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Title: |
Participation Agreement |
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Entities: |
Banc One Capital Markets, Inc.; Bank One, NA; Cal Dive International, Inc.; Phelps Dunbar |
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Date: |
2002 |
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Preview shows 37KB of 318KB total |
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Price: |
$64 |
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ID: |
#904313 |
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PARTICIPATION AGREEMENT
Dated as of November 8, 2001
among
ENERGY RESOURCE TECHNOLOGY, INC.
Lessee, Construction Agent and Guarantor
CAL DIVE INTERNATIONAL, INC.
as Parent Guarantor
CAL DIVE/GUNNISON BUSINESS TRUST NO. 2001-1, through
WILMINGTON TRUST COMPANY,
not in its individual capacity, except as expressly provided
herein, but solely as trustee under the Trust Agreement dated as of the
date hereof,
Owner Trustee and Lessor
THE PERSONS NAMED ON SCHEDULE I HERETO,
as Certificate Holders
BANK ONE, NA,
and the various financial institutions
party to the Loan Agreement from time to time as
the Tranche A and Tranche B Lenders
and
BANK ONE, NA,
Agent
----------
Synthetic Lease Financing of Gunnison Platform
BANC ONE CAPITAL MARKETS, INC.
Lead Arranger
<PAGE>
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (this "PARTICIPATION AGREEMENT") dated as
of November 8, 2001 is entered into by and among ENERGY RESOURCE TECHNOLOGY,
INC., a Delaware corporation, as Lessee, Construction Agent and Guarantor
(together with its permitted successors and assigns, in its capacity as Lessee,
the "LESSEE", in its capacity as Construction Agent, and in its capacity as
Guarantor; CAL DIVE INTERNATIONAL, INC. a Minnesota corporation, as Parent
Guarantor; WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its
individual capacity except as expressly provided herein, but solely as trustee
under the Trust Agreement (in such capacity, together with its successors and
permitted assigns under the Trust Agreement the "OWNER TRUSTEE"); CAL
DIVE/GUNNISON BUSINESS TRUST NO. 2001-1-1, a Delaware business trust (the
"LESSOR"); the Persons named on Schedule I hereto (together with their
respective permitted successors, assigns and transferees), each as owners of an
undivided beneficial interest in the Lessor ("CERTIFICATE HOLDERS"); BANK ONE,
NA (with its principal office in Chicago, Illinois) and various financial
institutions party to the Loan Agreement from time to time as the Tranche A
Lenders and various financial institutions party to the Loan Agreement from time
to time as the Tranche B Lenders thereunder (together with each of their
permitted successors and assigns, the "LENDERS"); and BANK ONE, NA (with its
principal office in Chicago, Illinois), in its capacity as Agent (together with
its successors and assigns in such capacity from time to time, the "AGENT") for
the Lenders;
WITNESSETH:
WHEREAS, pursuant to the terms and provisions of the Trust Agreement
(which is substantially in the form of Exhibit A hereto), the Certificate
Holders have authorized the Owner Trustee to take certain actions with respect
to the transactions contemplated hereby for the purpose of providing financing
for the construction of a production platform known as the Gunnison Platform
(the "Platform").
WHEREAS, Lessor shall own a twenty percent (20%) undivided beneficial
interest in the Platform (such undivided interest being referred to as the
"Property") and as such, subject to the terms of this Agreement and the other
Operative Documents, shall provide financing for the Construction Costs relating
to the Platform in accordance with the terms of the Operative Documents in a
maximum aggregate amount of $67,000,000 (the "Aggregate Commitment"). Subject to
the terms and conditions of this Agreement and other Operative Documents,
94.076745% of the Aggregate Commitment (i.e $63,031,419, in the aggregate) will
be provided through Advances made by the Lenders and 5.923255% of the Aggregate
Commitment (i.e. $3,968,581, in the aggregate) will be provided through Advances
made by the Certificate Holders. The Construction Costs are equal to
approximately 20% of the total cost of construction of the Platform.
WHEREAS, the remaining cost of construction of the Platform will be
provided pursuant to a separate financing arrangement by Kerr-McGee (the
"Kerr-McGee Financing") and pursuant to a separate financing or purchase
arrangement by CXY Energy Offshore Inc. (fka Nexen Petroleum Offshore U.S.A.
Inc.). Funds provided through the Kerr-McGee Financing will represent
approximately 50% of the total cost of construction of the Platform and funds
provided
Participation Agreement
<PAGE>
by, or for the benefit of, CXY Energy Offshore Inc. will represent approximately
30% of the total cost of construction of the Platform.
WHEREAS, the finance parties under the Kerr-McGee Financing will,
subject to the terms and conditions of the documents evidencing that
transaction, provide Kerr-McGee Oil & Gas Corporation with financing in the
maximum aggregate amount of $157,000,000 (the "Kerr-McGee Commitment"). Subject
to the terms and condition of the documents evidencing the Kerr-McGee Financing,
approximately 95.54% of the Kerr-McGee Commitment (i.e $150,000,000, in the
aggregate) will be provided through loan advances made by the lenders under that
facility and approximately 4.46% of the Kerr-McGee Commitment (i.e. $7,000,000,
in the aggregate) will be provided through loan advances made by the certificate
holders under that facility.
WHEREAS, pursuant to the financing arrangements set forth and
contemplated by the terms of this Agreement, (i) Lessee, as Construction Agent,
shall cause the construction of the Platform and shall apply Advances from
Lessor to pay the costs thereof, (ii) Lessee and Parent Guarantor shall grant to
Lessor such rights in and to the Governmental Leases and the Site (each as
defined in Appendix A) and provide such other covenants of support as are set
forth in Section 8(d)(xix) in connection therewith, and (iii) Lessee shall lease
the Property from the Lessor for the Basic Term pursuant to that certain Lease
Agreement and Mortgage and Deed of Trust (which is substantially in the form of
Exhibit B hereto) dated of even date herewith (the "Lease").
WHEREAS, the Certificate Holders are willing personally to provide a
portion of the funding of the costs of undertaking and completing those actions
set forth above;
WHEREAS, the Lessor wishes to obtain, and the Lenders are willing to
provide, financing of the remaining portion of the funding of the costs of
undertaking and completing those actions set forth above;
WHEREAS, the Lessee contemplates leasing from the Lessor the Property;
and
WHEREAS, to secure such financing, the Lenders will have, to the extent
provided in the Operative Documents, the benefit of a Lien from the Lessor on
the Lessor's right, title and interest in the Property and on substantially all
of the Lessor's rights against the Lessee under the Lease and against the
Construction Agent under the Construction Agency Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Participation Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
for all purposes hereof; and the rules of interpretation set forth in Appendix A
hereto shall apply to this Participation Agreement.
Participation Agreement
2
<PAGE>
SECTION 2. DOCUMENTATION DATE; AVAILABILITY DATE.
(a) DOCUMENTATION DATE. The Documentation Date (the "Documentation
Date") shall occur on the earliest date on which the following conditions
precedent shall have been satisfied:
(i) PARTICIPATION AGREEMENT. This Participation Agreement
shall have been duly authorized, executed and delivered by the parties
hereto.
(ii) LEASE. The Lease shall have been duly authorized,
executed and delivered by the parties thereto.
(iii) CONSTRUCTION AGENCY AGREEMENT; CONSTRUCTION DOCUMENTS
ASSIGNMENT. The Construction Agency Agreement and the Construction
Documents Assignment shall have been duly authorized, executed and
delivered by the parties thereto.
(iv) CONSTRUCTION AGENCY AGREEMENT ASSIGNMENT. The
Construction Agency Agreement Assignment shall have been duly
authorized, executed and delivered by the Lessor, as assignor, in favor
of the Agent, and consented to and acknowledged by the Construction
Agent.
(v) LOAN AGREEMENT. The Loan Agreement shall have been duly
authorized, executed and delivered by the parties thereto.
(vi) ASSIGNMENT OF LEASES AND RENTS. The Assignment of Leases
and Rents shall have been duly authorized, executed and delivered by
the Lessor, as assignor, in favor of the Agent, and consented to and
acknowledged by the Lessee.
(vii) FEES. The Lessee shall have paid in full all fees then
due and payable pursuant to the Fee Letter.
(viii) OTHER OPERATIVE DOCUMENTS. The other Operative
Documents to be delivered in connection with the Documentation Date
shall have been duly authorized, executed and delivered by the parties
thereto.
(ix) OTHER CONDITIONS PRECEDENT. The conditions precedent set
forth in Section 9(a) shall have been satisfied or waived by the
applicable parties as set forth therein.
(b) AVAILABILITY DATE. For purposes of this Participation Agreement and
the other Operative Documents, the "AVAILABILITY DATE" shall mean the date, on
or after the Documentation Date, on which all the conditions precedent set forth
in Section 9(b) shall have been satisfied or waived by the applicable parties as
set forth therein, on or after which Advances may be made pursuant to Funding
Requests (as defined in Section 3(c)) subject to the terms of this Agreement.
Participation Agreement
3
<PAGE>
SECTION 3. FUNDING OF ADVANCES
(a) CERTIFICATE HOLDERS' COMMITMENT. (i) Subject to the conditions and
terms hereof, the Certificate Holders shall cause the Lessor to take the
following actions at the written request of the Lessee from time to time during
the Commitment Period:
(1) the Lessor shall make Advances (out of funds
provided by the Participants) to the Construction Agent for
the purpose of financing the Allocated Construction Costs of
the Platform; and
(2) the Lessor shall lease the Property to the Lessee
under the Lease. Notwithstanding any other provision hereof,
the Lessor shall not be obligated to make any Advance with
respect to the Platform if, after giving effect thereto, (i)
the aggregate outstanding amounts of the Tranche A Loans,
Tranche B Loans and the Equity Amounts would exceed the
aggregate Commitments of the Tranche A Lenders, the Tranche B
Lenders and the Certificate Holders, or (ii) the remaining
Allocated Estimated Construction Costs at such time exceed the
remaining aggregate amount of undisbursed Commitments.
(ii) Subject to the conditions and terms hereof, each
Certificate Holder severally agrees that it shall personally make
available at the request of the Lessee from time to time during the
Commitment Period, on each Funding Date an amount (each an "EQUITY
AMOUNT") in immediately available funds equal to such Certificate
Holder's applicable Commitment Percentage of the amount of the Advance
being funded on such Funding Date. Notwithstanding any other provision
hereof, no Certificate Holder shall be obligated to make available any
Equity Amount if, after giving effect to the proposed Equity Amount,
the outstanding aggregate amount of such Certificate Holder's Equity
Amounts would exceed such Certificate Holder's Commitment.
(b) LENDERS' COMMITMENT. Subject to the conditions and terms hereof,
each Lender severally shall make Loans to the Lessor at the request of the
Lessee for the purpose of financing Allocated Construction Costs from time to
time during the Commitment Period, on each Funding Date in an amount in
immediately available funds equal to each such Lender's applicable Commitment
Percentage of the amount of the Advance being funded on such Funding Date, as
provided in the Loan Agreement. Notwithstanding any other provision hereof, no
Lender shall be obligated to make any Loan if, after giving effect to the
proposed Loan, the outstanding aggregate amount of such Lender's Loans would
exceed such Lender's Commitment.
(c) PROCEDURES FOR ADVANCES. (i) With respect to each funding of an
Advance, the Lessee shall give the Lessor and the Agent prior written notice not
later than 10:00 a.m., Chicago time, three (3) Business Days (unless waived)
prior to the proposed Funding Date and, in the case of the first Funding Date
two (2) Business Days prior to such Funding Date pursuant to an irrevocable
Funding Request substantially in the form of Exhibit I (a "FUNDING REQUEST"),
specifying the proposed Funding Date, the amount of Advance requested and such
other information and documents as required pursuant to the terms of this
Agreement. Except for the final Funding Request, each Funding Request shall be
in an amount at least equal to $1,000,000 and in multiples of $100,000 if in
excess of such amount. Lessee shall request one (1) Funding
Participation Agreement
4
<PAGE>
Date per month and be allowed a maximum of 2 separate LIBOR tranches at any one
time. The proceeds of each funding will be used to pay the Construction Agent
for accrued but unpaid Allocated Construction Costs (including, without
limitation, Construction Period Interest, Construction Period Yield,
Construction Period Fees, Construction Period Indemnity Amounts and Transaction
Expenses); and the Funding Date therefor shall be a date on or before the
applicable Scheduled Payment Date; provided, however, that if the Lessee fails
to duly and timely submit a Funding Request which provides for the payment of
Construction Period Interest, Construction Period Yield, Construction Period
Fees, Construction Period Indemnity Amounts or Transaction Expenses on the
applicable Scheduled Payment Date, the Lessee hereby irrevocably authorizes and
directs the Agent (at its option) to cause the Participants to fund to the
Participants such amounts as may be necessary to pay in full all such amounts.
(i) Upon satisfaction or waiver of the conditions precedent to
such Advance set forth in Section 9(c), the Lessee, as Construction
Agent, shall pay (or cause the Operator to pay) Allocated Construction
Costs with the funds provided by the Certificate Holders and the
Lenders for such Advance. The transfer by any Participant of its
portion of an Advance shall evidence such Participant's satisfaction
that the conditions precedent to such Advance have been met or waived.
Except as set forth above and as the parties may otherwise agree in
writing, Advances shall be made solely to provide the Lessee or the
Construction Agent with funds with which to pay Allocated Construction
Costs.
(ii) All remittances made by the Participants for the funding
of any Advance shall be made on the applicable Funding Date in
immediately available Federal funds by wire transfer to the accounts
specified in the applicable Funding Request. Subject to the prior
satisfaction of all of the applicable conditions set forth in Section
9, the Participants will use reasonable efforts to fund the applicable
Advance prior to 2:00 p.m., Chicago time, on such Funding Date.
(iii) In no event will the total Property Balance at any time
exceed (i) the Construction Cost as set forth in the Approved Budget,
in the aggregate whether under construction or completed and still
subject to the Lease, or (ii) the Fair Market Sales Value of the
Platform expected upon Completion, as set forth in the Appraisal.
(iv) In no event shall the Lenders or Certificate Holders be
required to make, and the Lenders and the Certificate Holders shall
have no obligation to, fund any Advance or portion thereof which is to
be allocated to Cost Overruns.
(d) CAPITALIZATION OF CERTAIN AMOUNTS DURING CONSTRUCTION PERIOD.
During the Construction Period, on each date which is three (3) Business Days
prior to any Payment Date, Lessee shall be deemed to have requested in Advance
in an amount equal to the applicable Construction Period Interest, Construction
Period Yield, Construction Period Fees and Construction Period Indemnity and
Supplemental Rent Amounts which have accrued or are due, as the case may be. The
Funding Date with respect to each such Advance for such Construction Period
Interest, Construction Period Yield, Construction Period Fees and Construction
Period Indemnity and Supplemental Rent Amounts shall be the relevant Payment
Date (subject to the terms and conditions for an Advance set forth in this
Participation Agreement) and the proceeds of such Advance shall be applied to
pay such amounts (and will be deemed to satisfy any
Participation Agreement
5
<PAGE>
corresponding Rent payment obligation). On each such Funding Date as to which
such an Advance is being made, the Construction Costs shall be increased by an
amount equal to the Construction Period Interest, the Construction Period Yield,
the Construction Period Fees and Construction Period Indemnity and Supplemental
Rent Amounts so funded; provided, however, that if any such Advance hereunder
would exceed the Available Commitment of a Participant, such Participant shall
not have any obligation to make any such Advance.
(e) NON-FUNDING LENDER. In the event that any Lender (a "DEFAULTING
LENDER") fails to make available on a Funding Date an amount equal to such
Lender's applicable Commitment Percentage of the amount of the Advance required
by the terms hereof to be funded on such Funding Date (a "DEFAULTED AMOUNT"), or
Agent determines that a Lender will become a Defaulting Lender on the applicable
Funding Date, Agent shall promptly notify Lessee thereof and Lessee shall have
the option, except in respect of any Advance pursuant to the preceding paragraph
(d) and without in any way waiving the occurrence of any Default, to postpone
the funding of the entire Advance or the portion thereof representing the
Defaulted Amount (provided, however, that such postponement shall in no event
relieve Lessee of its obligation to pay as Rent any Break Costs suffered or
incurred by any Participant, but Lessee may offset any such costs against
amounts otherwise payable by it, under the Operative Documents or otherwise, to
the Defaulting Lender). Whether or not such option is exercised, the Agent may
elect to have the Defaulting Lender replaced with a new Lender reasonably
acceptable to Lessee, and Agent and the Defaulting Lender shall cooperate (at
the cost of the Defaulting Lender) in replacing such Defaulting Lender.
Notwithstanding the existence of any Defaulting Lender, each other Lender (each,
a "NON-DEFAULTING LENDER") shall timely fund its respective portion of the
applicable Advance as required.
(f) NON-FUNDING CERTIFICATE HOLDER. In the event that any Certificate
Holder (a "DEFAULTING CERTIFICATE HOLDER") fails to make available on a Funding
Date an amount equal to such Certificate Holder's applicable Commitment
Percentage (also a "DEFAULTED AMOUNT"), or Agent determines that a Certificate
Holder will become a Defaulting Certificate Holder on the applicable Funding
Date, Agent shall promptly notify Lessee thereof and Lessee shall have the
option, except in respect of any Advance pursuant to the preceding paragraph (d)
and without in any way waiving the occurrence of any Default, to postpone the
funding of the entire Advance or the portion thereof representing the Defaulted
Amount (provided, however, that such postponement shall in no event relieve
Lessee of its obligation to pay as Supplemental Rent any Break Costs suffered or
incurred by any Participant, but Lessee may offset any such costs against
amounts otherwise payable by it, under the Operative Documents or otherwise, to
the Defaulting Certificate Holder). Whether or not such option is exercised,
Lessor or Agent may elect to have the Defaulting Certificate Holder replaced
with a new Certificate Holder reasonably acceptable to Lessee and Agent and the
Defaulting Certificate Holder shall cooperate (at the cost of the Defaulting
Certificate Holder), in replacing such Defaulting Certificate Holder.
Notwithstanding the existence of any Defaulting Certificate Holder, each other
Certificate Holder (each, "NON-DEFAULTING CERTIFICATE HOLDER") shall timely fund
its portion of the applicable Advance.
(g) ADDITIONAL RIGHTS OF LESSEE. In the case of any Defaulted Amounts
Lessee shall have the additional rights provided under Section 22.
Participation Agreement
6
<PAGE>
SECTION 4. YIELD; INTEREST; FACILITY FEES
(a) YIELD. (i) The amount of the Equity Amounts outstanding from time
to time shall accrue yield ("YIELD") at the Yield Rate, calculated using the
actual number of days elapsed and, when the Yield Rate is determined by
reference to the LIBO Rate (Reserve Adjusted) or the Alternate Base Rate not
based upon the Prime Rate, a 360-day year basis and, when the Yield Rate is
determined by reference to the Alternate Base Rate based upon the Prime Rate, a
365- (or, if applicable, 366-) day year basis. If all or any portion of the
Equity Amounts, any Yield payable thereon or any other amount payable to any
Certificate Holders, Lessor or Owner Trustee hereunder shall not be paid when
due (whether at stated maturity, acceleration thereof or otherwise), such
overdue amount shall bear interest at a rate per annum which is equal to the
Overdue Rate.
(i) The Lessee shall, pursuant to the Assignment of Leases and
Rents, deposit in the Account the Equity Basic Rent (determined on the
basis of accrued Yield due in accordance with clause (i) above) and all
other amounts due with respect to the Equity Amounts payable by the
Lessee under the Lease from time to time.
(ii) During the Construction Period, subject to Section 4(c)
and the terms and conditions set forth in this Participation Agreement
with respect to Advances, Yield shall accrue on outstanding Equity
Amounts and shall be funded monthly by the Lenders and the Certificate
Holders pursuant to Section 3(a) and (b). During the Basic Term, such
Yield shall be paid as a component of Basic Rent.
(b) INTEREST ON LOANS
(i) The amount of each Loan shall accrue interest at the
applicable rate set forth in the Loan Agreement, calculated using the
actual number of days elapsed and, when the interest on the Loans is
determined by reference to the LIBO Rate (Reserve Adjusted) or the
Alternate Base Rate not based upon the Prime Rate, a 360-day year basis
and, when such interest is determined by reference to the Alternate
Base Rate based upon the Prime Rate, a 365- (or, if applicable, 366-)
day year basis. If all or any portion of the Loans, any interest
payable thereon or any other amount payable to any Lender, or the Agent
hereunder shall not be paid when due (whether at stated maturity,
acceleration thereof or otherwise), such overdue amount shall bear
interest at a rate per annum which is equal to the Overdue Rate.
(ii) The Lessee shall, pursuant to the Assignment of Leases
and Rents, deposit in the Account the Lender Basic Rent (determined on
the basis of amounts due in accordance with clause (i) above) and all
other amounts due with respect to the Loans payable by the Lessee under
the Lease from time to time.
(iii) During the Construction Period, subject to Section 4(c)
and the terms and conditions set forth in this Participation Agreement
with respect to Advances, interest shall accrue on outstanding Loans
and shall be paid as an Advance in accordance with the Approved Budget.
During the Basic Term, such interest shall be paid as a component of
Basic Rent.
Participation Agreement
7
<PAGE>
(c) PREPAYMENTS OF LOANS AND EQUITY AMOUNTS. In the event that the
Lessee pays the Property Balance to the Lessor in connection with the Lessee's
purchase of the Property in accordance with Sections 6, 11 or 16 of the Lease,
the Lessor will prepay the entire outstanding principal amount of the Loans and
Equity Amounts (or portion thereof so paid in the case of Section 11 or 6(e) of
the Lease). Each of the Participants and the Lessor hereby acknowledge that its
Loans or Equity Amounts, as the case may be, may be so prepaid without any
prepayment premium other than Break Costs and other amounts pursuant to Section
4(e)(iii).
(d) FACILITY FEES; OTHER FEES. The Lessee agrees to pay the fees set
forth in this Section 4(d); provided that during the Construction Period such
fees shall be paid only out of the proceeds of an Advance in accordance with the
Approved Budget, and shall not represent direct recourse obligations of the
Lessee (except to the extent the Lessee is obligated to pay the Property
Balance).
(i) COMMITMENT FEES. The Lessee agrees to pay to each Tranche
A Lender, each Tranche B Lender and each Certificate Holder for the
Construction Period (including any portion of such Construction Period
when any Participant's Commitment is suspended by reason of the
Lessee's inability to satisfy any condition of Section 9), a facility
fee (collectively, the "COMMITMENT FEES") at a per annum rate equal to
the Applicable Facility Fee Percentage on each Participant's Available
Commitment. The Commitment Fees shall be payable by the Lessee in
arrears with respect to each monthly period (or portion thereof, for
the first and last such periods) following the Documentation Date on
the first day of each month (provided, however, that if such day is not
a Business Day, such payment shall be due on the immediately preceding
Business Day in the full amount due on such first day), commencing
December 1, 2001 through and including the first day immediately
following the expiration of the Construction Period, and shall be
determined on the basis of the daily average Available Commitments
during each such monthly period. The Commitment Fees shall be computed
on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such
Commitment Fees are payable over a year of 360 days.
(ii) OTHER FEES. The Lessee agrees to pay the following fees
in the amounts and at the times as provided in the Fee Letter and in
accordance with the Approved Budget: (x) to the Agent, for its own
account, the Annual Administration Fees, (y) to the Arranger, for its
own account, the Arrangement Fee, and (z) to the Arranger, for its own
account, the Structuring Fee; provided, that, during the Construction
Period, such fees shall be paid from the proceeds of Advances.
(e) INTEREST AND YIELD PROTECTION.
(i) Alternate Rate of Interest. If prior to the commencement
of any Interest Period for an Advance with interest or Yield determined
by reference to the LIBO Rate (Reserve Adjusted):
(1) the Agent determines (which determination shall
be conclusive absent manifest error) that adequate and
reasonable means do not exist for
Participation Agreement
8
<PAGE>
ascertaining the LIBO Rate (Reserve Adjusted) or the LIBO
Rate, as applicable, for such Interest Period; or
(2) the Agent is advised by any Participant or
Participants that because of a change in circumstances
affecting the eurocurrency market generally the LIBO Rate
(Reserve Adjusted) or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the
cost to such Participants (or Participant) of making or
maintaining their Loans or Equity Amounts (or its Loan or
Equity Amount) for such Interest Period; then the Agent shall
give notice thereof to the Lessee and the Participants by
telephone or telecopy as promptly as practicable thereafter
and, until the Agent notifies the Lessee and the Participants
that the circumstances giving rise to such notice no longer
exist, (i) any Funding Request that requests the conversion or
continuation of an Advance with interest determined by
reference to the LIBO Rate (Reserve Adjusted) shall be
ineffective, (ii) if any Funding Request requests an Advance
with interest determined by reference to the LIBO Rate
(Reserve Adjusted), such Advance shall be made as an Alternate
Base Rate Advance and (iii) any Funding Request by the Lessee
for an Advance with interest determined by reference to the
LIBO Rate (Reserve Adjusted) shall be ineffective; provided,
however, that if the circumstances giving rise to such notice
do not affect all the Participants, then requests by the
Lessee for an Advance with interest determined by reference to
the LIBO Rate (Reserve Adjusted) may be made to Participants
that are not affected thereby.
(ii) Increased Costs.
(1) If any Change in Law shall:
(a) impose, modify or deem applicable any
reserve, special deposit or similar requirement
against assets of, deposits with or for the account
of, or credit extended by, any Participant (except
any such reserve requirement reflected in the LIBO
Rate (Reserve Adjusted)); or
(b) impose on any Participant or the London
interbank market any other condition affecting this
Agreement or Advances made by such Participant under
this Agreement and the result of any of the foregoing
shall be to increase the cost to such Participant of
making, funding or maintaining any such Loan or
Equity Amount (or of maintaining its obligation to
make any such Loan or Equity Amount) or to reduce the
amount of any sum received or receivable by such
Participant hereunder (whether of principal,
interest, Equity Amount, Yield or otherwise), then
the Lessee will pay to such Participant such
additional amount or amounts as will compensate such
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