EXHIBIT 10.33
-------------
USD 130,000,000.00
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
Provided By
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH
and
DEN NORSKE BANK AS, NEW YORK BRANCH
to
ENSCO OFFSHORE COMPANY
and
ENSCO OFFSHORE U.K. LIMITED
Dated as of September 27, 1995
TABLE OF CONTENTS
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . . 18
Section 2. Facility A . . . . . . . . . . . . . . . . . . . . . . . 18
2.1 Reducing Revolving Credit . . . . . . . . . . . . . . . 18
2.2 The Facility A Note . . . . . . . . . . . . . . . . . . 19
Section 3. Facility B . . . . . . . . . . . . . . . . . . . . . . . 19
3.1 Reducing Revolving Credit . . . . . . . . . . . . . . . 19
3.2 The Facility B Note . . . . . . . . . . . . . . . . . . 20
3.3 Change in Currency of Facility B Loan. . . . . . . . . . 20
3.4 Guaranty of Facility B . . . . . . . . . . . . . . . . . 21
Section 4. Manner of Drawdown . . . . . . . . . . . . . . . . . . . 24
4.1 Manner of Drawdown . . . . . . . . . . . . . . . . . . . 24
4.2 Disbursement of Funds . . . . . . . . . . . . . . . . . 24
4.3 Failure to Borrow; Delay . . . . . . . . . . . . . . . . 25
4.4 Outstanding Advances . . . . . . . . . . . . . . . . . . 25
Section 5. Interest . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1 Rate of Interest . . . . . . . . . . . . . . . . . . . . 25
5.2 Payment of Interest . . . . . . . . . . . . . . . . . . 26
5.3 Overdue Payment of Principal and Interest . . . . . . . 26
Section 6. Loan Payments and Reduction of Commitments . . . . . . . 26
6.1 Payments on Non-Business Days . . . . . . . . . . . . . 26
6.2 Commitment Reduction and Loan Repayment . . . . . . . . 26
6.3 Voluntary Prepayments . . . . . . . . . . . . . . . . . 27
6.4 Voluntary Reduction of Commitments. . . . . . . . . . . 28
6.5 Mandatory Reduction of Commitments . . . . . . . . . . . 29
6.6 Method and Place of Payment . . . . . . . . . . . . . . 31
6.7 Net Payments . . . . . . . . . . . . . . . . . . . . . . 31
6.8 Rights of Set-off . . . . . . . . . . . . . . . . . . . 32
6.9 Changes in Circumstances . . . . . . . . . . . . . . . . 33
6.10 Unavailability of Dollars or Pounds . . . . . . . . . . 36
Section 7. Security . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1 Mortgages . . . . . . . . . . . . . . . . . . . . . . . 38
7.2 Assignments . . . . . . . . . . . . . . . . . . . . . . 38
7.3 Pledge . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.4 ENSCO Guaranty . . . . . . . . . . . . . . . . . . . . . 38
7.5 Floating Charge . . . . . . . . . . . . . . . . . . . . 38
7.6 Collateral Substitution . . . . . . . . . . . . . . . . 38
7.7 Further Assurances . . . . . . . . . . . . . . . . . . . 39
Section 8. Conditions Precedent . . . . . . . . . . . . . . . . . . 39
8.1 Documents Required as Conditions Precedent to the
Drawdown of the First Advance . . . . . . . . . . . . . 39
8.2 Additional Conditions Precedent to Subsequent Advances . 43
8.3 Waiver of Conditions Precedent . . . . . . . . . . . . . 44
Section 9. Fees and Expenses . . . . . . . . . . . . . . . . . . . 44
9.1 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 10. Representations and Warranties of Borrowers . . . . . . 45
10.1 Due Incorporation, Qualification, Etc. . . . . . . . . . 45
10.2 Capacity . . . . . . . . . . . . . . . . . . . . . . . . 46
10.3 Authority and Enforceability . . . . . . . . . . . . . . 46
10.4 Governmental Approvals . . . . . . . . . . . . . . . . . 46
10.5 Compliance with Other Instruments . . . . . . . . . . . 47
10.6 Financial Statements . . . . . . . . . . . . . . . . . . 47
10.7 Material Adverse Events . . . . . . . . . . . . . . . . 48
10.8 Litigation, Etc. . . . . . . . . . . . . . . . . . . . . 48
10.9 Principal Place of Business . . . . . . . . . . . . . . 49
10.10 Patent and Other Rights . . . . . . . . . . . . . . . . 49
10.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.12 Employee Retirement Income Security Act of 1974 . . . . 50
10.13 Investment Company Act of 1940 . . . . . . . . . . . . . 50
10.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 50
10.15 Environmental Compliance . . . . . . . . . . . . . . . . 50
10.16 Unencumbered Rigs . . . . . . . . . . . . . . . . . . . 52
Section 11. Affirmative Covenants of Borrowers . . . . . . . . . . . 52
11.1 Financial Statements and Reports and Inspection . . . . 52
11.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . 55
11.3 Other Debt . . . . . . . . . . . . . . . . . . . . . . . 55
11.4 Maintenance of Existence; Conduct of Business . . . . . 56
11.5 Financial Records . . . . . . . . . . . . . . . . . . . 56
11.6 Maintenance of Rigs . . . . . . . . . . . . . . . . . . 56
11.7 Environmental Compliance . . . . . . . . . . . . . . . . 56
11.8 Environmental Notifications . . . . . . . . . . . . . . 57
11.9 Environmental Indemnification . . . . . . . . . . . . . 58
11.10 Drilling Contracts . . . . . . . . . . . . . . . . . . . 60
11.11 Interest Rate Hedging Indemnity . . . . . . . . . . . . 61
Section 12. Negative Covenants of Borrowers . . . . . . . . . . . . 61
12.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.2 Line of Business . . . . . . . . . . . . . . . . . . . . 62
12.3 Consolidation, Merger, Etc. . . . . . . . . . . . . . . 62
12.4 Modification of Agreements . . . . . . . . . . . . . . . 63
12.5 Indebtedness . . . . . . . . . . . . . . . . . . . . . . 63
12.6 Reportable Event . . . . . . . . . . . . . . . . . . . . 64
12.7 Change of Legal Structure . . . . . . . . . . . . . . . 64
12.8 Change of Place of Business . . . . . . . . . . . . . . 64
12.9 Management of Rigs . . . . . . . . . . . . . . . . . . . 64
12.10 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 64
12.11 Charter of Rigs . . . . . . . . . . . . . . . . . . . . 65
12.12 Modifications to Rigs . . . . . . . . . . . . . . . . . 65
12.13 Sale of Rigs, Etc. . . . . . . . . . . . . . . . . . . . 65
12.14 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . 66
12.15 Compliance with Federal Reserve Board Regulations . . . 66
12.16 Loans and Investments . . . . . . . . . . . . . . . . . 67
Section 13. Events of Default . . . . . . . . . . . . . . . . . . . 67
13.1 Events of Default . . . . . . . . . . . . . . . . . . . 67
Section 14. Minimum Value, Evaluation and Additional Security . . . 72
14.1 Minimum Value . . . . . . . . . . . . . . . . . . . . . 72
14.2 Evaluation . . . . . . . . . . . . . . . . . . . . . . . 72
14.3 Failure to Maintain Minimum Value . . . . . . . . . . . 73
Section 15. Rights and Duties of the Agents and the Banks . . . . . 73
15.1 Obligations Several . . . . . . . . . . . . . . . . . . 73
15.2 Appointment and Duties of Agents . . . . . . . . . . . . 74
15.3 Discretion and Liability of Agents . . . . . . . . . . . 75
15.4 Event of Default . . . . . . . . . . . . . . . . . . . . 76
15.5 Consultation . . . . . . . . . . . . . . . . . . . . . . 77
15.6 Communications to and from Agents . . . . . . . . . . . 77
15.7 Limitations of Agency . . . . . . . . . . . . . . . . . 77
15.8 No Representations or Warranty . . . . . . . . . . . . . 78
15.9 Bank Credit Decision . . . . . . . . . . . . . . . . . . 78
15.10 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 79
15.11 Resignation . . . . . . . . . . . . . . . . . . . . . . 79
15.12 Distribution . . . . . . . . . . . . . . . . . . . . . . 80
15.13 Limitation of Suits . . . . . . . . . . . . . . . . . . 80
15.14 Withholding Taxes . . . . . . . . . . . . . . . . . . . 81
Section 16. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 82
16.1 Entire Agreement . . . . . . . . . . . . . . . . . . . . 82
16.2 No Waiver . . . . . . . . . . . . . . . . . . . . . . . 83
16.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . 83
16.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . 83
16.5 Termination . . . . . . . . . . . . . . . . . . . . . . 85
16.6 Severability of Provisions . . . . . . . . . . . . . . . 85
16.7 Successors and Assigns . . . . . . . . . . . . . . . . . 85
16.8 Assignment and Participation . . . . . . . . . . . . . . 85
16.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . 89
16.10 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 90
16.11 Choice of Law . . . . . . . . . . . . . . . . . . . . . 90
16.12 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . 91
16.13 Amendment and Waiver . . . . . . . . . . . . . . . . . . 91
16.14 No Oral Agreements . . . . . . . . . . . . . . . . . . . 91
16.15 Headings, Etc. . . . . . . . . . . . . . . . . . . . . . 91
16.16 Confidentiality . . . . . . . . . . . . . . . . . . . . 91
16.17 Controlling Agreement . . . . . . . . . . . . . . . . . 92
Schedule 1 Bank Commitments
Schedule 2 Rigs
Schedule 3 Unencumbered Rigs
Exhibits
A-1 - Form of Facility A Note
A-2 - Form of Facility B Note
B - Form of Amended and Restated ENSCO Guaranty
C - Form of Request for Borrowing
D - Form of Assignment and Acceptance Agreement
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT FACILITY AGREEMENT, dated as of
September 27, 1995, among ENSCO OFFSHORE COMPANY, a corporation organized
and existing under the laws of the State of Delaware ("ENSCO Offshore"),
ENSCO OFFSHORE U.K. LIMITED, a corporation organized and existing under the
laws of England ("ENSCO U.K.", collectively the "Borrowers" and
individually a "Borrower"), CHRISTIANIA BANK OG KREDITKASSE, NEW YORK
BRANCH, a Norwegian bank, DEN NORSKE BANK AS, NEW YORK BRANCH, a Norwegian
bank, and such other financial institutions which shall become parties to
this agreement pursuant to Section 16.8 below, (the "Banks") with
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH and DEN NORSKE BANK AS,
NEW YORK BRANCH as Agents for the Banks (collectively the "Agents" and
individually an "Agent") and CHRISTIANIA BANK OG KREDITKASSE, NEW YORK
BRANCH, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Facility Agreement dated as of
December 15, 1993, as amended as of November 1, 1994, (as so amended, the
"Original Credit Agreement"), the Banks named in the Original Credit
Agreement agreed to provide funding to the Borrowers in the aggregate
principal amount of up to USD 100,000,000; and
WHEREAS, the Borrowers and the Banks named herein wish to restate the
Original Credit Agreement in order to change certain of the Banks party to
the Original Credit Agreement, increase the amount of the Original Credit
Agreement, change the Credit Facility provided by the Credit Agreement to
two reducing revolving facilities and amend certain other terms and
covenants of the Original Credit Agreement.
NOW, THEREFORE, in consideration of the above recitals, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to amend and restate the Original Credit
Agreement as follows:
Section 1. DEFINITIONS.
1.1 Certain Definitions. As used herein, the following terms
shall have the following respective meanings:
"Administrative Agent" means Christiania Bank og Kreditkasse, New
York Branch in the performance of its duties pursuant to Section 15.2(b) of
this Agreement.
"Advance" means a loan by the Banks to the Borrowers under
Facility A or Facility B.
"Agreement" means this Amended and Restated Credit Facility
Agreement and all future amendments and supplements, if any, hereto.
"Assignments" means the Assignment of Insurances on the Rigs and
the Assignment of Drilling Contract Revenues and Earnings of the Rigs dated
December 17, 1993.
"Breakage Cost" means any amount reasonably necessary to
compensate any Bank for costs or expenses incurred by such Bank in
connection with the payment or acceleration of the Loan, in whole or in
part, whether voluntarily or involuntarily, on a date which is not the last
date of the then applicable Interest Period for the portion of the Loan
being paid, including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties (calculated in the
aggregate for all of the Banks, "Breakage Costs").
"Business Day" means any day on which commercial banks are open
for business in Dallas, Texas, New York, New York and London, England.
"Cash Equivalents" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof having maturities of not more than one
(1) year from the date of acquisition, (ii) time deposits (including
Eurodollar time deposits) and certificates of deposit of any Bank or any
bank meeting the qualifications specified in clause (iv) below with
maturities of not more than 90 days from the date of acquisition, (iii)
fully secured repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (i) entered into
with any Bank or any bank meeting the qualifications specified in clause
(iv) below or with any of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ and ▇▇▇▇▇ Incorporated, Salomon Brothers Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇ ▇▇▇▇▇▇ Shearson and the First Boston
Corporation, (iv) commercial paper issued by the parent corporation of any
Bank or any commercial bank of recognized international standing having
capital and surplus in excess of USD 500,000,000 and commercial paper rated
at least A-2 or the equivalent thereof by Standard & Poor's Corporation or
at least P-2 or the equivalent thereof by ▇▇▇▇▇'▇ Investor Services, Inc.,
and in each case maturing within 90 days after the date of acquisition, (v)
remarketed certificates of participation issued through a Bank or any bank
meeting the qualifications specified in clause (iv) above rated at least A-
2 or the equivalent thereof by Standard & Poor's Corporation or at least P-
2 or the equivalent thereof by ▇▇▇▇▇'▇ Investor Services, Inc. and maturing
within 90 days after the date of acquisition, and (vi) investments by the
Borrowers in the American Advantage Money Market Fund (Institutional Class)
or money market funds offered by Texas Commerce Bank, Fidelity Investments
and ▇▇▇▇▇▇ Brothers or other similar money market funds approved in writing
by the Agents in an aggregate amount not to exceed USD 20,000,000 at any
time; provided that the investment guidelines for such funds have not
changed in any material respect from those in effect on the date of this
Agreement or the date of approval, as the case may be.
"Commitments" means a maximum of USD 130,000,000 and "Commitment"
means each Bank's portion of the Commitments as indicated on Schedule 1 to
this Agreement as both may be reduced from time to time pursuant to the
provisions of this Agreement.
"Commitment Reduction Dates" means the twelve (12) consecutive
semi-annual dates commencing on April 18, 1996 and each October 18 and
April 18 thereafter through and including the Maturity Date.
"Controlled Group" means a "controlled group of corporations" as
defined in Section 1563(a) of the Internal Revenue Code of 1986, as
amended, determined without regard to Section 1563(a)(4) and (e)(3)(C) of
such Code, of which the Borrowers are a part.
"Credit Facility" means the aggregate amount of Advances made
hereunder and the aggregate amount of the unused but still available
portion of the Commitments.
"Current Assets" means those assets of the ENSCO Consolidated
Group which would in accordance with GAAP be classified as current assets
of a corporation conducting a business the same as or similar to the
businesses of the ENSCO Consolidated Group but excluding the current assets
of ENSCO Drilling (Caribbean) Inc.
"Current Liabilities" means Indebtedness of the ENSCO
Consolidated Group which would in accordance with GAAP be classified as
current liabilities of a corporation conducting a business the same as or
similar to the business of the ENSCO Consolidated Group but excluding the
current liabilities of ENSCO (Caribbean) Inc.
"Dollars" and the sign "USD" mean lawful money of the United
States of America.
"Drawdown Date" means the date upon which an Advance is made.
"ENSCO" means ENSCO International Incorporated, a corporation
organized and existing under the laws of the State of Delaware.
"ENSCO Consolidated Group" means ENSCO, the Borrowers, the
Subsidiaries, and all of their affiliates and direct and indirect
subsidiaries which are consolidated for financial reporting purposes.
"ENSCO Guaranty" means the joint and several guaranty of ENSCO
and ▇▇▇▇▇▇, Inc., a corporation organized and existing under the laws of
the State of Delaware dated as of December 17, 1993, as amended as of
November 1, 1994 and as further amended and restated substantially in the
form of Exhibit B attached hereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" means each of the Events of Default described
in Section 14 hereof.
"Facility A" means the reducing revolving loan facility described
in Section 2 of this Agreement.
"Facility B" means the reducing revolving loan facility described
in Section 3 of this Agreement.
"Facility A Note" means the amended and restated promissory note
of the Borrowers substantially in the form of Exhibit A-1 attached hereto
evidencing the Borrowers' obligations under Facility A of this Agreement,
and all renewals, extensions, rearrangements and replacements thereof.
"Facility B Note" means the amended and restated promissory note
of ENSCO U.K. substantially in the form of Exhibit A-2 attached hereto
evidencing ENSCO U.K.'s obligations under Facility B of this Agreement, and
all renewals, extensions, rearrangements and replacements thereof.
"Facility A Commitments" means USD 80,000,000 and "Facility A
Commitment" means each Bank's portion of the Facility A Commitments as
indicated on Schedule 1 to this Agreement.
"Facility B Commitments" means USD 50,000,000 and "Facility B
Commitment" means each Bank's portion of the Facility B Commitments as
indicated on Schedule 1 to this Agreement.
"Fixed Charge Coverage Ratio" means as of the close of any fiscal
quarter the ratio of: (A) the sum of (i) Operating Cash Flow for the
preceding four consecutive quarters (taken as one accounting period) plus
(ii) an amount equal to 50% of the freely available cash and freely
available Cash Equivalents of the ENSCO Consolidated Group above the
minimum cash requirement set forth in Section 8(k) of the ENSCO Guaranty,
such amount calculated at the last day of the period referred to in (i)
above, divided by, (B) the projected interest payments of the Borrowers
scheduled to take place during a period of four consecutive quarters
commencing at the end of the period for which (A) above has been
calculated.
"GAAP" means generally accepted accounting principles in effect
from time to time in the United States of America.
"Governmental Agency" means any government or any state,
department or other political subdivision thereof or governmental body,
agency, authority, department or commission (including without limitation
any court or tribunal) exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and
any corporation, partnership or other entity directly or indirectly owned
by the foregoing.
"Guarantors" means ENSCO and ▇▇▇▇▇▇, Inc.
"Hazardous Substances" means petroleum and used oil, or any other
pollutant or contaminant, hazardous, dangerous or toxic waste, substance or
material as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et
seq. (hereinafter called "CERCLA"); the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Sec. 6901, et seq. (hereinafter called "RCRA");
the Toxic Substances Control Act, as amended, 15 U.S.C. Sec. 2601, et seq.
(hereinafter called "TSCA"); the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sec. 1801, et seq. (hereinafter called "HMTA"); the Oil
Pollution Act of 1990, Pub.L. No. 101-380, 104 Stat. 484 (1990)
(hereinafter called "OPA"); or any other statute, law, ordinance, code or
regulation of any Governmental Agency relating to or imposing liability or
standards of conduct concerning the use, production, generation, treatment,
storage, recycling, handling, transportation, release, threatened release
or disposal of any waste, substance or material, currently in effect or at
any time hereafter adopted.
"Indebtedness" of either Borrower or either Guarantor means all
items of indebtedness which, in accordance with GAAP, would be included in
determining liabilities as shown on the liability side of a balance sheet
of such Borrower or Guarantor, as of the date as of which indebtedness is
to be determined and shall also include all indebtedness and liabilities of
others assumed or guaranteed by either Borrower or either Guarantor or in
respect of which either Borrower or either Guarantor is secondarily or
contingently liable (other than by endorsement of instruments in the course
of collection and performance guarantees and similar transactions entered
into in the ordinary course of business) whether by reason of any agreement
to acquire such indebtedness or to supply or advance sums or otherwise but
shall exclude deferred taxes.
"Interest Coverage Ratio" means, as of the close of any fiscal
quarter, the ratio of the ENSCO Consolidated Group's Cash Flow Available
for Interest to Interest for the preceding four consecutive quarters. For
purposes of this definition, Cash Flow Available for Interest shall mean
the sum of (i) net income from operations of the ENSCO Consolidated Group
for such period, excluding any non-recurring or extraordinary items of
income or expense (including, but not limited to income or losses from the
sale of assets) plus (ii) Interest of the ENSCO Consolidated Group during
such period deducted in the determination of such net income, plus (iii)
all income taxes for such period to the extent deducted in the
determination of the ENSCO Consolidated Group's net income, plus (iv) to
the extent deducted in the calculation of the ENSCO's Consolidated Group's
net income for such period, depreciation and amortization expense and other
non-cash items of expense (including any such expense resulting from any
required accounting change), minus (v) to the extent included in the
calculation of the ENSCO Consolidated Group's net income for such period,
any non-cash items of income (including any such income resulting from any
required accounting change), all determined for the ENSCO Consolidated
Group in accordance with GAAP. For purposes of this definition, Interest
shall mean the interest expense on all of the ENSCO Consolidated Group's
Indebtedness.
"Interest Payment Date" means, with respect to any Advance, the
last Business Day of each Interest Period for such Advance, and in the case
of any Interest Period of more than six months, the six-month anniversaries
of the commencement of such Interest Period.
"Interest Period" means with respect to any Advance each period
selected by the Borrowers for which the rate of interest on such Advance is
fixed, being for the first Interest Period, the period commencing on the
first Drawdown Date and ending on October 18, 1995 and thereafter being the
period commencing on the date of the Advance or the date of the expiration
of the preceding Interest Period for such Advance and ending on the
corresponding day in the calendar month selected by the Borrowers which is
one (1) month, three (3) months or six (6) months later or, if such month
has no numerical corresponding day, on the last Business Day of such month
as notified by the Borrowers by written notice to the Administrative Agent
before 3:00 p.m. New York time four (4) Business Days prior to the
beginning of the relevant Interest Period, provided (v) if no such notice
shall be given, such Interest Period shall be six (6) months, subject to
the other provisions of this definition, (w) if the last day of any such
Interest Period is not a Business Day, then such Interest Period shall end
on the next succeeding Business Day, subject to Section 6.1 hereof, (x) if
any Interest Period determined hereunder would extend beyond the Maturity
Date, such Interest Period shall end on the Maturity Date, (y) the
Borrowers may not select an Interest Period of one (1) month more than four
(4) times during any twelve (12) month period and (z) the Borrowers may
request an Interest Period other than as expressed above including, without
limitation, a period longer than six (6) months but the granting of any
such request shall be in the sole discretion of the Banks. For purposes of
determining the number of times the Borrowers may select an Interest Period
of one (1) month, a selection which affects two Facilities but which
involves periods which begin and end on the same date shall be considered
as one selection.
"Interest Rate Hedging Instruments" means any interest rate swaps
or other hedging instruments entered into between the Borrowers or the
Guarantor and either of the Agents for the purpose of hedging any of the
interest rate risk under this Agreement.
"LIBOR" means in respect of any Interest Period the rate of
interest per annum at which deposits in U.S. dollars, or in the case of any
Advance under Facility B outstanding in Pounds, deposits in Pounds, are
offered to major banks in the London interbank market at approximately
11:00 a.m. (London time), as reported by the Telerate System page 3750 or
such other page as may replace such page 3750 on such system (rounded
upwards, if necessary, to the nearest one-sixteenth of one percent) for the
purpose of reporting London Interbank Offered Rates of major banks under
the heading for British Bankers Association Interest Settlement Rates in
the column designated "USD" (U.S. Dollar), or in the case of any Advance
under Facility B outstanding in Pounds, in the column designated "GBP"
(British Pounds), two (2) Business Days before the first day of an Interest
Period. In the event that LIBOR interest rates are not reported on the
Telerate System or such reported rates are not applicable to the selected
Interest Period, the Administrative Agent shall notify the Borrowers and
upon such notification, LIBOR shall mean in respect of any Interest Period
the rate of interest per annum (rounded upwards, if necessary, to the
nearest one sixteenth of one percent) at which the Agents are able to
acquire funds in Dollars, or in the case of any Advance under Facility B
outstanding in Pounds, in Pounds, equal to the outstanding amount of the
Advance for which the rate is to be determined for the duration of the
relevant Interest Period in the London Interbank Eurocurrency Market at or
about 11:00 a.m. London time on the second Business Day prior to the
commencement of the relevant Interest Period for value on the first day of
such Interest Period, or at such time in any alternative market for such
funds available to the Agents, as notified by the Agents to the Borrowers,
such notification, absent manifest error, to be conclusive. Provided,
however, that in the case of LIBOR determined for any Advance in Pounds,
there shall be added any reserve asset cost imposed by any Governmental
Agency against Pound deposits with respect to such Advance in Pounds or
extensions of credit which include such Advance in Pounds, as determined by
the Agents with notice to the Borrowers, such notice, absent manifest
error, to be conclusive.
"Loan" means the principal amounts advanced by the Banks
hereunder and outstanding.
"Loan Documents" means this Agreement, the Mortgages, the
Assignments, the Pledge, the ENSCO Guaranty, the Trust Indenture and the
Notes.
"Majority Banks" means, at any time, and for any specific
purpose, Banks holding at least 70% in aggregate principal amount of the
Loan, or if no Advance has been made, Banks having 70% of the total
Commitments; provided, however, that both Agents must be part of the group
constituting the Majority Banks.
"Margin" means the percentage per annum determined as follows:
MARGIN DETERMINATION RATIO MARGIN
-------------------------- ------
Equal to or less than .25 to 1 1.25%
Equal to or less than .35 to 1
but greater than .25 to 1 1.50%
Greater than .35 to 1 1.75%
The Margin shall be adjusted quarterly based on the above formula, the
financial statements provided to the Administrative Agent by the Borrowers
pursuant to Section 11.1(a) of this Agreement and the Borrowers'
calculation of the Margin based on such financial statements. Any change
in the Margin shall become effective as to any Advances then outstanding
three (3) Business days after the receipt by the Administrative Agent of
the above mentioned financial statements and the acceptance of the
Borrowers' Margin calculation by the Agents.
"Margin Determination Ratio" means the ratio of Total Debts less
unsecured indebtedness for borrowed money of the ENSCO Consolidated Group
that has no scheduled principal repayments prior to the Maturity Date to
Total Assets.
"Material adverse effect" or "materially adversely affected"
means, unless specified otherwise, to affect in a material manner the
ability of the Borrowers to perform their obligations under this Agreement
or the ability of the Guarantors to perform their obligations under the
ENSCO Guaranty.
"Maturity Date" means October 18, 2001.
"Mortgages" means the U.S. First Preferred Fleet Mortgage (the
"U.S. Mortgage") on the U.S. flag Rigs and the Bahamian Statutory Mortgages
and Deed of Covenants dated December 17, 1993 ( the"Bahamian Deed of
Covenants") on the Bahamian flag Rigs, in form and substance satisfactory
to the Banks as amended by the Mortgage Amendments.
"Mortgage Amendments" means the amendments to the U.S. Mortgage
and the Bahamian Deed of Covenants, in form and substance satisfactory to
the Banks.
"Net Working Capital" means the excess of Current Assets over
Current Liabilities.
"Notes" means the Facility A Note and the Facility B Note.
"Obligations" means and includes all loans, advances, debts,
liabilities, obligations, letters of credit or any other financial
accommodations, howsoever arising, owing by the Borrowers to the Banks of
every kind and description (whether or not for the payment of money);
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of this Agreement, the
Notes and the other Loan Documents, including, without limitation, all
interest and other expenses that the Borrowers are obligated to pay
thereunder.
"Operating Cash Flow" means for any period, the sum of (i) net
income from operations of the Borrowers for such period, excluding any non-
recurring or extraordinary items of income or expense (including, but not
limited to income or losses from the sale of assets) plus (ii) interest
expense of the Borrowers during such period deducted in the determination
of such net income, plus (iii) all income taxes for such period to the
extent deducted in the determination of the Borrowers' net income, plus
(iv) to the extent deducted in the calculation of the Borrowers' net income
for such period, depreciation and amortization expense and other non-cash
items of expense (including any such expense resulting from any required
accounting change), minus (v) to the extent included in the calculation of
the Borrowers' net income for such period, any non-cash items of income
(including any such income resulting from any required accounting change),
all determined for the Borrowers in accordance with GAAP.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, government, Governmental
Agency or any other entity other than the Borrowers and whether acting in
an individual, fiduciary or other capacity.
"Plan" means any employee pension benefit plan subject to Title
IV of ERISA and maintained by the Borrowers or any member of a Controlled
Group, or any such plan, to which the Borrowers or any member of a
Controlled Group is required to contribute on behalf of any of its
employees.
"Pledge" means the pledge of all of the issued and outstanding
shares of ENSCO Offshore by ▇▇▇▇▇▇, Inc. in favor of the Trustee dated
December 17, 1993.
"Pounds" and the sign [L] mean lawful money of the United Kingdom
of Great Britain and Northern Ireland.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA (29 U.S.C. Section 1343), except events for which the notice
provision has been waived by the Pension Benefit Guaranty Corporation.
"Request for Borrowing" means each request for borrowing given by
the Borrowers pursuant to Section 4.1(c) hereof, substantially in the form
attached hereto as Exhibit C.
"Rigs" means the fifteen (15) U.S. flag drilling rigs and the
three (3) Bahamian flag drilling rigs listed on Schedule 2 attached hereto.
"Subsidiaries" means Platan Financial Corporation, a Cayman
Islands corporation and any additional companies formed pursuant to Section
12.10 below.
"Total Assets" means the value of all the assets of the ENSCO
Consolidated Group on a consolidated basis using book value except that the
Rigs shall be included in such valuation at their fair market values as
determined pursuant to Section 14.2 of this Agreement. However, there
shall be excluded from such calculation (A) the assets of any company in
the ENSCO Consolidated Group which (y) has indebtedness for borrowed money
which is non-recourse as to any other member of the ENSCO Consolidated
Group and which (z) is neither (i) a Borrower nor (ii) a company with
direct or indirect ownership of either Borrower and (B) any note receivable
held by a member of the ENSCO Consolidated Group from the type of company
referred to in (A) above or any non-consolidating affiliate of ENSCO which
is financed on a non-recourse basis.
"Total Debts" means all indebtedness of the ENSCO Consolidated Group
on a consolidated basis including, but not limited to, obligations under
long term charters, capital leasing obligations, guaranties of
indebtedness, contingent liabilities and subordinated debt, all according
to GAAP. However, there shall be excluded from such calculation (A)
ENSCO's preferred stock or dividends thereon as permitted by Section 8(h)
of the Guaranty, (B) indebtedness which is non-recourse as to any other
member of the ENSCO Consolidated Group so long as such member is neither
(i) a Borrower nor (ii) a company with direct or indirect ownership of
either Borrower, and (C) deferred taxes of the ENSCO Consolidated Group.
"Trust Indenture" means the trust indenture between the Borrowers
and the Trustee dated as of December 17, 1993.
"Trustee" means Bankers Trust Company in its capacity as trustee
for the Banks pursuant to the Trust Indenture.
"Unencumbered Rigs" means the two (2) U.S. flag drilling rigs and
the three (3) Bahamian flag drilling rigs listed on Schedule 3 attached
hereto.
1.2 ACCOUNTING TERMS. Except as expressly stated herein, all
accounting terms not specifically defined herein shall be construed in
accordance with GAAP consistent with those applied in preparation of the
consolidated financial statements of ENSCO referred to in Section 11.1
hereof.
Section 2. FACILITY A.
2.1 REDUCING REVOLVING CREDIT. (a) Upon the terms and subject
to the conditions herein set forth, each Bank agrees, from time to time
prior to the Maturity Date, to make its share of an Advance or Advances to
the Borrowers in the aggregate not to exceed at any time USD 80,000,000.
(b) Within the USD 80,000,000 limit referred to above and
subject to the reduction requirements of Section 6.2(a) and 6.2(b) below,
the Borrowers may borrow and prepay such Advances pursuant to Section 6.3
below and reborrow under Section 2.1(a).
(c) All Advances under Facility A shall be in a minimum amount
of USD 5,000,000 or if greater, in integral multiples of USD 1,000,000 or,
in any event, the remaining availability under Facility A.
2.2 THE FACILITY A NOTE. The joint and several obligation of
the Borrowers to pay the principal of, and interest on, all amounts
outstanding under Facility A shall be evidenced by the Facility A Note.
Section 3. FACILITY B.
3.1 REDUCING REVOLVING CREDIT. (a) Upon the terms and subject
to the conditions herein set forth, each Bank agrees, from time to time
prior to the Maturity Date, to make its share of an Advance or Advances to
ENSCO U.K. in Pounds or in Dollars as requested by ENSCO U.K. in the
aggregate not to exceed at any time USD 50,000,000 or its equivalent in
Pounds.
(b) Within the USD 50,000,000 limit referred to above or its
equivalent in Pounds and subject to the reduction requirements of Section
6.2(a) and (b) and Section 6.4(d) below, ENSCO U.K. may borrow and prepay
such Advances pursuant to Section 6.3 below and reborrow under Section
3.1(a).
(c) All Advances under Facility B shall be in a minimum amount
of USD 5,000,000 (or its equivalent in Pounds) or if greater, in integral
multiples of USD 1,000,000 (or its equivalent in Pounds) or, in any event,
the remaining availability under Facility B.
3.2 THE FACILITY B NOTE. The obligation of ENSCO U.K. to pay
the principal of, and interest on, all amounts outstanding under Facility B
shall be evidenced by the Facility B Note.
3.3 CHANGE IN CURRENCY OF FACILITY B LOAN.
(a) On any Interest Payment Date, should ENSCO U.K. desire to
convert all or a portion of any Facility B Advance to another currency,
ENSCO U.K. may, upon delivery to the Administrative Agent of an irrevocable
Request for Borrowing at least four (4) Business Days prior to the relevant
Interest Payment Date, repay all amounts outstanding under any or all
Facility B Advances and reborrow, in Dollars or Pounds or a combination
thereof, as requested by ENSCO U.K., an aggregate amount equal to the
Commitment under Facility B, with any Pound Advances being counted against
the Facility B Commitments on the basis of the currency exchange rate in
effect at 11:00 a.m., London time, two (2) Business Days prior to the
relevant Interest Payment Date; provided, however, that any payments to be
made or received under this Section 3.3(a) shall be netted against each
other, with the Administrative Agent's determination of such net amounts,
absent manifest error, to be conclusive.
(b) If, at the end of any Interest Period, or in the case of any
Interest Period of greater than six (6) months, six (6) months after the
commencement of such Interest Period, as a result of changes in currency
exchange rates, the amount outstanding under Facility B is greater than the
Facility B Commitments at such time, ENSCO U.K. shall make an immediate
payment to the Administrative Agent of an amount in Dollars or Pounds, as
the case may be, sufficient to reduce the outstanding amount under Facility
B to the amount of the Facility B Commitments, plus any Breakage Costs.
(c) In the absence of any notice from the Borrowers pursuant to
Section 3.3(a) above, ENSCO U.K. shall be deemed to have requested that the
Facility B Advances continue in the currencies they are denominated in for
the then current Interest Period.
3.4 GUARANTY OF FACILITY B.
(a) ENSCO Offshore hereby guarantees the payment by ENSCO U.K. of
all amounts due by ENSCO U.K. under Facility B of this Credit Agreement and
the Facility B Note (the obligations of ENSCO U.K. under Facility B of this
Credit Agreement and the Facility B Note are hereinafter referred to as the
"Facility B Obligations") and agrees in addition to pay any and all
expenses incurred by the Agents or the Banks in enforcing any of their
rights under this Section 3.4.
(b) ENSCO Offshore hereby guarantees that the Facility B
Obligations will be paid strictly in accordance with the terms of this
Agreement and the Facility B Note, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Agents or the Banks with respect thereto. The
liability of ENSCO Offshore under this Section 3.4 shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of this Section
3.4, the Facility B Loan, the Facility B Note or any other agreement or
instrument entered into between the Borrowers, the Banks or the Agents;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Facility B Obligations, or any
other amendment or waiver of or any consent to departure from Section 3 of
this Agreement or the Facility B Note;
(iii) any circumstance which might otherwise constitute a
defense available to, or a discharge of, ENSCO U.K. in respect of the
Facility B Obligations or ENSCO Offshore in respect of this Section 3.4.
(c) the guaranty contained in this Section 3.4 is a guaranty of
payment and not of collection and the Agents shall not be required to make
any demand upon, or exhaust their remedies against, ENSCO U.K. before
requiring ENSCO Offshore to pay under this guaranty.
(d) The guaranty contained in this Section 3.4 shall continue to
be effective or be reinstated, as the case may be, if at any time any
payment of any of the Facility B Obligations is rescinded or must otherwise
be returned by the Agents or the Banks upon the insolvency, bankruptcy or
reorganization of ENSCO U.K. or otherwise, all as though such payment had
not been made.
(e) ENSCO Offshore hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Facility B
Obligations and the guaranty contained in this Section 3.4 and any
requirement that the Trustee, the Agents or the Banks exhaust any right or
take any action against ENSCO U.K. or any other person or entity or any
collateral.
(f) ENSCO Offshore will not exercise any rights which it may
acquire by way of subrogation under the guaranty contained in this Section
3.4, by any payment made hereunder or otherwise, until all the Facility B
Obligations shall have been paid in full. If any amount shall be paid to
ENSCO Offshore on account of such subrogation rights at any time when all
the Facility B Obligations shall not have been paid in full, such amount
shall be forthwith paid to the Administrative Agent to be credited and
applied against the Facility B Obligations. If (i) ENSCO Offshore shall
make payment to the Administrative Agent of all or any part of the Facility
B Obligations and (ii) all the Facility B Obligations shall be paid in
full, the Administrative Agent will, at ENSCO Offshore's request, execute
and deliver to ENSCO Offshore appropriate documents, without recourse and
without representation or warranty, transferring to ENSCO U.K. or necessary
to evidence the transfer by subrogation to ENSCO Offshore of any interest
in the Facility B Obligations resulting from such payment by ENSCO
Offshore.
Section 4. MANNER OF DRAWDOWN.
4.1 MANNER OF DRAWDOWN. The Borrowers may draw an Advance upon:
(a) The Agents' prior satisfaction that the relevant conditions
set out in Section 8 herein have been complied with;
(b) No event having occurred to the actual knowledge of the
Borrowers which, with or without notice or lapse of time, would constitute
an Event of Default;
(c) The Administrative Agent having received from the Borrowers
an irrevocable Request for Borrowing before 3:00 p.m. New York time at
least four (4) Business Days prior to the Drawdown Date selected by the
Borrowers; and
(d) The first Drawdown Date shall occur no later than September
29, 1995.
4.2 DISBURSEMENT OF FUNDS. Not later than 11:00 a.m. New York
time on each Drawdown Date each Bank shall make available such Bank's
Commitment as to the Advance or Advances being made on such Drawdown Date
to the Administrative Agent in Dollars (in immediately available funds) or,
in the case of Facility B if requested by ENSCO U.K. in Pounds (in
immediately available funds) at the account referred to in Section 6.6
hereof. The Administrative Agent shall, on such Drawdown Date, make the
Advance or Advances available to the Borrowers or ENSCO U.K. as directed by
the Borrowers in the Request for Borrowing upon satisfaction of the
conditions applicable to such Advance set forth in Section 8.
4.3 FAILURE TO BORROW; DELAY. If the borrowing described in any
Request for Borrowing fails to take place or is delayed because any of the
conditions specified in Section 8 are not satisfied, the Borrowers shall
indemnify the Banks against any loss incurred as a result of the giving of
such Request for Borrowing, including without limitation any loss resulting
from actions taken by the Banks to fund the requested Advance, but
excluding any loss resulting from the gross negligence or willful
misconduct of any Bank or the Agents. The Banks will attempt to mitigate
their losses in such situation. A certificate of the Agents stating in
reasonable detail the amount of, and basis for, any such loss incurred by
the Banks shall be conclusive absent manifest error.
4.4 OUTSTANDING ADVANCES. No more than six (6) Advances shall
be outstanding under Facility A and Facility B at any time.
Section 5. INTEREST.
5.1 RATE OF INTEREST. (a) The Borrowers jointly and severally
agree to pay interest in respect of all amounts outstanding under any
Advance at a rate per annum of LIBOR plus the Margin applicable to such
Advance.
(b) Interest on unpaid principal amounts outstanding under this
Agreement shall be computed on the basis of a year of 360 days and the
actual number of days elapsed for Advances outstanding in Dollars and on
the basis of a year of 365 days and the actual number of days elapsed for
Advances outstanding in Pounds.
5.2 PAYMENT OF INTEREST. Interest with respect to each Advance
shall be paid by the Borrowers on each Interest Payment Date.
5.3 OVERDUE PAYMENT OF PRINCIPAL AND INTEREST. Overdue
principal of, and (to the extent permitted by law) overdue interest in
respect of, amounts due under either Facility shall bear interest, payable
on demand, at a rate per annum which shall be 2% in excess of the interest
rate otherwise applicable pursuant to Section 5.1 above.
Section 6. LOAN PAYMENTS AND REDUCTION OF COMMITMENTS.
6.1 PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a day which
is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day; provided, however, that if such next succeeding
Business Day is in a new month, then the payment required under this
Agreement or the Notes shall be made on the first Business Day preceding
the original date on which payment was due. If a payment of principal has
been extended pursuant to this Section 6.1, interest shall be payable on
such principal at the applicable rate during such extension.
6.2 COMMITMENT REDUCTION AND LOAN REPAYMENT. All amounts
outstanding under this Agreement shall be repaid by the Borrowers as
follows:
(a) The Commitments shall be permanently reduced by twelve (12)
consecutive semi-annual reductions on each Commitment Reduction Date. The
first eleven (11) reductions shall be in the amount of USD 6,000,000 each
and the twelfth and final reduction shall be in the amount of USD
64,000,000. The Borrowers may designate to the Administrative Agent that
such reduction shall be applied to either or both Facilities; provided,
however, that if no such designation is made by the Borrowers, such
reductions shall be applied pro rata to the Facility A Commitments and the
Facility B Commitments. Such reductions in the Commitments shall be
irrespective of whether any amounts are outstanding under either Facility
and irrespective of whether any repayment is due by the Borrowers under
Section 6.2(b) below.
(b) If the amount outstanding under either Facility on any
Commitment Reduction Date is greater than the Banks' Facility A or Facility
B Commitments on such Commitment Reduction Date (after taking into account
any reduction under Section 6.2(a) above), the Borrowers shall reduce the
amount outstanding under such Facility by a payment of such excess on such
Commitment Reduction Date together with any interest accrued on such
amount.
(c) All amounts outstanding under Facility A and Facility B
shall be repaid by the Borrowers on the Maturity Date.
6.3 VOLUNTARY PREPAYMENTS. The Borrowers shall have the right
to prepay all amounts outstanding under Facility A and Facility B in whole
or in part, without premium or penalty, from time to time pursuant to this
Section 6.3 on the following terms and conditions:
(a) the Borrowers shall give the Administrative Agent at least
three (3) Business Days' prior written notice of their intent to prepay
such amounts, the amount of such prepayment, the Facility such prepayment
is to be applied to and the date of such prepayment;
(b) each such prepayment shall be in a principal amount of at
least USD 2,000,000 (or its equivalent in Pounds for Facility B) and in
integral multiples thereof;
(c) at the time of any prepayment, the Borrowers shall pay all
Breakage Costs and all interest accrued on the principal amount of said
prepayment; and
(d) each prepayment shall be applied pro rata among the Banks.
6.4 VOLUNTARY REDUCTION OF COMMITMENTS. The Borrowers shall
have the right to permanently reduce the Commitments on the following terms
and conditions:
(a) the Borrowers shall give the Administrative Agent at least three
(3) Business Days' prior written notice of their intent to
permanently reduce the Commitments, the amount of such reduction,
the date of such reduction and, subject to Section 6.4(c) below,
the Facility or Facilities to which such reduction shall be
applied;
(b) each such reduction shall be in an amount of at least USD
5,000,000 and in integral multiples thereof;
(c) the Borrowers may designate that such reduction shall be applied
to either or both Facilities; provided that (i) if no such
designation is made by the Borrowers of the reduction to a
Facility or Facilities, such reduction shall be applied pro rata
to the Facility A Commitments and the Facility B Commitments and
shall be irrespective of whether any amounts are outstanding
under either Facility and (ii) if a designation is made by the
Borrowers, such reduction shall reduce each remaining mandatory
reduction of the designated Facility or Facilities pro rata; and
(d) each such reduction shall require a corresponding payment under
Section 6.2(b) above if such reduction results in the amount
outstanding under either Facility being greater than the
Commitments for such Facility on the date of such reduction and
at the time of any such payment, the Borrowers shall pay all
Breakage Costs and all interest accrued on the principal amount
of such prepayment.
6.5 MANDATORY REDUCTION OF COMMITMENTS. (a) Subject to Section
6.5(c) and 6.5(d) below, upon the sale or actual or constructive total loss
of any Rig, the Commitments shall be reduced by an amount equal to the
percentage such lost or sold Rig's fair market value bears to the fair
market value of all the Rigs; fair market value to be based on the most
recent appraisals of the Rigs; provided, however, that if at the time of
such sale or actual or constructive total loss the number of Rigs is ten
(10) or less, the Commitments shall be reduced by 100% of the amount of the
sale or insurance proceeds of such sale or loss (the "Proceeds").
(b) Any reduction of the Commitments made pursuant to Section
6.5(a) above shall be applied as provided in Section 6.2(a) above.
(c) Upon the sale of any Rig, so long as no Event of Default has
occurred and is continuing, the Borrowers may upon seven (7) Business Days'
prior written notice to the Agents, in lieu of the mandatory Commitment
Reduction required by Section 6.5(a) above, substitute collateral for such
sold Rig pursuant to Section 7.6 below.
(d) Within five (5) Business Days of the Borrowers' receipt of
notice that the Trustee has received the Proceeds arising from any actual
or constructive total loss of any Rig, so long as no Event of Default has
occurred and is continuing, the Borrowers shall elect by written notice to
the Agents to either incur the mandatory Commitment Reduction required by
Section 6.5(a) above or to substitute collateral for such lost Rig pursuant
to Section 7.6 below. Based upon the Borrowers' election as provided
above, the Agents shall, upon compliance by the Borrowers with Section
6.5(a) in the case of a mandatory Commitment Reduction or Section 7.6(a)
and (b) in the case of collateral substitution, instruct the Trustee to pay
the Proceeds of the lost Rig directly to the Borrowers.
(e) Any reduction of Commitments required by this Section 6.5
shall require a corresponding payment under Section 6.2(b) above if such
reduction results in the amount outstanding under either Facility being
greater than the Commitments for such Facility on the date of such
reduction and at the time of any such payment, the Borrowers shall pay all
Breakage Costs and all interest accrued on the principal amount of such
prepayment.
6.6 METHOD AND PLACE OF PAYMENT. All payments under this
Agreement shall be made to the Administrative Agent to (a) in the case of
Dollar payments at The Bank of New York, New York, (ABA ▇▇▇▇▇▇▇▇▇) for the
account of Christiania Bank og Kreditkasse, New York Branch, Account No.
8026120277 Ref: ENSCO Loan and (b) in the case of Pound payments at
Christiania Bank og Kreditkasse, London Branch, London, England for the
account of Christiania Bank og Kreditkasse, New York Branch, Account No.
▇▇▇▇▇▇▇▇, Ref: ENSCO Loan (or such other account elsewhere as the Agents
may designate including, but not limited to, payments to an account of the
Trustee pursuant to the Trust Indenture) and in immediately available
funds, not later than 10:00 a.m. New York time or 11:00 a.m. London time,
respectively, on the date when due.
6.7 NET PAYMENTS. (a) All sums payable by the Borrowers under
this Agreement, whether of principal, interest, fees or otherwise, shall be
paid in full without set-off or counterclaim and in such amounts as may be
necessary in order that all such payments (after deduction or withholding
for or on account of any present or future taxes, levies, imposts, duties
or other charges of whatsoever nature imposed by any Governmental Agency or
taxing authority thereof, other than any tax, on or measured by the income
of any Bank (collectively the "Taxes"), shall not be less than the amounts
otherwise specified to be paid under this Agreement or the Notes.
(b) A certificate as to any additional amounts payable to the
Banks under this Section 6.7 submitted to the Borrowers by the
Administrative Agent shall show in reasonable detail the amount payable and
the calculations used to determine in good faith such amount and shall be
conclusive absent manifest error.
(c) With respect to each deduction or withholding for or on
account of any Taxes, the Borrowers shall promptly furnish to the
Administrative Agent such certificates, receipts and other documents as may
be required (in the reasonable judgment of the Agents) to establish any
income tax credit to which any of the Banks may be entitled. In the event
that such a deduction or withholding for Taxes becomes so applicable, the
Agents and the Borrowers will use their best efforts to minimize the effect
of such Taxes.
6.8 RIGHTS OF SET-OFF. Each Bank shall, with respect to the
Loan and all other amounts payable hereunder, have all rights of set-off,
bankers lien and counterclaim as it is entitled to exercise under the law
of the jurisdiction in which such rights are exercised. The Banks agree
among themselves that, if a Bank shall obtain payments of any Obligation
held by it through the exercise of a right of set-off, banker's lien or
counterclaim, or from any other source, it shall promptly purchase from the
other Banks participations in the Obligations held by the other Banks in
such amounts, and make such other adjustments from time to time, so that
the Banks shall share the benefit of such payment pro rata; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Bank, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery, with interest
prorated according to actual amounts received. If under applicable
bankruptcy, insolvency or other similar law any Bank receives a secured
claim in lieu of set-off to which this Section 6.8 would apply, such Bank
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Banks entitled
under this Section 6.8 to share in the benefits of any recovery of such
secured claim. The Borrowers agree that any Bank purchasing a
participation in Obligations held by the other Banks pursuant to this
Section 6.8 may exercise all rights of set-off, banker's lien or
counterclaim with respect to such participation as fully as if such Bank
were a direct holder of the Loan, Note or other Obligations in the amount
of such participation.
6.9 CHANGES IN CIRCUMSTANCES. (a) If, by reason of any change
subsequent to the date of this Agreement in applicable law or regulation or
regulatory requirement or directive whether or not having the force of law
or in the interpretation or application thereof by the governmental or
quasi-governmental or judicial authority or central bank charged with the
administration or interpretation of such law or regulation (a "Change in
Circumstance"), any Bank shall determine in good faith that it has become
unlawful or impossible for it to perform its obligations hereunder, the
Administrative Agent shall immediately notify the Borrowers and, after such
notice, the liability of such Bank to advance or maintain its Advances or
its share of either Facility shall immediately cease or, if any Advance has
been made, the Borrowers shall prepay to the Administrative Agent that
portion of such Advance and such prepayment shall, notwithstanding any
provision of this Agreement to the contrary, be applied only to such Bank's
portion of such Advance and shall not be applied pro rata to the other
Banks. In any such event, but without prejudice to the aforesaid
obligation of the Borrowers to prepay, the Borrowers, the Agents and the
Bank affected by the Change of Circumstance shall negotiate in good faith
for a period not to exceed ninety (90) days commencing from the date notice
is given by the Agents as provided above, with a view to agreeing to terms
for making or continuing to make available such Bank's Commitment from
another jurisdiction or funding its portion of the affected Advance from
alternative sources.
(b) If the effect of any Change in Circumstance having effect
after the date hereof, is to:
(i) change the basis of taxation to any Bank of payment of
principal or interest or any other payment due pursuant to the terms of
this Agreement or the Notes (other than an increase in the rate of taxation
on such Bank's or its lending office's overall net income); or
(ii) impose or modify or deem applicable any reserve
requirements or require the making of any special deposits against or in
respect of any assets or liabilities of, deposits with or for the account
of or loans by any Bank; or
(iii) impose on any Bank any other condition affecting its
Commitment or the Loan or any part thereof, the result of which is either
to increase the cost to such Bank of making available or maintaining its
Commitment or its portion of any Facility or any part thereof or to reduce
the amount of any payment received by such Bank hereunder; then and in any
such case if such increase or reduction in the opinion of such Bank
materially affects the interests of such Bank: (A) t h e
Administrative Agent shall notify the Borrowers of any of the above
circumstances and the affected Bank shall use all reasonable efforts
(without any financial commitment on its part) to avoid the effects of any
such change and in particular, shall consider (without any commitment on
its part) fulfilling its obligations under this Agreement through another
office or transferring its interest in this Agreement and the Notes at par
to one or more of its affiliates not affected by the Change in
Circumstances if such transfer can be accomplished without material added
cost to such Bank and in a manner compatible with its operational
procedures; or
(B) if the efforts referred to in (A) above fail to
have the effect of eliminating the increased cost incurred by the Bank or
the reduction in the amount of any payment received, the Borrowers shall
within three (3) Business Days following demand (whether made before or
after any repayment of the amounts outstanding under Facilities A or B) pay
to the Administrative Agent on behalf of such Bank such amount as the
Administrative Agent certify to be necessary to compensate such Bank for
such additional cost or reduction; provided, however, that despite such
payments, the Agents, the affected Bank and the Borrowers shall continue to
use their best efforts to reduce the effect of such Change in Circumstance;
and
(C) at any time thereafter, so long as the Change in
Circumstance giving rise to the obligation to make the compensating payment
continue, the Borrowers may, upon giving the Administrative Agent not less
than ten (10) Business Days' written notice which shall be irrevocable,
prepay to the Administrative Agent such Bank's portion of the Loan. Any
prepayment under this Section 6.9(b)(iii)(C) shall be made only to the
affected Bank, shall not be applied pro rata to the other Banks, shall
terminate such Bank's Commitment and shall terminate all of such Bank's
rights and obligations under this Agreement and the other Loan Documents.
(c) If any amounts outstanding under this Agreement are to be
prepaid by the Borrowers pursuant to any of the provisions of this Section
6.9, the Borrowers shall simultaneously with such prepayment pay to the
Administrative Agent all Breakage Costs and all accrued interest and fees
on the amounts to be prepaid.
(d) The certificate or determination of the Administrative
Agent, as to any matters referred to in this Section 6.9 shall show in
reasonable detail the amount payable and the calculations used in good
faith to determine such amount and shall, save for any manifest error, be
conclusive and binding on the Borrowers.
6.10 UNAVAILABILITY OF DOLLARS OR POUNDS.
(a) In the event that any Bank is not able to obtain deposits in
Dollars, or Pounds during any Interest Period when all or part of Facility
B is outstanding in Pounds, in the London Interbank Market, the Dollars or
Pounds required by such Bank to fund its portion of the Loan (the "Affected
Portion") shall be made available from such other financial sources as may
be available to such Bank. In such an event the rate of interest
applicable to the Affected Portion for the relevant Interest Period will
be, the aggregate of the Margin and the cost (expressed as a per annum
percentage) to such Bank from such financial sources and for periods as may
be elected by such Bank. Each change in such cost in respect of funding
the Affected Portion will cause an immediate corresponding change in the
rate of interest payable by the Borrowers. This arrangement shall be
temporary and should deposits in Dollars or Pounds, respectively,
subsequently become available to such Bank in the London Interbank Market,
then from the conclusion of the then current Interest Period for funding
from alternative sources, the Affected Portion will bear interest at the
rates detailed in Section 5.1(a) hereof.
(b) In the event that any Bank is unable (for any reason
whatsoever) to acquire the required deposits from any source, the parties
hereto shall meet to discuss an alternative arrangement. In the absence of
mutual agreement and at the end of ten (10) Business Days after the meeting
referred to above the obligation of such Bank hereunder to make available
its portion of the Advances and its rights under this Agreement and the
other Loan Documents shall be extinguished forthwith and/or (as the case
may be) such portion of the Loan shall be repaid forthwith by the Borrowers
to the Administrative Agent along with all fees and Breakage Costs for such
portion of the Loan. Such payment shall, notwithstanding any provision
herein to the contrary, be applied to such Bank's portion of the Advances
and shall not be applied pro rata to the other Banks.
Section 7. SECURITY.
7.1 MORTGAGES. The Credit Facility and all other amounts due
under this Agreement shall be secured in accordance with the provisions of
the Mortgages.
7.2 ASSIGNMENTS. The Credit Facility and all other amounts due
under this Agreement shall be secured in accordance with the provisions of
the Assignments.
7.3 PLEDGE. The Credit Facility and all other amounts due under
this Agreement shall be secured in accordance with the provisions of the
Pledge.
7.4 ENSCO GUARANTY. The Credit Facility and all other amounts
due under this Agreement shall be secured in accordance with the provisions
of the ENSCO Guaranty.
7.5 FLOATING CHARGE. The Credit Facility and all other amounts
due under this Agreement shall be secured in accordance with a floating
charge under English law over all rigs, their earnings and their
insurances, whether now or hereafter owned by ENSCO U.K., in form and
substance satisfactory to the Agents.
7.6 COLLATERAL SUBSTITUTION. So long as no Event of Default has
occurred and is continuing, the Borrowers may, upon seven (7) Business
Days' prior written notice to the Agents, remove any of the Rigs from the
operation of the Mortgages, the Assignments or the floating charge on the
following terms and conditions:
(a) Any Rig so removed shall be simultaneously replaced by either (i)
a substitute drilling rig which, in the absolute discretion of
the Agents, shall be of similar value and quality to the Rig
being removed, or (ii) by other drilling equipment which, in the
absolute discretion of the Agents, shall be acceptable to the
Agents;
(b) Any such replacement drilling rig or drilling equipment shall be
simultaneously placed under the Mortgages, the Assignments or the
floating charge or shall be immediately subjected to other first
priority, perfected security interests in favor of the Agents on
behalf of the Banks acceptable to the Agents; and
(c) As an alternative to the substitute drilling rig or drilling
equipment discussed above, the Borrowers may, simultaneously with
the removal of the Rig, deposit the amount of the fair market
value of such removed Rig (as determined by its last appraisal)
in an account of the Administrative Agent, properly pledged to
the Agents on behalf of the Banks under New York law.
7.7 FURTHER ASSURANCES. The Borrowers agree to execute and
deliver to the Administrative Agent such financing statements or other
instruments or documents as the Agents may reasonably request in order to
perfect the security created by the Mortgages, the Pledge, the Assignments
and the floating charge or otherwise required by this Agreement.
Section 8. CONDITIONS PRECEDENT.
8.1 DOCUMENTS REQUIRED AS CONDITIONS PRECEDENT TO THE DRAWDOWN
OF THE FIRST ADVANCE. The obligation of the Banks to make the first
Advance is subject to the condition precedent that the Agents shall have
received at or prior to the first Drawdown Date all of the following, each
dated on or before the first Drawdown Date and each in form and substance
satisfactory to the Agents:
(a) The Notes and the other Loan Documents.
(b) Certified copies of the resolutions of the Boards of
Directors of each of the Borrowers and the Guarantors authorizing the
execution and delivery by the Guarantors and the Borrowers of the Loan
Documents to which they are parties on behalf of the Guarantors and the
Borrowers, and all documents evidencing other necessary corporate action
with respect to the Loan Documents.
(c) Certificates of the Secretaries or the Assistant Secretaries
of the Guarantors and the Borrowers certifying the names and true
signatures of the officers of the Guarantors and the Borrowers authorized
to sign the Loan Documents on behalf of the Guarantors and the Borrowers
and the other documents or certificates to be executed by the Guarantors
and the Borrowers pursuant to this Agreement.
(d) Copies certified as of a recent date by the Secretaries or
the Assistant Secretaries of the Guarantors and the Borrowers of their By-
Laws or comparable documents or certificates from such officers that there
have been no changes to such By-Laws or comparable documents since December
17, 1993.
(e) Copies of the Guarantors' and the Borrowers' Certificates of
Incorporation or comparable documents certified by the relevant officials
of their jurisdiction of incorporation within thirty (30) days from the
date of the first Drawdown Date and certificates dated within thirty (30)
days of the first Drawdown Date of the relevant officials of their
jurisdiction of incorporation as to the existence and good standing of the
Guarantors and the Borrowers.
(f) An opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Counsel of ENSCO, as
counsel to the Guarantors and the Borrowers, acceptable to the Banks.
(g) An opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Bahamian counsel to
the Banks, acceptable to the Banks.
(h) An opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Temperley, special English
counsel to the Banks, acceptable to the Banks.
(i) An opinion of Haight, Gardner, Poor & ▇▇▇▇▇▇, special New
York and Texas counsel to the Banks, acceptable to the Banks.
(j) If the first Drawdown Date is not the date hereof,
certificates dated the first Drawdown Date of officers of the Borrowers
certifying that:
(i) The representations and warranties contained in Section
10 hereof are correct on and as of the first Drawdown Date as though made
on and as of such date except those expressly made as of another date; and
(ii) No event has occurred and is continuing, or would
result from the first Advance which constitutes an Event of Default or with
the passing of time or the giving of notice would constitute an Event of
Default.
(k) The Borrowers and the Guarantors, respectively, shall have
executed and delivered to the Agents copies of all documents and filings
and shall have taken all actions necessary to perfect the security
interests created by the Mortgages, the Pledge and the Assignments as first
priority perfected security interests.
(l) All orders, consents, approvals, licenses, authorizations
and validations of, and filings, recordings and registrations with and
exemptions by any Governmental Agency or any Person (other than any routine
filings which may be required after the date hereof with appropriate
governmental authorities in connection with the operation of the Rigs)
required to (i) authorize the execution, delivery and performance by the
Borrowers and the Guarantors of the Loan Documents to which they are
parties or (ii) prevent the execution, delivery and performance by the
Borrowers and the Guarantors of the Loan Documents to which they are
parties from resulting in a breach of any of the terms or conditions of, or
resulting in the imposition of any lien, charge or encumbrance upon any
properties of the Borrowers or the Guarantors pursuant to, or constituting
a default (with due notice or lapse of time or both), if such breach,
imposition or default would result in a materially adverse change in the
financial position of the Borrowers or the Guarantors, or resulting in an
occurrence of any event for which any holder or holders of Indebtedness may
declare the same due and payable under, any indenture, agreement, order,
judgment or instrument under which either Borrower or either Guarantor is
a party (other than the Mortgages, the Pledge or the Assignments) or to the
Borrowers' knowledge after due inquiry by which the Borrowers or the
Guarantors or their property may be bound or affected, or under the
Certificates of Incorporation or By-Laws of the Borrowers or the
Guarantors, shall have been obtained or made.
(m) Evidence of the insurance required by Section 11.2 of this
Agreement.
(n) Payment by the Borrowers of the fees referred to in Section
9.1 below required to be paid on or before the first Drawdown Date.
(o) Confirmation of class certificates for the Rigs from the
American Bureau of Shipping showing the Rigs to be classified as Maltese
Cross A1 elevating drilling units dated within thirty (30) days of the
first Drawdown Date.
(p) Copies of evaluations dated no more than 30 days prior to
the first Drawdown Date of the fair market value of the Rigs without
charter or other contractual commitments by an independent drilling rig
broker or appraiser selected by the Borrowers but acceptable to the Agents.
(q) Evidence of the approval of the Trustee by the U.S. Maritime
Administration.
(r) Consolidated balance sheets, statements of income and
statements of cash flow for the ENSCO Consolidated Group and ENSCO
Offshore as of June 30, 1995.
8.2 ADDITIONAL CONDITIONS PRECEDENT TO SUBSEQUENT ADVANCES. The
obligation of the Banks to make each subsequent Advance shall be subject to
the further condition precedent that the Administrative Agent shall have
received certificates (dated the date of such Advance) of officers of the
Borrowers certifying that:
(a) the representations and warranties contained in Section 10
hereof are correct on and as of the date such Advance is made as though
made on and as of such date except those contained in Section 10.7 below
and those expressly made as of another date; and
(b) no event has occurred and is continuing, or would result
from such Advance, which constitutes an Event of Default or with the
passing of time or the giving of notice would constitute an Event of
Default.
8.3 WAIVER OF CONDITIONS PRECEDENT. All of the conditions
precedent contained in this Section 8 are for the sole benefit of the Banks
and the Agents may waive any or all of them in their absolute discretion.
Section 9. FEES AND EXPENSES.
9.1 FEES. (a) The Borrowers jointly and severally agree to pay
the Agents an agency fee and a front-end fee pursuant to a letter agreement
dated the date of this Agreement.
(b) The Borrowers jointly and severally agree to pay to the
Administrative Agent for distribution to the Banks pro rata a commitment
fee of 1/2% per annum of the daily undrawn portion of the Commitments
during the preceding three (3) month period if more than 30% of the
Commitments are outstanding for such period, otherwise a commitment fee of
3/4% per annum of the daily undrawn portion of the Commitments during the
preceding three (3) month period. Such commitment fee shall begin to
accrue on the first Drawdown Date and shall be payable quarterly in
arrears, the first such payment to be made on January 18, 1996 and
quarterly thereafter.
9.2 EXPENSES. The Borrowers jointly and severally agree,
whether or not any Advance is made, to promptly reimburse the
Administrative Agent upon demand for all reasonable fees and disbursements
of the Agents, including, but not limited to, travel and other out-of-
pocket expenses of the Agents and the reasonable fees and expenses of
external counsel to the Agents and independent offshore drilling rig
brokers retained by the Agents, incurred in connection with (a) the
preparation, execution and delivery of the Loan Documents, and the making
of Advances under this Agreement and all other documents referred to
herein, and any amendments or waivers to or termination of any thereof, (b)
the recording, filing and perfection of all security interests created by
the Loan Documents and (c) the protection of the rights of the Agents, the
Banks and the Trustee under this Agreement and all other documents referred
to herein and the enforcement of payment of the Obligations, whether by
judicial proceedings or otherwise. Provided, however, that the reasonable
fees and disbursements of the Banks, including but not limited to travel
and other out of pocket expenses, but excluding the fees and expenses of
external counsel, arising in connection with an event which in the
reasonable judgment of the Banks would have a material adverse effect on
the Borrowers or the Guarantors shall be reimbursed by the Borrowers. The
obligation of the Borrowers under this Section 9.2 shall survive payment of
all other amounts due under this Agreement.
Section 10. REPRESENTATIONS AND WARRANTIES OF BORROWERS.
The Borrowers represent and warrant to the Banks as follows:
10.1 DUE INCORPORATION, QUALIFICATION, ETC. Each Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and each is duly qualified and in
good standing as a foreign corporation to do business in the jurisdictions
in which the failure to be so qualified would have a material adverse
effect on its business or financial condition, and each has full corporate
power and authority to own its properties and assets and to conduct its
business as presently conducted.
10.2 CAPACITY. Each Borrower has full corporate power and
authority to execute and deliver, and to perform and observe the provisions
of the Loan Documents to which it is a party and to carry out the
transactions contemplated hereby and thereby.
10.3 AUTHORITY AND ENFORCEABILITY. The execution, delivery and
performance by the Borrowers of the Loan Documents to which they are
parties have been or will be duly authorized by all necessary corporate
action. This Agreement (including the New York choice of law) constitutes,
and the other Loan Documents constitute legal, valid and binding
obligations of the Borrowers party to such documents enforceable against
them in accordance with their respective terms, subject to laws affecting
creditors' rights generally and applicable equitable principles. The
Mortgages and the Assignments shall on the first Drawdown Date create and
constitute valid and perfected security interests in and to the properties
covered thereby, subject to the exceptions contained therein, enforceable
against all third parties, subject to laws affecting creditors' rights
generally and applicable equitable principles, and shall secure the Credit
Facility.
10.4 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with (other than any routine filings which may be required
after the date hereof with appropriate governmental authorities in
connection with the operation of the Rigs or required in connection with
the perfection of the security interests created by any of the Loan
Documents), or exemption by, any Governmental Agency, is required to
authorize the execution, delivery and performance by the Borrowers of the
Loan Documents to which they are parties.
10.5 COMPLIANCE WITH OTHER INSTRUMENTS. The execution and
delivery of this Agreement and compliance with its terms, the issuance of
the Notes and the execution and delivery of the Mortgages and the
Assignments and the compliance with their terms as contemplated herein, do
not result in a breach of any of the terms or conditions of, or result in
the imposition of any lien, charge or encumbrance (except those
contemplated by this Agreement) upon any properties of the Borrowers
pursuant to, or constitute a default (with due notice or lapse of time or
both), or result in an occurrence of any event for which any holder or
holders of Indebtedness may declare the same due and payable under any
indenture, agreement, order, judgment or instrument under which any of the
Borrowers is a party or to the Borrowers' knowledge, after due inquiry, by
which the Borrowers or their property may be bound or affected, or under
the Certificates of Incorporation or By-Laws (or comparable documents) of
the Borrowers, and, to the Borrowers' knowledge, after due inquiry, do not
violate any provision of applicable law.
10.6 FINANCIAL STATEMENTS. (a) The consolidated balance sheets
of the ENSCO Consolidated Group and ENSCO Offshore as of June 30, 1995 and
the related consolidated statements of income and cash flow of the ENSCO
Consolidated Group and ENSCO Offshore for the quarter and year to date
period ended on that date, copies of which have been furnished to the
Agents, have been prepared in accordance with GAAP and fairly present the
financial conditions of the ENSCO Consolidated Group as of such date and
the results of the operations of the ENSCO Consolidated Group and ENSCO
Offshore for the period ended on such date.
(b) As of June 30, 1995 ENSCO and ENSCO Offshore have no
contingent liabilities which, if determined adversely to them (either
singly or in the aggregate), would have a material adverse effect except as
heretofore disclosed to the Administrative Agent in writing.
10.7 MATERIAL ADVERSE EVENTS. Since June 30, 1995, neither the
business, the prospects, the properties nor the condition (financial or
otherwise) of either the ENSCO Consolidated Group or ENSCO Offshore have
been materially adversely affected.
10.8 LITIGATION, ETC. Except as heretofore disclosed in ENSCO's
10Q filing with the U.S. Securities and Exchange Commission for the period
ended June 30, 1995, there are no actions, suits or proceedings pending, or
to the knowledge of the Borrowers threatened, against or affecting ENSCO or
either of the Borrowers, at law or in equity, which, if adversely
determined, would have a material adverse effect on ENSCO or the Borrowers.
To the Borrowers' knowledge, as of June 30, 1995, neither ENSCO nor either
of the Borrowers are in violation with respect to any applicable laws
and/or regulations which non-compliance would have a material adverse
effect nor is ENSCO or either of the Borrowers in violation or default with
respect to any order, writ, injunction, demand or decree of any court or
any Person or in violation or default (nor is there any waiver in effect
which, if not in effect, would result in a violation or default) in any
material respect under any indenture, agreement or other instrument under
which ENSCO or either Borrower is a party or may be bound, default under
which would have a material adverse effect.
10.9 PRINCIPAL PLACE OF BUSINESS. The chief executive office
and principal place of business of ENSCO and ENSCO Offshore and the
principal place of business of ENSCO U.K. in the United States is located
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
10.10 PATENT AND OTHER RIGHTS. ENSCO and the Borrowers have the
right to use all patents, licenses, trademarks, trade names, trade secrets,
copyrights and all rights with respect thereto, which are required to
conduct their businesses as now conducted without known conflict with the
rights of others which would materially and adversely affect such
businesses.
10.11 TAXES. The Borrowers have filed or caused to be filed all
tax returns which are required to be filed by them, pursuant to the laws,
regulations or orders of each Person with taxing power over the Borrowers
or their assets. The Borrowers have paid, or made provision for the
payment of, all taxes, assessments, fees and other governmental charges
which have or may have become due pursuant to said returns, or otherwise,
or pursuant to any assessment received by the Borrowers, except such taxes,
if any, as are being contested in good faith and as to which adequate
reserves (determined in accordance with GAAP) have been provided. The
charges, accruals and reserves in respect of taxes on the books of the
Borrowers are adequate (determined in accordance with GAAP). Other than as
disclosed in ENSCO's 10Q filing with the U.S. Securities and Exchange
Commission for the period ended June 30, 1995, there are no proposed
material tax assessment against either Borrower, and no extension of time
for the assessment of federal, state or local taxes of the Borrowers is in
effect or has been requested.
10.12 EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974. No
Reportable Event has occurred and is continuing with respect to any Plan.
10.13 INVESTMENT COMPANY ACT OF 1940. Neither of the Borrowers
is an "investment company" within the meaning of the Investment Company Act
of 1940.
10.14 SUBSIDIARIES. As of the date of this Agreement the
Borrowers have no subsidiaries other than the Subsidiaries and except that
ENSCO U.K. is a wholly owned subsidiary of ENSCO Offshore.
10.15 ENVIRONMENTAL COMPLIANCE.
(a) The Borrowers have duly complied in all material respects
with, and the Rigs and their other properties and operations are in
compliance in all material respects with, the provisions of all applicable
environmental, health and safety laws, codes and ordinances and all rules
and regulations promulgated thereunder of all Governmental Agencies unless
such compliance would violate the laws or regulations of the jurisdiction
in which the Rigs are operating.
(b) As of the date of this Agreement, except as disclosed to the
Agents in writing, the Borrowers have received no notice from any
Governmental Agency, and have no knowledge, of any fact(s) which constitute
a violation of any applicable environmental, health or safety laws, codes
or ordinances, and any rules or regulations promulgated thereunder of all
Governmental Agencies, which relate to the use or ownership of the Rigs or
other properties owned or operated by the Borrowers.
(c) The Borrowers have been issued all required permits,
licenses, certificates and approvals of all Governmental Agencies relating
to (i) air emissions, (ii) discharges to surface water or ground water,
(iii) noise emissions, (iv) solid or liquid waste disposal, (v) the use,
generation, storage, transportation, treatment, recycling or disposal of
Hazardous Substances or (vi) other environmental, health or safety matters
necessary for the ownership or operation of the Rigs or other properties
owned or operated by the Borrowers and such permits, licenses, certificates
and approvals are in full force and effect on the date of this Agreement.
(d) Except as disclosed to the Agents in writing, to the best of
the Borrowers' knowledge, except in accordance with a valid governmental
permit, license, certificate or approval, there has been no spill or
unauthorized discharge or release of any Hazardous Substance to the
environment at, from, or as a result of any operations on the Rigs or other
properties and operations owned or operated by the Borrowers required to be
reported to any Governmental Agency.
(e) Except as disclosed to the Agents in writing, there has been
no material complaint, compliance order, compliance schedule, notice
letter, notice of citation or other similar notice from any applicable
environmental agency which concerns the operations of the Rigs or other
properties owned or operated by the Borrowers.
10.16 UNENCUMBERED RIGS. There are no liens, security interests
or encumbrances of any kind on the Unencumbered Rigs other than as
permitted by Section 12.1 below.
Section 11. AFFIRMATIVE COVENANTS OF BORROWERS.
Until the payment in full of all amounts due under this Agreement and
the Notes by the Borrowers, unless compliance shall have been waived by the
Agents, the Borrowers agree that:
11.1 FINANCIAL STATEMENTS AND REPORTS AND INSPECTION.
(a) The Borrowers will furnish to each Bank:
(i) as soon as possible and in any event within two (2)
Business Days after an officer of the Borrower has knowledge of the
occurrence of each Event of Default or of any default in the performance of
the Loan Documents, or each event which with the giving of notice or lapse
of time, or both, would constitute an Event of Default or such a default,
which is continuing on the date of such statement, the statement of the
chief financial officer of the Borrower affected by such occurrence setting
forth the details of such Event of Default or event or default and the
action which the Borrowers propose to take with respect thereto;
(ii) as soon as available and in any event within 45 days
after the close of each of the first three quarters of ENSCO's fiscal
years, a copy of quarterly consolidated financial statements for ENSCO and
ENSCO Offshore and consolidating statements of income and consolidating
balance sheet for ENSCO prepared in accordance with GAAP and certified by
the chief financial officer or chief accounting officer of ENSCO;
(iii) as soon as available and in any event within 90 days
after the close of ENSCO's fiscal years, a copy of the consolidated annual
audited financial statements for such year for ENSCO certified by Price
Waterhouse & Co. or other independent public accountants of recognized
standing reasonably acceptable to the Agents, including therewith,
unaudited consolidating statement of income and balance sheet of ENSCO and
unaudited consolidated financial statements of ENSCO Offshore as of the end
of such fiscal year;
(iv) as soon as available and in any event within 30 days
after the close of each quarter of ENSCO's fiscal years a quarterly report
of current contract parties, contract periods, utilization rates, day
rates, operating expenses and idle expenses for the Rigs and other rigs and
vessels owned or operated by the Borrowers, the Guarantors or any
affiliated companies, subject to any applicable confidentiality agreements
dealing with such information; provided, however, that the Borrowers will
use their best efforts to obtain any necessary consents in order to allow
such information to be provided to the Banks;
(v) by the end of each calendar year annual cash flow
budgets for the ENSCO Consolidated Group with assumptions for the following
twelve-month period;
(vi) such other financial information as the Agents may
reasonably request; and
(vii) (A) as soon as possible, and in any event, within 30
days after the Borrowers know that any Reportable Event with respect to any
Plan has occurred, a statement of an officer of the Borrowers as to which
such Reportable Event has occurred setting forth details as to such
Reportable Event and the action which the Borrowers propose to take with
respect thereto, together with a copy of the notice of such Reportable
Event given to the Pension Benefit Guaranty Corporation, if a copy of such
notice is available to the Borrowers and (B) promptly after receipt thereof
a copy of any notice relating to a Reportable Event having a material
adverse effect, the Borrowers, or any member of the Controlled Group may
receive from the Pension Benefit Guaranty Corporation or the Internal
Revenue Service with respect to any Plan; provided, however, this Section
11.1(a)(vii)(B) shall not apply to notice of general application
promulgated by the Department of Labor.
(b) The Borrowers will, upon request, furnish to the Agents such
information as the Agents may reasonably request with respect to the
business, affairs or condition (financial or otherwise) of the Borrowers
and will permit the Banks or their representatives at any reasonable time
or times during normal business hours upon five (5) Business Days' prior
notice, to inspect the properties of the Borrowers, to inspect, audit and
examine the books or records of the Borrowers and to take extracts
therefrom and will reimburse the Agents for all reasonable expenses
incurred in connection therewith.
(c) The Borrowers will furnish to the Agents (with sufficient
copies for each Bank) copies of all press releases and proxy statements
distributed to shareholders of ENSCO and all 10K, 10Q and 8K filings made
by ENSCO or the Borrowers with the U.S. Securities and Exchange Commission.
(d) On the dates that the quarterly financial reports required
pursuant to Section 11.1(a)(ii) above and the annual reports required
pursuant to Section 11.1(a)(iii) above are provided to the Banks, the
Borrowers shall furnish to the Banks certificates signed by the chief
financial officers or chief accounting officers of the Borrowers certifying
that (A) the representations and warranties contained in Section 10 of this
Agreement are correct on and as of the date of such certificate as though
made on and as of such date except those contained in Section 10.7 above
and those expressly made as of another date and (B) the Borrowers are in
compliance with all of the covenants contained in Sections 11 and 12 of
this Agreement, such certificates showing the relevant computations for
such compliance.
11.2 INSURANCE. The Borrowers shall insure, or cause to be
insured, the Rigs pursuant to the terms of Article I, Section 15 of the
U.S. Mortgage and Article II, Section 5 of the Bahamian Deed of Covenants.
The Borrowers will promptly notify the Agents of any material changes in
such insurances or any change in the underwriters or clubs providing such
insurances. The Borrowers shall annually but no later than the anniversary
of the date of this Agreement furnish the Agents with evidence of all such
insurance policies currently in force.
11.3 OTHER DEBT. The Borrowers will promptly pay and discharge
any and all Indebtedness, liens, charges, all taxes, assessments and
governmental charges or levies imposed upon them or upon their income or
profits, or upon any of their properties prior to the date on which
penalties accrue thereon, and lawful claims which, if unpaid, might become
a lien or charge upon the property of the Borrowers, except such as may in
good faith be contested or disputed, provided appropriate reserves are
maintained in accordance with GAAP and except as permitted by Section 12.1
below.
11.4 MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. The
Borrowers will preserve and maintain their corporate existence, their
business as presently conducted, and all of their rights, privileges and
franchises necessary or desirable in the normal conduct of said businesses,
and will conduct their businesses in an orderly, efficient and regular
manner.
11.5 FINANCIAL RECORDS. The Borrowers will keep books of record
and account in which proper entries will be made of their transactions in
accordance with generally accepted accounting principles.
11.6 MAINTENANCE OF RIGS. The Borrowers will maintain, or cause
to be maintained, the Rigs in the highest classification for such drilling
rigs with the American Bureau of Shipping or such other classification
society as the Trustee may approve.
11.7 ENVIRONMENTAL COMPLIANCE.
(a) The Borrowers will comply with and will use their best
efforts to cause their agents, contractors and sub-contractors (while such
Persons are acting within the scope of their contractual relationship with
the Borrowers) to so comply with (i) all applicable environmental, health
and safety laws, codes and ordinances, and all rules and regulations
promulgated thereunder of all Governmental Agencies and (ii) the terms and
conditions of all applicable permits, licenses, certificates and approvals
of all Governmental Agencies now or hereafter granted or obtained with
respect to the Rigs or other properties owned or operated by the Borrowers
unless such compliance would violate the laws or regulations of the
jurisdictions in which the Rigs are operating.
(b) The Borrowers will use their best efforts and safety
practices to prevent the unauthorized release, discharge, disposal, escape
or spill of Hazardous Substances on or about the Rigs or other properties
owned or operated by the Borrowers.
11.8 ENVIRONMENTAL NOTIFICATIONS. The Borrowers shall notify
the Agents, in writing, within five (5) Business Days of any of the
following events occurring after the date of this Agreement:
(a) Any written notification made by either Borrower to any
federal, state or local environmental agency required under any federal,
state or local environmental statute, regulation or ordinance relating to a
spill or unauthorized discharge or release of any Hazardous Substance to
the environment at, from, or as a result of any operations on, the Rigs or
other properties and operations owned or operated by the Borrowers;
(b) Knowledge by an officer of the Borrowers of receipt of
service by either Borrower of any complaint, compliance order, compliance
schedule, notice letter, notice of violation, citation or other similar
notice or any judicial demand by any court, federal, state or local
environmental agency, alleging (i) any spill, unauthorized discharge or
release of any Hazardous Substance to the environment from, or as a result
of the operations on, the Rigs or other properties owned or operated by the
Borrowers or (ii) violations of applicable laws, regulations or permits
regarding the generation, storage, handling, treatment, transportation,
recycling, release or disposal of Hazardous Substances on or as a result of
operations on the Rigs or other properties and operations owned or operated
by the Borrowers.
(c) It is understood by the parties hereto that the
aforementioned notices are solely for the Agents' information, may not
otherwise be required by any federal, state or local environmental laws,
regulations or ordinances, and are to be considered confidential
information by the Banks and the Agents.
(d) The term "environmental agency" as used herein shall
include, but not be limited to, the United States Environmental Protection
Agency, the United States Coast Guard, the United States Minerals
Management Service, the United States Department of Transportation (in its
administration of the Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801, et seq.) and other analogous or similar Governmental Agencies
regulating or administering statutes, regulations or ordinances relating to
or imposing liability or standards of conduct concerning the generation,
storage, use, production, transportation, handling, treatment, recycling,
release or disposal of any Hazardous Substance.
11.9 ENVIRONMENTAL INDEMNIFICATION. (a) The Borrowers hereby
jointly and severally agree to indemnify and hold the Administrative Agent,
the Agents, the Banks and the Trustee jointly and severally harmless from
and against any and all claims, losses, liability, damages and injuries of
any kind whatsoever asserted against the Agents, the Banks or the Trustee
with respect to or as a direct result of the presence, escape, seepage,
spillage, release, leaking, discharge or migration from any Rig or other
properties owned or operated by the Borrowers of any Hazardous Substance,
including without limitation, any claims asserted or arising under any
applicable environmental, health and safety laws, codes and ordinances, and
all rules and regulations promulgated thereunder of all Governmental
Agencies, regardless of whether or not caused by or within the control of
the Borrowers.
(b) It is the parties' understanding that the Administrative
Agent, the Agents, the Banks and the Trustee do not now, have never and do
not intend in the future to exercise any operational control or maintenance
over the Rigs or any other properties and operations owned or operated by
the Borrowers, nor have they in the past, presently, or intend in the
future to, maintain an ownership interest in the Rigs or any other
properties owned or operated by the Borrowers except as may arise upon
enforcement of the Trustee's rights under the Mortgages.
(c) Should, however, the Administrative Agent, the Agents, the
Banks or the Trustee hereafter exercise any ownership interest in or
operational control over the Rigs or any other properties owned or operated
by the Borrowers, e.g., including but not limited to, through foreclosure,
then the above stated indemnity and hold harmless shall be limited with
respect to any actions or failures to act by the Administrative Agent, the
Agents, the Banks or the Trustee subsequent to exercising such interest or
operational control, to the extent such action or inaction by the Agents,
the Banks or the Trustee is admitted by the Agents, the Banks or the
Trustee or is found by a court of competent jurisdiction to have caused or
made worse any condition for which liability is asserted, including but not
limited to, the presence, escape, seepage, spillage, leaking, discharge or
migration on or from the Rigs or other properties owned or operated by the
Borrowers of any Hazardous Substance.
(d) The indemnity and hold harmless contained in this Section
11.9 shall not extend to the Administrative Agent, the Agents, the Banks or
the Trustee in their capacity as an equity investor in the Borrowers or as
an owner of any property or interest as to which the Borrowers are also
owners but only to their capacity as a lender, a holder of security
interests, or a beneficiary of security interests.
11.10 DRILLING CONTRACTS. The Borrowers shall, upon request,
provide the Administrative Agent with the names of the operators under all
drilling contracts for the Rigs and copies of the indemnity provisions of
all drilling contracts entered into for the Rigs as of such date.
Provided, however, that if any drilling contract for any Rig entered into
after the date of the first Advance contains indemnity provisions
materially different than those usually obtained by the Borrowers, the
Borrowers shall notify the Administrative Agent in writing of such
contract, the parties to it and shall provide the Administrative Agent with
copies of such indemnity provisions. The obligations of the Borrowers to
provide the Administrative Agent with information under this Section 11.10
shall be subject to any applicable confidentiality agreements dealing with
such information; provided, however, that the Borrowers will use their best
efforts to obtain any necessary consents in order to allow such information
to be provided to the Administrative Agent.
(b) The Borrowers agree to enter into drilling contracts only
with financially responsible operators and to use their best efforts to
obtain indemnities in such drilling contracts covering liability arising
out of seepage, pollution, spillage or leakage occurring below the surface
of the water in connection with operations conducted by the Rigs.
11.11 INTEREST RATE HEDGING INDEMNITY. The Borrowers hereby
jointly and severally agree to indemnify and hold the Administrative Agent
and the Agents jointly and severally harmless from and against any and all
claims, losses, liability, damages, financial exposure and injuries of any
kind whatsoever asserted against the Administrative Agent or the Agents
with respect to or as a direct result of the Interest Rate Hedging
Instruments.
Section 12. NEGATIVE COVENANTS OF BORROWERS.
Until the payment in full of all amounts due under this Agreement
and the Notes by the Borrowers, the Borrowers agree that they will not
without the prior written consent of the Agents:
12.1 LIENS. Create, incur, assume or suffer to exist or allow
any Subsidiary to create, incur, assume or suffer to exist any lien
(including any encumbrance or security interest) of any kind upon the Rigs,
any of the Unencumbered Rigs or any of their other assets, revenues or
right to receive revenue whether now owned or hereafter acquired, except:
(a) liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without penalty
or being contested in good faith, provided provision is made to the extent
required by GAAP for the eventual payment thereof in the event it is found
that such are payable by the Borrowers;
(b) liens of carriers, warehousemen, mechanics, materialmen and
landlords and maritime liens incurred in the ordinary course of business
for sums not overdue or being contested in good faith, provided provision
is made to the extent required by GAAP for the eventual payment thereof in
the event it is found that such sums are payable by the Borrowers;
(c) liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance of
tenders and statutory obligations entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds in the ordinary
course of business or easements, rights of way and similar encumbrances
incurred in the ordinary course of business and not interfering with the
ordinary conduct of the business of the Borrowers or the Subsidiaries;
(d) judgment liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full by insurance; and
(e) liens required by the terms of this Agreement; and
(f) liens on assets other than the Rigs or contracts, charters,
earnings, revenues or insurances (except liens of insurance brokers to
secure payment of premiums) related to the Rigs to secure Indebtedness
permitted by Section 12.5 below.
12.2 LINE OF BUSINESS. Enter into or allow any Subsidiary to
enter into any new line of business unrelated to its present activities
after the date of this Agreement.
12.3 CONSOLIDATION, MERGER, ETC. Consolidate with or merge
with, or sell (whether in one transaction or in a series of transactions)
all or substantially all of their assets to any Person.
12.4 MODIFICATION OF AGREEMENTS. Amend, modify or otherwise
change any of the Loan Documents.
12.5 INDEBTEDNESS. Incur or allow any Subsidiary to incur any
Indebtedness, except:
(a) the Advances;
(b) accounts payable and accrued liabilities incurred in the
ordinary course of business;
(c) Indebtedness incurred in the ordinary course of business not
otherwise permitted by this Section 12.5 up to an aggregate amount of
USD 5,000,000;
(d) unsecured loans from ENSCO, or a member of the ENSCO
Consolidated Group which is not a Borrower or a Subsidiary, to a Borrower,
or from one Borrower to the other;
(e) unsecured loans from the Borrowers to the Subsidiaries in an
aggregate amount not greater than USD 5,000,000;
(f) letters of credit, performance and bid bonds obtained by the
Borrowers or the Subsidiaries in the ordinary course of their business up
to an aggregate amount of USD 5,000,000 at any time;
(g) supersedeas bonds obtained by the Borrowers or the
Subsidiaries in the ordinary course of their business;
(h) Interest Rate Hedging Instruments with one or more of the
Agents;
(i) contingent obligations under the Guaranty dated June 10,
1993 from ENSCO Offshore in favor of Compass East Co.
(j) liens in favor of the Trustee created by the Trust
Indenture.
(k) Indebtedness incurred by either Borrower or any Subsidiary
equal to no more than 50% of the purchase price of any offshore drilling
rig acquired by either Borrower or any Subsidiary after June 30, 1995.
12.6 REPORTABLE EVENT. Cause or allow to occur a Reportable
Event involving a Borrower or a Subsidiary.
12.7 CHANGE OF LEGAL STRUCTURE. Cause or allow to occur any
material change in the present Articles of Incorporation or By-laws of any
Borrower or change the jurisdiction of incorporation of any Borrower.
12.8 CHANGE OF PLACE OF BUSINESS. Make any change in the
address of the principal place of business or the chief executive office of
any Borrower or Subsidiary except upon thirty (30) days' prior written
notice to the Agents.
12.9 MANAGEMENT OF RIGS. Change the flag, class, ownership,
management or control of the Rigs without the prior written consent of the
Trustee.
12.10 SUBSIDIARIES. Create or acquire or allow any Subsidiary
to create or acquire any new subsidiaries except following ten (10) days'
prior written notice to the Agents which notice shall include (i) the
jurisdiction in which the new subsidiary is to be established, (ii) the
purpose for which the new subsidiary is being purchased or created, (iii)
the shareholder(s) of the new subsidiary, (iv) the capitalization of the
new subsidiary and (v) any other material facts related to the creation or
acquisition of the new subsidiary. Provided, however, that the aggregate
capitalization of all such new subsidiaries shall not exceed USD 5,000,000
excluding any loans allowed by Section 12.5(e) above.
12.11 CHARTER OF RIGS. (a) Cause or allow any of the Rigs to be
bareboat chartered to any party other than a member of the ENSCO
Consolidated Group without the prior written consent of the Trustee, which
consent shall not be unreasonably withheld or cause or allow any drilling
rigs or other vessels to be chartered in for a term in excess of twelve
(12) months.
(b) In the case of any bareboat or time charter of any Rig to
any member of ENSCO Consolidated Group, the Borrowers shall insure that any
charterer of such Rig shall execute and deliver to the Trustee an
assignment of drilling contract revenues and earnings similar in form and
substance to the Assignment of Drilling Contract Revenues and Earnings
entered into by the Borrowers and dated December 17, 1993.
12.12 MODIFICATIONS TO RIGS. Cause or allow any change in the
physical characteristics of the Rigs that would, in the reasonable judgment
of the Trustee, materially interfere with the suitability of the Rigs for
normal commercial offshore drilling operations; the consent of the Trustee
to any such modification not to be unreasonably withheld.
12.13 SALE OF RIGS, ETC. Subject to Section 7.6 above, sell,
transfer or assign any of the Rigs, any right to receive the revenue from
the Rigs or any property serving as collateral for the Obligations;
provided, however, that the Borrowers may sell, transfer or assign any
surplus or scrap equipment from the Rigs.
12.14 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio to be less than 2.5 to 1 at any time; provided, however,
that the ratio, without taking into account any cash or Cash Equivalents,
shall not be less than 1.5 to 1 at any time.
12.15 COMPLIANCE WITH FEDERAL RESERVE BOARD REGULATIONS. No
part of the proceeds of any Advance will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System, or for the purpose of purchasing or carrying or trading in any
securities under such circumstances as to involve the Borrowers or the
Guarantors in a violation of Regulation X of said Board or the Banks in a
violation of Regulation U of said Board. In particular, without limitation
of the foregoing, neither Borrower and neither Guarantor will use any part
of the proceeds of any Advance to be made hereunder to acquire for itself
or for any other person any publicly-held securities of any kind. The
assets of the Borrowers and the Guarantors do not and will not include any
margin securities, and the Borrowers and the Guarantors have no present
intention of acquiring any margin securities. As used in this Section
12.15, the terms "margin security" and "purpose of purchasing or carrying"
shall have the meanings assigned to them in the aforesaid Regulation U, and
the term "publicly-held", in respect of securities, shall have the meaning
assigned to it in Section 220.7(a) of Regulation T of said Board. If
requested by the Agents, the Borrowers will furnish to the Agents a
statement or statements in conformity with the requirements of Federal
Reserve Form U-1 referred to in said Regulation U.
12.16 LOANS AND INVESTMENTS. Advance funds or allow any
Subsidiary to advance funds (whether by way of loan, stock purchase or
capital contribution) to any Person, except (x) as permitted by Section
12.10 above, (y) in the ordinary course of business, in an aggregate amount
of USD 5,000,000 or (z) advances to members of the ENSCO Consolidated
Group.
Section 13. EVENTS OF DEFAULT.
13.1 EVENTS OF DEFAULT. If one or more of the following
described events shall occur and is continuing ("Event of Default"):
(a) Either Borrower shall fail to pay any amount due hereunder
on the due date and such failure shall continue for a period of two (2)
Business Days; or
(b) Either Borrower shall fail to perform or observe the
covenants contained in Section 11.1 of this Agreement or its agreements
contained in Section 14 of this Agreement and such failure shall continue
for 20 days after notice to the Borrowers of such failure; or
(c) Either Borrower or either Guarantor shall fail to perform or
observe any covenant or other provision of this Agreement, the Notes, the
ENSCO Guaranty, the Pledge, the Mortgages or the Assignments other than
those referred to in Section 13.1(b) above and such failure shall continue
for 10 days after notice to the Borrowers of such failure; or
(d) Any representation or warranty made in writing by or on
behalf of the Borrowers herein or pursuant hereto, or otherwise in
connection with the transactions contemplated hereby or any report,
certificate, financial or other instrument furnished in connection with
this Agreement, shall prove to have been false or incorrect in any material
respect, or omits to state a material fact required to be stated therein in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading, on the date as of
which made; or
(e) Either Borrower or either Guarantor shall cause or suffer to
exist a payment default involving USD 1,000,000 or more; as defined in any
evidence of Indebtedness of such Borrower or under any indenture, agreement
or other instrument under which the same may be issued or any other type of
default which results in the acceleration of any such Indebtedness and such
default shall continue for ten (10) Business Days; other than those
disclosed to the Agents on or before the date of this Agreement and those
which are being contested in good faith and as to which adequate reserves
(determined in accordance with GAAP) have been provided; or
(f) Any of the following events shall occur:
(i) Either Borrower or either Guarantor commences a
voluntary case under Title 11 of the United States Code as now or hereafter
in effect, or any successor thereto (the "Bankruptcy Code"); or
(ii) an involuntary case is commenced against either
Borrower or either Guarantor under the Bankruptcy Code and relief is
ordered against such Borrower or either Guarantor or the petition is
controverted but is not dismissed or stayed within 90 days after the
commencement of the case; or
(iii) a custodian (as defined in the Bankruptcy Code) or a
similar official is appointed for, or takes charge of, all or substantially
all of the property of either Borrower or either Guarantor and such
appointment is not terminated within 90 days; or
(iv) (A) ENSCO U.K. stops or suspends payment of its debts,
is unable or admits its inability to pay its debts as they fall due,
becomes, is adjudicated or is found bankrupt or insolvent (by whatever
test) or is deemed under Section 123 of the United Kingdom Insolvency ▇▇▇
▇▇▇▇ to be unable to pay its debts generally as and when they fall due
(except that in the interpretation of Section 123 for the purposes of this
paragraph the words "it is proved to the satisfaction of the court that" in
subsections (1)(e) and (2) of Section 123 shall be deemed deleted),
commences negotiations with a view to the readjustment or rescheduling of
all or part of its Indebtedness or proposes or enters into any composition
or other arrangement for the benefit of its creditors generally or any
class of creditors or (B) proceedings are commenced by ENSCO U.K. under any
law, regulation or procedure relating to the reconstruction or readjustment
of its Indebtedness or for the protection of it or its assets from
proceedings that are or might be taken by any of its creditors or (C) ENSCO
U.K. ceases or threatens to cease to carry on all or substantially all of
its business;
(v) any petition or order shall be made to or by any
competent court or any action or other steps are taken or legal proceedings
are started by ENSCO U.K., its directors or officers or a shareholder or
creditor of ENSCO U.K. for ENSCO U.K. to be adjudicated or found bankrupt
or insolvent (by whatever test) or for the winding up or dissolution of
ENSCO U.K. or for the appointment of a liquidator, trustee, receiver,
administrator or administrative receiver or like officer to or over ENSCO
U.K. or any of its assets or revenues and such shall remain uncontested,
unstayed or undismissed for a period of 30 days; or
(vi) either Borrower or either Guarantor commences any other
proceeding under any reorganization, arrangement, readjustment of debt,
relief of debtors, dissolution, insolvency, liquidation or similar law of
any jurisdiction relating to such Borrower or either Guarantor (whether now
or hereafter in effect), or there is commenced against either Borrower or
either Guarantor any such proceeding which remains undismissed or unstayed
for a period of 90 days or either Borrower or either Guarantor is
adjudicated insolvent or bankrupt; or either Borrower or either Guarantor
fails to controvert in a timely manner any such case under the Bankruptcy
Code or any such proceeding, or any order of relief or other order
approving any such case or proceeding is entered; or
(vii) either Borrower or either Guarantor by any act or
failure to act indicates its consent to, approval of or acquiescence in any
such case or proceeding or in the appointment of any custodian of or for it
or any substantial part of its property or suffers any such appointment to
continue undischarged or unstayed for a period of 90 days; or
(viii) either Borrower or either Guarantor makes a general
assignment for the benefit of creditors; or
(ix) any corporate action is taken by either Borrower or
either Guarantor for the purpose of effecting any of the foregoing.
THEN, or at any time thereafter, while any such event remains unremedied or
uncured:
The Agents may, upon written notice to the Borrowers, terminate
the Commitments to make Advances and/or declare the entire outstanding
unpaid principal amount of the Notes, all Breakage Costs and all interest
accrued and unpaid thereon and all other amounts payable hereunder and
thereunder to be forthwith due and payable, whereupon the same shall become
immediately due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrowers. The Agents may immediately and without expiration of any
additional period of grace, enforce payment of all obligations of the
Borrowers under this Agreement and under the Notes. In addition, the
Agents may exercise any or all of such remedies as may be available to them
under applicable law or granted pursuant to the Loan Documents.
Any declaration made pursuant to this Section 13.1 is subject to
the condition that, if at any time after the outstanding principal of any
of the Notes shall have become due and payable, and before any foreclosure
action has been taken by the Agents or the Trustee under any of the Loan
Documents to realize upon the security provided by such documents, all
Breakage Costs and all arrears of interest upon the Notes and all other
obligations owed to the Banks (except that principal of the Notes which by
such declaration shall have become payable) shall have been duly paid, and
every other default and Event of Default shall have been made good, waived
or cured, then the Agents may, by written notice to the Borrowers, rescind
and annul such declaration and its consequences; but no such rescission or
annulment shall extend to or affect any subsequent default or Event of
Default or impair any right consequent thereon.
Section 14. MINIMUM VALUE, EVALUATION AND ADDITIONAL SECURITY.
14.1 MINIMUM VALUE. The fair market value of the Rigs as
determined pursuant to Section 14.2 below shall not be less than 200% of
the Commitments at any time from the date of this Agreement until the
fourth anniversary of such date and not less than 250% of the Commitments
at any time thereafter.
14.2 EVALUATION. On or before each annual anniversary of this
Agreement, or at any other time when in the reasonable judgment of the
Agents there has been an adverse development in the market for drilling
rigs comparable to the Rigs that could adversely affect the value of the
Rigs, upon the written request of the Agents, the Borrowers will promptly
obtain at the Borrowers' expense an evaluation of the Rigs by a reputable
independent offshore drilling rig broker selected by the Borrowers but
acceptable to the Agents. In the event that any such evaluation
establishes that the fair market value of the Rigs is less than the amount
required by Section 14.1(a) above at the time of the evaluation, the
Borrowers shall within twenty (20) days of the request of the Agents (but
at the Borrowers' option) either:
(a) provide additional security acceptable to the Agents to
insure that the fair market value of the Rigs as determined pursuant to
this Section 14.2 and such additional security is equal to at least the
amount required by Section 14.1(a) above; or
(b) reduce the Commitments in the manner provided for in Section
6.4 hereof in an amount as is necessary to insure that the fair market
value of the Rigs as determined pursuant to this Section 14.2 is at least
the amount required by Section 14.1(a) above after such reductions have
been made; or
(c) a combination of (a) and (b) above which shall result in the
fair market value of the Rigs as determined pursuant to this Section 14.2
being at least the amount required by Section 14.1(a) above.
14.3 FAILURE TO MAINTAIN MINIMUM VALUE. The failure of the
Borrowers to take action under Section 14.2(a), (b) or (c) above after
having been requested to do so by the Agents, which failure shall result in
the fair market value of Rigs as determined pursuant to Section 14.2 above
remaining below the amount required by Section 14.1(a) above for twenty
(20) or more days after the date of the Agents' request shall constitute an
immediate Event of Default under Section 13.1 of this Agreement and shall
give the Agents the right to immediately exercise any or all of their
rights under such Section.
Section 15. RIGHTS AND DUTIES OF THE AGENTS AND THE BANKS.
15.1 OBLIGATIONS SEVERAL. The obligations of the Banks
hereunder shall be several and the failure of one Bank to perform hereunder
shall not relieve any other Bank from such other Bank's obligation to
perform, nor shall such other Bank be required to increase its obligation
hereunder.
15.2 APPOINTMENT AND DUTIES OF AGENTS. (a) The parties hereto
agree that Christiania Bank og Kreditkasse, New York Branch and Den norske
Bank AS, New York Branch shall act, subject to the terms and conditions of
this Section 15, as the Agents for the Banks, and to the extent set forth
herein each of the Banks hereby irrevocably appoints, authorizes, empowers
and directs the Agents to jointly take such action on its behalf and to
jointly exercise such powers as are specifically delegated to the Agents
herein or are reasonably incidental thereto in connection with the
administration of and the enforcement of any rights or remedies with
respect to this Agreement, the Notes and the other Loan Documents. It is
expressly understood and agreed that the obligations of the Agents under
the Loan Documents are only those expressly set forth in this Agreement.
The Agents shall use reasonable diligence to examine the face of each
document received by them hereunder to determine whether such documents, on
its face, appears to be what it purports to be. However, the Agents shall
not be under any duty to examine into and pass upon the validity or
genuineness of any documents received by them hereunder and the Agents
shall be entitled to assume that any of the same which appears regular on
its face is genuine and valid and what it purports to be.
(b) The parties hereto agree further that Christiania Bank og
Kreditkasse, New York Branch shall act as the Administrative Agent. In
such role it shall be responsible for receiving and making all payments
under the Loan Documents, giving and receiving all notices and demands
under the Loan Documents and receiving and distributing all documents and
information.
(c) Except as specifically provided in Section 15.4 below; the
Agents shall:
(i) act pursuant to the instructions of the Banks in all
matters relating to the terms and interest rate on the Notes, all
collateral for the Obligations, waivers or amendments of Sections 12.5,
12.14, 13.1(a) and 14 hereof and Sections 8(i), 8(j), 8(k) and 8(l) of the
ENSCO Guaranty; and
(ii) act pursuant to the instructions of the Majority Banks
as to all other matters.
15.3 DISCRETION AND LIABILITY OF AGENTS. Subject to Sections
15.4 and 15.6 hereof, the Agents shall be entitled to use their discretion
with respect to exercising or refraining from exercising any rights which
may be vested in them under any of the Loan Documents or otherwise, or with
respect to taking or refraining from taking any action or actions which
they may be able to take under any of the Loan Documents. Neither the
Agents nor any of their directors, officers, employees, agents or
representatives shall be liable for any action taken or omitted by them
hereunder or in connection herewith, except for their own gross negligence
or willful misconduct. The Agents shall incur no liability under, or in
respect of this Agreement, by acting upon a notice, certificate, warranty
or other paper or instrument reasonably believed by them to be genuine or
authentic or to be signed by the proper party or parties, or with respect
to anything which they may do or refrain from doing in the reasonable
exercise of their judgment, or which may seem to them to be necessary or
desirable in the premises.
15.4 EVENT OF DEFAULT.
(a) The Agents shall be entitled to assume that no Event of
Default or event which would constitute an Event of Default after notice or
lapse of time, or both, has occurred and is continuing, unless the Agents
have actual knowledge of such facts or have received notice from a Bank in
writing that such Bank considers that an Event of Default or event which
would constitute an Event of Default after notice or lapse of time, or
both, has occurred and is continuing and which specifies the nature
thereof.
(b) In the event that the Agents shall acquire actual knowledge
of any Event of Default or event which would constitute an Event of Default
after notice or lapse of time, or both, the Agents shall promptly notify
(either orally or in writing) the Banks of such Event of Default or event
and (i) in the case of default under Section 13.1(a) above may, or if
instructed in writing by any Bank shall, take such action and assert such
rights as are contemplated under this Agreement and (ii) in the case of any
other default under Section 13.1 above may in an emergency, or if requested
in writing by the Banks shall, take such action and assert such rights as
are contemplated under this Agreement. The Agents shall be indemnified pro
rata by the Banks against any liability or expenses, including, but not
limited to, travel expenses and internal and external counsel fees and
expenses, incurred in connection with taking such action. The Agents may
refrain from acting in accordance with any instructions from the Banks
until they shall have been indemnified to their satisfaction against any
and all costs and expenses which they will or may expend or incur in
complying with such instructions.
15.5 CONSULTATION. When acting in connection with this
Agreement, the Agents may engage and pay for the advice and services of any
lawyers, accountants, surveyors or other experts whose advice or services
may to them appear necessary, expedient or desirable and the Agents shall
be entitled to fully rely upon any opinion or such advice so obtained.
15.6 COMMUNICATIONS TO AND FROM AGENTS. When any notice,
approval, consent, waiver or other communication or action is required or
may be delivered by the Banks hereunder, action by the Agents shall be
effective for all purposes hereunder; provided, that upon any occasion
requiring or permitting an approval, consent, waiver, election or other
action on the part of the Banks, unless action by the Agents alone, or only
upon instruction of all of the Banks, is expressly permitted or required
hereunder, action shall be taken by the Agents for and on behalf of or for
the benefit of all the Banks upon the direction of the Banks. The
Borrowers may rely on any communication from either Agent hereunder and
need not inquire into the propriety of or authorization for such
communication. Upon receipt by the Agents from the Borrowers or any Bank
of any communication calling for an action on the part of the Banks, they
will, in turn, promptly inform the other Banks in writing of the nature of
such communication.
15.7 LIMITATIONS OF AGENCY. Notwithstanding anything in the
Loan Documents, expressed or implied, it is agreed by the parties hereto,
that the Agents will act under the Loan Documents as Agents solely for the
Banks and only to the extent specifically set forth herein, and will, under
no circumstances, be considered to be an agent or fiduciary of any nature
whatsoever in respect to any other Person. The Agents may generally engage
in any kind of banking or trust business with the Borrowers or ENSCO or any
of their affiliates as if they were not the Agents and shall include their
own Commitments in all calculations hereunder with respect to which
Commitments they may act or omit to act as if they were not the Agents.
15.8 NO REPRESENTATIONS OR WARRANTY.
(a) No Bank (including the Agents) makes to any other Bank any
representation or any warranty, expressed or implied, or assumes any
responsibility with respect to the Credit Facility or the execution,
construction or enforceability of the Loan Documents or any instrument or
agreement executed by the Borrowers or any other Person in connection
therewith.
(b) The Agents take no responsibility for the accuracy or
completeness of any information concerning the Borrowers or the Guarantors
distributed by the Agents in connection with the Credit Facility nor for
the truth of any representation or warranty given or made herein, nor for
the validity, effectiveness, adequacy or enforceability of this Agreement
or any of the other Loan Documents.
15.9 BANK CREDIT DECISION. Each Bank acknowledges that it has
independent of and without reliance upon any other Bank (including the
Agents) or any information provided by any other Bank (including the
Agents) and based on the financial statements of the Borrowers and the
Guarantors and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independent of and
without reliance upon any other Bank (including the Agents) and based on
such documents and information as it shall deem appropriate at that time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and any other documents relating thereto.
15.10 INDEMNITY. Notwithstanding any of the provisions hereof,
to the extent the Agents have not been so indemnified by the Borrowers, the
Banks shall severally indemnify the Agents against any and all losses,
costs, liabilities, damages or expenses, including but not limited to,
reasonable travel expenses and internal and external counsel's reasonable
fees and expenses, arising from, or in connection with, their performance
as Agents hereunder and not caused by their gross negligence or willful
misconduct.
15.11 RESIGNATION. The Administrative Agent or either Agent may
resign as such at any time upon at least 30 days' prior notice to the
Borrowers and the Banks, provided that such resignation shall not take
effect until a successor agent has been appointed. In the event of a
resignation by an Agent as the Administrative Agent, the other Agent shall
immediately become Administrative Agent and the Agent resigning as
Administrative Agent shall continue as an Agent. In the event of a
resignation by an Agent of its role as Agent, the remaining Agent may, by
written notice to the Banks within 30 days of such resignation, elect to
continue as sole Agent. In such a situation, all references in this
Agreement to "Agents" shall automatically and without the need for any
amendment be read as "Agent". If the remaining Agent chooses not to
continue as sole Agent or in the absence of an election within 30 days of
resignation, the Banks shall promptly appoint a successor agent or agents
from among the Banks, and if they fail to do so within 30 days after such
notice the remaining Agent may appoint a successor agent. If both Agents
shall resign, the Banks shall appoint a successor agent or agents from
among the Banks and such successor agent or agents shall be acceptable to
the Borrowers, such consent not to be unreasonably withheld.
15.12 DISTRIBUTION. The Agents shall be responsible for
promptly distributing each Bank's pro rata share of all net amounts applied
by the Agents to principal of and interest on the Notes. Each Bank shall
be responsible for designating by written notice to the Agents the account
to which such distribution shall be deposited.
15.13 LIMITATION OF SUITS. All rights of action and claims
under this Agreement or the Notes of the Banks shall be prosecuted and
enforced only by the Agents. The Banks agree that they shall not
independently institute any proceedings, judicial or otherwise, to enforce
their rights against the Borrowers under this Agreement or the Notes,
unless:
(a) one of the Banks has previously given written notice to the
Agents of a continuing Event of Default;
(b) one of the Banks shall have made written request to the
Agents to institute proceedings in respect of such Event of Default as
Agents hereunder;
(c) one of the Banks shall have offered to the Agents reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Agents for 30 days after their receipt of such notice,
request and offer of indemnity have failed to institute any such
proceedings; and
(e) no direction inconsistent with such written request has been
given to the Agents by the Bank giving notice of any Event of Default
during such thirty-day period.
15.14 WITHHOLDING TAXES. (a) The Agents and the Banks shall not
later than the first Drawdown Date make all filings necessary to apply to
the U.K. Inland Revenue under the relevant Double Taxation Agreements for
relief from U.K. withholding taxes with respect to Facility A and Facility
B. The Banks will regularly report to the Borrowers as to the status of
such applications and filings. In the event that such relief is not
obtained before the first Interest Payment Date and payment of such U.K.
withholding taxes is required, the Banks shall assign the Commitments to
their lending offices where no such withholding tax will be due or take
other action acceptable to the Borrowers to insure that no such withholding
tax will be due.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof (including each Bank that
becomes a party to this Agreement pursuant to Section 16.8 below) agrees
that, prior to the first date on which any payment is due to it hereunder,
it will, to the extent it may lawfully do so, deliver to the Borrowers and
the Agents two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable from, as the case may be,
certifying in each case that such Bank is entitled to receive payments
under this Agreement and the Notes, without deduction or withholding of any
United States federal income taxes. At the request of the Borrowers, each
Bank which delivers to the Borrowers and the Agents a Form 1001 or 4224
pursuant to the preceding sentence further undertakes to deliver to the
Borrowers and the Agents two further copies of said Form 1001 or 4224, or
successor applicable forms, or other manner of certification, as the case
may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrowers, and such
extensions or renewals thereof as may reasonably be requested by the
Borrowers, certifying in the case of Form 1001 or 4224 that such Bank is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless in any such
case an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form
with respect to it and such Bank advises the Borrowers that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
Section 16. MISCELLANEOUS.
16.1 ENTIRE AGREEMENT. This Agreement with its Schedules and
Exhibits embodies the entire agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings
relating to the subject matter hereof, including the offer letter dated
August 31, 1995, from the Agents to ENSCO, as accepted September 1, 1995.
16.2 NO WAIVER. No failure to exercise, and no delay in
exercising any right, power or remedy hereunder or under any document
delivered pursuant hereto shall impair any right, power or remedy which the
Agents or the Banks may have, nor shall any such delay be construed to be a
waiver of any of such rights, powers or remedies, or an acquiescence in any
breach or default under this Agreement or any document delivered pursuant
hereto, nor shall any waiver of any breach or default of the Borrowers
hereunder be deemed a waiver of any default or breach subsequently
occurring. The rights and remedies herein specified are cumulative and not
exclusive of any rights or remedies which the Agents or the Banks would
otherwise have.
16.3 SURVIVAL. All representations, warranties and agreements
herein contained on the part of the Borrowers shall survive the making of
the Advances hereunder and all such representations, warranties, and
agreements shall be effective as long as any amount arising pursuant to the
terms of this Agreement or the Notes remains unpaid.
16.4 NOTICES. (a) All notices, requests, consents, demands, and
other communications provided for or permitted hereunder shall be effective
three (3) days after being duly deposited in the mails, certified, return
receipt requested, or upon receipt if delivered to Federal Express or
similar courier company or transmitted by telefax, addressed to the
respective party at the address set forth below.
BORROWERS: ENSCO Offshore Company
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
ENSCO Offshore U.K. Ltd.
ENSCO House
Badentoy Avenue
Badentoy Park
Portlethen, Aberdeen
AB1 4YB
Scotland
Telefax No. ▇▇▇ ▇▇ ▇▇▇▇ 780 444
Attention: Vice President
with copies to:
ENSCO Offshore U.K. Ltd.
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
AGENTS: Christiania Bank og Kreditkasse,
New York Branch
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Head of Shipping
Den norske Bank AS, New York Branch
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Shipping Group Head
BANKS: Christiania Bank og Kreditkasse,
New York Branch
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Head of Shipping
Den norske Bank AS, New York Branch
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Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Shipping Group Head
(b) Any of the parties hereto may change their respective addresses
by notice in writing given to the other parties to this Agreement.
16.5 TERMINATION. This Agreement shall terminate when all
obligations of the Borrowers incurred under the Loan Documents shall have
been discharged in full and all of the Commitments shall have terminated.
16.6 SEVERABILITY OF PROVISIONS. In case any one or more of the
provisions contained in this Agreement should be 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.
16.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Agents, the Banks and
their respective successors and permitted assigns; provided, however, that
the Borrowers may not transfer their rights to borrow under this Agreement
without the prior written consent of the Agents.
16.8 ASSIGNMENT AND PARTICIPATION. (a) Subject to compliance
with the provisions of this Section 16.8, the Banks shall have the right to
assign or grant participations in all or part of the obligations of the
Borrowers outstanding under this Agreement or the Notes evidencing such
obligations to affiliates of the Banks or to any foreign, federal or state
banking institution, savings and loan association or finance company.
(b) The Agents shall inform the Borrowers in advance as to any
proposed assignment by a Bank and the identity of the prospective assignee.
The consent of the Borrowers shall not be necessary for any assignment of
all of a Bank's interest under this Agreement to a member of the corporate
group of which such Bank is a member or for any participation. As to any
other assignment the consent of the Borrowers shall be required.
(c) Each Bank may, subject to Section 16.8(b) above, assign to
one or more banks or other foreign, federal or state banking institution,
savings and loan association or finance company all or a portion of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents; provided that (i) for each such assignment, the parties thereto
shall execute and deliver to the Administrative Agent, for its acceptance
and recording in the Register (as defined below), an Assignment and
Acceptance Agreement substantially in the form attached hereto as Exhibit D
and (ii) no such assignment shall be for less than Ten Million Dollars
(USD 10,000,000). Upon such execution and delivery of the Assignment and
Acceptance Agreement to the Administrative Agent, from and after the date
specified as the effective date in the Assignment and Acceptance Agreement
(the "Acceptance Date"), (x) the assignee thereunder shall be a party
hereto and such assignee shall have the rights and obligations of a Bank
hereunder, and (y) the assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance Agreement, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance Agreement covering all or the remaining portion
of an assigning Bank's rights and obligations under this Agreement, such
Bank shall cease to be a party hereto).
(d) By executing and delivering an Assignment and Acceptance
Agreement, the assignee thereunder confirms and agrees that: (i) other
than as provided in such Assignment and Acceptance Agreement, the assigning
Bank makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
of the other Loan Documents, (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrowers or the Guarantors or the
performance or observance by the Borrowers or the Guarantors of any of
their obligations under this Agreement or any of the other Loan Documents,
(iii) such assignee confirms that it has received copies of this Agreement,
the Notes and the other Loan Documents together with all such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance
Agreement, (iv) such assignee will, independently and without reliance upon
the Agents, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents, (v) such assignee
appoints and authorizes the Agents to take such action on its behalf and to
exercise such powers under this Agreement as are delegated to the Agents by
the terms hereof, together with such powers as are reasonably incidental
thereto and (vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its address
referred to in Section 16.4 of this Agreement a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and such Banks'
Commitments (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agents and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register and copies of each Assignment and Acceptance
Agreement shall be available for inspection by the Borrowers, the
Guarantors or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance Agreement
executed by an assigning Bank, the Administrative Agent shall, if such
Assignment and Acceptance Agreement has been completed and is in
substantially the form of Exhibit D hereto, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers and the
Guarantors.
(g) Each Bank may sell participations (without the consent of
the Agents, the Borrowers or any other Bank) to one or more parties, in or
to all or a portion of its rights and obligations under this Agreement, the
Notes and the other Loan Documents; provided, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Borrowers, the Guarantors, the
Agents and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement, the Notes and the other Loan Documents, and (iv) such Bank shall
not transfer, grant, assign or sell any participation under which the
participant shall have rights to approve any amendment or waiver of this
Agreement except to the extent such amendment or waiver would (A) extend
the final maturity date or the date for any payments under this Agreement
in which such participant is participating, (B) change the amount of the
Commitment in which such participant is participating (C) reduce the
interest or fees payable under this Agreement, or (D) modify the collateral
for the Loan.
(h) Each Bank agrees that, without the prior written consent of
the Borrowers and the Agents, it will not make any assignment hereunder in
any manner or under any circumstances that would require registration or
qualification of, or filings in respect of this Agreement under the
securities laws of the United States of America or of any jurisdiction.
(i) The Borrowers hereby agree to assist with any assignment
made pursuant to this Section 16.8 by executing and delivering any
documents or instruments reasonably requested by the Banks in connection
with any such assignment, including but not limited to, amendments to this
Agreement, consents to assignments or new promissory notes.
16.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one
agreement, and any party hereto may execute this Agreement by signing any
such counterpart.
16.10 JURISDICTION. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO
THIS AGREEMENT AND THE NOTES MAY BE INSTITUTED IN THE COURTS OF THE STATE
OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK. BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE AGENTS, THE
BANKS AND THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE
JURISDICTION OF EACH SUCH COURT, AND IRREVOCABLY AND UNCONDITIONALLY WAIVE
(i) ANY OBJECTION THE BORROWERS, THE AGENTS OR THE BANKS MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY OF SUCH COURTS, AND (ii) ANY
CLAIMS THAT ANY ACTION OR PROCEEDING BROUGHT IN ANY OF SUCH COURTS HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 16.10 SHALL LIMIT OR RESTRICT THE RIGHT OF THE TRUSTEE TO BRING
SUIT AGAINST THE BORROWERS, THE RIGS OR ANY EARNINGS OR REVENUES OF THE
RIGS ANYWHERE IN THE WORLD TO ENFORCE THE SECURITY PROVIDED IN THE
MORTGAGES AND THE ASSIGNMENTS.
16.11 CHOICE OF LAW. THIS AGREEMENT AND THE NOTES ISSUED
HEREUNDER AND ALL ISSUES ARISING IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT THAT
WITH RESPECT TO THE PROVISIONS OF THIS AGREEMENT AND THE NOTES WHICH
PROVIDE FOR OR RELATE TO THE PAYMENT OF INTEREST, PROVISIONS OF APPLICABLE
FEDERAL LAW WHICH PERMIT THE BANKS TO CHARGE THE HIGHER OF THE RATE
PERMITTED BY SUCH APPLICABLE LAW OR BY THE LAWS OF THE STATE IN WHICH THE
BANKS ARE LOCATED SHALL BE DEEMED GOVERNING AND CONTROLLING.
16.12 WAIVER OF JURY TRIAL. THE BORROWERS, THE AGENTS AND THE
BANKS HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS OR
THE RELATIONSHIP ESTABLISHED HEREUNDER.
16.13 AMENDMENT AND WAIVER. Except as otherwise provided
herein, no provision of this Agreement may be amended, modified,
supplemented, changed, waived, discharged or terminated, unless all parties
hereto consent in writing.
16.14 NO ORAL AGREEMENTS. THIS WRITTEN CREDIT FACILITY
AGREEMENT WITH ITS SCHEDULES AND EXHIBITS REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
16.15 HEADINGS, ETC. The table of contents of this Agreement
and the headings of various sections and subsections herein are for
convenience of reference only and shall not modify, define, expand or limit
any of the terms or provisions hereof. References to sections or
subsections without reference to the document in which they are contained
are references to this Agreement.
16.16 CONFIDENTIALITY. The Banks and the Agents agree that all
information received by them from the Borrowers, the Guarantors or the
Subsidiaries pursuant to the Loan Documents which is not available to the
general public or ENSCO's shareholders shall not be disclosed by the Banks
or the Agents to any third parties except (i) to the professional advisors
of the Banks and the Agents in connection with the administration of the
Loan Documents and the enforcement of the rights of the Banks and the
Agents under such documents (ii) in connection with an assignment or
participation pursuant to Section 16.8 above or (iii) except as required by
applicable laws and regulations and by order of courts of competent
jurisdiction. If the Banks or the Agents receive any such order to produce
such information they shall give the Borrowers prompt notice of it in order
to give them the opportunity to contest such order.
16.17 CONTROLLING AGREEMENT. In the event of a conflict between
the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year first above written.
ENSCO OFFSHORE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
ENSCO OFFSHORE U.K. LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH, as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
By: /s/ HANS CHR. KJELSRUD
-----------------------------------
Name: Hans Chr. Kjelsrud
Title: Vice President
DEN NORSKE BANK AS, NEW YORK BRANCH
as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
By: /s/ HANS CHR. KJELSRUD
-----------------------------------
Name: Hans Chr. Kjelsrud
Title: Vice President
DEN NORSKE BANK AS, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Agreed to and Accepted
this 27TH day of September, 1995.
ENSCO INTERNATIONAL INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
SCHEDULE 1 TO AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
BANK COMMITMENTS
----------------
BANK PERCENTAGE AMOUNT
---- ---------- ------
1. Christiania Bank og 50% USD 65,000,000
Kreditkasse, New York
Branch
2. Den norske Bank AS, 50% USD 65,000,000
New York Branch
SCHEDULE 2 TO AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
RIGS
----
NAME OWNER FLAG HOME PORT OFFICIAL NO.
---- ----- ---- --------- ------------
ENSCO 63 ENSCO Offshore Company U.S. New Orleans 589096
ENSCO 68 ENSCO Offshore Company U.S. New Orleans 574668
ENSCO 81 ENSCO Offshore Company U.S. New Orleans 606512
ENSCO 82 ENSCO Offshore Company U.S. New Orleans 602912
ENSCO 83 ENSCO Offshore Company U.S. New Orleans 605536
ENSCO 84 ENSCO Offshore Company U.S. New Orleans 637544
ENSCO 86 ENSCO Offshore Company U.S. New Orleans 643110
ENSCO 87 ENSCO Offshore Company U.S. New Orleans 648969
ENSCO 88 ENSCO Offshore Company U.S. New Orleans 645637
ENSCO 89 ENSCO Offshore Company U.S. New Orleans 652440
ENSCO 90 ENSCO Offshore Company U.S. New Orleans 647859
ENSCO 93 ENSCO Offshore Company U.S. New Orleans 651385
ENSCO 94 ENSCO Offshore Company U.S. New Orleans 638685
ENSCO 95 ENSCO Offshore Company U.S. New Orleans 642112
ENSCO 99 ENSCO Offshore Company U.S. New Orleans 682070
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇. Ltd. Bahamas Nassau 724944
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇. Ltd. Bahamas Nassau 724945
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇. Ltd. Bahamas Nassau 724946
SCHEDULE 3 TO AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
UNENCUMBERED RIGS
-----------------
NAME OWNER FLAG HOME PORT OFFICIAL NO.
---- ----- ---- --------- ------------
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company U.S. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
ENSCO 69 ENSCO Offshore Company U.S. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
ENSCO 70 ENSCO Offshore Company Bahamas Nassau, Bahamas 725305
ENSCO 71 ENSCO Offshore Company Bahamas Nassau, Bahamas 725304
ENSCO 72 ENSCO Offshore Company Bahamas Nassau, Bahamas 704622
EXHIBIT A-1 TO
AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
ENSCO OFFSHORE COMPANY
ENSCO OFFSHORE U.K. LIMITED
FACILITY A AMENDED AND RESTATED PROMISSORY NOTE
-----------------------------------------------
USD 80,000,000 September __, 1995
FOR VALUE RECEIVED, ENSCO OFFSHORE COMPANY and ENSCO OFFSHORE U.K. LIMITED
(the "Borrowers") hereby jointly and severally promise to pay to
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK as Administrative Agent for the
Banks (the "Banks") referred to in the Amended and Restated Credit Facility
Agreement dated as of September 27, 1995, as amended, restated or
supplemented from time to time (the "Credit Agreement") among the
Borrowers, the Banks and the Agents or order, on or before October 18,
2001, or otherwise, as hereinafter provided, EIGHTY MILLION DOLLARS OF THE
UNITED STATES OF AMERICA (USD 80,000,000), or so much thereof as may be
advanced and outstanding under Facility A of the Credit Agreement, and to
pay interest on the unpaid portion of said principal sum outstanding from
time to time, as hereinafter provided.
PRINCIPAL AND INTEREST
----------------------
1.1 (a) Interest on this Note shall be payable at the times and the rates
as provided in Section 5.1 of the Credit Agreement.
(b) In case any payment of principal or interest is not paid when
due, additional interest at the rate determined as provided in Section 5.3
of the Credit Agreement shall be payable on all overdue principal and, to
the extent that the same may be lawful, on all overdue interest.
1.2 Interest shall be calculated as provided in Section 5.1 of the Credit
Agreement.
1.3 The Facility A Commitments shall be reduced in installments as
provided in Section 6.2(a) of the Credit Agreement or otherwise as provided
in Sections 6.4 and 6.5 of the Credit Agreement. All payments under this
Note shall be made to the Administrative Agent as provided in Section 6.6
of the Credit Agreement.
SECURITY
--------
2.1 This Note is one of the promissory notes issued under and pursuant to
the Credit Agreement and is secured by, among other things, a U.S. First
Preferred Fleet Mortgage on fifteen U.S. flag drilling rigs dated December
17, 1993, as amended, and Bahamian Statutory Mortgages and a Deed of
Covenants on three Bahamian flag drilling rigs dated December 17, 1993 in
favor of Bankers Trust Company, as Trustee for the Banks (the "Mortgages").
Reference is hereby made to the Mortgages for a description of the property
thereby mortgaged, the nature and extent of the security afforded thereby
and the rights of the Borrowers, the Banks, the Agents and the Trustee with
respect to such security as provided in the Mortgages. Payment of this
Note may be demanded prior to the maturity of this Note under certain
circumstances and conditions, in the manner, and with the effect, provided
in the Mortgages or the Credit Agreement. A true and complete copy of the
form of the Credit Agreement is attached to the Mortgages and made a part
thereof.
2.2 This Note evidences the Facility A Advances made by the Banks under
Section 2 of the Credit Agreement.
2.3 This Note is the amendment, restatement, renewal and extension of the
promissory note of the Borrowers dated December 17, 1993.
MISCELLANEOUS
-------------
3.1 All parties hereto, including endorsers hereof, hereby waive
presentment for payment, demand, protest and notice of protest and non-
payment hereof and hereby consent that any and all securities or other
property, if any, held by or for the holders hereof at any time as security
for this Note may be exchanged, released or surrendered and that the time
of payment of this Note may be extended, all in the sole discretion of the
holders hereof and without notice and without affecting in any manner the
liability of the parties hereto.
3.2 No course of dealing between the Borrowers and the Agents, the Banks
or the Trustee in exercising any rights hereunder shall operate as a waiver
of any right of any holders except to the extent expressly waived in
writing by such holder.
3.3 Whenever any payment to be made hereunder shall be due on a day which
is not a Business Day, such payments shall be made on the next Business
Day; provided, however, that if such next succeeding Business Day is in a
new month, then the payment required under the Credit Agreement or this
Note shall be made on the first Business Day preceding the original date on
which payment was due.
3.4 Any notice to be given pursuant to this Note shall be given in
accordance with Section 16.4 of the Credit Agreement.
3.5 THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK EXCEPT THAT WITH RESPECT TO THE
PROVISIONS OF THIS NOTE WHICH PROVIDE FOR OR RELATE TO THE PAYMENT OF
INTEREST, ANY PROVISIONS OF APPLICABLE FEDERAL LAW WHICH PERMIT THE BANKS
TO CHARGE THE HIGHER OF THE RATE PERMITTED BY SUCH APPLICABLE LAW OR BY THE
LAWS OF THE STATE IN WHICH THE BANKS ARE LOCATED SHALL BE DEEMED GOVERNING
AND CONTROLLING.
3.6 THE BORROWERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH THEY ARE A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS NOTE OR ANY OF THE LOAN DOCUMENTS.
3.7 Capitalized terms used in this Note but not defined herein shall have
the meanings given to them in the Credit Agreement.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be
duly executed the day and year first above written.
ENSCO OFFSHORE COMPANY
By: ------------------------------
Name: ______________________
Title: ______________________
ENSCO OFFSHORE U.K. LIMITED
By: ------------------------------
Name: ______________________
Title: ______________________
EXHIBIT A-2 TO
AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
ENSCO OFFSHORE U.K. LIMITED
FACILITY B AMENDED AND RESTATED PROMISSORY NOTE
-----------------------------------------------
USD 50,000,000 September __, 1995
FOR VALUE RECEIVED, ENSCO OFFSHORE U.K. LTD. (the "Borrower") hereby
promises to pay to CHRISTIANIA BANK OG KREDITKASSE, NEW YORK BRANCH, as
Administrative Agent for the Banks (the "Banks") referred to in the Amended
and Restated Credit Facility Agreement dated as of September 27, 1995, as
amended, restated or supplemented from time to time (the "Credit
Agreement") among the Borrower, ENSCO Offshore Company, the Banks and the
Agents or order, on or before October 18, 2001, or otherwise, as
hereinafter provided, FIFTY MILLION DOLLARS OF THE UNITED STATES OF AMERICA
(USD 50,000,000), or so much thereof as may be advanced and outstanding
under Facility B of the Credit Agreement, and to pay interest on the unpaid
portion of said principal sum outstanding from time to time, as hereinafter
provided.
PRINCIPAL AND INTEREST
----------------------
1.1 (a) Interest on this Note shall be payable at the times and the rates
as provided in Section 5.1 of the Credit Agreement.
(b) In case any payment of principal or interest is not paid when
due, additional interest at the rate determined as provided in Section 5.3
of the Credit Agreement shall be payable on all overdue principal and, to
the extent that the same may be lawful, on all overdue interest.
1.2 Interest shall be calculated as provided in Section 5.1 of the Credit
Agreement.
1.3 The Facility B Commitments shall be reduced in installments as
provided in Section 6.2(a) of the Credit Agreement or otherwise as provided
in Sections 6.4 and 6.5 of the Credit Agreement. All payments under this
Note shall be made to the Administrative Agent as provided in Section 6.6
of the Credit Agreement.
SECURITY
--------
2.1 This Note is one of the promissory notes issued under and pursuant to
the Credit Agreement and is secured by, among other things, a U.S. First
Preferred Fleet Mortgage on fifteen U.S. flag drilling rigs dated December
17, 1993, as amended, and Bahamian Statutory Mortgages and a Deed of
Covenants on three Bahamian flag drilling rigs dated December 17, 1993 in
favor of Bankers Trust Company, as Trustee for the Banks (the "Mortgages").
Reference is hereby made to the Mortgages for a description of the property
thereby mortgaged, the nature and extent of the security afforded thereby
and the rights of the Borrower, the Banks, the Agents and the Trustee with
respect to such security as provided in the Mortgages. Payment of this
Note may be demanded prior to the maturity of this Note under certain
circumstances and conditions, in the manner, and with the effect, provided
in the Mortgages or the Credit Agreement. A true and complete copy of the
form of the Credit Agreement is attached to the Mortgages and made a part
thereof.
2.2 This Note evidences the Facility B Advances made by the Banks under
Section 4 of the Credit Agreement.
2.3 This Note is the amendment, restatement, renewal and extension of the
promissory note of the Borrower dated December 17, 1993.
MISCELLANEOUS
-------------
3.1 All parties hereto, including endorsers hereof, hereby waive
presentment for payment, demand, protest and notice of protest and non-
payment hereof and hereby consent that any and all securities or other
property, if any, held by or for the holders hereof at any time as security
for this Note may be exchanged, released or surrendered and that the time
of payment of this Note may be extended, all in the sole discretion of the
holders hereof and without notice and without affecting in any manner the
liability of the parties hereto.
3.2 No course of dealing between the Borrower and the Agents, the Banks or
the Trustee in exercising any rights hereunder shall operate as a waiver of
any right of any holders except to the extent expressly waived in writing
by such holder.
3.3 Whenever any payment to be made hereunder shall be due on a day which
is not a Business Day, such payments shall be made on the next Business
Day; provided, however, that if such next succeeding Business Day is in a
new month, then the payment required under the Credit Agreement or this
Note shall be made on the first Business Day preceding the original date on
which payment was due.
3.4 Any notice to be given pursuant to this Note shall be given in
accordance with Section 16.4 of the Credit Agreement.
3.5 THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK EXCEPT THAT WITH RESPECT TO THE
PROVISIONS OF THIS NOTE WHICH PROVIDE FOR OR RELATE TO THE PAYMENT OF
INTEREST, ANY PROVISIONS OF APPLICABLE FEDERAL LAW WHICH PERMIT THE BANKS
TO CHARGE THE HIGHER OF THE RATE PERMITTED BY SUCH APPLICABLE LAW OR BY THE
LAWS OF THE STATE IN WHICH THE BANKS ARE LOCATED SHALL BE DEEMED GOVERNING
AND CONTROLLING.
3.6 THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH IT IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS NOTE OR ANY OF THE LOAN DOCUMENTS.
3.7 Capitalized terms used in this Note but not defined herein shall have
the meanings given to them in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed the day and year first above written.
ENSCO OFFSHORE U.K. LIMITED
By: ------------------------------
Name: ______________________
Title: ______________________
EXHIBIT B TO
AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
AMENDED AND RESTATED ENSCO GUARANTY
-----------------------------------
GUARANTY, dated as of September 27, 1995, made jointly and severally
by ENSCO INTERNATIONAL INCORPORATED (formerly known as Energy Service
Company, Inc. "ENSCO"), a corporation organized and existing under the laws
of the State of Delaware and ▇▇▇▇▇▇, INC. ("▇▇▇▇▇▇"), a corporation
organized and existing under the laws of the State of Delaware,
(collectively, the "Guarantors") in favor of CHRISTIANIA BANK OG
KREDITKASSE, New York Branch and DEN NORSKE BANK AS, New York Branch, and
the other financial institutions referred to in the Credit Agreement
defined below (the "Banks").
WHEREAS, pursuant to the Guaranty of ENSCO and ▇▇▇▇▇▇ dated as of
December 17, 1993, as amended as of November 1, 1994, (the "Original
Guaranty"), the Guarantors guaranteed certain obligations of their
affiliates, ENSCO OFFSHORE COMPANY, a Delaware corporation and ENSCO
OFFSHORE U.K. LIMITED, a corporation organized and existing under the laws
of the England, (the "Borrowers") under (i) a Credit Facility Agreement
dated as of December 15, 1993, as amended as of November 1, 1994, among the
Borrowers, the Banks named therein and the Agents, (the "Original Credit
Agreement"), (ii) the promissory notes of the Borrowers in favor of the
Agents on behalf of the Banks dated December 17, 1993, and (iii) the other
Loan Documents; and
WHEREAS, the Borrowers, the Banks and the Agents wish to amend the
Original Credit Agreement in order to, among other things, increase the
Credit Facility, restructure the Credit Facility and modify and amend other
terms and provisions of the Original Credit Agreement, all pursuant to the
Amended and Restated Credit Facility Agreement dated as of the date hereof
(the "Credit Agreement"); and
WHEREAS, in order to induce the Banks to enter into the Credit
Agreement, the Guarantors, as affiliates of the Borrowers, have agreed
pursuant to this Amended and Restated ENSCO Guaranty to (i) amend certain
of their financial covenants contained in the Original Guaranty and (ii)
reaffirm their guarantee to the Banks of the due and punctual payment of
the Borrowers' obligations under the Credit Agreement, the Notes and the
other Loan Documents as provided in the ENSCO Guaranty; and
WHEREAS, it is to the corporate benefit of the Guarantors that the
Original Credit Agreement be amended and restated; and
WHEREAS, in order to induce the Agents and the Banks to amend and
restate the Original Credit Agreement, the Guarantors are prepared to
guarantee the performance by the Borrowers of their obligations under the
Credit Agreement, the Notes and the other Loan Documents; and
WHEREAS, the Agents and the Banks are prepared to amend and restate
the Original Credit Agreement in consideration, among other things, of the
Guaranty by the Guarantors;
NOW, THEREFORE, in consideration of the above recitals, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree to amend and restate the Original Guaranty
as follows:
SECTION 1. GUARANTY. The Guarantors hereby jointly and severally
unconditionally and irrevocably guarantee the payment by the Borrowers of
all amounts due by the Borrowers under the Credit Agreement and the Notes
and the performance by the Borrowers of all of their obligations under the
Credit Agreement, the Notes and the other Loan Documents (the obligations
of the Borrowers under the Credit Agreement, the Notes and the other Loan
Documents are hereinafter referred to as the "Obligations") and agree in
addition to pay any and all reasonable expenses incurred by the Agents in
enforcing any of their rights under this Guaranty.
SECTION 2. GUARANTY ABSOLUTE. (a) The Guarantors hereby jointly
and severally guarantee that the Obligations will be paid and performed
strictly in accordance with the terms of the Credit Agreement, the Notes
and the other Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Agents with respect thereto. The joint and several
liability of the Guarantors under this Guaranty shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of the Credit
Agreement, the Notes or any other agreement or instrument entered into
between the Borrowers, the Banks, the Agents or the Guarantors;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from the Credit
Agreement, the Notes or the other Loan Documents;
(iii) any other circumstance, except payment of the Obligations,
which might otherwise constitute a defense available to, or a
discharge of, the Borrowers in respect of the Obligations or the
Guarantors in respect of this Guaranty.
(b) This is a guaranty of payment and performance and not of
collection and the Banks shall not be required to exhaust their remedies
against, the Borrowers before requiring the Guarantors to pay and perform
under this Guaranty.
(c) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by the Banks upon
the insolvency, bankruptcy or reorganization of the Borrowers or otherwise,
all as though such payment had not been made.
SECTION 3. WAIVER. The Guarantors hereby waive promptness,
diligence, notice of acceptance and any other notice with respect to any of
the Obligations and this Guaranty (other than notices required by the
Credit Agreement) and any requirement that the Agents exhaust any right or
take any action against the Borrowers or any other person or entity or any
collateral.
SECTION 4. SUBROGATION. The Guarantors will not exercise any
rights which they may acquire by way of subrogation under this Guaranty, by
any payment made hereunder or otherwise, until all the Obligations shall
have been paid in full. If any amount shall be paid to the Guarantors on
account of such subrogation rights at any time when all the Obligations
shall not have been paid in full, such amount shall be forthwith paid to
the Banks to be credited and applied against the Obligations. If (i) the
Guarantors shall make payment to the Banks of all or any part of the
Obligations and (ii) all the Obligations shall be paid in full, the Banks
will execute and deliver to the Guarantors appropriate documents, without
recourse and without representation or warranty, releasing this Guaranty
and transferring to the Guarantors any and all rights the Banks may have
against the Borrowers or necessary to evidence the transfer by subrogation
to the Guarantors of any interest in the Obligations resulting from such
payment by the Guarantors.
SECTION 5. PAYMENTS FREE AND CLEAR OF TAXES, ETC. (a) All sums
payable by the Guarantors under this Guaranty, whether of principal,
interest, fees or otherwise, shall be paid in full without set-off or
counterclaim and in such amounts as may be necessary in order that all such
payments (after deduction or withholding for or on account of any present
or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any Governmental Agency or taxing authority thereof,
other than any tax, on or measured by the income of the Agents or the Banks
(collectively the "Taxes"), shall not be less than the amounts otherwise
specified to be paid under this Guaranty.
(b) A certificate as to any additional amounts payable to the
Agents under this Section 5 submitted to the Guarantors by the Banks shall
show in reasonable detail the amount payable and the calculations used to
determine in good faith such amount and shall be conclusive absent manifest
error.
(c) With respect to each deduction or withholding for or on
account of any Taxes, the Guarantors shall promptly furnish to the Agents
such certificates, receipts and other documents as may be required (in the
reasonable judgment of the Agents) to establish any income tax credit to
which any of the Banks may be entitled. In the event that such a deduction
or withholding for Taxes becomes so applicable, the Banks and the
Guarantors will use their best efforts to minimize the effect of such
Taxes.
(d) If any Taxes specified in subsection (a) above are paid by
any Bank, the Guarantors will, upon demand of the Administrative Agent
whether or not such Taxes shall be correctly or legally asserted, indemnify
such Bank for such payments, together with any interest, penalties and
expenses in connection therewith. In such case, the Guarantors shall be
subrogated to the rights of the Banks to appear and contest the levy or
assessment of any such Taxes. The Administrative Agent will give written
notice to the Guarantors upon receipt of any notice regarding the
assessment of any Taxes and will cooperate with the Guarantors in the event
the Guarantors contest the assessment or payment of any Taxes.
(e) If for the purpose of obtaining an order or judgment, or
execution thereon, it should become necessary for a court to convert the
amount due hereunder into another currency, the Guarantors agree that the
rate of exchange to be applied shall be that at which, in accordance with
normal banking procedures, the Administrative Agent could purchase Dollars,
or with respect to Facility B, Pounds, with such other currency in London
(or if unable to purchase Dollars, or with respect to Facility B, Pounds,
in London, then in New York) on the Business Day preceding that on which
such order or judgment is given (whether or not this includes a premium
over any official or other rate of exchange). Further, the Guarantors
agree to reimburse the Banks for any loss incurred by them as a result of
any judgment or order being expressed in a currency other than Dollars, or
with respect to Facility B, Pounds, and as a result of any variation having
occurred in rates of exchange (as determined in accordance with the above
formula) between the date of any such amount becoming due hereunder and the
date of actual payment thereof.
SECTION 6. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. (a) The
Guarantors represent and warrant to the Banks that the Guarantors are
generally subject to suit and that neither they nor their property enjoys
any right to immunity from legal proceedings or execution on the grounds of
sovereignty or otherwise. The Guarantors irrevocably waive any immunity
they may have from the jurisdictions of the courts of the United States or
of their states or which their property may have from attachment (before or
after judgment) or execution by a court of the United States or any state.
The Guarantors irrevocably consent to the non-exclusive jurisdiction of the
courts of the State of New York or the United States District Court for the
Southern District of New York or courts of any country or place where the
Guarantors have their principal place of business or their assets may be
found, at the election of the Agents. Any legal process shall be
sufficiently served on the Guarantors in connection with proceedings in the
State of New York if delivered to the Guarantors at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The Guarantors agree that a final,
non-appealable 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.
(b) Nothing in this Section 6 shall affect the right of the
Banks to serve legal process in any other manner permitted by law or affect
the right of the Banks to bring any action or proceeding against the
Guarantors or their property in the courts of any other jurisdictions.
(c) To the extent that the Guarantors have or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
themselves or their property, the Guarantors hereby irrevocably waive such
immunity in respect of their obligations under this Guaranty.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Guarantors
hereby represent and warrant as to the following:
(a) Each is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and each is
duly qualified to do business in the jurisdictions in which the failure to
be so qualified would have a material adverse effect on their business or
financial condition.
(b) The execution, delivery and performance by the Guarantors of
this Guaranty and any other documents contemplated herein and the
completion of all other transactions herein contemplated are within the
Guarantors' corporate authority, are in furtherance of their corporate
purposes, have been duly authorized by all necessary corporate action and
will not contravene any applicable law or regulation nor violate the
Guarantors' Articles of Incorporation or By-Laws nor any agreement binding
on the Guarantors nor any applicable law or regulation or order or decree
of any governmental authority or agency of the United States of America or
the State of Texas.
(c) This Guaranty is supported by adequate and sufficient
consideration, has been validly signed on behalf of the Guarantors and
represents the valid and binding obligation of the Guarantors, enforceable
in accordance with its terms. The enforceability of this Guaranty,
however, is subject to all applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the rights of creditors
generally and to general equity principles.
(d) The legality, validity, enforceability or admissibility of
this Guaranty are not subject or conditional upon this Guaranty being
filed, recorded or enrolled with any governmental authority or agency or
stamped with any stamp, duty or similar transaction tax of the United
States of America or the State of Texas.
(e) The execution, delivery and performance by the Guarantors of
this Guaranty and of each instrument given to secure this Guaranty do not
to the best of their knowledge after due inquiry (1) violate any law,
statute, ordinance, decree, order, judgment issued by any non-United States
government, the government of the United States, any state of the United
States and any political subsidiaries thereof, and any agency, department,
commission, board or court having jurisdiction over the Borrowers or the
Guarantors or their respective assets or property; (2) conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute
a default under, any agreement or instrument to which the Guarantors are
now a party or by which the Guarantors or their property may be bound; (3)
result in the creation of any lien, charge or encumbrance upon any of
Guarantors' property or assets (other than as provided in the Loan
Documents); (4) violate the Guarantors' Articles of Incorporation; (5)
require (x) any consent of any other person (including, without limitation,
shareholders of any affiliate of Guarantors) or (y) any consent, license,
permit, authorization or other approval of, any giving of notice to, any
exemption by, any registration, declaration or filing (other than the
routine filing of security documents) with, or any taking of any other
action in respect of, any court arbitrator, administrative agency or any
non-United States government, the government of the United States, any
state of the United States and any political subsidiaries thereof, and any
agency, department, commission, board or court having jurisdiction over the
Borrowers or the Guarantors or their respective assets or property; or (6)
result in either of the Guarantors' liabilities exceeding the fair market
value of its assets.
(f) The Guarantors have filed all tax returns required to be
filed and paid all taxes shown thereon to be due, including interest and
penalties, except for taxes being contested in good faith and for which
adequate reserves for the payment in accordance with generally accepted
accounting principles in the United States have been provided.
(g) The execution and delivery of this Guaranty to the Agents
will benefit directly or indirectly the Guarantors.
(h) No representation or warranty contained in this Guaranty and
no statement contained in any certificate, schedule, list, financial
statement or other instrument furnished by or on behalf of Guarantors to
the Agents or the Banks contains any untrue statement of material fact.
(i) There are no pending, or to the best of the Guarantors'
knowledge, any threatened actions or proceedings affecting the Guarantors,
any of the Guarantors' subsidiaries or any of the Guarantors' property
before any court, governmental agency or arbitrator in any country, which
may materially adversely affect the financial condition or operations of
the Guarantors.
(j) ▇▇▇▇▇▇ is the sole shareholder of ENSCO Offshore Company.
SECTION 8. COVENANTS. The Guarantors jointly and severally
covenant and agree that, so long as any part of the Obligations shall
remain unpaid, they will, unless the Banks shall otherwise consent in
writing:
(a) Furnish or caused to be furnished to the Agents:
(i) all of the financial information and reports with respect to
the Guarantors required pursuant to the terms of Section 11 of the
Credit Agreement as if they were mentioned in such section;
(ii) as soon as possible and in any event within two (2)
Business Days after an officer of the Guarantors has knowledge of the
occurrence of each Event of Default, or each event which with the
giving of notice or lapse of time, or both, would constitute an Event
of Default, which is continuing on the date of such statement, the
statement of the chief financial officer or the chief accounting
officer of the Guarantor affected by such occurrence setting forth the
details of such Event of Default or event and the action which the
Guarantors propose to take with respect thereto;
(iii) on the dates that the quarterly financial reports required
pursuant to Section 11.1(a)(ii) and the annual reports required
pursuant to Section 11.1(a)(iii) of the Credit Agreement are provided
to the Banks, a certificate signed by the chief accounting officer or
chief financial officer of each of the Guarantors certifying that (A)
the representations and warranties contained in Section 7 of this
Guaranty are correct on and as of such date and (B) the Guarantors are
in compliance with all of the covenants contained in this Section 8,
such certificates showing the relevant computations for such
compliance.
(iv) such other information with respect to the Guarantors as
the Agents may reasonably request; and
(b) Within five (5) Business Days of a written request from the
Banks, make available to the Banks such information as the Banks may
reasonably request with respect to the business, affairs or condition
(financial or otherwise) of the Guarantors, subject to any applicable
confidentiality agreements dealing with such information; provided,
however, that the Guarantors will use their best efforts to obtain any
necessary consents in order to allow such information to be provided to the
Banks, and, within five (5) Business Days following a written request from
the Banks, will permit the Banks or their representatives at any reasonable
time or times during business hours, to inspect the properties of the
Guarantors and to inspect, audit and examine the books or records of the
Guarantors and to take extracts therefrom.
(c) Promptly pay and discharge or cause to be paid and
discharged any and all indebtedness, liens (except the types of Liens
permitted by Section 12.1 of the Credit Agreement), charges, all taxes,
assessments and governmental charges or levies imposed upon them or upon
their income or profits, or upon any of their properties prior to the date
on which penalties accrue thereon, and lawful claims which, if unpaid,
might become a lien or charge upon the property of the Guarantors, except
such as may in good faith be contested or disputed, provided appropriate
reserves are maintained in accordance with GAAP.
(d) Subject to the proviso in Section 8(g)(i) below, preserve
and maintain their corporate existence, their business as presently
conducted, and all of the rights, privileges and franchises necessary or
desirable in the normal conduct of said business.
(e) Keep books of record and account in accordance with GAAP.
(f) Comply with the financial covenants applicable to the
Guarantors contained in Sections 11 and 12 of the Credit Agreement and
comply with all applicable laws, regulations and orders except to the
extent that failure to comply will not have a material adverse effect.
(g) Not, (i) consolidate with or merge with any Person,
provided, however, that ▇▇▇▇▇▇, Inc. may merge or consolidate with a member
of the ENSCO Consolidated Group which is a direct or indirect wholly owned
subsidiary of ENSCO if the Pledge and this Guaranty are maintained to the
satisfaction of the Agents, or sell (whether in one transaction or in a
series of transactions) all or substantially all of their assets to any
Person, or (ii) make any change in the address of its principal place of
business or its chief executive office, except with thirty (30) Business
Days prior written notice to the Banks.
(h) Not allow ENSCO to issue after the date of this Guaranty any
preferred stock that provides for the payment of a total cash dividend in
excess of USD 8,000,000 in any one fiscal year of ENSCO and not allow ENSCO
to pay any cash dividends on any preferred stock in excess of USD 8,000,000
in any one fiscal year of ENSCO.
(i) Not permit ENSCO to declare or pay dividends on its common
stock to its shareholders for any fiscal year, commencing January 1, 1993,
in excess of 50% of its consolidated net income for such fiscal year before
non-recurring or extraordinary items; provided, however that consolidated
net income available for dividends on which dividends are not declared or
paid shall be carried forward to the subsequent year for the purpose of
determining consolidated net income in the subsequent year from which
dividends may be paid; and provided, further, that no dividends may be
declared or paid if an Event of Default has occurred and is continuing.
(j) Not permit Net Working Capital of the ENSCO Consolidated
Group to be less than USD 35,000,000 at any time but in calculating
compliance with this covenant the amount of the twelfth and final reduction
of the Commitments pursuant to Section 6.2(a) of the Credit Agreement shall
not be taken into account.
(k) Not permit available cash and Cash Equivalents of the ENSCO
Consolidated Group to be less than USD 25,000,000 at any time.
(l) Not permit the sum of the ENSCO Consolidated Group's cash,
Cash Equivalents and the undrawn amount of the Commitments to be at any
time less than 15% of the sum of the ENSCO Consolidated Group's Total Debts
but excluding from the calculation of Total Debts unsecured indebtedness
for borrowed money that has no scheduled principal repayments prior to the
Maturity Date.
(m) INTEREST COVERAGE. In the event that the ENSCO Consolidated
Group incurs unsecured indebtedness for borrowed money that has no
scheduled principal repayments, prior to the Maturity Date, not permit or
allow to exist the Guarantor's consolidated Interest Coverage Ratio to be
less than 400%. At the time any such indebtedness is incurred, the
Interest Coverage Ratio covenant contained in this section must be met and
the proforma effect of such new debt will be added to the trailing twelve
month interest expense calculation. No adjustment as to operating cash
flow will be made when determining compliance with this covenant. The
operating cash flow and interest expense associated with all assets
financed by any member of the ENSCO Consolidated Group on an unsecured or
non-recourse basis shall be included in all calculations to determine
compliance with this interest coverage covenant.
(n) Permit the Total Debts of the ENSCO Consolidated Group at
any time to be greater than 40% of the Total Assets of the ENSCO
Consolidated Group.
(o) Not enter into any new line of business unrelated to the
oilfield services industry after the date of this Guaranty.
(p) Subject to the proviso in Section 8(g)(i) above, cause
▇▇▇▇▇▇ to remain the sole shareholder of ENSCO Offshore Company.
SECTION 9. DEFAULT. Upon the occurrence and continuance of any
"Event of Default" described in Section 13.1 of the Credit Agreement the
Agents may, at their option exercise any or all rights, powers and remedies
afforded under the Loan Documents and this Guaranty.
SECTION 10. THE CREDIT AGREEMENT AND THE NOTES. The Guarantors
hereby acknowledge receipt of the Credit Agreement and the Notes in
execution form and hereby consent and agree to the Credit Agreement and the
Notes and to all the terms and provisions thereof.
SECTION 11. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantors
therefrom shall in any event be effective unless the same shall be in
writing and signed by the Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
SECTION 12. NOTICES. (a) All notices, requests, consents, demands
and other communications provided for or permitted hereunder shall be
effective three (3) days after being duly deposited in the mails,
certified, return receipt requested, or upon receipt if delivered to
Federal Express or similar courier company or transmitted by telefax,
addressed to the respective party at the address set forth below.
BANKS: Christiania Bank og Kreditkasse,
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Head of Shipping
Den norske Bank AS, New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Shipping Group Head
GUARANTORS: c/o ENSCO International Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telefax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
(b) Any of the parties hereto may change its respective address
by notice in writing given to the other parties to this Agreement.
SECTION 13. NO WAIVER; REMEDIES. No failure on the part of the
Agents 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 right hereunder 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.
SECTION 14. CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall (i) remain in full force and effect until payment in
full of the Obligations and payment in full of all other amounts due under
this Guaranty, (ii) be binding upon each of the Guarantors, their
successors or assigns, as the case may be, and (iii) inure to the benefit
of and be enforceable by the Agents and their successors, permitted
transferees and permitted assigns, provided, however, that the Guarantors
may not transfer the Guaranty or any part thereof without the prior written
consent of the Banks.
SECTION 15. SURVIVAL. The representations, covenants and
agreements herein set forth shall continue and survive until the
termination of this Guaranty at which time it shall be returned to the
Guarantors.
SECTION 16. DEFINED TERMS. All terms used in this Guaranty which
are not defined herein shall have the meanings given to them in the Credit
Agreement.
SECTION 17. GOVERNING LAW. THIS GUARANTY AND ALL ISSUES ARISING IN
CONNECTION WITH THIS GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES.
SECTION 18. WAIVER OF JURY TRIAL. THE GUARANTORS AND THE BANKS
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH
THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT, RELATED
TO, OR CONNECTED WITH THIS GUARANTY, ANY OF THE LOAN DOCUMENTS OR THE
RELATIONSHIP ESTABLISHED HEREUNDER.
SECTION 19. CONFLICTS. IN THE EVENT OF A CONFLICT BETWEEN THE
PROVISIONS OF THIS GUARANTY AND THOSE OF ANY OTHER LOAN DOCUMENT,
INCLUDING, WITHOUT LIMITATION, THE CREDIT AGREEMENT, THE PROVISIONS OF THE
CREDIT AGREEMENT SHALL CONTROL.
IN WITNESS WHEREOF, the Guarantors have duly executed and
delivered this Guaranty, as of the date first above written.
ENSCO INTERNATIONAL INCORPORATED
By: ---------------------------------
Name: __________________________
Title: _________________________
▇▇▇▇▇▇, INC.
By: ---------------------------------
Name: __________________________
Title: __________________________
ACCEPTED this ____ day of September, 1995.
CHRISTIANIA BANK OG KREDITKASSE, New York Branch,
By: ----------------------------------
Name: ___________________________
Title: ___________________________
DEN NORSKE BANK AS, New York Branch,
By: ----------------------------------
Name: _________________________
Title: _________________________
EXHIBIT C TO
AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
_____________, 199_
Christiania Bank of Kreditkasse,
New York Branch, as Administrative Agent
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Shipping
REQUEST FOR BORROWING
Dear Sirs:
Pursuant to Section 4.1(c) of the Amended and Restated Credit Facility
Agreement dated as of September __, 1995 (the "Credit Agreement") among you
as Administrative Agent, the Agents, the Banks named therein and the
Borrowers named therein, we hereby irrevocably request that you advance
[USD ________________ or Pounds ______________] under Facility ____________
to _______________________ by payment to account no. ___________ at
_______________________ on ________ __, 199_ in accordance with the terms
of the Credit Agreement.
We hereby request that the Interest Period(s) for the above Advance(s)
be for ______________________________.
If the borrowing fails to take place or is delayed because any of the
conditions precedent specified in Section 8 of the Credit Agreement have
not been satisfied, the Borrowers hereby jointly and severally agree to
indemnify the Banks against any loss incurred as a result of the giving of
this Request for Borrowing including without limitation, any loss resulting
from actions taken by the Banks to fund the requested Advance but excluding
any loss resulting from the gross negligence or willful misconduct of any
Bank or Agent; provided however the Banks will attempt to mitigate their
losses in such situation. We further agree that a certificate from you as
the Agents stating in reasonable detail the amount of, and basis for, any
such loss incurred by the Banks shall be conclusive as to such loss, absent
manifest error.
All capitalized terms used in this Request for Borrowing and not
defined herein shall have the meanings given to them in the Credit
Agreement.
Very truly yours,
ENSCO OFFSHORE COMPANY
By: ------------------------------
Name: _______________________
Title: _______________________
EXHIBIT D TO
AMENDED AND RESTATED CREDIT
FACILITY AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT
-----------------------------------
______, 199__
Reference is made to the Amended and Restated Credit Facility
Agreement dated as of September __, 1995 (as amended through the date
hereof, the "Credit Agreement"). [ASSIGNOR] (the "Assignor") and
[ASSIGNEE] (the "Assignee") agree as follows:
1. When capitalized and used herein, terms defined in the Credit
Agreement and not otherwise defined herein shall have the meanings given to
them in the Credit Agreement.
2. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in
and to all of the Assignor's rights and obligations under the Credit
Agreement, the Notes and the other Loan Documents as of the date hereof
which represents the percentage interest specified in Item 1 of Annex I to
this Assignment and Acceptance Agreement, including, without limitation,
such interest in the Assignor's Commitment.
3. The Assignor (i) represents and warrants that is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement of the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
of the other Loan Documents or other documents furnished pursuant thereto
or in connection therewith; and (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
the Borrowers or the Guarantors or the performance or observance by the
Borrowers or the Guarantors of any of their obligations under the Credit
Agreement, the Notes, or any of the other Loan Documents or other documents
furnished pursuant thereto or in connection therewith.
4. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, the Notes and the other Loan Documents, together with all
such other documents and information as it has been deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance Agreement; (ii) agrees that it will, independently and without
reliance upon the Agents, the Assignor or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) appoints and authorizes the Agents and
the Trustee to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Loan Documents as are
delegated to the Agents and/or the Trustee by the terms thereof, together
with such powers as are reasonably incidental thereto; and (iv) agrees that
it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement are required to be performed by it as
a Bank.
5. Following the execution of this Assignment and Acceptance
Agreement by the Assignor and the Assignee, it will be delivered to the
Administrative Agent for acceptance and recording by the Agent in the
Register. The effective date of this Assignment and Acceptance Agreement
shall be the date of execution and delivery hereof to the Administrative
Agent by the Assignor and the Assignee unless otherwise specified on Item 2
of Annex I hereto (the "Effective Date").
6. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance
Agreement, have the rights and obligations of a Bank thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment and
Acceptance Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Agents shall make all payments under
the Credit Agreement and the other Loan Documents in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and fees (if applicable) with respect thereto) to the
Assignee.
8. This Assignment and Acceptance Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
[NAME OF ASSIGNOR],
as Assignor
By: --------------------------
Name: ___________________
Title: ___________________
[NAME OF ASSIGNEE]
as Assignee
By: --------------------------
Name: ___________________
Title: ___________________
Accepted:
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH
as Administrative Agent
By: --------------------------
Name: ___________________
Title: ___________________
ANNEX I
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
DATED ________, 19__
1. Amounts (as of date of FACILITY A FACILITY B
Assignment and Acceptance ---------- ----------
Agreement):
a. Total Commitments $ ________ $ ________
b. Assigned Share _____% ____%
c. Amount of Assigned Share $ _______ $ ________
2. Effective Date _____________, 19__
3. Notice and Payment Instructions:
ASSIGNOR:
PAYMENT NOTICE
------- ------
_________________ ____________________________
_________________ ____________________________
_________________ ____________________________
Attention: Attention:
Reference: Telephone:
Telecopier:
Reference:
ASSIGNEE:
PAYMENT NOTICE
------- ------
_________________ ____________________________
_________________ ____________________________
_________________ ____________________________
Attention: Attention:
Reference: Telephone:
Telecopier:
Reference: