonable, we can give no assurance that those expectations will prove to have been correct. Those statements are made by using various underlying assumptions and are subject to various uncertainties. This news release reflects expectations as of the date hereof. Except to the extent required by applicable law, McDermott undertakes no obligation to update or revise any forward-looking statement.
McDermott International, Inc. NEWS RELEASE |
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CONTACT McDERMOTT
Investors, Analysts and Financial Media:
Steven D. Oldham
Vice President, Treasurer and Investor Relations
(281) 870-5147
soldham@mcdermott.com
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