UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended June 30, 1998
OR
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _______________ to_______________
Commission File Number 1-8097
ENSCO INTERNATIONAL INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 76-0232579
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2700 Fountain Place
1445 Ross Avenue, Dallas, Texas 75202 - 2792
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (214) 922-1500
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
There were 140,898,862 shares of Common Stock, $.10 par value, of the registrant
outstanding as of July 31, 1998.
<PAGE>
ENSCO INTERNATIONAL INCORPORATED
INDEX TO FORM 10-Q
FOR THE QUARTER ENDED JUNE 30, 1998
PAGE
----
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Review Report of Independent Accountants 3
Consolidated Statement of Income
Three Months Ended June 30, 1998 and 1997 4
Consolidated Statement of Income
Six Months Ended June 30, 1998 and 1997 5
Consolidated Balance Sheet
June 30, 1998 and December 31, 1997 6
Consolidated Statement of Cash Flows
Six Months Ended June 30, 1998 and 1997 7
Notes to Consolidated Financial Statements 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS 10
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS 22
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 23
SIGNATURES 24
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
REVIEW REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of ENSCO International Incorporated
We have reviewed the accompanying consolidated balance sheet of ENSCO
International Incorporated and its subsidiaries as of June 30, 1998 and the
related consolidated statements of income and of cash flows for the three and
six month periods ended June 30, 1998 and 1997. This financial information is
the responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the accompanying financial information for it to be in conformity
with generally accepted accounting principles.
We previously audited in accordance with generally accepted auditing standards,
the consolidated balance sheet as of December 31, 1997, and the related
consolidated statements of income and of cash flows for the year then ended (not
presented herein), and in our report dated January 28, 1998 we expressed an
unqualified opinion on those consolidated financial statements. In our opinion,
the information set forth in the accompanying consolidated balance sheet
information as of December 31, 1997, is fairly stated in all material respects
in relation to the consolidated balance sheet from which it has been derived.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Dallas, Texas
July 31, 1998
<PAGE>
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
(In millions, except per share data)
(Unaudited)
Three Months Ended
June 30,
---------------------
1998 1997
-------- --------
OPERATING REVENUES ................................. $ 234.0 $ 195.4
EXPENSES
Operating expenses .............................. 83.6 77.1
Depreciation and amortization ................... 20.2 25.8
General and administrative ...................... 4.1 3.8
-------- --------
107.9 106.7
-------- --------
OPERATING INCOME ................................... 126.1 88.7
OPERATING INCOME (EXPENSE)
Interest income ................................. 3.8 1.3
Interest expense, net ........................... (6.6) (4.8)
Other, net ...................................... .1 --
-------- --------
(2.7) (3.5)
-------- --------
INCOME BEFORE TAXES AND MINORITY INTEREST .......... 123.4 85.2
PROVISION FOR INCOME TAXES
Current income taxes ............................ 31.2 18.4
Deferred income taxes ........................... 11.1 13.7
-------- --------
42.3 32.1
MINORITY INTEREST .................................. .5 .9
-------- --------
NET INCOME ......................................... $ 80.6 $ 52.2
======== ========
EARNINGS PER SHARE
Basic ........................................... $ .57 $ .37
Diluted ......................................... $ .57 $ .37
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING
Basic ........................................... 141.4 140.9
Diluted ......................................... 142.6 140.6
The accompanying notes are an integral part of these financial statements.
<PAGE>
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
(In millions, except per share data)
(Unaudited)
Six Months Ended
June 30,
---------------------
1998 1997
------- -------
OPERATING REVENUES.................................. $ 480.4 $ 357.0
EXPENSES
Operating expenses .............................. 167.3 147.2
Depreciation and amortization ................... 40.0 50.0
General and administrative ...................... 7.7 6.9
------- -------
215.0 204.1
------- -------
OPERATING INCOME ................................... 265.4 152.9
OTHER INCOME (EXPENSE)
Interest income ................................. 6.5 2.7
Interest expense, net ........................... (14.2) (10.6)
Other, net ...................................... -- .1
------- -------
(7.7) (7.8)
------- -------
INCOME BEFORE TAXES AND MINORITY INTEREST .......... 257.7 145.1
PROVISION FOR INCOME TAXES
Current income taxes ............................ 66.0 27.6
Deferred income taxes ........................... 22.1 27.2
------- -------
88.1 54.8
MINORITY INTEREST .................................. 1.8 1.8
------- -------
NET INCOME ......................................... $ 167.8 $ 88.5
======= =======
EARNINGS PER SHARE
Basic ........................................... $ 1.19 $ .63
Diluted ......................................... $ 1.18 $ .62
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING
Basic ........................................... 141.4 140.9
Diluted ......................................... 142.8 142.6
The accompanying notes are an integral part of these financial statements.
<PAGE>
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(In millions)
June 30, December 31,
1998 1997
----------- -----------
(Unaudited) (Audited)
ASSETS
CURRENT ASSETS
Cash and cash equivalents ......................... $ 351.3 $ 262.2
Accounts and notes receivable, net ................ 155.1 157.2
Prepaid expenses and other ........................ 20.1 27.7
-------- --------
Total current assets ....................... 526.5 447.1
-------- --------
PROPERTY AND EQUIPMENT, AT COST ...................... 1,715.3 1,534.1
Less accumulated depreciation ..................... 394.4 357.0
-------- --------
Property and equipment, net ................ 1,320.9 1,177.1
-------- --------
OTHER ASSETS, NET .................................... 141.6 147.8
-------- --------
$1,989.0 $1,772.0
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable .................................. $ 10.9 $ 7.8
Accrued liabilities ............................... 148.4 93.8
Current maturities of long-term debt .............. 23.4 29.3
-------- --------
Total current liabilities .................. 182.7 130.9
-------- --------
LONG-TERM DEBT ....................................... 388.8 400.8
DEFERRED INCOME TAXES ................................ 150.3 128.2
OTHER LIABILITIES .................................... 23.6 24.4
MINORITY INTEREST .................................... 12.8 11.0
COMMITMENTS AND CONTINGENCIES ........................ -- --
STOCKHOLDERS' EQUITY
Preferred stock, $1 par value, 20.0 million
shares authorized and none issued .............. -- --
Common stock, $.10 par value, 250.0 million
shares authorized, 155.3 million and 155.2
million shares issued .......................... 15.5 15.5
Additional paid-in capital ........................ 842.1 841.3
Retained earnings ................................. 459.3 298.6
Restricted stock (unearned compensation) .......... (6.1) (6.8)
Cumulative translation adjustment ................. (1.1) (1.1)
Treasury stock, at cost, 13.4 million and
13.0 million shares ............................ (78.9) (70.8)
-------- --------
Total stockholders' equity ................ 1,230.8 1,076.7
-------- --------
$1,989.0 $1,772.0
======== ========
The accompanying notes are an integral part of these financial statements.
<PAGE>
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(In millions)
(Unaudited)
Six Months Ended
June 30,
-----------------
1998 1997
------- -------
OPERATING ACTIVITIES
Net income ............................................ $167.8 $ 88.5
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization ................... 40.0 50.0
Deferred income tax provision ................... 22.1 27.2
Amortization of other assets .................... 5.0 3.0
Other ........................................... (.6) (.3)
Changes in operating assets and liabilities:
(Increase) decrease in accounts receivable .... 2.1 (31.6)
(Increase) decrease in prepaid expenses and
other ....................................... 7.6 (.7)
Increase in accounts payable .................. 3.1 1.4
Increase in accrued liabilities ............... 25.4 7.6
------ ------
Net cash provided by operating activities ... 272.5 145.1
------ ------
INVESTING ACTIVITIES
Additions to property and equipment ................... (152.1) (114.0)
Proceeds from disposition of assets .................... 1.4 .8
------ ------
Net cash used by investing activities ....... (150.7) (113.2)
------ ------
FINANCING ACTIVITIES
Reduction of long-term borrowings ..................... (17.7) (42.3)
Cash dividends ........................................ (7.1) --
Treasury stock purchased under buyback program ........ (7.7) --
Reduction in restricted cash .......................... -- 1.6
Other ................................................. (.2) (.2)
------ ------
Net cash used by financing activities ....... (32.7) (40.9)
------ ------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS ......... 89.1 (9.0)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD ........... 262.2 80.7
------ ------
CASH AND CASH EQUIVALENTS, END OF PERIOD ................. $351.3 $ 71.7
====== ======
The accompanying notes are an integral part of these financial statements.
<PAGE>
ENSCO INTERNATIONAL INCORPORATED AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
Note 1 - Unaudited Financial Statements
The accompanying consolidated financial statements of ENSCO International
Incorporated (the "Company") have been prepared in accordance with generally
accepted accounting principles, pursuant to the rules and regulations of the
Securities and Exchange Commission included in the instructions to Form 10-Q and
Article 10 of Regulation S-X. The financial information included herein is
unaudited but, in the opinion of management, includes all adjustments
(consisting of normal recurring adjustments) which are necessary for a fair
presentation of the financial position, results of operations and cash flows for
the interim periods presented.
The financial data for the three and six month periods ended June 30, 1998
included herein have been subjected to a limited review by
PricewaterhouseCoopers LLP, the registrant's independent accountants. The
accompanying review report of independent accountants is not a report within the
meaning of Sections 7 and 11 of the Securities Act of 1933 and the independent
accountant's liability under Section 11 does not extend to it.
Results of operations for the three and six month periods ended June 30, 1998
are not necessarily indicative of the results of operations that will be
realized for the year ending December 31, 1998. It is recommended that these
financial statements be read in conjunction with the Company's consolidated
financial statements and notes thereto for the year ended December 31, 1997
included in the Company's Annual Report to the Securities and Exchange
Commission on Form 10-K.
Note 2 - Change in Depreciable Lives
During the latter part of 1997, the Company performed an engineering and
economic study of the Company's asset base. As a result of this study, the
Company, effective January 1, 1998, extended the depreciable lives of its
drilling rigs and marine vessels by an average of five to six years. The Company
believes that this change provides a better matching of the revenues and
expenses of the Company's assets over their anticipated useful lives. The effect
of this change on the Company's financial results for the three and six months
ended June 30, 1998 was to reduce depreciation expense by approximately $10.0
million or $.07 per basic and diluted share and $20.0 million or $.14 per basic
and diluted share, respectively.
Note 3 - Comprehensive Income
Effective January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income." The adoption of this
Statement had no effect on the Company's financial statements.
<PAGE>
Note 4 - Earnings Per Share
For the three and six months ended June 30, 1998 and 1997, there were no
adjustments to net income for purposes of calculating basic and diluted earnings
per share. The following is a reconciliation of the weighted average common
shares used in the basic and diluted earnings per share computations for the
three and six months ended June 30, 1998 and 1997 (in millions).
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30, Ended June 30,
-------------------- -------------------
1998 1997 1998 1997
-------- -------- -------- -------
<S> <C> <C> <C> <C>
Weighted average common shares - basic 141.4 140.9 141.4 140.9
Potentially dilutive common shares:
Restricted stock grants .4 .5 .4 .5
Stock options .8 1.2 1.0 1.2
------- ------- ------- -------
Weighted average common shares - diluted 142.6 142.6 142.8 142.6
======= ======= ======= =======
</TABLE>
Note 6 - Stock Buyback Program
In May 1998, the Company's Board of Directors authorized the repurchase of up to
five million shares of the Company's Common Stock as a means to offset the
dilutive effect of shares issued under various benefit plans and to capitalize
on the attractive valuation of the Company's common stock. As of June 30, 1998,
the Company had repurchased 386,500 shares of its common stock at a cost of
approximately $7.7 million.
Note 7 - Revolving Credit Agreement
In May 1998, the Company entered into a $185 million unsecured revolving credit
agreement (the "Credit Agreement") with a syndicate of banks. Interest on
amounts borrowed under the Credit Agreement will be based on LIBOR plus an
applicable margin rate (currently .4%) depending on the Company's credit rating.
The Company also pays a commitment fee (currently .15% per annum) on the undrawn
portion of the available credit line, which is also based on the Company's
credit rating. The Company is required to maintain certain financial covenants
under the Credit Agreement which include the Company meeting a specified level
of interest coverage, assets to indebtedness, leverage ratio, and tangible net
worth. As of June 30, 1998, the Company had $185 million available for
borrowings under the Credit Agreement. The Credit Agreement matures in May 2003.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
BUSINESS ENVIRONMENT
ENSCO International Incorporated is one of the leading international providers
of offshore drilling services and marine transportation services to the oil and
gas industry. The Company's operations are conducted in the geographic regions
of North America, Europe, Asia Pacific and South America.
Demand for the Company's services is significantly affected by worldwide
expenditures for oil and gas drilling. Expenditures for oil and gas drilling
activity fluctuate based upon many factors including world economic conditions,
the legislative environment in the U.S. and other major countries, production
levels and other activities of OPEC and other oil and gas producers and the
impact that these and other events have on the current and expected future
pricing of oil and natural gas.
During the second quarter of 1998, demand for offshore drilling equipment
declined as oil prices continued to deteriorate from price levels at the end of
1997 and at the end of the first quarter of 1998. Oil prices have recently been
at the lowest levels experienced during the last twelve years due to, among
other things, concerns about an excess supply of oil in the world markets and
reduced growth in worldwide demand due to the impact of the economic slowdown in
Southeast Asia. In an attempt to prevent further deterioration in oil prices,
members of OPEC and some other oil and gas producers recently agreed to reduce
their current oil production levels. However, there can be no assurance that
these agreements will reduce oil production levels or if or when these measures
will increase oil prices and return them to higher levels that have prevailed
over much of the last decade. As oil prices have declined, companies exploring
for oil and natural gas have deferred some of their drilling programs thereby
reducing demand for drilling equipment and marine transportation services and
resulting in reductions in day rates and utilization. This erosion in day rates
and utilization is beginning to impact the Company's financial results and the
Company currently expects that its earnings for the second half of 1998 will be
significantly lower than the results for the first half of 1998. See "Outlook
and Forward-Looking Statements" for further information about how the current
business environment is expected to impact the Company's future financial
results.
RESULTS OF OPERATIONS
Although the Company's day rates and utilization are declining from peak 1998
levels, the Company's results for the second quarter and six months ended June
30, 1998 showed significant improvement over the prior year periods. Compared
with the second quarter of 1997, revenues increased by 20% to $234.0 million,
operating income increased by 42% to $126.1 million and net income increased by
54% to $80.6 million. For the six months ended June 30, 1998, revenues increased
by 35% to $480.4 million, operating income increased by 74% to $265.4 million
and net income increased by 90% to $167.8 million. These improved results are
due primarily to increased revenues from higher average day rates, lower
depreciation resulting from a change in the estimated useful lives of the
<PAGE>
Company's drilling rigs and marine vessels and a lower effective tax rate,
offset in part by higher operating expenses.
The following analysis highlights the Company's operating results for the three
and six months ended June 30, 1998 and 1997 (in millions):
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ------------------
Operating Results 1998 1997 1998 1997
- ----------------- ------ ------ ------ ------
<S> <C> <C> <C> <C>
Revenues $234.0 $195.4 $480.4 $357.0
Operating margin(1) 150.4 118.3 313.1 209.8
Operating income 126.1 88.7 265.4 152.9
Other expense 2.7 3.5 7.7 7.8
Provision for income taxes 42.3 32.1 88.1 54.8
Minority interest .5 .9 1.8 1.8
Net income 80.6 52.2 167.8 88.5
Revenues
- --------
Contract drilling
Jackup rigs:
North America $ 99.8 $ 86.9 $209.7 $154.6
Europe 59.8 39.4 117.6 71.7
Asia Pacific 22.3 18.3 44.9 31.1
------ ------ ------ ------
Total jackup rigs 181.9 144.6 372.2 257.4
Barge rigs - South America 20.4 20.5 43.4 41.1
Platform rigs 8.9 7.4 16.4 14.8
------ ------ ------ ------
Total contract drilling 211.2 172.5 432.0 313.3
------ ------ ------ ------
Marine transportation
AHTS(2) 3.7 5.4 9.0 10.1
Supply 16.4 14.8 33.6 28.3
Mini-Supply 2.7 2.7 5.8 5.3
------ ------ ------ ------
Total marine transportation 22.8 22.9 48.4 43.7
------ ------ ------ ------
Total $234.0 $195.4 $480.4 $357.0
====== ====== ====== ======
Operating Margin(1)
- -------------------
Contract drilling
Jackup rigs:
North America $ 67.3 $ 56.7 $144.6 $ 98.4
Europe 44.1 25.6 87.0 44.9
Asia Pacific 12.6 8.3 25.0 10.7
------ ------ ------ ------
Total jackup rigs 124.0 90.6 256.6 154.0
Barge rigs - South America 10.5 12.0 22.3 25.1
Platform rigs 3.5 1.7 6.5 4.0
------ ------ ------ ------
Total contract drilling 138.0 104.3 285.4 183.1
------ ------ ------ ------
Marine transportation
AHTS(2) 1.5 2.8 4.6 5.6
Supply 9.7 9.7 20.2 18.2
Mini-Supply 1.2 1.5 2.9 2.9
------ ------ ------ ------
Total marine transportation 12.4 14.0 27.7 26.7
------ ------ ------ ------
Total $150.4 $118.3 $313.1 $209.8
====== ====== ====== ======
<FN>
(1) Defined as revenues less operating expenses, exclusive of depreciation and
general and administrative expenses.
(2) Anchor handling tug supply vessels.
</FN>
</TABLE>
<PAGE>
The following is an analysis of certain operating information of the Company for
the three and six months ended June 30, 1998 and 1997:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
----------------------- ----------------------
1998 1997 1998 1997
--------- -------- --------- ---------
Contract Drilling
- -----------------
<S> <C> <C> <C> <C>
Utilization:
Jackup rigs:
North America 93% 98% 96% 95%
Europe 100% 100% 100% 100%
Asia Pacific 65% 78% 68% 70%
-------- -------- -------- --------
Total jackup rigs 89% 95% 91% 92%
Barge rigs - South America 100% 100% 100% 100%
Platform rigs 86% 62% 86% 62%
-------- -------- -------- --------
Total 91% 91% 92% 89%
======== ======== ======== ========
Average day rates:
Jackup rigs:
North America $ 53,543 $ 43,979 $ 54,891 $ 40,635
Europe 102,796 71,917 101,568 66,384
Asia Pacific 52,981 37,333 50,630 35,396
-------- -------- -------- --------
Total jackup rigs 63,038 47,989 63,079 44,729
Barge rigs - South America 22,228 22,559 23,729 22,685
Platform rigs 23,770 17,563 23,463 17,739
-------- -------- -------- --------
Total $ 50,843 $ 39,898 $ 51,571 $ 37,375
======== ======== ======== ========
Marine Transportation
- ---------------------
Utilization:
AHTS(1) 52% 82% 63% 81%
Supply 89% 94% 89% 94%
Mini-supply 86% 98% 91% 97%
-------- -------- -------- --------
Total 83% 93% 86% 93%
======== ======== ======== ========
Average day rates:
AHTS(1) $ 15,687 $ 11,974 $ 16,003 $ 11,496
Supply 8,417 7,535 8,662 7,249
Mini-supply 4,341 3,811 4,401 3,769
-------- -------- -------- --------
Total $ 8,129 $ 7,324 $ 8,410 $ 7,060
======== ======== ======== ========
<FN>
(1) Anchor handling tug supply vessels.
</FN>
</TABLE>
Discussions relative to each of the Company's operating segments and significant
changes in operating results for the three and six months ended June 30, 1998
compared with the results of the corresponding prior year periods are set forth
below. See "Business Environment" and "Outlook and Forward-Looking Statements"
for additional information about the Company's expectations regarding future
operations, day rates and utilization.
<PAGE>
Contract Drilling
The following is an analysis of the Company's offshore drilling rigs at June 30,
1998 and 1997:
Number of Rigs
--------------
1998 1997
---- ----
Jackup rigs:
North America 22 22
Europe 7 6
Asia Pacific 7(1) 7(1)
---- ----
Total jackup rigs 36 35
Barge rigs - South America 10 10
Platform rigs 8(2) 8(2)
---- ----
Total 54 53
==== ====
(1) Includes one jackup rig that was previously 49% owned by the
Company. The remaining 51% interest was acquired by the Company in
May 1997.
(2) Seven are located in the Gulf of Mexico and one, which is not owned
but operated under a management contract, is located off the coast
of China.
Revenues for the Company's contract drilling segment increased by 22% to $211.2
million in the second quarter of 1998, compared with $172.5 million in the
second quarter of 1997. This increase in revenues is primarily due to a 27%
improvement in average day rates for the Company's drilling rigs. For the six
months ended June 30, 1998, revenues for the contract drilling segment increased
by 38% to $432.0 million, compared with $313.3 million for the same period in
1997. This increase in revenues is primarily due to a 38% improvement in average
day rates and an increase in utilization to 92% in the current year period from
89% in the prior year period.
The operating margin as a percentage of revenues for the contract drilling
segment increased to 65% in the second quarter of 1998, compared with 60% in the
second quarter of 1997. For the six months ended June 30, 1998, operating margin
as a percentage of revenues increased to 66%, compared with 58% in the prior
year period. The increase in operating margin is due to increased revenues,
offset in part by increased operating expenses resulting primarily from higher
wages, benefits and training costs for offshore rig workers, and increased
oilfield equipment and materials costs. As demand for offshore drilling services
has increased, so has the demand for qualified personnel and equipment and
materials, which has resulted in cost increases for the Company over the prior
year periods.
North America Jackup Rigs
For the second quarter of 1998, revenues for the Company's North America jackup
rigs increased by $12.9 million or 15% and the operating margin increased by
$10.6 million or 19% from the prior year quarter. The increase in revenues is
primarily due to a 22% improvement in average day rates, offset in part by a
decrease in utilization to 93% in the current year quarter from 98% in the prior
year quarter. The decrease in utilization is due to additional downtime for rig
modifications and repairs, scheduled drydockings and idle time. Operating
expenses increased by $2.3 million or 8% from the prior year period due
primarily to cost increases for operating supplies, repairs and replacements and
wages and benefits.
<PAGE>
For the six months ended June 30, 1998, revenues for the Company's North America
Jackup rigs increased by $55.1 million or 36% and the operating margin increased
by $46.2 million or 47% from the prior year period. The increase in revenue is
primarily due to a 35% improvement in day rates and a slight increase in
utilization. Operating expenses increased by $8.8 million or 16% from the prior
year period primarily from cost increases for operating supplies, repairs and
replacements and wages and benefits.
Europe Jackup Rigs
Second quarter revenues for the Europe jackup rigs increased $20.4 million or
52% and the operating margin increased by $18.5 million or 72% from the prior
year quarter. The increase in revenues is primarily due to a 43% improvement in
average day rates with utilization remaining constant at 100% for both periods.
Also, the acquisition of the ENSCO 100 in December 1997 contributed $3.6 million
in revenues and $3.3 million in operating margin to the 1998 second quarter
results. Operating expenses increased by $1.9 million or 14% from the prior year
quarter primarily from cost increases for operating supplies, repairs and
replacements and wages and benefits.
For the six months ended June 30, 1998, revenues for the Europe jackup rigs
increased by $45.9 million or 64% and the operating margin increased by $42.1
million or 94% from the prior year period. Average day rates for the current
year period increased 53% from the prior year while utilization remained
constant at 100%. The ENSCO 100 contributed $7.2 million in revenues and $6.6
million in operating margin to the results of the current year period. Operating
expenses increased by $3.8 million or 14% from the prior year period primarily
from cost increases for operating supplies, repairs and replacements and wages
and benefits.
Asia Pacific Jackup Rigs
Second quarter revenues for the Asia Pacific jackup rigs increased by $4.0
million or 22% and the operating margin increased by $4.3 million or 52% from
the prior year quarter. The increase in revenues is due to a 42% increase in day
rates, offset in part by a decrease in utilization to 65% in the current year
quarter from 78% in the prior year quarter. The decrease in utilization is due
primarily to increased shipyard downtime resulting from two rigs undergoing
modifications and enhancements during the entire second quarter of 1998 and two
rigs coming off contract in June 1998. The enhancements to the two rigs
currently in the shipyard will be completed during the third quarter of 1998. At
the present time the Company does not have contracts for these rigs when the
shipyard enhancements are completed, or for the two rigs whose contracts were
completed in June 1998.
<PAGE>
For the six months ended June 30, 1998, revenues for the Asia Pacific jackup
rigs increased by $13.8 million or 44% and the operating margin increased by
$14.3 million or 134% from the prior year period. Average day rates for the six
months ended June 30, 1998 increased by 43% while utilization decreased to 68%
from 70% in the prior year period, primarily resulting from shipyard downtime.
South America Barge Rigs
Second quarter revenues for the South America barge rigs remained flat while the
operating margin decreased by $1.5 million or 13% from the prior year quarter.
The lack of revenue growth and the decrease in operating margin
quarter-over-quarter is due primarily to the expiration of the initial contract
periods on two of the barge rigs in March and April 1998 and two more barge rigs
in June 1998. These four rigs have been working at reduced day rates under
contract extensions, which has negatively impacted revenues and operating margin
in the current quarter.
For the six months ended June 30, 1998, revenues increased by $2.3 million or 6%
and the operating margin decreased by $2.8 million or 11% from the prior year
period. The increase in revenues for the current year six month period is
attributable to increased revenues in the first quarter of 1998, resulting
primarily from inflationary day rate increases prior to the expiration of the
initial contract terms of the four barge rigs discussed above. Historically, the
Company has been able to recover inflationary cost increases through day rate
adjustments as provided for under the contract with Petroleos de Venezuela, S.A.
("PDVSA"). Also, in the first quarter of 1997, the Company collected additional
revenues related to catch-up adjustments of prior inflationary cost increases.
As stated above, four of the Company's ten barge rigs in Venezuela are operating
under contract extensions as their initial contract periods have expired. PDVSA
has informed the Company of its intent to purchase these four rigs as provided
for under the terms of the original contract; however, it is uncertain whether
the purchase of the rigs will be consummated by PDVSA. The Company and PDVSA are
currently negotiating the purchase price of the rigs but there can be no
assurance that the parties will reach agreement. If PDVSA consummates the
purchase of any of the rigs, the Company expects to recognize a gain on the
sale. If the rigs are not purchased by PDVSA then the Company will pursue other
alternatives including new drilling contracts with PDVSA or contracting the rigs
to third parties. Management currently expects that the rigs will continue to
work for PDVSA under contract extensions until a final decision is reached.
<PAGE>
Marine Transportation
The following is an analysis of the Company's marine transportation vessels as
of June 30, 1998 and 1997:
Number of Vessels
------------------
1998 1997
---- ----
AHTS* 5 6
Supply 24 23
Mini-Supply 8 8
---- ----
Total 37 37
==== ====
* Anchor handling tug supply vessels.
For the second quarter of 1998, revenues for the Company's marine transportation
segment remained flat and the operating margin decreased by $1.6 million or 11%
from the prior year quarter. Second quarter revenues reflect day rate
improvements of approximately 11%, on average, from the prior year quarter and a
decrease in utilization to 83% in the current year quarter from 93% in the prior
year quarter. The decrease in utilization is primarily due to a scheduled
increase in drydockings in the second quarter of 1998 compared with the prior
year quarter. Operating expenses increased from the prior year primarily due to
increased wages and benefits and increased costs resulting from drydockings.
For the six months ended June 30, 1998, revenues increased $4.7 million or 11%
and the operating margin increased by $1.0 million or 4% from the prior year
period. The increase in revenues is primarily due to a 19% increase in day
rates, offset in part by a decrease in utilization to 86% in the current year
period from 93% in the prior year period. The decrease in utilization is
primarily due to more scheduled drydockings in 1998 than 1997.
Depreciation and Amortization
For the second quarter and six months ended June 30, 1998, depreciation and
amortization expense decreased by $5.6 million or 22% and by $10.0 million or
20%, respectively, compared with the same periods in the prior year. These
decreases are due primarily to a change in the depreciable lives of the
Company's drilling rigs and marine vessels effective January 1, 1998, offset in
part by an increase in property and equipment balances from the prior year.
Based on an engineering and economic study of the Company's asset base, the
depreciable lives of the Company's drilling rigs and marine vessels have been
extended by an average of five to six years. The effect of this change on the
Company's financial results for the quarter and six months ended June 30, 1998
was to reduce depreciation expense by $10.0 million or $.07 per basic and
diluted share and by $20.0 million or $.14 per basic and diluted share,
respectively.
<PAGE>
Other Income (Expense)
Other income (expense) for the second quarter and six months ended June 30, 1998
and 1997 was as follows (in millions):
Three Months Ended Six Months Ended
------------------ ----------------
1998 1997 1998 1997
----- ----- ----- -----
Interest income $ 3.8 $ 1.3 $ 6.5 $ 2.7
Interest expense, net (6.6) (4.8) (14.2) (10.6)
Other, net .1 - - .1
----- ----- ----- -----
$(2.7) $(3.5) $(7.7) $(7.8)
===== ===== ===== =====
The Company's interest income increased for the second quarter and six months
ended June 30, 1998 over the comparable prior year periods primarily due to
higher average cash balances in the current year.
Interest expense increased for the second quarter and six months ended June 30,
1998 over the comparable prior year periods due to higher average debt balances
primarily resulting from the Company's issuance of $300 million of debt in
November 1997.
Provision for Income Taxes
The Company's effective tax rate for the second quarter and six months ended
June 30, 1998 was approximately 34% compared to 38% in the prior year periods.
The decrease in the effective tax rate is primarily due to lower foreign taxes
in the current year periods.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flow and Capital Expenditures
The Company's cash flow from operations and capital expenditures for the six
months ended June 30, 1998 and 1997 were as follows (in millions):
1998 1997
------ ------
Cash flow from operations $272.5 $145.1
====== ======
Capital expenditures
Sustaining 23.1 13.3
Enhancements 84.9 79.0
Acquisitions or new construction 44.1 21.7
------ ------
$152.1 $114.0
====== ======
Cash flow from operations increased by $127.4 million for the six months ended
June 30, 1998 as compared to the prior year period. The increase in cash flow
from operations is primarily a result of increased operating margins in the
first six months of 1998 and the net change in various working capital accounts.
<PAGE>
Management anticipates that capital expenditures in 1998, excluding
acquisitions, will be approximately $355 million, represented by approximately
$40 million for sustaining operations, $150 million for enhancements and $165
million for new construction projects. The Company may spend additional funds to
acquire rigs or vessels in 1998, depending on market conditions and
opportunities. The Company is currently constructing three barge rigs as well as
a harsh-environment jackup rig. In May 1998, the Company was awarded a contract
by Burlington Resources for a deep water semisubmersible drilling rig. ENSCO has
contracted with a shipyard to build this semisubmersible drilling rig which will
have water depth capabilities up to 7,500 feet. ENSCO expects to complete
construction of the rig in approximately two years. The primary term of the
contract is for three years, during which time the Company anticipates that
revenues could be approximately $187 million.
Financing and Capital Resources
The Company's long-term debt, total capital and debt to capital ratios at June
30, 1998 and December 31, 1997 are summarized below (in millions, except
percentages):
June 30, December 31,
1998 1997
---------- ------------
Long-term debt $ 388.8 $ 400.8
Total capital 1,619.6 1,477.5
Long-term debt to total capital 24% 27%
The decrease in long-term debt is due primarily to debt repayments in the first
six months of 1998. The total capital of the Company increased due primarily to
the profitability of the Company for the first six months of 1998 offset in part
by reductions in long-term debt and stock repurchases.
In May 1998, the Company's Board of Directors authorized the repurchase of up to
five million shares of the Company's common stock to offset the dilutive effect
of shares issued under various benefit plans and to capitalize on the attractive
valuation of the Company's common stock. As of June 30, 1998, the Company had
repurchased 386,500 shares of its common stock at a cost of approximately $7.7
million.
In May 1998, the Company entered into a $185 million unsecured revolving credit
agreement (the "Credit Agreement") with a syndicate of banks. Interest on
amounts borrowed under the Credit Agreement will be based on LIBOR plus an
applicable margin rate (currently .4%) depending on the Company's credit rating.
The Company also pays a commitment fee (currently .15% per annum) on the undrawn
portion of the available credit line, which is also based on the Company's
credit rating. The Company is required to maintain certain financial covenants
under the Credit Agreement which include the Company meeting a specified level
of interest coverage, assets to indebtedness, leverage ratio, and tangible net
worth. As of June 30, 1998, the Company had $185 million available for
borrowings under the Credit Agreement. The Credit Agreement matures in May 2003.
<PAGE>
The Company's liquidity position at June 30, 1998 and December 31, 1997 is
summarized in the table below (in millions, except ratios):
June 30, December 31,
1998 1997
------------ ------------
Cash and cash equivalents $351.3 $262.2
Working capital 343.8 316.2
Current ratio 2.9 3.4
Management believes cash flow from operations, the Company's existing Credit
Agreement and the Company's working capital should be sufficient to fund the
Company's short and long-term liquidity needs.
MARKET RISKS
The Company uses financial instruments to hedge its known liabilities in foreign
currencies and certain projected foreign currency payments to mitigate its
exposure to changes in those foreign currencies. The Company does not enter into
financial instruments for speculative or trading purposes. At June 30, 1998, the
Company had various foreign currency exchange contracts outstanding to exchange
U.S. Dollars for Dutch Guilders, British Pounds Sterling and Singapore Dollars
totaling $43.2 million combined. At June 30, 1998 there were no material
unrealized gains or losses on open foreign currency exchange derivative hedges.
Management believes that the Company's hedging activities do not expose the
Company to any material interest rate risk, foreign currency exchange rate risk,
commodity price risk or any other market rate or price risk.
YEAR 2000 ISSUE
The Company has completed the initial assessment of its computer systems and
other operational equipment to determine what systems and equipment may be
impacted by the Year 2000 problem. The Company presently believes that it will
be able to implement successfully the required systems and equipment
modifications necessary to make the Company Year 2000 compliant by mid-1999.
Based on the Company's assessment of its computer systems and other operational
equipment to date, the Company believes that the potential impact, if any, of it
not timely implementing the necessary modifications to become Year 2000
compliant would not be material to the operations of the Company. The Company
currently estimates that it will incur costs of approximately $500,000 to become
Year 2000 compliant.
The Company has initiated formal communication with its significant suppliers,
customers and business partners to determine the extent to which the Company is
vulnerable to these third parties' failure to remedy their own Year 2000 issues.
In addition, third party vendors of hardware and packaged software have been
contacted about their products' compliance status. There can be no guarantee
that the systems of other companies on which the Company's systems rely will be
timely converted, or that a failure to convert by another company, or a
conversion that is incompatible with the Company's systems, would not have a
material adverse effect on the Company.
<PAGE>
OUTLOOK AND FORWARD-LOOKING STATEMENTS
With oil prices remaining at very depressed levels, management anticipates that
the Company will experience further decreases in day rates and utilization in
the near-term. As day rates and utilization continue to decrease, the Company's
financial results will be adversely affected. Due to the short-term nature of
many of the Company's contracts and the unpredictable nature of oil and natural
gas prices, which affect the demand for drilling activity, the extent of such
adverse change cannot be accurately predicted. However, the Company currently
anticipates that its financial results for the second half of 1998 will be
significantly lower than the results for the first half of 1998. The duration of
this market downturn depends on many factors that also cannot be accurately
predicted. Management anticipates that the offshore drilling markets will be
unsettled for at least the balance of 1998, but remains positive on the
long-term outlook for the industry and for ENSCO.
The declines experienced in the offshore drilling markets have had the greatest
impact on the demand for the Company's jackup rigs in the Gulf of Mexico and
Southeast Asia. The Company currently has three jackup rigs idle in the Gulf of
Mexico where the Company's contracts have traditionally been and continue to be
short-term contracts. Due to the short-term nature of these contracts, the
Company expects that its Gulf of Mexico jackup rigs will experience increased
downtime for the remainder of 1998. In the Asia Pacific region, the Company
currently has two rigs idle and two rigs in the shipyard. In Europe, the Company
anticipates that one rig will be idle during part of the third and fourth
quarters of 1998. In South America, the Company is uncertain as to what the
outcome will be regarding whether or not PDVSA will purchase the previously
discussed four barge rigs whose initial contract periods have expired.
Management expects that PDVSA will makes its determination during 1998. The
market downturn is also affecting the Company's marine transportation segment,
which currently has 10 of its 37 vessels available for work in the Gulf of
Mexico.
In May 1998, the Company was awarded a contract by Burlington Resources for a
deep water semisubmersible drilling rig. ENSCO has contracted with a shipyard to
build this semisubmersible drilling rig which will have water depth capabilities
up to 7,500 feet. ENSCO expects to complete construction of the rig in
approximately two years. The primary term of the contract is for three years,
during which time the Company anticipates that revenues could be approximately
$187 million.
Progress on the construction of the Company's three barge rigs for Venezuela and
a harsh-environment jackup rig are proceeding as scheduled. The barge rigs,
which are being constructed against a long-term contract with Chevron, are
expected to be delivered in early 1999, and the harsh-environment jackup rig is
scheduled for delivery in early 2000. The Company has decided not to exercise
its option to build a second jackup rig at the present time but has arranged to
extend the option availability. The Company continues to evaluate its
opportunities with regard to new construction projects.
This report contains forward-looking statements based on current expectations
that involve a number of risks and uncertainties that could cause actual results
<PAGE>
to differ materially from the results discussed in the forward-looking
statements. Generally, forward-looking statements include words or phrases such
as "management anticipates," "management expects," "the Company believes," "the
Company anticipates," "the Company expects" and words and phrases of similar
impact, and include but are not limited to statements regarding future
operations and business environment. The forward-looking statements are made
pursuant to safe harbor provisions of the Private Securities Litigation Reform
Act of 1995. The factors that could cause actual results to differ materially
include, but are not limited to: (i) industry conditions and competition, (ii)
the cyclical nature of the industry, (iii) worldwide expenditures for oil and
gas drilling, (iv)operational risks and insurance, (v) risks associated with
operating in foreign jurisdictions, (vi) environmental liabilities which may
arise in the future which are not covered by insurance or indemnity, (vii) the
impact of current and future laws and governmental regulation, as well as repeal
or modification of the same, affecting the oil and gas industry and the
Company's operations in particular, and (viii) the risks described from time to
time in the Company's reports to the Securities and Exchange Commission,
including the Company's Annual Report on Form 10-K for the year ended December
31, 1997.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities." This statement requires companies to record derivatives
on the balance sheet as assets and liabilities, measured at fair value. Gains
and losses resulting from changes in the values of those derivatives would be
accounted for depending on the use of the derivative and whether it qualifies
for hedge accounting. This statement is not expected to have a material impact
on the Company's consolidated financial statements. This statement is effective
for fiscal years beginning after June 15, 1999, with earlier adoption
encouraged. ENSCO will adopt this accounting standard as required by January 1,
2000.
<PAGE>
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On May 12, 1998, the Company held an annual meeting of stockholders to consider
the following proposals: "Proposal 1" - To elect three Class III Directors;
"Proposal 2" - Approval of the ENSCO International Incorporated 1998 Incentive
Plan; and "Proposal 3" - To approve the appointment of Price Waterhouse LLP as
the Company's independent accountants for 1998. A description of the foregoing
matters is contained in the Company's proxy statement dated March 26, 1998
relating to the 1998 annual meeting of stockholders.
There were 142,270,004 shares of the Company's common stock entitled to vote at
the annual meeting based on the March 25, 1998 record date, of which
130,743,911, or approximately 92%, were present in person or by proxy. The
Company solicited proxies pursuant to Regulation 14 of the Securities Exchange
Act of 1934, and there was no solicitation in opposition to management's
nominees for directors as listed in the proxy statement.
With respect to Proposal 1 listed above, the voting was as follows:
Votes for Votes Withheld
----------- --------------
Orville D. Gaither, Sr. 129,573,401 1,170,510
Dillard S. Hammett 129,576,484 1,167,427
Thomas L. Kelly II 129,576,831 1,167,080
With respect to Proposals 2 and 3 listed above, the voting was as follows:
Votes for Votes Against Abstentions Non-Votes
----------- ------------- ----------- ----------
Proposal 2 89,822,252 10,382,779 468,137 30,070,743
Proposal 3 130,445,600 128,720 169,588 3
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits Filed with this Report
Exhibit No.
10.1 Credit Agreement among ENSCO International Incorporated,
ENSCO Offshore Company, Dual Holding Company, various
lending institutions, Bankers Trust Company as
Administrative Agent, Den Norske Bank ASA, New York Branch
as Syndication Agent and ABN Amro Bank N.V. as Documentation
Agent concerning a $185 million Revolving Credit Loan, dated
as of May 21, 1998.
15.1 Letter regarding unaudited interim financial information.
27.1 Financial Data Schedule. (Exhibit 27.1 is being submitted as
an exhibit only in the electronic format of this Quarterly
Report on Form 10-Q submitted to the Securities and Exchange
Commission.)
(b) Reports on Form 8-K
None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ENSCO INTERNATIONAL INCORPORATED
Date: August 4, 1998 /s/ C. Christopher Gaut
--------------- ----------------------------------
C. Christopher Gaut
Chief Financial Officer
/s/ H. E. Malone
----------------------------------
H. E. Malone, Corporate Controller
and Chief Accounting Officer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the June 30,
1998 financial statements and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000314808
<NAME> ENSCO International Incorporated
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-Mos
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 351,300
<SECURITIES> 0
<RECEIVABLES> 155,100
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 526,500
<PP&E> 1,715,300
<DEPRECIATION> 394,400
<TOTAL-ASSETS> 1,989,000
<CURRENT-LIABILITIES> 182,700
<BONDS> 388,800
0
0
<COMMON> 15,500
<OTHER-SE> 1,215,300
<TOTAL-LIABILITY-AND-EQUITY> 1,989,000
<SALES> 0
<TOTAL-REVENUES> 480,400
<CGS> 0
<TOTAL-COSTS> 167,300
<OTHER-EXPENSES> 47,700
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,200
<INCOME-PRETAX> 257,700
<INCOME-TAX> 88,100
<INCOME-CONTINUING> 167,800
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 167,800
<EPS-PRIMARY> 1.19
<EPS-DILUTED> 1.18
</TABLE>
CREDIT AGREEMENT
among
ENSCO INTERNATIONAL INCORPORATED,
ENSCO OFFSHORE COMPANY,
DUAL HOLDING COMPANY,
VARIOUS LENDING INSTITUTIONS,
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
and
DEN NORSKE BANK ASA, NEW YORK BRANCH
as SYNDICATION AGENT
and
ABN AMRO BANK N.V.
as DOCUMENTATION AGENT
$185,000,000.00 REVOLVING CREDIT LOAN
-----------------------------------
Dated as of May 21, 1998
-----------------------------------
Andrews & Kurth L.L.P.
Counsel to the Administrative Agent
<PAGE>
TABLE OF CONTENTS
SECTION 1. Amount and Terms of Credit.......................................1
1.01 The Commitments................................................1
1.02 Minimum Borrowing Amounts, etc.................................1
1.03 Notice of Borrowing............................................1
1.04 Disbursement of Funds..........................................2
1.05 Notes..........................................................2
1.06 Conversions....................................................3
1.07 Pro Rata Borrowings............................................3
1.08 Interest.......................................................3
1.09 Interest Periods...............................................4
1.10 Increased Costs, Illegality, etc...............................5
1.11 Compensation...................................................7
1.12 Change of Lending Office; Limitation on Indemnities............7
1.13 Replacement of Banks...........................................8
SECTION 2. Letters of Credit................................................8
2.01 Letters of Credit..............................................8
2.02 Letter of Credit Requests; Request for Issuance of Letter of
Credit.........................................................9
2.03 Agreement to Repay Letter of Credit Payments...................9
2.04 Letter of Credit Participations...............................10
2.05 Increased Costs...............................................12
2.06 Indemnities...................................................13
SECTION 3. Fees: Commitments...............................................13
3.01 Fees..........................................................13
3.02 Voluntary Reduction of Commitments............................15
3.03 Commitment Termination........................................15
SECTION 4. Payments........................................................15
4.01 Voluntary Prepayments.........................................15
4.02 Mandatory Prepayments.........................................15
4.03 Method and Place of Payment...................................17
4.04 Net Payments..................................................17
SECTION 5. Conditions Precedent............................................19
5.01 Execution of Agreement, Notes and Guaranties..................19
5.02 No Default; Representations and Warranties....................19
5.03 No Default on Effective Date..................................19
5.04 Opinions of Counsel...........................................19
<PAGE>
5.05 Secretary Certificate; Corporate Proceedings..................19
5.06 Fees..........................................................20
5.07 Insurance Report..............................................20
SECTION 6. Representations, Warranties and Agreements......................20
6.01 Corporate Status..............................................20
6.02 Corporate Power and Authority.................................21
6.03 No Violation..................................................21
6.04 Litigation....................................................21
6.05 Use of Proceeds: Margin Regulations...........................21
6.06 Governmental Approvals........................................21
6.07 Investment Company Act........................................22
6.08 True and Complete Disclosure..................................22
6.09 Financial Condition; Financial Statements.....................22
6.10 Tax Returns and Payments......................................22
6.11 Compliance with ERISA.........................................23
6.12 Subsidiaries..................................................23
6.13 Patents, etc..................................................23
6.14 Pollution and Other Regulations...............................23
6.15 Properties....................................................23
6.16 Citizenship...................................................24
6.17 Rig Classification............................................24
6.18 Insurance.....................................................24
6.19 Year 2000 Compliance..........................................24
SECTION 7. Affirmative Covenants...........................................24
7.01 Information Covenants.........................................24
7.02 Books, Records and Inspections................................26
7.03 Insurance.....................................................26
7.04 Payment of Taxes..............................................26
7.05 Consolidated Corporate Franchises.............................27
7.06 Compliance with Statutes......................................27
7.07 Good Repair...................................................27
7.08 End of Fiscal Years; Fiscal Quarters..........................27
7.09 Use of Proceeds...............................................27
7.10 ERISA.........................................................27
7.11 Future Material Subsidiaries..................................28
SECTION 8. Negative Covenants..............................................28
8.01 Changes in Business...........................................28
8.02 Consolidation, Merger or Sale of Assets, etc..................28
8.03 Liens on Assets...............................................28
<PAGE>
8.04 Indebtedness..................................................29
8.05 Dividends; Restrictions on Subsidiaries, etc..................30
8.06 Amending Indentures...........................................31
8.07 Interest Coverage Ratio.......................................31
8.08 Asset/Indebtedness Ratio......................................31
8.09 Leverage Ratio................................................32
8.10 Tangible Net Worth............................................32
8.11 Transactions with Affiliates..................................32
8.12 Limitation on Sale/Leaseback Transactions.....................32
8.13 Value Adjusted Equity Test....................................32
8.14 Permitted Investments.........................................32
SECTION 9. Events of Default...............................................32
9.01 Payments......................................................32
9.02 Representations, etc..........................................33
9.03 Covenants.....................................................33
9.04 Default Under Other Agreements................................33
9.05 Bankruptcy....................................................33
9.06 Employee Benefit Plans........................................34
9.07 Guaranty......................................................34
9.08 Judgments.....................................................34
9.09 Citizenship...................................................34
9.10 Change of Control.............................................35
SECTION 10. Definitions.....................................................35
SECTION 11. The Administrative Agent........................................48
11.01 Appointment of the Administrative Agent.......................48
11.02 Nature of Duties..............................................48
11.03 Lack of Reliance on the Administrative Agent..................48
11.04 Certain Rights of the Administrative Agent....................49
11.05 Reliance......................................................49
11.06 Indemnification...............................................49
11.07 The Administrative Agent in Its Individual Capacity...........49
11.08 Holders.......................................................50
11.09 Resignation by the Administrative Agent.......................50
SECTION 12. Miscellaneous..................................................50
12.01 Payment of Expenses...........................................50
12.02 Right of Setoff...............................................52
12.03 Notices.......................................................52
12.04 Benefit of Agreement..........................................52
<PAGE>
12.05 No Waiver; Remedies Cumulative................................54
12.06 Payments Pro Rata.............................................54
12.07 Calculations: Computations....................................55
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL....................................................55
12.09 Counterparts..................................................56
12.10 Effectiveness.................................................56
12.11 Headings Descriptive..........................................56
12.12 Amendment or Waiver...........................................56
12.13 Survival......................................................57
12.14 Domicile of Loans.............................................57
12.15 Confidentiality...............................................57
12.16 Registry......................................................58
12.17 Designated Senior Indebtedness................................58
12.18 No Further Agreements.........................................58
SECTION 13. Guaranty........................................................58
13.01 The Guaranty..................................................58
13.02 Bankruptcy....................................................59
13.03 Nature of Liability...........................................59
13.04 Independent Obligation........................................60
13.05 Waiver of Notice, etc.........................................60
13.06 Authorization.................................................60
13.07 Reliance......................................................61
13.08 Subordination.................................................61
13.09 Waiver........................................................61
13.10 Subrogation...................................................62
Exhibit 1.03 - Form of Notice of Borrowing
Exhibit 1.05 - Form of Note
Exhibit 2.02 - Form of Letter of Credit Request
Exhibit 4.04(b) - Section 4.04(b) Certificate - No
Exhibit 5.05 - Form of Officer's Certificate
Exhibit 7.01(e) - Compliance Certificate - No
Exhibit 12.04 - Form of Assignment and Assumption Agreement
Annex I - Commitments
Annex II - Bank Addresses
Annex 6.12 - Subsidiaries - No
Annex 6.15(b) - Borrower's Rigs - No
Annex 8.03(h) - Existing Liens - No
Annex 8.04(j) - Existing Debt
<PAGE>
CREDIT AGREEMENT, dated as of May 21, 1998, among ENSCO
INTERNATIONAL INCORPORATED ("Borrower"), a Delaware corporation, ENSCO OFFSHORE
COMPANY, a Delaware corporation, DUAL HOLDING COMPANY, a Delaware corporation
(each a "Guarantor" and collectively the "Guarantors"), the lending institutions
listed from time to time on Annex I hereto (each a "Bank" and, collectively, the
"Banks") and BANKERS TRUST COMPANY, as administrative agent (in such capacity,
the "Administrative Agent"), DEN NORSKE BANK ASA, NEW YORK BRANCH as syndication
agent (in such capacity, the "Syndication Agent") and ABN AMRO BANK N.V. as
documentation agent (in such capacity, the "Documentation Agent"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined. The parties hereto agree as follows:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a revolving credit loan or
loans (each a "Loan" and, collectively, the "Loans") under the Facility to
Borrower, which Loans (i) shall be made at any time and from time to time on and
after the Effective Date and prior to the Maturity Date, (ii) except as
hereinafter provided, may, at the option of Borrower, be incurred and maintained
as, and converted into, Base Rate Loans or Eurodollar Loans, provided that all
Loans made as part of the same Borrowing shall, unless otherwise specifically
provided herein, consist of Loans of the same Type, (iii) may be repaid and,
prior to any Default or Event of Default, reborrowed from time to time in
accordance with the provisions hereof so long as any portion of the Total
Commitment remains outstanding, (iv) shall not exceed in the aggregate for all
Banks at any time outstanding, the Total Commitment and (v) shall not exceed for
any Bank at any time outstanding that aggregate principal amount which, when
combined with the aggregate outstanding principal amount of all other Loans of
such Bank and with such Bank's Letter of Credit Outstandings (exclusive of any
Unpaid Drawings which are repaid with the proceeds of, and simultaneously with
the incurrence of, the Loans) at such time, equals the Commitment of such Bank.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount. More than
one (1) Borrowing may be incurred on any day, provided that at no time shall
there be outstanding more than ten (10) Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. Whenever Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent at its Notice
Office, prior to 3:00 P.M. (New York time), at least four (4) Business Days'
prior written notice (or telephonic notice promptly confirmed in writing). Each
such notice (each a "Notice of Borrowing") shall be in the form of Exhibit 1.03
and shall be irrevocable and shall specify (i) the date of such Borrowing (which
shall be a Business Day), (ii) the aggregate principal amount of the Loans to be
made pursuant to such Borrowing, (iii) whether the respective Borrowing shall
consist of Base Rate Loans or (to the extent permitted) Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto and
<PAGE>
(iv) disbursement instructions. The Administrative Agent shall promptly give
each Bank written notice (or telephonic notice promptly confirmed in writing) of
each proposed Borrowing, of such Bank's proportionate share thereof and of the
other matters covered by the Notice of Borrowing.
1.04 Disbursement of Funds. (a) No later than 12:00 Noon (New York
time) on the date specified in the Notice of Borrowing, each Bank will make
available its pro rata share of each Borrowing requested to be made on such date
in the manner provided below. All such amounts shall be made available to the
Administrative Agent in immediately available funds at the Payment Office and
the Administrative Agent promptly will make available to Borrower by depositing
to its account at the Payment Office the aggregate of the Borrowing in
immediately available funds. Unless the Administrative Agent shall have been
notified by any Bank prior to the date of Borrowing that such Bank does not
intend to make available to the Administrative Agent its portion of the
Borrowing to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
Borrower such corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Bank and the Administrative
Agent has made available same to Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly (and in any event
within two (2) Business Days from the date the Administrative Agent made such
funds available to Borrower) notify Borrower, and Borrower shall (within two (2)
Business Days of receiving such demand) pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
on demand from such Bank or Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to Borrower to the date
such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (x) if paid by such Bank, the overnight Federal Funds
Effective Rate or (y) if paid by Borrower, the then applicable rate of interest,
calculated in accordance with Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.05 Notes. (a) Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank to Borrower shall be evidenced by a
promissory note duly executed and delivered by Borrower substantially in the
form of Exhibit 1.05 with blanks appropriately completed in conformity herewith
(each a "Note" and, collectively, the "Notes").
(b) The Note issued to each Bank shall (i) be executed by Borrower, (ii) be
payable to the order of such Bank and be dated the Effective Date, (iii) be in a
stated principal amount equal to the Commitment of such Bank on such date and be
payable in the principal amount of the Loans evidenced thereby, (iv)mature on
<PAGE>
the Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of and subject to this
Agreement and the other Credit Documents.
(c) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, indicate the outstanding principal amount of Loans
evidenced thereby. Failure to make any such notation shall not affect Borrower's
obligations in respect of such Loans.
1.06 Conversions. Borrower shall have the option to convert on any
Business Day all or a portion at least equal to the applicable Minimum Borrowing
Amount of the outstanding principal amount of the Loans into a Borrowing or
Borrowings of another Type of Loan, provided that (i) except as otherwise
provided in Section 1.10(b), Eurodollar Loans may be converted into Base Rate
Loans only on the last day of an Interest Period applicable thereto and no
partial conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans made pursuant to such
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) no
Base Rate Loans may be converted into Eurodollar Loans at any time when a
Default or Event of Default is in existence on the date of the conversion if the
Administrative Agent or the Required Banks have determined that such a
conversion would be disadvantageous to the Banks and (iii) Borrowings of
Eurodollar Loans resulting from this Section 1.06 shall be limited in number as
provided in Section 1.02. Each such conversion shall be effected by Borrower
giving the Administrative Agent at its Notice Office, prior to 12:00 Noon (New
York time), at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) (each a "Notice of Conversion")
specifying the Loans to be so converted, the Type of Loans to be converted into
and, if to be converted into a Borrowing of Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Bank prompt notice of any such proposed conversion affecting any of its
Loans.
1.07 Pro Rata Borrowings. All Loans under this Agreement shall be
made by the Banks pro rata on the basis of their respective Commitments. No Bank
shall be responsible for any default by any other Bank in its obligation to make
Loans hereunder and each Bank shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Bank to fulfill
its Commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at all
times be the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
<PAGE>
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Eurodollar Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall bear interest at a rate per annum equal to two percent (2%) per
annum in excess of the rate otherwise applicable thereto, provided that no Loan
shall bear interest after maturity (whether by acceleration or otherwise) at a
rate per annum less than two percent (2%) plus the rate of interest applicable
thereto at maturity.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the first
day of each January, April, July and October, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of six (6) months, on the date occurring
six (6) months after the first day of such Interest Period and (iii) in respect
of each Loan, on any prepayment or conversion (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for
any Borrowing of Loans for any Interest Period, shall promptly notify Borrower
and the Banks thereof.
1.09 Interest Periods. (a) At the time Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of Borrower, be a one (1), two (2), three (3) or six
(6) month period (or, to the extent available and at the reasonable discretion
of the Administrative Agent, a nine (9) or twelve (12) month Interest Period or,
if each Bank agrees, a non-standard period). Notwithstanding anything to the
contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the immediately preceding Interest Period expires;
<PAGE>
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day
of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the immediately preceding Business Day;
(iv) no Interest Period shall extend beyond the Maturity Date;
(v) no Interest Period may be elected at any time when a Default or
Event of Default is then in existence if the Administrative Agent or the
Required Banks have determined that such an election at such time would be
disadvantageous to the Banks; and
(vi) no more than ten (10) Interest Periods (except as described in
clause (b)below) of one (1) month may be selected by Borrower in any
calendar year.
(b) If upon the expiration of any Interest Period, Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, Borrower shall be
deemed to have elected a six (6) month Interest Period for such Borrowing,
provided that if Borrower may not elect an Interest Period as a result of clause
(a)(v) above, Borrower will be deemed to have elected a one (1) month Interest
Period effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate or basis of taxes or similar charges) because of (x) any
change since the date of this Agreement in any applicable law,
governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of
<PAGE>
any new law or governmental rule, regulation, guideline or order) (such
as, for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D but only to the extent already included in the computation of
the Eurodollar Rate) and/or (y) other circumstances occurring after the
date of this Agreement and affecting the interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline (or would conflict with any
such governmental rule, regulation, guideline or order not having the
force of law but with which such Bank customarily complies even though the
failure to comply therewith would not be unlawful);
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within ten (10) Business
Days of the date on which such event no longer exists, give notice (by telephone
confirmed in writing) to Borrower and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (A) in the case of clause (i) above,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies Borrower and the Banks that the circumstances
giving rise to such notice by the Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by Borrower with respect to
Eurodollar Loans which have not yet been made shall be deemed rescinded by
Borrower, (B) in the case of clause (ii) above, Borrower shall, subject to
Section 1.12(b) (to the extent applicable), pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts receivable hereunder (a
written notice as to the additional amounts owed to such Bank, showing the basis
for the calculation thereof, submitted to Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) and
(C) in the case of clause (iii) above, Borrower shall take the actions specified
in Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), Borrower may (and in
the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii),
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or (iii),
or (ii) if the affected Eurodollar Loan is then outstanding, upon at least three
(3) Business Days' notice to the Administrative Agent, require the affected Bank
to convert each such Eurodollar Loan into a Base Rate Loan, provided that if
more than one (1) Bank is affected at any time, then all affected Banks must be
treated the same pursuant to this Section 1.10(b).
<PAGE>
(c) If any Bank shall have determined that after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law but with which such
Bank customarily complies even though the failure to comply therewith would not
be unlawful) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Bank's capital or
assets as a consequence of its commitments or obligations hereunder to a level
below that which such Bank could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank's
policies with respect to capital adequacy), then from time to time, within 15
days after demand by such Bank (with a copy to the Administrative Agent),
Borrower agrees, subject to Section 1.12(b) (to the extent applicable), to pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction. Each Bank, upon determining in good faith that any additional
amounts will be payable pursuant to this Section 1.10(c), will give written
notice thereof (such notice to be given in accordance with Section 1.12(b)
below) to Borrower, which notice shall set forth the basis of the calculation of
such additional amounts.
1.11 Compensation. Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding in any event the loss of anticipated
profits) which such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Administrative Agent) a Borrowing of Eurodollar
Loans does not occur on a date specified therefor in a Notice of Borrowing or
Notice of Conversion (whether or not withdrawn by Borrower or deemed withdrawn
pursuant to Section 1.10(a); (ii) if any prepayment, repayment or conversion of
any of its Eurodollar Loans (including as a result of Section 1. 10 or the last
paragraph of Section 9 occurs on a date which is not the last day of an Interest
Period applicable thereto; (iii) if any prepayment of any of Borrower's
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by Borrower; or (iv) as a consequence of (x) any other default by Borrower
to repay its Eurodollar Loans when required by the terms of this Agreement or
(y) an election made pursuant to Section 1.10(b).
1.12 Change of Lending Office; Limitation on Indemnities. (a) Each
Bank agrees that, upon the occurrence of any event giving rise to the operation
of Section 1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04 with respect to such
Bank, it will, if requested by Borrower, use reasonable efforts (subject to
overall policy considerations of such Bank) to designate another lending office
for any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 1.12 shall affect or postpone any of the obligations of
Borrower or the right of any Bank provided in Section 1.10, 2.05 or 4.04.
<PAGE>
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10, 2.05 or 4.04 is given by any
Bank more than 90 days after such Bank obtained, or reasonably should have
obtained, knowledge of the occurrence of the event giving rise to the additional
costs of the type described in such Section, such Bank shall not be entitled to
compensation under Section 1.10, 2.05 or 4.04 for any amounts incurred or
accruing prior to the giving of such notice to Borrower.
1.13 Replacement of Banks. Upon the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04
with respect to any Bank which results in such Bank charging to Borrower
increased costs in excess of those being generally charged by the other Banks or
such Bank becoming incapable of making Eurodollar Loans, as provided in Section
12.12(b), or in the case of a refusal by a Bank to consent to a proposed change,
waiver, discharge or termination with respect to this Agreement which has been
approved by the Required Banks, Borrower shall have the right, if no Default or
Event of Default then exists, to replace such Bank (the "Replaced Bank") with
one or more other Eligible Transferee or Transferees reasonably acceptable to
the Administrative Agent (collectively, the "Replacement Bank"), provided that
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans of,
and in each case participations in Letters of Credit transferred by, the
Replaced Bank and, in connection therewith, shall pay to (x) the Replaced Bank
in respect thereof an amount equal to the sum of (A) the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank, (B) all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such time and (C)
all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 3.01, and (y) the Letter of Credit Issuer an amount equal to such
Replaced Bank's Percentage of any Unpaid Drawing (which at such time remains an
Unpaid Drawing) to the extent such amount was not theretofore funded by such
Replaced Bank, and (ii) all obligations of Borrower owing to the Replaced Bank
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Bank concurrently with such replacement and such
Replaced Bank shall promptly return all canceled Notes to Borrower. Upon the
execution of the respective Assignment and Assumption Agreements, the payment of
amounts referred to in clauses (i) and (ii) above, and, if so requested by the
Replacement Bank, delivery to the Replacement Bank of appropriate Notes executed
by Borrower, the Replacement Bank shall become a Bank hereunder and the Replaced
Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions applicable to the Replaced Bank under this Agreement,
which shall survive as to such Replaced Bank as described herein.
<PAGE>
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, Borrower may request that the Letter of Credit
Issuer at any time and from time to time, on or after the Effective Date and
prior to the Business Day thirty (30) days preceding the Maturity Date, issue,
for the account of Borrower and in support of L/C Supportable Obligations, and
subject to and upon the terms and conditions herein set forth, the Letter of
Credit Issuer agrees to issue from time to time, irrevocable standby letters of
credit denominated in US Dollars and in such form as may be approved by the
Letter of Credit Issuer (the "Letters of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to all other Letters of Credit
Outstanding (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit), at such time, would
exceed (y) $75,000,000.00 or (z) when added to the sum of all Letters of Credit
Outstanding plus the aggregate principal amount of all Loans made by the Banks
then outstanding, the Total Commitment at such time; and (ii) each Letter of
Credit shall have an expiry date occurring not later than the earlier of (y) the
date which occurs eighteen (18) months after the date of issuance thereof,
provided, subject to the limits of subsection (z), below, such Letter of Credit
may contain provisions for automatic renewal thereof on terms acceptable to the
Letter of Credit Issuer or (z) the Business Day ten (10) days preceding the
Maturity Date.
(c) Any presentment of any Letter of Credit for payment shall be
accompanied by, among any other items required by the Letter of Credit Request
and any accompanying documentation, a sight draft in the amount of the payment
requested.
2.02 Letter of Credit Requests; Request for Issuance of Letter of
Credit. (a) Whenever Borrower desires that a Letter of Credit be issued,
Borrower shall give the Letter of Credit Issuer written notice (including by way
of telecopier) in the form of Exhibit 2.02 prior to 12:00 Noon (New York time)
at least seven (7) Business Days (or three (3) Business Days if the issuance of
the Letter of Credit has been approved in advance by the Letter of Credit
Issuer) prior to the proposed date of issuance (which shall be a Business Day)
(each a "Letter of Credit Request"), which Letter of Credit Request shall
include any documents that the Letter of Credit Issuer may reasonably require in
connection therewith. The Letter of Credit Request shall after three (3)
Business Days (or one (1) Business Day if the issuance of the Letter of Credit
has been approved in advance by the Letter of Credit Issuer) be irrevocable.
(b) The Letter of Credit Issuer shall, promptly after issuance of,
or amendment to, a Letter of Credit by it, give each Bank and Borrower written
notice of the issuance of, or amendment to, such Letter of Credit. Notice to the
Borrower shall be accompanied by a copy of the Issued Letter of Credit or
amendment. If requested to do so, the Letter of Credit Issuer will provide
copies to the Banks.
<PAGE>
2.03 Agreement to Repay Letter of Credit Payments. (a) Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Administrative Agent at the Payment Office, for any payment or disbursement made
by the Letter of Credit Issuer under any Letter of Credit (each such amount so
paid or disbursed until reimbursed, an "Unpaid Drawing") immediately after, and
in any event on the date on which Borrower is notified by the Letter of Credit
Issuer of such payment or disbursement with interest on the amount so paid or
disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to
1:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date the Letter of
Credit Issuer is reimbursed therefor at a rate per annum which shall be the Base
Rate as in effect on the date of such notice of payment or disbursement (plus an
additional 2% per annum if not reimbursed by the third Business Day after the
date of such notice of payment or disbursement), such interest also to be
payable on demand.
(b) (i) The Letter of Credit Issuer shall not concern itself with
the regularity or propriety of any demand made under any Letter of Credit beyond
the face thereof, provided that such demand strictly complies with the terms of
such Letter of Credit and (subject to the provisos contained in Sections
2.03(b)(i) and (ii)) it shall not be a defense to a claim of the Letter of
Credit Issuer made pursuant to Section 13.01 that the Letter of Credit Issuer
could have resisted the payment in respect of which such claim is made. The
Borrower will promptly examine all instruments and documents from time to time
delivered by the Letter of Credit Issuer to the Borrower and will, within three
(3) Business Days of such receipt, notify the Letter of Credit Issuer in writing
of any claim of non-compliance with the Letter of Credit or the Borrower's
instructions to the Letter of Credit Issuer or other irregularity, and the
Borrower shall conclusively be deemed to have waived any claim against the
Letter of Credit Issuer and its correspondents hereunder unless such notice is
given by the Borrower as aforesaid.
(ii) Borrower's obligation under this Section 2.03 to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which Borrower may have or have had against the Letter of Credit Issuer or any
Bank, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit to conform to the terms of the Letter of Credit
(other than the failure of the Letter of Credit Issuer to determine that any
documents required to be delivered under such Letter of Credit have been
delivered and that they substantially comply on their face with the requirements
of such Letter of Credit) or any non-application or misapplication by the
beneficiary of the proceeds of such drawing; provided, however, notwithstanding
the terms of Section 2.04(b)(i) Borrower shall not be obligated to reimburse the
Letter of Credit Issuer for any wrongful payment made by the Letter of Credit
Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer as determined in a final, non-appealable judgment, by a court of
competent jurisdiction.
<PAGE>
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each Bank, and
each Bank (each a "Participant") shall be deemed irrevocably and unconditionally
to have purchased and received from the Letter of Credit Issuer, without
recourse or warranty, an undivided interest and participation, to the extent of
such Bank's Percentage, in such Letter of Credit, each substitute letter of
credit, each drawing made thereunder and the obligations of Borrower under this
Agreement with respect thereto (although the Letter of Credit Fee shall be
payable directly to the Administrative Agent for the account of the Participants
as provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any fronting fees) and any security therefor or guaranty
pertaining thereto. Upon any change in the Commitments or Percentages of the
Banks pursuant to Section 12.04(b), it is hereby agreed that, with respect to
all outstanding Letters of Credit and Unpaid Drawings thereon, there shall be an
automatic adjustment to the participations pursuant to this Section 2.04 to
reflect the new Percentages of the assigning and assignee Bank or of all Banks,
as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the respective
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Letter of Credit Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct (as determined in a final, non-appealable
judgment by a court of competent jurisdiction), shall not create for the Letter
of Credit Issuer any resulting liability to the respective Participants.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit and Borrower shall not have reimbursed such amount in
full to the Letter of Credit Issuer pursuant to Section 2.03(a), the Letter of
Credit Issuer shall promptly notify each respective Participant of such failure,
and each such Participant shall promptly and unconditionally pay to the Letter
of Credit Issuer, the amount of such Participant's Percentage of such payment in
US Dollars and in same day funds; provided, however, that no Participant shall
be obligated to pay to the Letter of Credit Issuer its Percentage of such
unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer (as
determined in a final, non-appealable judgment by a court of competent
jurisdiction). If the Administrative Agent so notifies any Participant required
to fund an Unpaid Drawing under a Letter of Credit prior to 1:00 P.M. (New York
time) on any Business Day, such Participant shall make available to the Letter
of Credit Issuer such Participant's Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Percentage of the amount of such Unpaid Drawing available
to the Letter of Credit Issuer, such Participant agrees to pay to the Letter of
Credit Issuer, forthwith on demand such amount, together with interest thereon,
for each day from such date until the date such amount is paid to the Letter of
Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any
<PAGE>
Participant to make available to the Letter of Credit Issuer its Percentage of
any Unpaid Drawing under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to the Letter of
Credit Issuer its Percentage of any payment under any Letter of Credit on the
date required, as specified above, but no Participant shall be responsible for
the failure of any other Participant to make available to the Letter of Credit
Issuer such other Participant's Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, the Letter of Credit Issuer shall pay to each
respective Participant which has paid its Percentage in US Dollars and in same
day funds, an amount equal to such Participant's Percentage of the principal
amount thereof and interest thereon accruing at the overnight Federal Funds
Effective Rate after the purchase of the respective participations.
(e) The obligations of the respective Participants to make payments
to the Letter of Credit Issuer with respect to Letters of Credit shall be
irrevocable and not subject to counterclaim, set-off or other defense or any
other qualification or exception whatsoever (provided that no Participant shall
be required to make payments resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct, as determined in a final, non-appealable
judgment by a court of competent jurisdiction) and shall be made in accordance
with the terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the Administrative Agent, any
Bank or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
<PAGE>
2.05 Increased Costs. If at any time after the date of the
Agreement, the adoption or effectiveness of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Letter of Credit Issuer or any Bank with any request or directive
(whether or not having the force of law but with which such Bank customarily
complies even though the failure to comply therewith would not be unlawful) by
any such authority, central bank or comparable agency shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against Letters of Credit issued by the Letter of Credit Issuer or
such Bank's participation therein, or (ii) impose on the Letter of Credit Issuer
or any Bank any other conditions affecting this Agreement, any Letter of Credit
or such Bank's participation therein; and the result of any of the foregoing is
to increase the cost to the Letter of Credit Issuer or such Bank of issuing,
maintaining or participating in any Letter of Credit, or to reduce the amount of
any sum received or receivable by the Letter of Credit Issuer or such Bank
hereunder (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate or basis of
taxes or similar charges), then, upon written demand to Borrower by the Letter
of Credit Issuer or such Bank (a copy of which notice shall be sent by the
Letter of Credit Issuer or such Bank to the Administrative Agent), Borrower
shall, subject to Section 1.11 (to the extent applicable), pay to the Letter of
Credit Issuer or such Bank such additional amount or amounts as will compensate
the Letter of Credit Issuer or such Bank for such increased cost or reduction. A
certificate submitted to Borrower by the Letter of Credit Issuer or such Bank,
as the case may be (a copy of which certificate shall be sent by the Letter of
Credit Issuer or such Bank to the Administrative Agent), setting forth a
reasonable basis for the determination of such additional amount or amounts
necessary to compensate the Letter of Credit Issuer or such Bank as aforesaid
shall be conclusive and binding on Borrower absent manifest error.
2.06 Indemnities. Borrower under each Letter of Credit hereby agrees
to reimburse and indemnify the Letter of Credit Issuer for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Letter of Credit
Issuer in performing its respective duties in any way relating to or arising out
of its issuance of Letters of Credit; provided that Borrower shall not be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Letter of Credit Issuer's gross negligence or willful misconduct as determined
in a final, nonappealable judgment by a court of competent jurisdiction. To the
extent the Letter of Credit Issuer is not indemnified by Borrower, the
Participants will reimburse and indemnify the Letter of Credit Issuer, in
proportion to their respective Percentages of the Total Commitment for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Letter of Credit Issuer in performing its respective duties in any way
relating to or arising out of its issuance of Letters of Credit; provided that
no Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
<PAGE>
negligence or willful misconduct (as determined in a final, non-appealable
judgment by a court of competent jurisdiction).
SECTION 3. Fees: Commitments.
3.01 Fees. (a) Borrower agrees to pay to the Administrative Agent a
commitment fee (the "Commitment Fee") pro rata for the account of each Bank for
the period from and including the Closing Date to, but not including, the date
the Total Commitment has been terminated, which Commitment Fee shall be equal to
the amount set forth below as determined by Borrower's Pricing Rating, as
calculated for the last day of the fiscal quarter last ended, computed at such
rate for each day, on the daily amount of such Bank's Unutilized Commitment;
provided that, in the event a change in the Commitment Fee is made, such change
shall not become effective until the date which is one (1) Business Day after
the date upon which the Administrative Agent receives written notice from
Borrower that such change is warranted:
----------------------------------------------------------------
Pricing Commitment
Rating (higher of): Fee:
---------------- ------
A-/Aa3 or higher .125%
BBB+/Baa1 .15%
BBB/Baa2 .175%
BBB-/Baa3 .20%
BB+/Ba1 .25%
----------------------------------------------------------------
Such Commitment Fee shall be due and payable in arrears on the first Business
Day of each January, April, July and October and on the date upon which the
Total Commitment is terminated.
(b) Borrower agrees to pay to the Administrative Agent for the
account of each Bank, pro rata on the basis of their respective Percentages, a
fee in respect of each Letter of Credit (the "Letter of Credit Fee"), computed
at a rate per annum equal to the Applicable Eurodollar Margin then in effect on
the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on the first Business Day of each
January, April, July and October of each year and on the first day after the
Total Commitment is terminated and no Letters of Credit remain outstanding.
(c) Borrower agrees to pay to the Letter of Credit Issuer a fronting
fee equal to the greater of $500.00 or .125% of the Stated Amount of any Letter
of Credit, payable at the time of the issuance thereof.
<PAGE>
(d) Borrower shall pay to the Administrative Agent for its own
account an administrative fee of $25,000 per year, payable on the first
anniversary following the Closing Date and on each anniversary thereof and on
the Maturity Date.
(e) Borrower shall pay to the Administrative Agent for its own
account such other Fees for the administration of this Agreement as have been
heretofore agreed in writing by Borrower and the Administrative Agent when and
as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least three (3)
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the affected Banks),
Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Commitment, provided that (i) any such
termination shall apply to proportionately and permanently reduce the respective
Commitment of each Bank, (ii) no such reduction shall reduce any Bank's
Commitment to an amount that is less than the sum of (x) the outstanding Loans
of such Bank, plus (y) such Bank's Percentage of Letter of Credit Outstandings,
and (iii) any partial reduction pursuant to this Section 3.02 shall be in the
amount of at least $5,000,000.
3.03 Commitment Termination. The Total Commitment shall terminate on
the earlier of (i) the Maturity Date or (ii) unless the Required Banks otherwise
consent, the date on which any Change of Control occurs.
SECTION 4. Payments.
4.01 Voluntary Prepayments. Borrower shall have the right to repay
Loans in whole or in part, without premium or penalty, from time to time on the
following terms and conditions: (i) Borrower shall give the Administrative Agent
at the Notice Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay the Loans, the amount of such prepayment and
(in the case of Eurodollar Loans) the specific Borrowing or Borrowings pursuant
to which made, which notice shall be given by Borrower at least five (5)
Business Days prior to the date of such prepayment of Loans, which notice shall
promptly be transmitted by the Administrative Agent to each of the Banks; (ii)
each partial prepayment of any Borrowing shall be in an aggregate principal
amount of at least $2,000,000 and, if greater, in an integral multiple of
$2,000,000, provided that no partial prepayment of Eurodollar Loans made
pursuant to a Borrowing shall reduce the aggregate principal amount of the Loans
outstanding pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount; (iii) Eurodollar Loans may only be prepaid pursuant to this
Section 4.01 on the last day of the Interest Period applicable thereto; and (iv)
each prepayment in respect of any Loans made pursuant to a Borrowing shall be
applied pro rata among the Banks.
<PAGE>
4.02 Mandatory Prepayments.
(A) Requirements:
(a) If on any date the sum of the aggregate outstanding principal
amount of Loans made by the Banks and the Letter of Credit Outstandings exceeds
the Total Commitment as then in effect, Borrower shall repay on such date the
principal of Loans of the Banks, in an aggregate amount equal to such excess.
(b) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all then outstanding Loans shall be repaid in full on the
Maturity Date.
(c) On the date on which any Change of Control occurs, unless
otherwise agreed by all the Banks, the outstanding principal amount of all
Loans, if any, shall become due and payable in full.
(d) Following an Event of Default, payments shall be required as set
forth in Section 9.
<PAGE>
(B) Application:
With respect to each prepayment of Loans required by Section 4.02,
Borrower may designate the Types of Loans which are to be prepaid and the
specific Borrowing or Borrowings pursuant to which made, provided that (i)
Eurodollar Loans may only be repaid if no Base Rate Loans remain outstanding;
(ii) if any prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the outstanding Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount for such Borrowing, such Borrowing shall
be immediately converted into Base Rate Loans; and (iii) each prepayment of any
Loans shall be applied pro rata among the Banks. In the absence of a designation
by Borrower described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a view,
but no obligation, to minimize breakage costs owing under Section 1.11.
Notwithstanding the foregoing provisions of this Section 4.02(B), if at any time
the mandatory prepayment of Loans pursuant to Section 4.02(A) above would
result, after giving effect to the procedures set forth above, in Borrower
incurring breakage costs under Section 1.11 as a result of Eurodollar Loans
being prepaid other than on the last day of an Interest Period applicable
thereto (the "Affected Eurodollar Loans"), then Borrower may in its sole
discretion initially deposit a portion (up to 100%) of the amounts that
otherwise would have been paid in respect of the Affected Eurodollar Loans with
the Administrative Agent (which deposit must be equal in amount to the amount of
the Affected Eurodollar Loans not immediately prepaid) to be held as security
for the obligations of Borrower hereunder pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
Borrower and the Administrative Agent and shall provide for investments
satisfactory to the Administrative Agent and Borrower, with such cash collateral
to be directly applied upon the first occurrence (or occurrences) thereafter of
the last day of an Interest Period applicable to the relevant Loans that are
Eurodollar Loans (or such earlier date or dates as shall be requested by
Borrower), to repay an aggregate principal amount of such Loans equal to the
Affected Eurodollar Loans not initially prepaid pursuant to this sentence.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, all amounts deposited as cash collateral pursuant to the immediately
preceding sentence shall be held for the sole benefit of the Banks whose Loans
would otherwise have been immediately prepaid with the amounts deposited and
upon the taking of any action by the Administrative Agent or the Banks pursuant
to the remedial provisions of Section 9, any amounts held as cash collateral
pursuant to this Section 4.02(B) shall, subject to the requirements of
applicable law, be immediately applied to the Loans made by Borrower.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its pro rata share) account of
the Banks entitled thereto, not later than 10:00 A.M. (New York time) on the
date when due and shall be made in immediately available funds and in lawful
money of the United States of America at the Payment Office, it being understood
that written notice from Borrower to the Administrative Agent to make a payment
from the funds in Borrower's account at the Payment Office shall constitute the
making of such payment to the extent of such funds held in such account. Any
<PAGE>
payments under this Agreement which are made later than 10:00 A.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder 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 and, with respect to payments of principal, interest
shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 Net Payments. (a) All payments made by Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b) and (c), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank pursuant to
the laws of the jurisdiction in which it is organized or managed and controlled
or the jurisdiction in which the principal office or applicable lending office
of such Bank is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed,
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts, if any, as may be necessary so that every payment of amounts due under
this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable by Borrower in respect of Taxes pursuant
to the preceding sentence, Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for Taxes imposed on or measured by the net income
or net profits of such Bank pursuant to the laws of the jurisdiction in which
the principal office or applicable lending office of such Bank is located or
under the laws of any political subdivision or taxing, authority of any such
jurisdiction in which the principal office or applicable lending office of such
Bank is located and for any withholding of Taxes as such Bank shall determine
are payable by, or withheld from, such Bank in respect of such amounts so paid
to or on behalf of such Bank pursuant to the preceding sentence and in respect
of any amounts paid to or on behalf of such Bank pursuant to this sentence.
Borrower will furnish to the Administrative Agent within 45 days after the date
the payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by Borrower. Borrower agrees to indemnify
and hold harmless each Bank, and reimburse such Bank upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower and
the Administrative Agent on or prior to the date of this Agreement, or in the
case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 12.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two (2) accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Bank's entitlement to a complete
<PAGE>
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note, or (ii) if the Bank is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit 4.04(b) (any such certificate,
a "Section 4.04(b)(ii) Certificate") and (y) two (2) accurate and complete
original signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Bank agrees that from time to
time after the date of this Agreement, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to Borrower and the Administrative Agent two
(2) new accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Bank to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify Borrower and the
Administrative Agent in writing of its inability to deliver any such Form or
Certificate. Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) Borrower shall be entitled, to the extent it is required to do so
by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Bank which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Bank has not provided to Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y)
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Bank in respect of income or similar taxes imposed by
the United States if (I) such Bank has not provided to Borrower the Internal
Revenue Service Forms required to be provided to Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Internal Revenue Service
Forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 12.04(b),
Borrower agree to pay additional amounts and to indemnify each Bank in the
manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the date of this Agreement in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes, provided such Bank shall provide to Borrower and the
Administrative Agent any applicable IRS tax form (reasonably similar in its
simplicity and lack of detail to IRS Form 1001) necessary or appropriate for the
exemption or reduction in the rate of such U.S. Federal withholding tax.
<PAGE>
(c) The provisions of this Section 4.04 shall be subject to Section
1.12(b) (to the extent applicable).
SECTION 5. Conditions Precedent. The obligation of the Banks to make
each Loan hereunder, and the obligation of the Letter of Credit Issuer to issue
Letters of Credit hereunder, is subject to the satisfaction of each of the
following conditions:
5.01 Execution of Agreement, Notes and Guaranties. On or prior to
the Effective Date, there shall have been delivered to the Administrative Agent
for the account of each Bank, this Agreement executed by Borrower and the
Guarantors, the appropriate Notes executed by Borrower, in each case in the
amount, maturity and as otherwise provided herein.
5.02 No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event (except to the extent that such representations and warranties
expressly relate to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date).
5.03 No Default on Effective Date. On the Effective Date, there
shall not exist any Event of Default (as defined herein) or any situation which,
given the passage of time, would result in such an Event of Default.
5.04 Opinions of Counsel. On the Effective Date, the Administrative
Agent shall have received opinions, addressed to the Administrative Agent and
each of the Banks and dated the Effective Date, from (i) Robert Isaac, Esquire,
counsel for Borrower and the Guarantors, and (ii) Andrews & Kurth L.L.P.,
counsel to the Administrative Agent, which opinions shall cover such matters
incident to the transactions contemplated herein as the Administrative Agent may
reasonably request and shall be in form and substance satisfactory to the
Administrative Agent.
5.05 Secretary Certificate; Corporate Proceedings. On the Effective
Date, the Administrative Agent shall have received from each Credit Party a
certificate, dated the Effective Date, signed by the Secretary of such Credit
Party in the form of Exhibit 5.05 with appropriate insertions and deletions,
together with copies of the certificate of formation, the by-laws, or other
organizational documents of such Credit Party and the resolutions, or such other
administrative approval, of such Credit Party referred to in such certificate
and all of the foregoing (including each such certificate of formation,
certificate of incorporation and by-laws) shall be reasonably satisfactory to
the Administrative Agent.
<PAGE>
5.06 Fees. On the Effective Date, Borrower shall have paid to the
Administrative Agent and the Banks all Fees and expenses agreed upon by such
parties to be paid on or prior to such date.
5.07 Insurance Report. On or prior to the Effective Date, the
Administrative Agent shall have received an insurance report as described in
Section 7.01(g), with respect to the adequacy of the insurance maintained by
Borrower in connection with the Rigs.
All of the certificates, legal opinions and other documents and
papers referred to in this Section 5, unless otherwise specified, shall be
delivered to the Administrative Agent at its Notice Office for the account of
each of the Banks and, except for the Notes, in sufficient counterparts or
copies for each of the Banks and shall be satisfactory in form and substance to
the Administrative Agent.
SECTION 6. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans and issue
and/or participate in Letters of Credit provided for herein, Borrower on behalf
of itself and each of its Subsidiaries or Material or Restricted Subsidiaries,
as applicable, and each Guarantor, for itself, makes the following
representations and warranties to, and agreements with, the Banks, all of which
shall survive the execution and delivery of this Agreement and the making of the
Loans (with the making of each Credit Event thereafter being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct in all material respects on and as of the date of
each such Credit Event unless such representation and warranty expressly
indicates that it is being made as of any specific date, in which case such
representations and warranties shall be true and correct in all material
respects as of such date):
6.01 Corporate Status. Each Credit Party and each Material
Subsidiary (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged, except in such case where the failure to be so
duly organized and validly existing in good standing and to have such corporate
power and authority (x) is not reasonably likely to have a Material Adverse
Effect and (y) is not reasonably likely to have a material adverse effect on the
rights or remedies of the Banks or on the ability of any Credit Party to perform
its obligations to them hereunder and under the other Credit Documents to which
it is a party, and (ii) is duly qualified and authorized to do business and is
in good standing in all jurisdictions where it is required to be so qualified
and where the failure to be so qualified would have a Material Adverse Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
<PAGE>
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable against such Person in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery and performance
by any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof, nor the consummation of the
transactions contemplated therein (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality of the United States or any state thereof,
(ii) will result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of any Credit Party pursuant to the terms of, any material
indenture, mortgage, deed of trust, agreement or other instrument to which any
Credit Party is a party or by which it or any of its property or assets are
bound or to which it is subject or (iii) will violate any provision of the
Certificate of Incorporation or By-Laws of Borrower or any Credit Party.
6.04 Litigation. Except as otherwise disclosed in Borrower's most
recent 10-K or 10-Q filing with the U.S. Securities and Exchange Commission,
there are no actions, suits or proceedings pending or, to the best knowledge of
Borrower threatened with respect to Borrower or any of its Subsidiaries (i) that
are likely to have a Material Adverse Effect or (ii) that are reasonably likely
to have a material adverse effect on the rights or remedies of the Banks or on
the ability of any Credit Party to perform its obligations to them hereunder and
under the other Credit Documents to which it is a party.
6.05 Use of Proceeds: Margin Regulations. (a) The proceeds of
all Loans shall be utilized to provide for the general corporate purposes of
Borrower and its Subsidiaries.
(b) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System
and no part of the proceeds of any Loan will be used to purchase or carry any
Margin Stock in violation of Regulation U or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
6.06 Governmental Approvals. Except for the orders, consents,
approvals, licenses, authorizations, validations, recordings, registrations and
exemptions that have already been duly made or obtained and remain in full force
and effect, no order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any foreign or
domestic governmental or public body or authority, or any subdivision thereof,
is required to authorize or is required in connection with (i) the execution,
delivery and performance of any Credit Document by a Credit Party or (ii) the
<PAGE>
legality, validity, binding effect or enforceability of any Credit Document
against a Credit Party.
6.07 Investment Company Act. Neither Borrower nor any of its
Subsidiaries is an "investment company" or a "company" controlled by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.08 True and Complete Disclosure. No representation or warranty
contained in this Agreement and no statement contained in any certificate,
schedule, list, financial statement or other instrument furnished by or on
behalf of Borrower or any of its Material Subsidiaries to the Administrative
Agent or any Bank contains any untrue statement of material fact, provided that
where a representation or warranty is made as of a particular date, such
representation or warranty shall only be required to be true and correct as of
such date.
6.09 Financial Condition; Financial Statements. (a) On and as of the
Effective Date, on a pro forma basis after giving effect to all Indebtedness
incurred, and to be incurred, and Liens created, and to be created, by Borrower
and its Subsidiaries in connection therewith, (x) the sum of the assets, at a
fair valuation, of Borrower and its Subsidiaries taken as a whole will exceed
their debts, (y) Borrower and its Subsidiaries taken as a whole will not have
incurred or intended to, or believe that they will, incur debts beyond their
ability to pay such debts as such debts mature and (z) Borrower and its
Subsidiaries taken as a whole will not have unreasonably small capital with
which to conduct their business.
(b) The consolidated, audited balance sheet of Borrower and its
Subsidiaries as of December 31, 1997 and the related consolidated audited
statements of operations and cash flows of Borrower and its Subsidiaries for the
fiscal year, as the case may be, ended as of said date, copies of which have
heretofore been furnished to each Bank, present fairly the financial position of
such entities at the dates of said statements and the results for the period
covered thereby in accordance with GAAP, except to the extent provided in the
notes to said financial statements. All such financial statements have been
prepared in accordance with GAAP and practices consistently applied except to
the extent provided in the notes to said financial statements. As of the
Effective Date, nothing has occurred since December 31, 1997 that has had or is
reasonably likely to have a Material Adverse Effect.
6.10 Tax Returns and Payments. Each Credit Party has filed all
federal income tax returns and all other material tax returns, domestic and
foreign, required to be filed by it and has paid all material taxes and
assessments payable by it which have become due, other than those not yet
delinquent and except for those contested in good faith. Each Credit Party has
paid, or has provided adequate reserves with respect thereto, in accordance with
GAAP, for the payment of, all federal, state and foreign income taxes applicable
for all prior fiscal years and for the current fiscal year to the date hereof.
<PAGE>
6.11 Compliance with ERISA. No Reportable Event has occurred and is
continuing with respect to any Plan.
6.12 Subsidiaries. Annex 6.12, as supplemented or amended from time
in accordance with the terms hereof, lists each Subsidiary of Borrower (and the
direct and indirect ownership interest of Borrower therein), and indicates which
of such Subsidiaries are Restricted Subsidiaries for purposes of this Agreement,
in each case existing on the Effective Date.
6.13 Patents, etc. Each Credit Party and each Material Subsidiary
has obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted.
6.14 Pollution and Other Regulations. (a) To the best of Borrower's
knowledge, (i) each of Borrower and its Material Subsidiaries is in substantial
compliance with all applicable Environmental Laws governing its business for
which failure to comply is reasonably likely to have a Material Adverse Effect;
and (ii) all licenses, permits, registrations or approvals required to preserve
the ownership and operation of the Rigs under any Environmental Law have been
secured. Neither Borrower nor any of its Material Subsidiaries is in any respect
in noncompliance with, breach of or default under any writ, order, judgment,
injunction, or decree to which Borrower or such Material Subsidiary is a party
or which would affect the ability of Borrower or such Material Subsidiary to own
or operate any Rig and no event has occurred and is continuing which, with the
passage of time or the giving of notice or both, would constitute noncompliance,
breach or default thereunder, except in each such case, such noncompliance,
breaches or defaults as are not likely to have a Material Adverse Effect. There
are as of the Effective Date no Environmental Claims pending or, to the best
knowledge of Borrower, threatened, against Borrower or any of its Material
Subsidiaries wherein an unfavorable decision, ruling or finding would be
reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been released on or
from any offshore drilling rig or vessel at any time owned or operated by
Borrower or any of its Material Subsidiaries, in each case where, to the best of
Borrower's knowledge, such occurrence or event individually or in the aggregate
is reasonably likely to have a Material Adverse Effect.
6.15 Properties. (a) Borrower and each of its Material Subsidiaries
has title to all material properties owned by them, free and clear of all Liens,
other than (i) as referred to in the consolidated balance sheet or in the notes
thereto or (ii) Permitted Liens.
(b) Annex 6.15(b) sets forth each Rig owned or leased by Borrower
and each of the Restricted Subsidiaries on the Effective Date, and identifies
the registered owner, flag, official or patent number, to the extent available,
the home port and class on the Effective Date.
<PAGE>
6.16 Citizenship. Borrower and/or each of its Material Subsidiaries
is qualified to own and operate the Rigs and any other drilling rigs or offshore
vessels operated by them under the laws of the United States, the Bahamas and
Liberia, as may be applicable.
6.17 Rig Classification. Each Rig is classified in the highest class
available for rigs or vessels of its age and type with the American Bureau of
Shipping, Inc. or another internationally recognized classification society
reasonably acceptable to the Administrative Agent free of any material
outstanding requirements or recommendations.
6.18 Insurance. Borrower and each Material Subsidiary has insured
its properties and assets against such risks and in such amounts as are
customary for companies engaged in similar businesses.
6.19 Year 2000 Compliance. Borrower has (i) initiated a review and
assessment of all areas within its and each of its Material Subsidiaries'
business and operations (including those affected by suppliers and vendors) that
could be adversely affected by the risk that computer applications used by the
Borrower or any of its Material Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving any date after December 31,
1999) (the "Year 2000 Problem"), (ii) is developing a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) has begun to
implement that plan in accordance with that timetable. Borrower reasonably
believes that all computer applications that are material to its or any of its
Material Subsidiaries' business and operations will on a timely basis be able to
perform properly date-sensitive functions for all dates after January 1, 2000,
except to the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 7. Affirmative Covenants. Borrower on behalf of itself and
each of its Subsidiaries or Material or Restricted Subsidiaries, as applicable,
and each Guarantor for itself covenants and agrees that on the Effective Date
and thereafter for so long as this Agreement is in effect (and until all
Commitments have terminated, no Letters of Credit or Notes are outstanding and
the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full):
<PAGE>
7.01 Information Covenants. Borrower and each Guarantor will furnish
to each the Administrative Agent (in multiple copies sufficient for each Bank):
(a) Annual Financial Statements. Within ninety (90) days after the
close of each fiscal year of Borrower, the consolidated balance sheet of
Borrower and its Subsidiaries, as at the end of such fiscal year and the related
consolidated statements of operations and of cash flows for such fiscal year, in
each case setting forth comparative consolidated figures for the preceding
fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall be in accordance with generally
accepted auditing standards, shall not be qualified as to the scope of audit or
as to the status of Borrower and its Subsidiaries as a going concern.
(b) Quarterly Financial Statements. As soon as available and in any
event within sixty (60) days after the close of each of the first three (3)
quarterly accounting periods in each fiscal year, the consolidated balance sheet
of Borrower and its Subsidiaries, as at the end of such quarterly period and the
related consolidated statements of operations and of cash flows for such
quarterly period and for the elapsed portion of the fiscal year ended with the
last day of such quarterly period, in each case setting forth comparative
consolidated figures for the related period in the prior fiscal year, all of
which shall be unaudited, but certified by the chief financial officer or
controller of Borrower, subject to changes resulting from audit and normal
year-end audit adjustments.
(c) Rig Status Report. As soon as available and in any event within
sixty (60) days after the close of the first three (3) fiscal quarters of
Borrower, and within ninety (90) days of Borrower's fiscal year end a report (in
form satisfactory to the Administrative Agent) detailing (i) the location of
each Rig and the then current term of and parties to any contract of any Rig
owned by Borrower or any of its Restricted Subsidiaries, (ii) the average day
rate for each Rig owned by Borrower or any of its Restricted Subsidiaries for
the preceding fiscal quarter, and (iii) any Rigs purchased, leased or sold since
the last such report.
(d) Forecast. Prior to the beginning of each fiscal year of
Borrower, a forecast which includes an income statement and cash flow statement
of Borrower and its Restricted Subsidiaries for the upcoming fiscal year,
including a breakdown of revenues, operating expenses and utilizations for each
offshore drilling rig and vessel owned or leased by Borrower and its Restricted
Subsidiaries.
(e) Compliance Certificate. Prior to or at the time of the delivery
of the financial statements provided for in Sections 7.01(a) and (b), a
certificate of Borrower signed by its chief financial officer, controller or
other Authorized Officer in the form of Exhibit 7.01(e) to the effect that no
Default or Event of Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof, which certificate shall set
forth the calculations required to establish whether Borrower and its Restricted
Subsidiaries were in compliance with the provisions of Section 8 as at the end
of such fiscal period or year, as the case may be.
<PAGE>
(f) Notice of Default or Litigation. Promptly, and in any event
within (x) three (3) Business Days after an Authorized Officer of Borrower
obtains knowledge thereof, notice of the occurrence of any event which
constitutes a Default or Event of Default which notice shall specify the nature
thereof, the period of existence thereof and what action Borrower proposes to
take with respect thereto and (y) ten (10) Business Days after Borrower obtains
knowledge thereof, notice of the commencement of or any significant development
in any litigation or governmental proceeding pending against Borrower or any of
its Restricted Subsidiaries which is likely to have a Material Adverse Effect.
(g) Insurance Report. On or before September 30 of each year a
report from Borrower (in form satisfactory to the Administrative Agent)
detailing (i) the types of insurance coverage, (ii) the amounts of coverage and
(iii) any deductible or self-insured retention which are in full force and
effect covering Borrower and its Subsidiaries.
(h) SEC Reports. Promptly upon transmission thereof, copies of any
material filings and registration with, and reports to, the SEC by Borrower or
any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as Borrower or any of its Subsidiaries shall
generally send to analysts or all holders of their capital stock in their
capacity as such holders (in each case to the extent not theretofore delivered
to the Banks pursuant to this Agreement).
(i) Promptly, and in any event within ten (10) Business Days, notice
to the Administrative Agent of any change in rating of the Borrower by any of
the rating agencies.
(j) Other Information. From time to time, such other information or
documents (financial or otherwise) as the Administrative Agent on its own behalf
or on behalf of the Required Banks may reasonably request.
7.02 Books, Records and Inspections. Within five (5) Business Days
of a written request from the Banks to the chief financial officer, controller
or any Authorized Officer of Borrower, Borrower will, and will cause each of its
Material Subsidiaries to 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 Borrower or such Material Subsidiary, subject to any
applicable confidentiality agreements dealing with such information; provided,
however, that Borrower will use its best efforts to obtain any necessary
consents in order to allow such information to be provided to the Banks, and,
will permit officers and designated representatives of the Administrative Agent
or the Required Banks, to the extent necessary, to examine the books of account
of Borrower and any of its Material Subsidiaries and discuss the affairs,
finances and accounts of Borrower and of any of its Material Subsidiaries with,
and be advised as to the same by, its and their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Required Banks may desire.
<PAGE>
7.03 Insurance. Borrower shall insure, or cause to be insured, its
and its Restricted Subsidiaries' property and assets, including the Rigs, by
financially sound and reputable insurers, such insurance to be of a character
and coverage, and in such amounts and types as others similarly situated in the
industry.
7.04 Payment of Taxes. Borrower will pay and discharge, and will
cause each of the other Material Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of Borrower or any of its Material
Subsidiaries, provided that neither Borrower nor any Material Subsidiary shall
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
7.05 Consolidated Corporate Franchises. Borrower will do, and will
cause each of its Material Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, material
rights and authority, unless the failure to do so is not reasonably likely to
have a Material Adverse Effect, provided that any transaction permitted by
Section 8.02 will not constitute a breach of this Section 7.05.
7.06 Compliance with Statutes. Borrower will, and will cause each of
its Material Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property other than those the non-compliance with which would
not have a Material Adverse Effect.
7.07 Good Repair. Borrower will, and will cause each of its
Restricted Subsidiaries to, keep their Rigs in whomsoever's possession they may
be, in good repair, working order and condition, normal wear and tear excepted,
and, subject to Section 8.02, see that from time to time there are made in such
Rigs all necessary and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto to the extent and in the manner
useful or customary for companies in similar businesses.
7.08 End of Fiscal Years; Fiscal Quarters. Borrower will, for
financial reporting purposes, cause (i) each of its fiscal years to end on
December 31 of each year and (ii) each of its fiscal quarters to end on March
31, June 30, September 30 and December 31 of each year.
7.09 Use of Proceeds. All proceeds of the Loans shall be used as
provided in Section 6.05.
<PAGE>
7.10 ERISA. (a) As soon as possible and, in any event, within 30
days after Borrower, any of its Subsidiaries or any ERISA Affiliate knows that
any Reportable Event with respect to any Plan has occurred which could
reasonably be expected to have a Material Adverse Effect, Borrower will deliver
to each of the Banks a statement of an Authorized Officer of Borrower setting
forth details as to such Reportable Event and the action, if any, that Borrower,
such Subsidiary or such ERISA Affiliate is required or proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event
given to the PBGC, if any, and (b) promptly after receipt thereof, a copy of any
notice relating to a Reportable Event which could reasonably be expected to have
a Material Adverse Effect which Borrower or any of its Subsidiaries may receive
from the PBGC or the Internal Revenue Service with respect to any Plan;
provided, however, this clause (b) shall not apply to notices of general
application promulgated by the Department of Labor.
7.11 Future Material Subsidiaries. To the extent any Subsidiary
(other than an existing Material Subsidiary) obtains assets having a book value
equal to ten percent (10%) of the book value of all assets of Borrower and its
Restricted Subsidiaries, on a consolidated basis, Borrower shall notify the
Administrative Agent thereof and such Person shall automatically become a
Material Subsidiary hereunder, provided, notwithstanding the above, ENSCO
Drilling (Caribbean), Inc. and ENSCO Drilling Venezuela, Inc. shall not be
Material Subsidiaries hereunder.
SECTION 8. Negative Covenants. Borrower, on behalf of itself and
each of its Subsidiaries or Material or Restricted Subsidiaries, as applicable,
and each Guarantor for itself, hereby covenants and agrees, that as of the
Effective Date and thereafter for so long as this Agreement is in effect and
until all Commitments have terminated, no Letters of Credit or Notes are
outstanding and the Loans and Unpaid Drawings, together with interest, Fees and
all other Obligations incurred hereunder, are paid in full:
8.01 Changes in Business. Borrower will not and will not permit any
of its Restricted Subsidiaries to, materially alter the character of their
business taken as a whole from that conducted within the oil field service
industry), provided that this Section 8.01 shall not restrict such Persons from
engaging in businesses ancillary to the oil field service industry.
8.02 Consolidation, Merger or Sale of Assets, etc. Borrower will
not, and will not permit any Guarantor or any of Guarantor's Subsidiaries to,
wind up, liquidate or dissolve its affairs, or enter into any transaction of
merger or consolidation, sell or otherwise dispose of (i) any of the stock of
any Guarantor or any of their Subsidiaries or (ii) more than twenty percent
(20%) of the fair market value of Borrower's and the Guarantors consolidated
property or assets or agree to do any of the foregoing at any future time,
except that any of said parties may be merged with or into, or be liquidated
into, one another, so long as, in the case of a merger involving Borrower,
Borrower is the surviving entity and in any other merger involving a Guarantor,
either said Guarantor is the surviving entity or, if not, the surviving entity
is a Restricted Subsidiary and immediately assumes all of the Guarantor's
obligations under the Guaranty in a writing reasonably satisfactory to the
Required Banks.
<PAGE>
8.03 Liens on Assets. Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any of said Person's assets or sell any of said
Person's assets subject to an understanding or agreement, contingent or
otherwise, to repurchase said Person's assets or assign any right to receive
income derived from such assets, or file or permit the filing of any financing
statement with respect thereto under the Uniform Commercial Code as then in
effect in any applicable jurisdiction or any other similar notice of Lien under
any similar recording or notice statute; except that the following shall be
permitted ("Permitted Liens"):
(a) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves with
respect thereto, in accordance with GAAP, have been established;
(b) Liens imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, maritime Liens and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate detract from the value
of such property or assets or materially impair the use thereof in the operation
of the business of Borrower or any of its Restricted Subsidiaries or (y) which
are being contested in good faith by appropriate proceedings (including the
providing of bail), which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to such Lien or procuring
the release of the property or assets subject to such Lien from arrest or
detention;
(c) Judgment Liens in existence less than thirty (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;
(d) any interest or title of a lessor or charterer under any lease
or charter in existence on the Effective Date, (i) among Borrower and any of its
Subsidiaries or (ii) otherwise permitted by this Agreement;
(e) Liens on equipment which is the subject of an operating lease or
similar use arrangement entered into in the ordinary course of business and
title to which is held by a third party;
(f) 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 Borrower or
any of its Restricted Subsidiaries;
<PAGE>
(g) Liens to secure Indebtedness permitted in Section 8.04, (b),
(c), (e) and (g);
(h) Liens other than those described in (a) through (g) above
existing on the Effective Date and described in Annex 8.03(h) hereof; and
(i) other Liens securing Indebtedness allowed hereunder up to a
maximum of $1,000,000.
8.04 Indebtedness. Borrower will not guarantee, assume or in any way
become liable for, directly or indirectly, the Indebtedness of any Unrestricted
Subsidiary, nor will Borrower permit any Restricted Subsidiary to contract,
create, incur, assume or suffer to exist any Indebtedness, except the following:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness evidenced by Capitalized Lease Obligations so long
as the aggregate principal amount of Capitalized Lease Obligations outstanding
at any time pursuant to this Section 8.04 does not exceed $10,000,000 in the
aggregate;
(c) Indebtedness under Interest Rate Agreements with the any of the
Agents;
(d) Indebtedness of any Restricted Subsidiary of Borrower to
Borrower, or of any Restricted Subsidiary to another Restricted Subsidiary,
provided that to the extent such is owing by a Credit Party, such Indebtedness
must be expressly subordinate to any obligations of such Credit Party under this
Agreement;
(e) letters of credit, performance and bid bonds obtained in the
ordinary course of business obtained outside of this Facility up to an aggregate
amount of $50,000,000;
(f) supersedeas bonds obtained in the ordinary course of business;
(g) so long as no Default or Event of Default exists or would result
therefrom, any Restricted Subsidiary may incur Indebtedness, to acquire,
construct, renovate or upgrade any drilling rig or marine transportation vessel;
(h) Indebtedness of Dual Holding Company outstanding on the
Effective Date pursuant to its 9 7/8% Senior Subordinated Notes issued under and
governed by the Dual Indenture;
(i) additional Indebtedness of any Restricted Subsidiary not to
exceed $25,000,000 in aggregate principal amount outstanding at any one time;
and
<PAGE>
(j) other Indebtedness (including refinancings thereof) existing on
the Effective Date and described on Annex 8.04(j) hereto, provided such
Indebtedness shall not be increased nor shall the terms thereof be modified in
any way materially adverse to Borrower or any Subsidiary.
8.05 Dividends; Restrictions on Subsidiaries, etc. (a) At any time
when the Pricing Rating is BB+/Ba1 or lower Borrower will not, and will not
permit any of its Restricted Subsidiaries to, declare or pay any previously
undeclared dividends or return any capital to, the stockholders of Borrower in
excess of $.10 per share per annum, or authorize or make any other distribution,
payment or delivery of property or cash to the stockholders of Borrower as such,
or set aside any funds for any of the foregoing purposes, or permit any of its
Restricted Subsidiaries to purchase or otherwise acquire for consideration any
shares of any class of the capital stock of Borrower, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by
Borrower with respect to its capital stock) (all of the foregoing "Dividends");
provided, no Dividends may be paid during the existence of a Default or an Event
of Default; provided further, Dividends may be paid at any time in any amounts
by any Subsidiary to Borrower or to any Guarantor.
(b) Borrower will not, and will not permit any of its Restricted
Subsidiaries to, create or otherwise cause or suffer to exist any encumbrance or
restriction which prohibits or otherwise restricts (A) the ability of any
Guarantor or Borrower to (a) pay Dividends or make other distributions or pay
any Indebtedness owed to Borrower or any Guarantor, or (b) make loans or
advances to Borrower or any Guarantor, (c) transfer any of its properties or
assets to Borrower or any Guarantor or (B) the ability of Borrower or any
Guarantor of Borrower to create, incur, assume or suffer to exist any Lien upon
its property or assets to secure the Obligations, other than prohibitions or
restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) applicable law;
(iii) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices;
(iv) any restriction or encumbrance with respect to a Guarantor
imposed pursuant to an agreement which has been entered into for the sale
or disposition of all or substantially all of the capital stock or assets
of such Guarantor, so long as such sale or disposition is permitted under
this Agreement; and
(v) Permitted Liens and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such Liens,
provided that such prohibitions or restrictions apply only to the assets
subject to such Liens.
<PAGE>
8.06 Amending Indentures. None of the Credit Parties that are a
party to the Dual Indenture or the EII Indenture shall amend same without the
prior written consent of the Required Banks.
8.07 Interest Coverage Ratio. Borrower will not permit the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense for any period of
twelve (12) consecutive calendar months of Borrower (taken as one accounting
period) to be less than 3.00:1.00 at any time during the term hereof.
8.08 Asset/Indebtedness Ratio. Borrower will not permit its
Asset/Indebtedness Ratio to be less than 3.00:1.00 at the end of any monthly
period during the term hereof.
8.09 Leverage Ratio. Borrower will not permit the Leverage Ratio at
the end of any calendar month ending after the Effective Date to be greater than
.40:1.00.
8.10 Tangible Net Worth. Borrower shall not permit Consolidated
Tangible Net Worth, measured at the end of each fiscal quarter after June 30,
1998 to be less than the sum of (a) $700.0 million, plus (b) an amount (added at
the end of each fiscal quarter) equal to the greater of (x) $0 and (y) (A) 50%
of Consolidated Net Income from June 30, 1998 to the end of such quarter and (B)
50% of the value of any consideration received (net of issuance costs) (other
than from Borrower or any Subsidiary) in connection with the issuance of any
capital stock by Borrower or any Subsidiary subsequent to the date hereof and at
any time during the term hereof. In the case of any such issuance for non-cash
consideration, the value of the consideration received shall be deemed to be the
net increase in Consolidated Tangible Net Worth resulting from the issuance
(after giving effect to, without limitation, any goodwill or other intangibles
created by the transaction or any writedown or writeoff in connection with the
transaction).
8.11 Transactions with Affiliates. Borrower shall not, directly or
indirectly, enter into any transaction or series of transactions after the date
hereof whether or not in the ordinary course of business, with any Affiliate
other than on terms and conditions substantially as favorable to Borrower as
would be obtainable by Borrower at the time in a comparable arm's length
transaction with a Person other than an Affiliate; provided, however, that the
foregoing restrictions shall not apply to (a) employment arrangements entered
into in the ordinary course of business with officers of Borrower, (b) customary
fees paid to members of the Board of Directors of Borrower and (c) all
transactions between or among Borrower and one or more Restricted Subsidiaries.
8.12 Limitation on Sale/Leaseback Transactions. Borrower shall not,
and shall not permit any Restricted Subsidiary to, enter into any sale/leaseback
transaction with any Person (other than Borrower or another Restricted
Subsidiary) calling for payments in excess of $20,000,000 per annum during the
term hereof.
<PAGE>
8.13 Value Adjusted Equity Test. Borrower shall not permit its
Consolidated Value Adjusted Equity to be less than $1,200,000,000 at any time
during the term hereof.
8.14 Permitted Investments. Borrower and its Restricted Subsidiaries
shall not make any Investments (except for Cash Equivalents) in excess of seven
percent (7%) of Borrower's Consolidated Tangible Net Worth per annum during the
term hereof: (a) in areas other than the Borrower's principal line of business
or (b) in Unrestricted Subsidiaries.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. Borrower shall default in the payment when due of any
principal of the Loans, any Unpaid Drawing, any interest on the Loans or any
Fees or any other amounts owing hereunder or under any other Credit Document and
such default shall continue for two (2) more Business Days; or
9.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
9.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8 or (b) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in Section 9.01, 9.02 or
clause (a) of this Section 9.03) contained in this Agreement and such default
shall continue unremedied for a period of at least thirty (30) days after notice
to Borrower by the Administrative Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) Any Credit Party or any of
their respective Subsidiaries shall (i) default in any payment with respect to
any Indebtedness (other than the Obligations) beyond the period of grace, if
any, applicable thereto or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition results in acceleration or the renegotiation of the material
payment terms of any such Indebtedness to become due prior to its stated
maturity; or (b) any such Indebtedness of any Credit Party or any of their
respective Subsidiaries shall be declared to be due and payable, or required to
be prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not constitute an Event of
Default pursuant to this Section 9.04 unless (x) the aggregate principal amount
of such Indebtedness in default exceeds $10,000,000 at any one time and (y)
adequate reserves (determined in accordance with GAAP) have not been provided;
or
<PAGE>
9.05 Bankruptcy. Any Credit Party or any direct or indirect parent
of any Credit Party or any Material Subsidiary shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against any Credit Party
or any direct or indirect parent of any Credit Party and the petition is not
controverted within ten (10) days, or is not stayed or dismissed within 90 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of any Credit Party or any direct or indirect parent of any Credit
Party; or any Credit Party or any direct or indirect parent of any Credit Party
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to any
Credit Party or any direct or indirect parent of any Credit Party; or there is
commenced against any Credit Party or any direct or indirect parent of any
Credit Party any such case or proceeding which remains undismissed for a period
of ninety (90) days; or any Credit Party or any direct or indirect parent of any
Credit Party is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; any Credit Party
or any direct or indirect parent of any Credit Party suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of ninety (90) days; or any
Credit Party or any direct or indirect parent of any Credit Party makes a
general assignment for the benefit of creditors; or any corporate action is
taken by any Credit Party or any direct or indirect parent of any Credit Party
for the purpose of effecting any of the foregoing; or
9.06 Employee Benefit Plans. (a) Any ERISA Affiliate shall fail to
pay when due an amount or amounts which it shall have become liable to pay under
Title IV of ERISA; or (b) notice of intent to terminate a Plan shall be filed
under Section 4041(c) of ERISA by any ERISA Affiliate, any plan administrator or
any combination of the foregoing other than the proposed termination of the
Penrod Pension Plan II; or (c) the PBGC shall institute proceedings under Title
IV of ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Plan; or (d) there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans (as defined in ERISA), or (e) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan; or (f) any Lien in favor of
the PBGC or a Plan shall arise on the assets of any ERISA Affiliate or a
Subsidiary; and in each case in items (a) through (f) above, such event or
condition, together with all other events or conditions, if any, could
reasonably be expected to result in a Material Adverse Effect; or
9.07 Guaranty. Any Guaranty or any provision thereof shall cease to
be in full force and effect, or any Guarantor or any Person acting by or on
behalf of such Guarantor shall deny or disaffirm all or any portion of such
Guarantor's obligation thereunder, or any Guarantor shall default in the
observance of any term, covenant or agreement on its part to be performed or
observed pursuant thereto and such default (other than any default arising from
a failure to make any payment thereunder) shall continue unremedied for a period
<PAGE>
of at least 30 days after notice to Borrower by the Administrative Agent or the
Required Banks; or
9.08 Judgments. Any judgment or decree shall be entered against
Borrower or any other Credit Party (i) in any jurisdiction within the United
States or any state or territory thereof involving a liability of $10,000,000 or
more in the case of any one such judgment or decree, to the extent not paid or
not covered by insurance, and any such judgment or decree shall not have been
vacated, discharged or stayed or bonded pending appeal within 60 days from the
entry thereof or (ii) by a foreign jurisdiction involving a liability which is
reasonably likely to result in a Material Adverse Effect; or
9.09 Citizenship. Borrower and/or any Restricted Subsidiary shall
cease to be qualified to own and operate the Rigs or any other rigs or vessels
owned or operated by them under the laws of the United States, the Bahamas or
Liberia, as may be applicable; or
9.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to Borrower, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent or any Bank to enforce its claims against any Credit Party, except as
otherwise specifically provided for in this Agreement (provided that, if an
Event of Default specified in Section 9.05 shall occur with respect to Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Fee or any other Fees shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and all
obligations owing hereunder (including Unpaid Drawings) and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Credit Party; (iii) terminate any Letter of Credit which may be terminated
in accordance with its terms; (iv) direct Borrower to repay (and Borrower hereby
agrees upon receipt of such notice, or upon the occurrence of any Event of
Default specified in Section 9.05 in respect of Borrower, it will pay) to the
Administrative Agent at the Payment Office such additional amounts of cash, to
be held as security for Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding (if any) equal to the aggregate Stated Amount
of all Letters of Credit then outstanding; and apply any amounts held as cash
collateral pursuant to Section 4.02 or this Section 9 to repay Obligations.
SECTION 10. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
<PAGE>
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affected Eurodollar Loan" shall have the meaning provided in
Section 4.02(B).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" shall mean any of the Administrative Agent, the
Documentation Agent or the Syndication Agent.
"Agreement" shall mean this Credit Agreement, as the same may be
from time to time modified, amended and/or supplemented.
"Applicable Eurodollar Margin" shall be equal to the amount of
basis points per annum set forth below opposite Borrower's applicable Pricing
Rating, as same exists at any time and from time to time; provided that, in
the event a change in the Applicable Eurodollar Margin is to be made, such
change shall not become effective until the date which is one (1) Business
Day after the date upon which the Administrative Agent receives written notice
from Borrower that such change is warranted:
----------------------------------------------------------------
Pricing Applicable Eurodollar Margin:
Rating (higher of):
A-/Aa3 or higher .35%
BBB+/Baa1 .4%
BBB/Baa2 .5%
BBB-/Baa3 .6%
BB+/Ba1 .75%
----------------------------------------------------------------
"Asset/Indebtedness Ratio" shall mean the ratio of the market value
of Borrower's and its Restricted Subsidiaries' total tangible assets (said
<PAGE>
value, in the case of the Rigs to be determined by an accredited, recognized
appraiser satisfactory to the Required Banks) to its Consolidated Funded
Indebtedness.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit 12.04 (appropriately
completed).
"Authorized Officer" shall mean any officer of Borrower or any
Guarantor designated as such in writing to the Administrative Agent by Borrower
or any Guarantor.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" shall mean the higher of (i) the Administrative Agent's
Prime Rate, and (ii) 0.50% per annum above the Federal Funds Effective Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan pursuant
to the Facility by Borrower from all of the Banks on a pro rata basis on a given
date (or resulting from conversions on a given date), having in the case of
Eurodollar Loans the same Interest Period; provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered included in any related
Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in US Dollar deposits in the interbank Eurodollar market.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all obligations under Capital Leases in each case taken at the amount
thereof accounted for as liabilities in accordance with GAAP.
<PAGE>
"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) US Dollar denominated time deposits, certificates of
deposit and bankers' acceptances of (x) any Bank, (y) any domestic commercial
bank of recognized standing having capital and surplus in excess of $500,000,000
or (z) any bank (or the parent company of such bank) whose short-term
indebtedness rating from Standard & Poor's Corporation ("S&P") is at least A-2
or the equivalent thereof or from Moody's Investors Service, Inc. ("Moody's") is
at least P-2 or the equivalent thereof, in each case with maturities of not more
than six (6) months from the date of acquisition, (iii) short term investments
in securities or related instruments rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's and (iv)
investments in money market funds substantially all of whose assets are
comprised of securities of the type described in clauses (i) through (iii)
above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (a) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as
amended from time to time), is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of Borrower or (b) the
Board of Directors of Borrower ceases for any reason to consist of a majority of
Continuing Directors.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Closing Date" means the date of execution of this Agreement by
all parties hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Commitment" shall mean, with respect to each Bank, the amount set
forth opposite such Bank's name in Annex I in the column entitled "Commitment"
as the same may be (i) reduced from time to time pursuant to Sections 3.02,
3.03, and/or Section 9 or (ii) adjusted from time to time as a result of
assignments to or from such Bank pursuant to Section 12.04.
"Commitment Fee" shall have the meaning provided in Section 3.01
(a).
"Consolidated EBITDA" shall mean, for any period, (A) the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provisions for
taxes based on income, (iii) Consolidated Interest Expense, (iv) amortization or
<PAGE>
write-off of deferred financing costs or any other non-cash charges to the
extent deducted in determining Consolidated Net Income, (v) losses on sales of
assets (excluding sales in the ordinary course of business, which in any event
will not include sales of Rigs or other offshore vessels) and other
extraordinary losses or expenses and (vi) depreciation and amortization expenses
less (B) the amount for such period of gains on sales of assets (excluding sales
in the ordinary course of business not involving Rigs or other offshore vessels)
and other extraordinary gains, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Funded Indebtedness" shall mean, all Indebtedness of
Borrower and its Restricted Subsidiaries (excluding Indebtedness referred to in
clauses (ii), (iv), (vi), (vii) and (viii) of the definition of "Indebtedness"
and clause (iii) of such definition to the extent such letters of credit
constitute performance letters of credit and letters of credit issued to support
bid and performance bonds in the ordinary course of business) calculated on a
consolidated basis in accordance with GAAP;
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases) of Borrower and
its Restricted Subsidiaries in accordance with GAAP on a consolidated basis with
respect to all outstanding Indebtedness of Borrower and its Subsidiaries,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing.
"Consolidated Net Income" shall mean for any period, the net income
(or loss) of Borrower and its Restricted Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP.
"Consolidated Net Worth" shall mean, at any time, shareholders'
equity (excluding treasury stock) of Borrower and its Restricted Subsidiaries on
a consolidated basis determined in accordance with GAAP; provided that
Consolidated Net Worth shall include preferred stock of Borrower issued after
the Effective Date so long as such preferred stock may only be redeemed at the
option of Borrower.
"Consolidated Tangible Net Worth" means the Consolidated Net Worth
of Borrower less all of its goodwill and other intangible assets determined in
accordance with GAAP.
"Consolidated Value Adjusted Equity" means the Consolidated Net
Worth minus the book value of all of the Borrower's and its Restricted
Subsidiaries' Rigs plus the fair market value of all such Rigs, as valued by an
appraiser reasonably satisfactory to the Required Banks which appraisal shall be
completed once annually.
"Contingent Obligations" shall mean as to any Person any obligation
of such Person guaranteeing or intending to guarantee any Indebtedness ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
<PAGE>
Person, whether or not contingent, (a) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of Borrower on the
Effective Date and each subsequent director, if such subsequent director's
nomination for election to the Board of Directors of Borrower is recommended by
a majority of the then Continuing Directors serving on the Borrower's Nominating
and Compensation Committee.
"Credit Documents" shall mean this Agreement, the Notes, all
requests or applications for Letters of Credit and any documents executed in
connection with such applications.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean Borrower and the Guarantors.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Dividends" shall have the meaning provided in Section 8.05.
"Dual Indenture" shall mean the Indenture, dated as of January 15,
1994 (as the same may be amended or supplemented from time to time) among Dual
Holding Company, ENSCO Offshore Company II, a Delaware Corporation, and Shawmut
Bank, National Association, as Trustee, governing the 9 7/8% Senior Subordinated
Notes of Dual Holding Company due 2004.
"EII Indenture" means the Indenture dated as of November 20, 1997,
as amended from time to time, between Borrower and the Administrative Agent as
Trustee, governing the debentures of Borrower issued pursuant thereto,
referenced in Section 8.04(i).
<PAGE>
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined by Regulation D
under the Securities Act of 1933).
"Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by Borrower or any of its Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereafter, "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss. 1251 et
seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 7401 et seq.; the Clean
Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. ss.
3808 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701 et seq. and any
applicable state and local or foreign counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Borrower or any Subsidiary would be deemed to be a
"single employer" (i) within the meaning of Sections 414(b), (c), (m) and (o) of
the Code or (ii) as a result of Borrower or any Subsidiary being or having been
a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Loan, the offered rate (rounded upward to the nearest 1/16 of one percent
(1%)) for deposits of US Dollars, for a period equivalent to such period at or
<PAGE>
about 11:00 A.M. (London time) on the date which is two (2) Business Days prior
to the commencement of such period, as is displayed on Telerate page 3750
(British Bankers' Association Interest Settlement Rates) (or such other page as
may replace such page 3750 on such system or on any other system of the
information vendor for the time being designated by the British Bankers'
Association to calculate the BBA Interest Settlement Rate (as defined in the
British Bankers' Association's Recommended Terms and Conditions ("BBAIRS" terms)
dated August 1985)), provided that if on such date no such rate is so displayed,
the Eurodollar Rate for such period shall be the rate quoted to the
Administrative Agent as the offered rate for deposits of US Dollars, in an
amount approximately equal to the amount in relation to which the Eurodollar
Rate is to be determined for a period equivalent to such period by prime banks
in the London Interbank Market at or about 11:00 A.M. (London time) on the
second Business Day before the first day of such period.
"Event of Default" shall have the meaning provided in Section 9.
"Facility" shall mean the credit facility made available to Borrower
hereunder, as evidenced by the Total Commitment.
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Guaranteed Obligations" shall mean all obligations of Borrower to
each Bank or any Agent for the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the principal and interest on
each Note issued by Borrower to such Bank, and Loans made under this Agreement
and all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit, together with all the other obligations and liabilities (including,
without limitation, indemnities, fees and interest thereon) of Borrower to such
Bank and the Administrative Agent now existing or hereafter incurred under,
arising out of or in connection with this Agreement or any other Credit Document
<PAGE>
and the due performance and compliance with all the terms, conditions and
agreements contained in the Credit Documents by Borrower.
"Guarantor" shall have the meaning assigned thereto in the first
paragraph of this Agreement.
"Guaranty" shall mean the guaranty pursuant to Section 13 hereof.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained electric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements and (viii) all Contingent Obligations of such
Person (other than Contingent Obligations arising from the guaranty of
obligations of a Restricted Subsidiary to the extent such Contingent Obligations
are permitted hereunder); provided that Indebtedness shall not include (x) trade
payables and accrued expenses, in each case arising in the ordinary course of
business, and (y) deferred tax liabilities.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar agreement or arrangement designed to protect any Credit Party
against interest rate risk.
"Investments" means the direct or indirect purchase of the stock or
assets of any other Person, or any loan to or infusion of capital into, or the
providing of Guaranties or credit support for, or forming of a partnership or
joint venture with such Person and any other action which would constitute an
investment on the balance sheet of such Person, except for such Investments the
<PAGE>
consideration for which consists solely of the capital stock of the Borrower or
one of its Subsidiaries which shall not be considered Investments hereunder.
"L/C Supportable Obligations" shall mean such obligations of the
Credit Parties as are not inconsistent with the issuance policies of the Letter
of Credit Issuer.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean Bankers Trust Company.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings not theretofore
repaid.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" means the ratio of Borrower's Consolidated Funded
Indebtedness to Total Capitalization.
"Lien" shall mean any mortgage, pledge, security interest, security
title, encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement or
any lease in the nature thereof).
"Loan" or "Loans" shall have the meaning provided in Section 1.01 of
this Agreement.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean, unless specified otherwise, to
affect in a material manner the ability of a Credit Party to perform its
respective obligations under this Agreement or the Notes.
"Material Subsidiary" shall mean, as of the Effective Date, each of
the following Subsidiaries of Borrower and any Subsidiary qualifying as such
pursuant to Section 7.11:
Ensco Offshore Company
Ensco Offshore Company II
Ensco Offshore U.K. Limited
Ensco Delaware, Inc.
Ensco Platform AS
Dual Holding Company
Ensco Marine Company
<PAGE>
"Maturity Date" shall mean five (5) years from the date hereof,
unless otherwise accelerated pursuant to Section 9.
"Minimum Borrowing Amount" shall mean $2,000,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Note" shall have the meaning provided in Section 1.05(a).
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent at
130 Liberty Street, 14th Floor, New York, New York 10006 or such other office as
the Administrative Agent may designate to Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Administrative Agent, the Syndication Agent, the Documentation Agent or any
Bank pursuant to the terms of this Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean 130 Liberty Street, 14th Floor, New
York, New York 10006.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean, for each Bank, the percentage obtained by
dividing such Bank's Commitment by the Total Commitment, provided that if the
Total Commitment shall have been terminated, the Percentage of each Bank shall
be determined by dividing such Bank's Commitment immediately prior to such
termination by the Total Commitment immediately prior to such termination.
"Permitted Liens" shall mean Liens described in Section 8.03.
<PAGE>
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) Borrower or a Subsidiary of
Borrower or an ERISA Affiliate.
"Pricing Rating" shall mean the long-term unsecured debt rating of
Borrower as determined by Standard and Poor's Corporation or Moody's Investors
Service, Inc.
"Prime Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Rate to change
when and as such prime lending rate changes.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including,
without limitation, leasehold estates and fee simple estates.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under subsection .13, .14, .16, .18, .10 or .20 of PBGC
Regulation Section 2615.
"Required Banks" shall mean at any time, Banks holding more than
66_% of the sum of (i) the then aggregate principal amount of the Notes held by
the all of Banks and (ii) the Letter of Credit Outstandings; provided that if no
<PAGE>
such principal amount is then outstanding and there are no Letter of Credit
Outstandings "Required Banks" shall mean Banks having more than 66_% of the
Total Commitment at such time.
"Restricted Subsidiary" means any Subsidiary of Borrower that is not
an Unrestricted Subsidiary and shall include all Material Subsidiaries.
"Rig" or "Rigs" shall mean any and all mobile, offshore jack-up or
semi-submersible drilling units owned or leased by Borrower or any Subsidiary
and shall include those listed on Annex 6.15(b), as same is supplemented and
amended from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided
in Section 4.04(b)(ii).
"S&P" shall mean Standard and Poor's Corporation.
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of Borrower.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Total Capitalization" shall mean, at any time, the sum of
Consolidated Funded Indebtedness and Consolidated Net Worth at such time.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks, which on the Effective Date shall total
$185,000,000.00.
"Total Unutilized Commitment" shall mean, at any time, (i) the Total
Commitment at such time less (ii) the sum of the aggregate principal amount of
all Loans at such time, plus the Letter of Credit Outstandings at such time.
<PAGE>
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or Eurodollar Loan.
"Unpaid Drawing" shall have the meaning provided in Section
2.03(a).
"Unrestricted Subsidiary" shall mean any Subsidiary designated as
such on Annex 6.12, as supplemented or amended from time to time, which
designation, amendment and supplement must be approved by the Required Banks,
such approval not to be unreasonably withheld.
"Unutilized Commitment" for each Bank, shall mean the excess of (i)
the Commitment of such Bank over (ii) the sum of (x) the aggregate outstanding
principal amount of Loans made by such Bank, plus (y) an amount equal to such
Bank's Percentage of Letter of Credit Outstandings at such time.
"US Dollars" and "$" shall mean freely transferable lawful money of
the United States.
"Voting Stock" shall mean, with respect to any corporation, the
outstanding stock of all classes (or equivalent interests) which ordinarily, in
the absence of contingencies, entitles holders thereof to vote for the election
of directors (or Persons performing similar functions) of such corporation, even
though the right so to vote has been suspended by the happening of such a
contingency.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex or facsimile transmission.
"Year 2000 Problem" has the meaning provided in Section 6.19.
SECTION 11. The Administrative Agent
11.01 Appointment of the Administratvie Agent. The Banks hereby designate
Bankers Trust Company as Administrative Agent to act as specified herein and in
the other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or Affiliates.
<PAGE>
11.02 Nature of Duties. The Administrative Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or Affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Administrative
Agent shall be mechanical and administrative in nature; the Administrative Agent
shall not have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Bank or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
11.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Bank and the holder of each
Note, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
Borrower and its Subsidiaries in connection with the making and the continuance
of the Loans and issuance and/or participation in Letters of Credit and the
taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of Borrower and its Subsidiaries and, except
as expressly provided in this Agreement, the Administrative Agent shall not have
any duty or responsibility, either initially or on a continuing basis, to
provide any Bank or the holder of any Note with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. The Administrative Agent shall not
be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of Borrower and its Subsidiaries or any
Guarantor or be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of Borrower and its
Subsidiaries or any Guarantor or the existence or possible existence of any
Default or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Banks with respect to any act
or action (including failure to act) in connection with this Agreement or any
other Credit Document, the Administrative Agent shall be entitled to refrain
from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Banks; and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, neither any Bank nor the holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
<PAGE>
under any other Credit Document in accordance with the instructions of the
Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Administrative Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent (which may be counsel for the Borrower).
11.06 Idemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Borrower, the Banks will reimburse and indemnify
the Administrative Agent, in proportion to their respective Percentages for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses or disbursements of
whatsoever kind or nature which may be imposed on, asserted against or incurred
by the Administrative Agent in performing its respective duties hereunder or
under any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct.
11.07 The Administrative Agent in Its Individual Capacity. With respect to
its obligation to make Loans under this Agreement, the Administrative Agent
shall have the rights and powers specified herein for a "Bank" and may exercise
the same rights and powers as though it were not performing the duties specified
herein; and the term "Banks," "Required Banks," "holders of Notes" or any
similar terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with Borrower or its Subsidiaries or any
Affiliate thereof as if it were not performing the duties specified herein, and
may accept fees and other consideration from Borrower or any of its Subsidiaries
or Affiliates for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
11.08 Holders. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
<PAGE>
11.09 Resignation by the Administrative Agent. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving fifteen (15) Business
Days' prior written notice to Borrower and the Banks. Such resignation shall
take effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such fifteen (15) Business Day period, the Administrative
Agent, with the consent of Borrower, shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent hereunder or
thereunder until such time, if any, as the Required Banks appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the twentieth (20th) Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required Banks
shall thereafter perform all the duties of the Administrative Agent hereunder
and/or under any other Credit Document until such time, if any, as the Required
Banks appoint a successor Administrative Agent as provided above.
<PAGE>
SECTION 12. Miscellaneous
12.01 Payment of Expenses. Borrower agrees to: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the negotiation, preparation, execution and delivery of the Credit Documents and
the documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of all counsel to the Administrative Agent) and of the
Administrative Agent and, after the occurrence and during the continuance of an
Event of Default, each of the Banks in connection with the enforcement of the
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the actual reasonable fees and disbursements of
counsel for the Administrative Agent and, after the occurrence and during the
continuance of an Event of Default for each of the Banks); (ii) pay and hold
each of the Banks harmless from and against any and all present and future stamp
and other similar taxes with respect to the foregoing matters and save each of
the Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Bank) to pay such taxes; and (iii) indemnify each Bank (including in its
capacity as the Administrative Agent, Letter of Credit Issuer, Documentation
Agent or Syndication Agent), its officers, directors, employees, representatives
and agents from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements of whatsoever kind or nature which may be
imposed on, asserted against or incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of (a) any investigation,
litigation or other proceeding (whether or not any Bank is a party thereto)
related to the entering into and/or performance of any Credit Document or the
use of the proceeds of any Loans or Letters of Credit hereunder or the
consummation of any transactions contemplated in any Credit Document, whether
initiated by Borrower, any Guarantor or any other Person, including, without
limitation, the actual reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified) or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water, groundwater, surface or subsurface of any
Real Property, Rig, facility or location at any time owned or operated by
Borrower or any of its Subsidiaries, the generation, storage, transportation or
disposal of Hazardous Materials at any Real Property, Rig, facility or location
at any time owned or operated by Borrower or any of its Subsidiaries, the
non-compliance of any Real Property, Rig, facility or location at any time owned
or operated by Borrower or any of its Subsidiaries with federal, state and local
laws, regulations, and ordinances (including applicable permits thereunder)
applicable to any such Real Property, Rig, facility or location, or any
Environmental Claim asserted against Borrower, any of its Subsidiaries, or any
Real Property, offshore drilling rig, facility, vessel or location at any time
owned or operated by Borrower or any of its Subsidiaries, including, in each
case, without limitation, the actual reasonable fees and disbursements of
counsel and other consultants incurred in connection with any such
investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of the
<PAGE>
gross negligence or willful misconduct of the Person to be indemnified). To the
extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, if an Event of Default then exists, each Bank is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to Borrower, any Guarantor or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and apply
any and all deposits (general or special) and any other Indebtedness at any time
held or owing by such Bank (including without limitation by branches and
agencies of such Bank wherever located) to or for the credit or the account of
Borrower or any Guarantor against and on account of the Obligations and
liabilities of Borrower or any Guarantor to such Bank under this Agreement or
under any of the other Credit Documents, including, without limitation, all
interests in Obligations of Borrower or any Guarantor purchased by such Bank
pursuant to Section 12.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
12.03 Notices. (a) Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telex or telecopier communication) and mailed, telecopied or
delivered, if to Borrower or its Subsidiaries, at the address specified opposite
its signature below or in the other relevant Credit Documents, as the case may
be; if to any Bank, at its address specified for such Bank on Annex II; or, at
such other address as shall be designated by any party in a written notice to
the other parties hereto. All such notices and communications shall be effective
when received.
(b) Without in any way limiting the obligation of Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may, prior to receipt of written confirmation, act without
liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of Borrower.
In each such case, Borrower hereby waive the right to dispute the Administrative
Agent's record of the terms of such telephonic notice.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that Borrower may not assign or transfer
any of its rights or obligations hereunder without the prior written consent of
the Banks. Each Bank may at any time grant participations in any of its rights
hereunder and under any of the Notes and Letters of Credit to another financial
institution, provided that in the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
<PAGE>
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by Borrower
hereunder shall be determined as if such Bank had not sold such participation,
except that the participant shall be entitled to the benefits of Sections 1.10
and 4.04 of this Agreement to the extent that such Bank would be entitled to
such benefits if the participation had not been entered into or sold, and,
provided further, that no Bank shall transfer, grant or assign any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the final scheduled maturity of any Loan,
Note or Letters of Credit in which such participant is participating, or reduce
the rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of the applicability of any post-default increase in
interest rates), or reduce the principal amount thereof, or increase such
participant's participating interest in any Commitment over the amount thereof
then in effect (it being understood that a waiver of any condition, covenant,
Default or Event of Default or of a mandatory reduction in the Total Commitment,
or a mandatory prepayment, shall not constitute a change in the terms of any
Commitment) or (ii) consent to the assignment or transfer by Borrower of any of
its rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or a
portion of its outstanding Commitment and its rights and obligations hereunder
to its Affiliate or to another Bank, and (y) with the consent of the
Administrative Agent and Borrower (which consent shall not be unreasonably
withheld), any Bank may assign all or a portion of its outstanding Commitment
and its rights and obligations hereunder to one or more Eligible Transferees. No
assignment pursuant to the immediately preceding sentence shall to the extent
such assignment represents an assignment to an institution other than one or
more Banks hereunder, be in an aggregate amount less than $5,000,000 unless the
entire Commitment of the assigning Bank is so assigned. If any Bank so sells or
assigns all or a part of its rights hereunder or under the Notes, any reference
in this Agreement or the Notes or Letters of Credit to such assigning Bank shall
thereafter refer to such Bank and to the respective assignee to the extent of
their respective interests and the respective assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Bank. Each assignment pursuant to
this Section 12.04(b) shall be effected by the assigning Bank and the assignee
Bank executing an Assignment and Assumption Agreement. In the event of any such
assignment (x) to a commercial bank or other financial institution not
previously a Bank hereunder, either the assigning or the assignee Bank shall pay
to the Administrative Agent a nonrefundable assignment fee of $2,500.00, and (y)
to a Bank, either the assigning or assignee Bank shall pay to the Administrative
Agent a nonrefundable assignment fee of $1,500.00, and at the time of any
assignment pursuant to this Section 12.04(b), (i) Annex I shall be deemed to be
amended to reflect the respective Commitments of the assignee (which shall
result in a direct reduction to the Commitment of the assigning Bank) and of the
other Banks, and (ii) if any such assignment occurs after the Effective Date, if
requested by the assigning Bank and the assignee Bank, Borrower will issue new
<PAGE>
Notes to the respective assignee and to the assigning Bank in conformity with
the requirements of Section 1.05 and the assigning Bank will return the canceled
Notes to the appropriate Borrower. Each Bank and Borrower agree to execute such
documents (including, without limitation, amendments to this Agreement and the
other Credit Documents) as shall be necessary to effect the foregoing. Any Bank
may at any time pledge or assign all or any portion of its rights under this
agreement and the other loan documents to any Federal Reserve Bank without
notice to or consent of the Borrower. No such pledge or assignment shall release
the Bank from its obligations hereunder.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participation therein shall be permitted if such transfer,
assignment or grant would require Borrower to file a registration statement with
the SEC or to qualify the Loans under the "Blue Sky" laws of any state.
(d) Each Bank initially party to this Agreement hereby represents,
and each Person that became a Bank pursuant to an assignment permitted by this
Section 12 will, upon its becoming party to this Agreement, represent that it is
a commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account in the
ordinary course of such business, provided that subject to the preceding clauses
(a) and (b), the disposition of any promissory notes or other evidences of or
interests in Indebtedness held by such Bank shall at all times be within its
exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Credit Parties and the Administrative Agent or any Bank shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any Bank would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle such Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or the Banks to any other or further action in any
circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of any Credit Party in
respect of any Obligations of Borrower or any other Credit Party hereunder, it
shall distribute such payment to the Banks (other than any Bank that has
expressly waived its right to receive its pro rata share thereof) pro rata based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
<PAGE>
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks in accordance with their
respective Commitments immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks a participation interest in the Obligations of
Borrower and any other Credit Party, respectively, to such Banks in such amount
as shall result in a proportional participation by all of the Banks in
accordance with their respective Commitments in such amount, provided that if
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
12.07 Calculations:Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by Borrower to
the Banks), provided that except as otherwise specifically provided herein, all
computations determining compliance with Section 8, including definitions used
therein, shall utilize accounting principles and policies in effect at the time
of the preparation of, and in conformity with those used to prepare, the
historical financial statements of Borrower delivered to the Banks pursuant to
Section 6.09(b), except as otherwise amended or modified in accordance with
GAAP.
(b) All computations of interest hereunder in respect of Base Rate
Loan shall be made on the basis of the actual number of days elapsed over a 365
or 366 day year and all computations of interest hereunder in respect of
Eurodollar Loans and computation of all fees (including Letter of Credit Fees)
shall be made on the basis of the actual number of days elapsed over a 360 day
year.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL . (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. BORROWER AND EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
<PAGE>
MAIL, POSTAGE PREPAID, TO SUCH PERSON LOCATED OUTSIDE NEW YORK CITY AND BY HAND
DELIVERY TO SUCH PERSON IF LOCATED WITHIN NEW YORK CITY, AT ITS ADDRESS FOR
NOTICES PURSUANT TO SECTION 12.03, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE
AGENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
BORROWER OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
(b) BORROWER AND EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Borrower, each Guarantor
and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on the date (the
"Effective Date") on which Borrower, each Guarantor and each of the Banks and
each of the Agents shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent
at the Notice Office of the Administrative Agent or, in the case of the Banks,
shall have given to the Administrative Agent telephonic (confirmed in writing),
written telex or facsimile transmission notice (actually received) at such
office that the same has been signed and mailed to it and each of the conditions
in Section 5 has been fulfilled.
<PAGE>
12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by Borrower and the Required Banks, provided that no such change, waiver,
discharge or termination shall, without the consent of each Bank affected
thereby, (i) extend the Maturity Date or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof, (ii) increase the Commitment of any Bank over the
amount thereof then in effect (it being understood that a waiver of any
condition, covenant, Default or Event of Default shall not constitute a change
in the terms of any Commitment of any Bank), (iii) amend, modify or waive any
provision of this Section 12.12(a), (iv) reduce the percentage specified in the
definition of Required Banks, (v) consent to the assignment or transfer by
Borrower of any of its rights and obligations under this Agreement or (vi)
waive, change the timing or amount of, or extend any mandatory reduction in the
Total Commitment. No provision of Section 2 or Section 11, or any other
provisions relating to the Letter of Credit Issuer or the Administrative Agent
may be modified without the consent of the Administrative Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (vi), inclusive, of the proviso to Section 12.12(a), the
consent of the Required Banks is obtained but the consent of one or more of such
other Banks whose consent is required is not obtained, then Borrower shall have
the right to replace each such non-consenting Bank or Banks (so long as all
non-consenting Banks are so replaced) with one or more Replacement Banks
pursuant to Section 1.13 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination; provided that Borrower shall not have the right to replace a Bank
solely as a result of the exercise of such Bank's rights (and the withholding of
any required consent by such Bank) pursuant to Section 12.12(a)(ii).
12.13 Survival. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.06 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans at, to
or for the account of any branch office, subsidiary or Affiliate of such Bank,
provided that Borrower shall not be responsible for costs arising under Section
1.10 or 4.04 resulting from any such transfer (other than a transfer pursuant to
Section 1.12(a)) to the extent not otherwise applicable to such Bank prior to
such transfer.
<PAGE>
12.15 Confidentiality. Subject to Section 12.04, the Banks shall hold all
non-public information obtained pursuant to the requirements of this Agreement
in accordance with its customary procedure for handling confidential information
of this nature and in accordance with safe and sound banking practices and in
any event may make disclosure reasonably required by any bona fide transferee or
participant in connection with the contemplated transfer of any Loans or
participation therein (so long as such transferee or participant agrees to be
bound by the provisions of this Section 12.15) or as required or requested by
any governmental agency or representative thereof or pursuant to legal process,
provided that, unless specifically prohibited by applicable law or court order,
each Bank shall notify Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental agency)
for disclosure of any such non-public information prior to disclosure of such
information, and provided further that in no event shall any Bank be obligated
or required to return any materials furnished by Borrower, any Guarantor or any
Subsidiary.
12.16 Registry. Borrower hereby designate the Administrative Agent to serve
as Borrower's agent, solely for purposes of this Section 12.16, to maintain a
register (the "Register") on which it will record the Commitments from time to
time of each of the Banks, the Loans made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank. Failure
to make any such recordation, or any error in such recordation shall not affect
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of the Commitments of such Bank and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitments shall not be effective
until such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Loans and prior to such
recordation all amounts owing to the transferor with respect to such Commitments
and Loans shall remain owing to the transferor. The registration of assignment
or transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Bank shall
surrender the Note evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank.
12.17 Designated Senior Indebtedness. Borrower and each of its Subsidiaries
hereby designates its obligations under this Agreement and the other Credit
Documents as "Designated Senior Indebtedness" for purposes of, and as defined in
the Dual Indenture.
12.18 No Futher Agreements. THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
<PAGE>
SECTION 13. Guaranty
13.01 The Guaranty. (a) In order to induce the Banks to enter into this
Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by Borrower and Guarantors from the proceeds of the
Loans and the issuance of Letters of Credit, Borrower and Guarantors hereby
agree with the Banks as follows: subject to paragraph (b) below, each Guarantor
hereby jointly and severally, unconditionally and irrevocably guarantees as
primary obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, by acceleration or otherwise, of any and all of the
Guaranteed Obligations of Borrower, and if any or all of the Guaranteed
Obligations of Borrower become due and payable hereunder, each Guarantor
unconditionally promises to pay such indebtedness to the Banks, on order or
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Banks in collecting any of the Guaranteed
Obligations.
(b) To the extent and for any period that the Dual Indenture remains
in effect, the liability of Dual Holding Company hereunder shall never exceed a
maximum of $35,000,000 in the aggregate, provided, that such liability of Dual
Holding Company shall remain in effect until the final repayment of the last
$35,000,000 of the Obligations outstanding and shall not be reduced by any
payments (other than payments by Dual Holding Company in satisfaction of the
Guaranteed Obligations) until the Obligations are reduced to a figure below that
amount. Further, notwithstanding the foregoing limitation, to the extent said
Dual Indenture prohibits, limits or restricts Dual Holding Company from entering
into this Guaranty, in whole or in part, the Agent, the Banks and the Letter of
Credit Issuer do agree that such prohibition, limitations or restrictions shall,
except as hereinbelow specifically stated, take precedence hereover and the
obligations of Dual Holding Company shall be subject thereto, provided,
immediately upon the lifting of such prohibition, limitations or restrictions,
Dual Holding Company's liability hereunder shall be immediately reinstated and
all limitations therein shall be eliminated without the need for action or
notice by, or to, any party, provided, notwithstanding, the maximum aggregate
liability of Dual Holding Company shall remain $35,000,000 and shall not be
increased above said amount. Nothing contained in this Section 13.01(b) shall
affect the liability of any other Guarantor or the rights of any Bank in regard
to said parties, and shall be effective in respect of Dual Holding Company only
to the limited extent and for the period expressly set forth in the Dual
Indenture.
13.02 Bankruptcy. Additionally, each Guarantor, subject to Section
13.01(b), unconditionally and irrevocably guarantees the payment of any and all
of the Obligations of Borrower and each Guarantor to the Banks whether or not
then due or payable by such Persons upon the occurrence in respect of such
Persons of any of the events specified in Section 9.05, and unconditionally and
irrevocably promises to pay such Guaranteed Obligations to the Banks, on order,
or demand, in lawful money of the United States. The guaranty by each Guarantor
of the payment of any and all of the Guaranteed Obligations hereunder shall
constitute a guaranty of payment, and not of collection.
<PAGE>
13.03 Nature of Liability. The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Obligations of such Guarantor whether executed by such Guarantor, any other
guarantor or by any other party, and the liability of each Guarantor hereunder
shall not be affected or impaired by (a) any direction as to application of
payment by such Guarantor or by any other party, or (b) any other continuing or
other guaranty, undertaking or maximum liability of such Guarantor or of any
other party as to the Guaranteed Obligations of such Guarantor, or (c) any
payment on or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by such
Guarantor, or (e) any payment made to the Administrative Agent on the
indebtedness which the Administrative Agent repays to any Guarantor pursuant to
court order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
13.04 Independent Obligation. The obligations of each Guarantor hereunder
are independent of the obligations of any other guarantor or Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other guarantor or Borrower and
whether or not any other guarantor or Borrower be joined in any such action or
actions. Each Guarantor waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by any Guarantor or other circumstance which
operates to toll any statute of limitations as to such Guarantor shall operate
to toll the statute of limitations as to Borrower and each Guarantor.
13.05 Waiver of Notice, etc. Borrower and each Guarantor hereby waives
notice of acceptance of this Guaranty and notice of any liability to which it
may apply, and waives promptness, diligence, presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or
taking of other action by the Administrative Agent, the Letter of Credit Issuer
or any Bank, against, and any other notice to, any party liable thereon
(including any Guarantor or Borrower).
13.06 Authorization. Each Guarantor authorizes the Administrative Agent and
the Banks without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing their
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
<PAGE>
(b) exercise or refrain from exercising any rights against Borrower
or other Persons or otherwise act or refrain from acting;
(c) release or substitute any one or more endorsers, guarantors,
Borrower or other obligors;
(d) settle or compromise any of the Guaranteed Obligations, or any
liability (including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of Borrower to its
creditors other than the Banks;
(e) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of Borrower to the Banks regardless of what liability
or liabilities of such Guarantor or any Borrower remain unpaid;
(f) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements referred
to herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(g) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
Borrower or any other Guarantor from its liabilities under this Section 13.
13.07 Reliance. It is not necessary for the Administrative Agent or the
Banks to inquire into the capacity or powers of Borrower or its Subsidiaries or
the officers, directors, partners or agents acting or purporting to act on its
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
13.08 Subordination. Any of the indebtedness of Borrower or any Guarantor
now or hereafter owing to each other or to any Subsidiary is hereby subordinated
to the Obligations of Borrower owing to the Administrative Agent and the Banks;
and if the Administrative Agent so requests at a time when an Event of Default
exists, all such indebtedness of Borrower or any Guarantor to such Person shall
be paid over to the Administrative Agent on behalf of the Banks on account of
the Obligations, but without affecting or impairing in any manner the liability
of such Guarantor under the other provisions of this Guaranty. Prior to the
transfer by Borrower or any Guarantor of any note or negotiable instrument
evidencing any of such indebtedness such Person shall mark such note or
negotiable instrument with a legend that the same is subject to this
subordination.
13.09 Waiver. (a) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent or any Bank to (i) proceed against Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security held
<PAGE>
from Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in the Administrative Agent's or any Bank's power whatsoever. Each
Guarantor waives any defense based on or arising out of any defense of Borrower,
any other guarantor or any other party, other than payment in full of the
Guaranteed Obligations, based on or arising out of the disability of Borrower,
any other guarantor or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of Borrower other than payment in full of the
Guaranteed Obligations. Subject to Section 13.10, the Administrative Agent may
exercise any right or remedy the Administrative Agent may have against Borrower
without affecting or impairing in any way the liability of Borrower hereunder
except to the extent the Guaranteed Obligations have been paid. Borrower waives
any defense arising out of any such election by the Administrative Agent and the
Banks, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of Borrower or any other
party.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Each Guarantor assumes all responsibility for being and
keeping itself informed of Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which each Guarantor
assumes and incurs hereunder, and agrees that the Administrative Agent and the
Banks shall have no duty to advise such Guarantor of information known to them
regarding such circumstances or risks.
13.10 Subrogation. No Guarantor will exercise any rights which it may
acquire by way of subrogation under this Guaranty, by any payment made hereunder
or otherwise, until all the Guaranteed Obligations shall have been paid in full.
If any amount shall be paid to such Guarantor on account of such subrogation
rights at any time when all the Guaranteed Obligations shall not have been paid
in full, such amount shall be forthwith paid to the Administrative Agent on
behalf of the Banks to be credited and applied against the Guaranteed
Obligations. If any Guarantor shall make payment to the Administrative Agent of
all or any part of the Guaranteed Obligations and all the Guaranteed Obligations
shall have been paid in full, the Administrative Agent and the Banks will
execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, releasing this Guaranty and transferring
to such Guarantor any and all rights the Administrative Agent and the Banks may
have against Borrower or necessary to evidence the transfer by subrogation to
such Guarantor of any interest in the Guaranteed Obligations resulting from such
payment by such Guarantor.
* * *
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered, as of the date
first above written.
Address: ENSCO INTERNATIONAL INCORPORATED
2700 Fountain Place
1445 Ross Avenue By:/s/ C. C. Gaut
----------------------------
Dallas, Texas 75202 Name: C. Christopher Gaut
Attn: Chief Financial Title: Vice President and Chief Financial
Officer Officer
Telephone: (214) 922-1500
Facsimile: (214) 855-0300
ENSCO OFFSHORE COMPANY
By:/s/ C. C. Gaut
--------------------------------
Name: C. Christopher Gaut
Title: Vice President and Treasurer
DUAL HOLDING COMPANY
By:/s/ C. C. Gaut
------------------------------------
Name: C. Christopher Gaut
Title: President
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By:/s/ Marcus M. Tarkington
-------------------------------------
Name: Marcus M. Tarkington
Title: Principal
DEN NORSKE BANK ASA, NEW YORK
BRANCH, Individually and as
Syndication Agent
By:/s/ Theodore S. Jadick, Jr.
-------------------------------------
Name: Theodore S. Jadick, Jr.
Title: Senior Vice President
By:/s/ Barbara Gronquist
-------------------------------------
Name: Barbara Gronquist
Title: First Vice President
<PAGE>
ABN AMRO BANK N.V., Individually and
as Documentation Agent
By:/s/ Cheryll Lipshutz
-------------------------------------
Name: Cheryll Lipshutz
Title: Senior Vice President
By:/s/ Stephanie Balette
-------------------------------------
Name: Stephanie Balette
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:/s/ Richard R. Newman
-------------------------------------
Name: Richard R. Newman
Title: Director
By:/s/ Thomas Lee
-------------------------------------
Name: Thomas Lee
Title: Associate
MARINE MIDLAND BANK
By:/s/ Lincoln D. McMahon
-------------------------------------
Name: Lincoln D. McMahon
Title: Authorized Signatory
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:/s/ John W. McGhee
-------------------------------------
Name: John W. McGhee
Title: Vice President & Manager
<PAGE>
WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:/s/ Lester J.N. Keliher
-------------------------------------
Name: Lester J.N. Keliher
Title: Vice President
BANCO EXTERIOR DE ESPANA S.A.,
NEW YORK BRANCH
By:/s/ Augusto Godoy
-------------------------------------
Name: Augusto Godoy
Title: General Manger
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH
By:/s/ Martin Lynder
-------------------------------------
Name: Martin Lynder
Title: First Vice President
By:/s/ Hans Chn Kjelsrud
-------------------------------------
Name: Hans Chn Kjelsrud
Title: First Vice President
<PAGE>
EXHIBIT 1.03
FORM OF NOTICE OF BORROWING
[Date]
Attention: Loan Administration
Ladies and Gentlemen:
The undersigned, ENSCO International Incorporation, (the
"Borrower"), refers to the Credit Agreement, dated as of ______________, 1998
(as amended, modified or supplemented from time to time, the "Credit Agreement,"
the capitalized terms defined therein being used herein as therein defined),
among Borrower, the Guarantors, the lending institutions from time to time party
thereto (the "Banks"), ABN AMRO Bank N.V., as Documentation Agent, Den norske
Bank ASA, New York Branch, as Syndication Agent, and you, as Administrative
Agent for such Banks, and, pursuant to Section 1.03 of the Credit Agreement,
hereby gives you irrevocable notice that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 1.03 of the Credit Agreement:
(i) The aggregate principal amount of the Proposed Borrowing is
[$----------].
(ii) The Business Day of the Proposed Borrowing is [Date].1
(iii) The Loans to be made pursuant to the Proposed Borrowing shall
be initially maintained as [Base Rate Loans] [Eurodollar Loans].
[(v) The initial Interest Period for the Proposed Borrowing is
_____ month(s).]2
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 6 of the
Credit Agreement and the other Credit Documents are and will be true and correct
in all material respects, both before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made on such
date, unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
ENSCO INTERNATIONAL INCORPORATED
By:
------------------------------
Name:
Title:
- -----------------------------
1 Shall be a Business Day at least four Business Days after the date
hereof.
2 To be included for a Proposed Borrowing of Eurodollar Loans.
<PAGE>
Exhibit 1.05
FORM OF NOTE
$__________________ New York, New York Date: ________________
FOR VALUE RECEIVED, ENSCO International Incorporated, a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
_________________ (the "Bank"), in lawful money of the United States of America
in immediately available funds, at the office of Bankers Trust Company (the
"Administrative Agent") located at One Bankers Trust Plaza, 130 Liberty Street,
New York, New York 10006, on the Maturity Date (as defined in the Agreement
referred to below) the principal sum of _______________________________________
_____________________ and ____/100 DOLLARS ($_____________) or, if less, the
then unpaid principal amount of all Loans, referred to below, made by the Bank
pursuant to the Agreement (as hereinafter defined).
Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the rates
and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Notes referred to in the Credit Agreement,
dated as of May , 1998, among Borrower, ENSCO OFFSHORE COMPANY, a Delaware
corporation, DUAL HOLDING COMPANY, a Delaware corporation (each a "Guarantor"
and collectively the "Guarantors"), the lending institutions listed from time to
time party thereto (including the Bank), the Administrative Agent, DEN NORSKE
BANK ASA, NEW YORK BRANCH as syndication agent (in such capacity, the
"Syndication Agent") and ABN AMRO BANK N.V. as documentation agent (in such
capacity, the "Documentation Agent") (as amended, modified or supplemented from
time to time, the "Agreement"), and is entitled to the benefits thereof and of
the other Credit Documents (as defined in the Agreement). As provided in the
Agreement, this Note is subject to voluntary prepayment and mandatory prepayment
prior to the Maturity Date, in whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur
and be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
Except for any notices required under Sections 9.01 or 9.03 of the
Agreement, Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note, including, without limitation, notice of
acceleration and of intent to accelerate.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
ENSCO INTERNATIONAL
INCORPORATED
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT 2.02
FORM OF LETTER OF CREDIT REQUEST
No. ____1 Dated ______________2
Bankers Trust Company
Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Attention: Commercial Loan Division, Standby Letter of Credit Unit
Ladies and Gentlemen:
The undersigned, ENSCO International Incorporated (the "Borrower"),
refers to the Credit Agreement, dated as of _______________, 1998 (as amended,
modified or supplemented from time to time, the "Credit Agreement," the
capitalized terms defined therein being used herein as therein defined), among
Borrower, the Guarantors, the lending institutions from time to time party
thereto (the "Banks"), ABN AMRO Bank N.V., as Documentation Agent, Den norske
Bank ASA, New York Branch, as Syndication Agent and you as Administrative Agent
for such Banks.
The undersigned hereby requests that the Letter of Credit Issuer,
issue on behalf and for the account of Borrower a Letter of Credit on
_______________ (the "Date of Issuance") in the aggregate amount of
$__________.3 The requested Letter of Credit shall be denominated in US Dollars.
The beneficiary of the requested Letter of Credit will be
_______________,4 and such Letter of Credit will be in support of
_______________5 and will have a stated termination date of __________.6
- -----------------------------
The undersigned hereby certifies that the following statements are
true on the date hereof in respect of each of the Credit Parties, and will be
true on the Date of Issuance:
(A) the representations and warranties contained in Section 6 of the
Credit Agreement and the other Credit Documents are and will be true and correct
in all material respects, before and after giving effect to the issuance of the
Letter of Credit requested hereby, as though made on the Date of Issuance,
unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result after giving effect to the issuance of the Letter of Credit
requested hereby.
Copies of all documentation, if any, with respect to the supported
transaction are attached hereto.
ENSCO INTERNATIONAL INCORPORATED
By:
-----------------------------
Name:
Title:
- ---------------------------
1 Letter of Credit Request Number.
2 At least seven (7) Business Days prior to the proposed Date of
Issuance (or three (3) Business Days if the issuance of the Letter of
Credit has been approved in advance by the Letter of Credit Issuer).
This Letter of Credit Request shall after three (3) Business Days (or
one (1) Business Day if the issuance of the Letter of Credit has been
approved in advance by the Letter of Credit Issuer) be irrevocable.
3 Aggregate initial Stated Amount of Letter of Credit.
4 Insert name and address of beneficiary.
5 Insert description of the L/C Supportable Obligations to which this
Letter of Credit Request relates.
6 Insert last date upon which drafts may be presented which may not be
later than the earlier of (i) the date which occurs eighteen (18)
months after date of issuance thereof, and (ii) the tenth (10th)
Business Day preceding the Maturity Date.
<PAGE>
Exhibit 4.04(b)
FORM OF SECTION 4.04(b)(ii) CERTIFICATE
---------------------------------------
Reference is hereby made to the Credit Agreement, dated as of May 21, 1998,
among ENSCO INTERNATIONAL INCORPORATED ("Borrower"), a Delaware corporation,
ENSCO OFFSHORE COMPANY, a Delaware corporation, DUAL HOLDING COMPANY, a Delaware
corporation (each a "Guarantor" and collectively the lending institutions listed
from time to time party thereto (each a "Bank" and, collectively, the "Banks")
and BANKERS TRUST COMPANY, as administrative agent (in such capacity, the
"Administrtive Agent"), DEN NORSKE BANK, ASA, NEW YORK BRANCH as syndication
agent (in such capacity, the "Syndication Agent"), (as amended, modified or
supplemented from time to time, the "Credit Agreement"). Pursuant to the
provisions of Section 4.04(b)(ii) of the Credit Agreement, the undersigned
hereby certifies that it is not a "bank" as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By:
--------------------------
Name:
Title:
Date:
--------------------------
<PAGE>
EXHIBIT 5.05
ENSCO INTERNATIONAL INCORPORATED
OFFICER'S CERTIFICATE
I, the undersigned, Secretary of ENSCO International Incorporated, a
corporation organized and existing under the laws of the State of Delaware (the
"Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to the Credit Agreement,
dated as of May _____, 1998, among Company, ENSCO OFFSHORE COMPANY, a Delaware
corporation, DUAL HOLDING COMPANY, a Delaware corporation (each a "Guarantor"
and collectively the "Guarantors"), the lending institutions from time to time
parties thereto and BANKERS TRUST COMPANY, as administrative agent (in such
capacity, the "Administrative Agent"), DEN NORSKE BANK ASA, NEW YORK BRANCH as
syndication agent (in such capacity, the "Syndication Agent") and ABN AMRO BANK
N.V. as documentation agent (in such capacity, the "Documentation Agent").
Unless otherwise defined herein, capitalized terms used in this Certificate
shall have the meanings set forth in the Credit Agreement.
2. Attached hereto as Exhibit A is a true and correct copy of the
Certificate of Incorporation of the Company, together with all amendments
thereto, as in effect on the date hereof.
3. Attached hereto as Exhibit B is a true and correct copy of the
Bylaws of the Company as in effect on the date hereof.
4. Attached hereto as Exhibit C is a true and correct copy of the
resolutions of the Board of Directors of the Company, adopted by Unanimous
Written consent on May , 1998. None of the resolutions contained therein have
been amended or revoked and all such resolutions continue in full force and
effect.
5. The persons named below are the duly elected and acting officers
of the Company holding the respective office set forth opposite their names and
the respective signatures set opposite their respective offices are their
genuine signatures:
NAME OFFICE SIGNATURE
President and
Chief Executive
Officer ----------------------------
Secretary ----------------------------
6. On the date hereof, the representations and warranties contained
in the Credit Agreement and the other Credit Documents are true and correct in
all material respects with the same effect as though such representations and
warranties have been made on the date hereof, unless stated to relate to a
specific earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.
7. There are no proceedings pending, threatened or contemplated for
the liquidation or dissolution of the Company or threatening its corporate
existence as of the date hereof.
8. As of the date hereof, no Default or Event of Default has
occurred and is continuing or will result from the execution and performance by
the Company of the Credit Documents to which it is a party.
IN WITNESS WHEREOF, this Certificate is executed this day of May,
1998.
---------------------------------------
Secretary
<PAGE>
Exhibit 7.01(e)
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate (the "Certificate") is delivered to you
pursuant to Section 7.01(e) of the Credit Agreement, dated as of May 21, 1998,
(as amended, supplemented or modified from time to time "Credit Agreement"),
among ENSCO INTERNATIONAL INCORPORATED ("Borrower"), a Delaware corporation,
ENSCO OFFSHORE COMPANY, a Delaware corporation, DUAL HOLDING COMPANY, a Delaware
corporation (each a "Guarantor" and collectively the "Guarantors"), the lending
institutions listed from time to time party thereto (each a "Bank" and,
collectively, the "Banks") and BANKERS TRUST COMPANY, as administrative agent
(in such capacity, the "Administrative Agent"), DEN NORSKE BANK ASA, NEW YORK
BRANCH as syndication agent in such capacity, the "Documentation Agent
defined in the Credit Agreement and not otherwise defined herein are used herein
as therein defined.
1. I am the duly elected, qualified and acting [Chief Financial
Officer/Controller/Treasurer] of Borrower.
2. I have reviewed and am familiar with the contents of this Certificate. I
am providing this Certificate solely in my capacity as officer of Borrower. The
matters set forth herein are true to the best of my knowledge after diligent
inquiry, but I express no personal opinion as to any conclusions of law or other
legal matters.
3. I have reviewed the terms of the Credit Agreement and the other Credit
Documents and have made or caused to be made under my supervision a review in
reasonable detail of the transactions and conditions of Borrower during the
accounting period covered by the financial statements attached hereto as Annex
I. Such financial statements have been prepared in accordance with the
requirements of the Credit Agreement.
4. Attached hereto as Annex II are the computations showing compliance in
all material respects with the covenants specified therein. All such
computations are true and correct.
5. On the date hereof, no Default or Event of Default has occurred and is
continuing.
IN WITNESS WHEREOF, I execute this Certificate this [______]
day of [_________________], 19____.
ENSCO INTERNATIONAL
INCORPORATED
By:
---------------------
Name:
---------------------
Title:
---------------------
<PAGE>
Exhibit 12.04
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Date: _________________
Reference is made to the Credit Agreement described in Item 2 of
Annex I annexed hereto (as such Credit Agreement may hereafter be amended,
modified or supplemented from time to time, the "Credit Agreement"). Unless
defined in Annex I, terms defined in the Credit Agreement are used herein as
therein defined. ___________________________ (the "Assignor") and
__________________________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), 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 as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I (the "Assigned Share") of all of
Assignor's outstanding rights and obligations under the Credit Agreement
indicated in Item 4 of Annex I, including, without limitation, all rights and
obligations with respect to the Assigned Share of the Total Commitment and of
the outstanding Loans and Letters of Credit. After giving effect to such sale
and assignment, the Assignee's Commitment will be as set forth in Item 4 of
Annex I and Assignor's Commitment shall be reduced by such amount.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any liens or security interests; (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 or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Credit
Party or the performance or observance by any Credit Party of any of its
obligations under the Credit Agreement or the other Credit Documents or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is duly
authorized to enter into and perform the terms of this Assignment Agreement;
(ii) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to
therein and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment
Agreement; (iii) agrees that it will, independently and without reliance upon
the Administrative Agent, 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; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) 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[; and (vi) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that
all such payments are subject to such rates at a rate reduced by an applicable
tax treaty]1.
<PAGE>
4. Following the execution of this Assignment and Assumption
Agreement by the Assignor and the Assignee, an executed original hereof
(together with all attachments) will be delivered to the Administrative Agent.
The effective date of this Assignment and Assumption Agreement shall be the date
of execution hereof by the Assignor and the Assignee (and if required by the
terms of the Credit Agreement, the consent of the Administrative Agent, each
Letter of Credit Issuer and Borrower, which consent will not be unreasonably
withheld or delayed) and the receipt by the Administrative Agent of the
administrative fee referred to in the Credit Agreement, unless otherwise
specified in Item 5 of Annex I hereto (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Bank thereunder and
under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee
shall be entitled to (x) all interest on the Assigned Share of the Loans at the
rates specified in Item 6 of Annex I, (y) all Commitment Fee (if applicable) on
the Assigned Share of the Total Commitment at the rate specified in Item 7 of
Annex I, and (z) all Letter of Credit Fees (if applicable) on the Assignee's
participation in all Letters of Credit at the rate specified in Item 8 of Annex
I, which, in each case, accrue on and after the Settlement Date, such interest
and, if applicable, Commitment Fee and Letter of Credit Fees, to be paid by the
Administrative Agent, upon receipt thereof from Borrower, directly to the
Assignee. It is further agreed that all payments of principal made by Borrower
on the Assigned Share of the Loans which occur on and after the Settlement Date
will be paid directly by the Administrative Agent to the Assignee. Upon the
Settlement Date, the Assignee shall pay to the Assignor an amount specified by
the Assignor in writing which represents the Assigned Share of the Principal
amount of the respective Loans made by the Assignor pursuant to the Credit
Agreement which are outstanding on the Settlement Date, net of any closing
costs, and which are being assigned hereunder. The Assignor and the Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
for periods prior to the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
1 Include if the Assignee is organized under the laws of a jurisdiction
outside the United States.
[Signature Pages to Follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
[NAME OF ASSIGNOR],
as Assignor
By:
----------------------------------
Title:
[NAME OF ASSIGNEE],
as Assignee
By:
----------------------------------
Title:
Acknowledged and Agreed:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
----------------------------------
Title:
[NAME OF EACH LETTER OF CREDIT ISSUER],
as Letter of Credit Issuer
By:
----------------------------------
Title:
ENSCO INTERNATIONAL INCORPORATED
By:
----------------------------------
Title:2
----------------------------------
2 Insert if assignment is not being made to the Assignor's
Affiliate or to another Bank.
<PAGE>
ANNEX I
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Borrower: ENSCO International Incorporated
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of May ___, 1998, among Borrower, various
lending institutions from time to time party thereto, Bankers Trust
Company, as Administrative
Agent.
3. Date of Assignment Agreement:
----------------------, -------
4. Amount (as of date of Item #3 above):
Total Commitment
a. Aggregate Amount for all Banks $
185,000,000.00
b. Assigned Share - Percentage _________________ %
c. Total Dollar Amount of $________________
Assigned Share
5. Settlement Date:
---------------------, --------
6. Rate of Interest to As set forth in Section 1.08 of the Credit the
Assignee: Agreement (unless otherwise agreed to by the
Assignor and the Assignee).3
7. Commitment Fee: As set forth in Section 3.01(a) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).4
- ------------------------------------
3 Borrower and the Administrative Agent shall direct the entire amount
of Interest to the Assignee at the rate set forth in Section 1.08 of
the Credit Agreement, with the Assignor and the Assignee effecting any
agreed upon sharing of the Interest through payment by the Assignee to
the Assignor.
8. Letter of Credit As set forth in Section 3.01(b) of the Credit Fees:
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).5
<PAGE>
9. Notices:
ASSIGNOR:
Attention:
Telephone No.:
Facsimile No.:
ASSIGNEE:
Attention:
Telephone No.:
Facsimile No.:
10. Payment Instructions:
ASSIGNOR:
ABA No.:
Account No.:
Reference No.:
Attention:
ASSIGNEE:
ABA No.:
Account No.:
Reference:
Attention:
<PAGE>
- --------------
1 Shall be a Business Day at least four Business Days after the date
hereof.
2 To be included for a Proposed Borrowing of Eurodollar Loans.
1 Letter of Credit Request Number.
2 At least seven (7) Business Days prior to the proposed Date of
Issuance (or three (3) Business Days if the issuance of the Letter of
Credit has been approved in advance by the Letter of Credit Issuer).
This Letter of Credit Request shall after three (3) Business Days (or
one (1) Business Day if the issuance of the Letter of Credit has been
approved in advance by the Letter of Credit Issuer) be irrevocable.
3 Aggregate initial Stated Amount of Letter of Credit.
4 Insert name and address of beneficiary.
5 Insert description of the L/C Supportable Obligations to which this
Letter of Credit Request relates.
6 Insert last date upon which drafts may be presented which may not be
later than the earlier of (i) the date which occurs eighteen (18)
months after date of issuance thereof, and (ii) the tenth (10th)
Business Day preceding the Maturity Date.
1 Include if the Assignee is organized under the laws of a jurisdiction
outside the United States.
2 Insert if assignment is not being made to the Assignor's Affiliate or
to another Bank.
3 Borrower and the Administrative Agent shall direct the entire amount
of Interest to the Assignee at the rate set forth in Section 1.08 of
the Credit Agreement, with the Assignor and the Assignee effecting any
agreed upon sharing of the Interest through payment by the Assignee to
the Assignor.
4 Borrower and the Administrative Agent shall direct the entire amount
of the Commitment Fee to the Assignee at the rate set forth in Section
3.01(a) of the Credit Agreement, with the Assignor and the Assignee
effecting any agreed upon sharing of the Commitment Fee through
payment by the Assignee to the Assignor.
5 Borrower and the Administrative Agent shall direct the entire amount
of the Letter of Credit Fees to the Assignee at the rate set forth in
Section 3.01(b) of the Credit Agreement, with the Assignor and the
Assignee effecting any agreed upon sharing of the Letter of Credit
through payment by the Assignee to the Assignor.
<PAGE>
ANNEX I
COMMITMENTS
Bank Commitment
---- ----------
Bankers Trust Company $30,000,000
Den norske Bank ASA, New York Branch $45,000,000
ABN Amro Bank N.V. $30,000,000
Westdeutsche Landesbank Girozentrale,
New York Branch $20,000,000
Marine Midland Bank $10,000,000
The Bank of Tokyo-Mitsubishi, Ltd. $15,000,000
Wells Fargo Bank (Texas), National Association $15,000,000
Banco Exterior de Espana S.A.,
New York Branch $10,000,000
Christiania Bank og Kreditkasse ASA,
New York Branch $10,000,000
Total $185,000,000
<PAGE>
ANNEX II
BANK ADDRESSES
Den norske Bank ASA, New York Branch 200 Park Avenue
New York, NY 10166
Tel. No. (212) 681-3859
Fax No. (212) 681-3900
Attn: Barbara Gronquist
Bankers Trust Company 130 Liberty Street
14th Floor
New York, New York 10006
Tel No. (212) 250-2431
Fax No (212) 250-6029
Attn: Hsing Huang
ABN AMRO Bank N.V. Three Riverway
Suite 1700
Houston, Texas 77056
Tel No. (713) 964-3351
Fax No. (713) 629-7533
Attn: Cheryl Lipshutz
Westdeutsche Landesbank Girozentrale,
New York Branch 1211 Avenue of the Americas
New York, New York 10036
Tel No. (212) 852-6120
Fax No. (212) 852-6307
Attn: Richard R. Newman
or
Tel No. (212) 852-6204
Fax No. (212) 852-6148
Attn: Thomas Lee
Banco Exterior de Espana S.A.,
New York Branch 320 Park Avenue, 20th Floor
New York, New York 10022
Tel No. (212) 605-9847
Fax No. (212) 755-4211
Attn: Cesar O. Andrade
or
Attn: Alan Lefkowitz
The Bank of Tokyo-Mitsubishi,
Ltd. 1100 Louisiana St., Suite 2800
Houston, Texas 77002-5216
Tel No. (713) 655-3811
Fax No. (713) 655-3855
Attn: John W. McGhee
<PAGE>
Christiania Bank og Kreditkasse ASA,
New York Branch 11 West 42nd Street, 7th Floor
New York, New York 10036
Attn: Martin Lunder
Marine Midland Bank 1221 McKinney, Suite 2790
Houston, Texas 77010
Tel No. (713) 759-1202
Fax No. (713) 759-1403
Attn: Lincoln D. McMahon
or
Attn: Robert L. Corder
Den norske Bank ASA,
New York Branch 200 Park Avenue, 31st Floor
New York, New York 10166
Tel No. (212) 681-3859
Fax No. (212) 681-3900
Attn: Barbara Gronquist or
Attn: Theodore S. Jadick, Jr.
Tel No. (212) 681-3860
Fax No. (212) 681-3960
Wells Fargo Bank (Texas),
National Association 1445 Ross Avenue, 3rd Floor
Dallas, Texas 75202-2812
Tel No. (214) 777-4025
Fax No. (214) 777-4044
Attn: Lester Keliher
[PricewaterhouseCoopers LLP letterhead]
July 31, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that ENSCO International Incorporated has included our report dated
July 31, 1998 (issued pursuant to the provisions of Statement on Auditing
Standards No. 71) in the Company's Registration Statements on Form S-3 (Nos.
33-42965, 33-46500, 33-49590, 33-43756, 33-64642, 333-03575 and 333-37897), and
any existing amendments thereto, and Form S-8 (Nos. 333-58625, 33-14714,
33-32447, 33-35862, 33-40282 and 33-41294). We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ PricewaterhouseCoopers LLP
