INCREMENTAL COMMITMENT AGREEMENT NORDEA BANK FINLAND PLC, NEW YORKBRANCH 437 Madison Avenue, 21st Floor New York, New York 10022
Exhibit 10.2
INCREMENTAL COMMITMENT AGREEMENT
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
437 Madison Avenue, 21st Floor
New York, New York 10022
July 25, 2013
Atwood Offshore Worldwide Limited
c/o 15835 Park Ten Place Drive
Houston, Texas 77084
Attention: Mark Mey
Tel. No.:  ###-###-####
Fax No.:  ###-###-####
re Incremental Commitment
Ladies and Gentlemen:
Reference is hereby made to that certain Credit Agreement, dated as of May 6, 2011, as amended as of November 23, 2011, as further amended on January 18, 2012 and as further amended on August 24, 2012, among Atwood Oceanics, Inc., a Texas corporation (the Parent), Atwood Offshore Worldwide Limited, a company formed under the laws of the Cayman Islands (the Borrower), the lenders from time to time party thereto (the Lenders) and Nordea Bank Finland plc, New York Branch, as Administrative Agent (in such capacity, the Administrative Agent) (as may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement). Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings set forth in the Credit Agreement.
Each Lender (each a 2013 Incremental Lender) party to this letter agreement (this Agreement) hereby severally agrees to provide the Incremental Commitment(s) set forth opposite its name on Annex I attached hereto (for each such Incremental Lender, its 2013 Incremental Commitment) under an incremental revolving facility pursuant to Section 2.13 of the Credit Agreement (the 2013 Incremental Facility). Each 2013 Incremental Commitment provided pursuant to this Agreement shall be subject to the terms and conditions set forth in the Credit Agreement, including Section 2.13 thereof; provided that (i) the Applicable Margin with respect to the 2013 Incremental Facility shall be equal to a percentage per annum determined in accordance with the pricing grid (the Pricing Grid) set forth on Annex II attached hereto based on the applicable corporate (or corporate family) ratings in respect of the Parent set forth in the Pricing Grid from each of Moodys Investor Service, Inc. (Moodys) and Standard & Poors Ratings Group (S&P and, together with Moodys, collectively, the Ratings Agencies) and (ii) notwithstanding anything to the contrary contained in the Credit Agreement,
the Commitment Commission under the Credit Agreement with respect to the 2013 Incremental Facility shall be computed at a rate per annum equal to 0.50% multiplied by the unutilized 2013 Incremental Commitment of any Non-Defaulting Lender with a 2013 Incremental Commitment as in effect from time to time.
Each 2013 Incremental Lender acknowledges and agrees that the 2013 Incremental Commitments provided pursuant to this Agreement, in the aggregate amount as set forth on Annex I hereto, shall constitute Incremental Commitments (as specified in said Annex I) under, and as defined in, the Credit Agreement. Each 2013 Incremental Lender further agrees that, with respect to the 2013 Incremental Commitments provided by it pursuant to this Agreement, such 2013 Incremental Lender shall receive an upfront fee as set forth in the letter agreement dated as of July 22, 2013 between the Parent, the Borrower and the Administrative Agent (the Fee Letter).
Each 2013 Incremental Lender party to this Agreement (i) 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 Agreement and to become a Lender under the Credit Agreement, (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, (iii) appoints and authorizes the Administrative Agent, the Collateral Agent and the Security Trustee 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, the Collateral Agent and the Security Trustee as the case may be, by the terms thereof, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and the other Credit Documents are required to be performed by it as a Lender, and (v) in the case of each lending institution organized under the laws of a jurisdiction outside the United States, attaches the forms prescribed by the Internal Revenue Service of the United States, certifying as to its entitlement to a complete exemption from United States withholding taxes with respect to all payments to be made under the Credit Agreement and the other Credit Documents. Upon the execution of a counterpart of this Agreement by the Administrative Agent and the Borrower, the delivery to the Administrative Agent of a fully executed copy (including by way of counterparts and by fax) hereof, the payment of any fees (including, without limitation, the fees payable pursuant to the Fee Letter and the upfront fees payable pursuant to the immediately preceding paragraph) required in connection herewith and the satisfaction (or waiver) of the conditions precedent set forth in Annex III attached hereto and the satisfactory completion of KYC in compliance with each Lenders internal policy, each 2013 Incremental Lender party hereto shall become a Lender pursuant to the Credit Agreement and, to the extent provided in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other Credit Documents.
The Borrower hereby agrees that within thirty days after the date hereof, it shall deliver to the Administrative Agent two appraisal reports as of a recent date from two Approved Appraisers in form and substance reasonably satisfactory to the Administrative Agent stating the then current fair market value of the ATWOOD CONDOR.
You may accept this Agreement by signing the enclosed copies in the space provided below, and returning a counterpart (including by way of facsimile or other electronic transmission) of same to us before the close of business on July, 25, 2013. If you do not so accept this Agreement by such time, your 2013 Incremental Commitments set forth in this Agreement shall be deemed cancelled.
After the execution and delivery to the Administrative Agent of a fully executed copy of this Agreement (including by way of counterparts and by fax) by the parties hereto, this Agreement may only be changed, modified or varied by written instrument in accordance with the requirements for the modification of Credit Documents pursuant to Section 14.12 of the Credit Agreement.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Very truly yours, | ||
NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as a 2013 Incremental Lender | ||
By | /s/ Martin Lunder | |
Name: Martin Lunder | ||
Title: Senior Vice President | ||
By | /s/ Lynn Sauro | |
Name: Lynn Sauro | ||
Title: Vice President |
Signature Page to Incremental Commitment Agreement
DNB BANK ASA, GRAND CAYMAN BRANCH, as a 2013 Incremental Lender | ||
By | /s/ Cathleen Buckley | |
Name: Cathleen Buckley | ||
Title: Senior Vice President | ||
By | /s/ Stian Lovseth | |
Name: Stian Lovseth | ||
Title: First Vice President |
Signature Page to Incremental Commitment Agreement
HSBC BANK USA, N.A., as a 2013 Incremental Lender | ||
By | /s/ Bruce Robinson | |
Name: Bruce Robinson | ||
Title: Vice President |
Signature Page to Incremental Commitment Agreement
WELLS FARGO BANK, N.A., as a 2013 Incremental Lender | ||
By | /s/ T. Alan Smith | |
Name: T. Alan Smith | ||
Title: Managing Director |
Signature Page to Incremental Commitment Agreement
BNP PARIBAS SA, as a 2013 Incremental Lender | ||
By | /s/ S. Berveros-Canpagne | |
Name: S. Berveros-Canpagne | ||
Title: Head of Offshore | ||
By | /s/ Paul Barnes | |
Name: Paul Barnes | ||
Title: Managing Director |
Signature Page to Incremental Commitment Agreement
ING CAPITAL LLC, as a 2013 Incremental Lender | ||
By | /s/ Richard Ennis | |
Name: Richard Ennis | ||
Title: Managing Director |
Signature Page to Incremental Commitment Agreement
NIBC BANK N.V., as a 2013 Incremental Lender | ||
By | /s/ Rob ten Heggeler | |
Name: Rob ten Heggeler | ||
Title: Member of the Managing Board | ||
By | /s/ Jeroen van der Putten | |
Name: Jeroen van der Putten | ||
Title: Associate Director |
Signature Page to Incremental Commitment Agreement
REGIONS BANK, as a 2013 Incremental Lender | ||
By | /s/ David Valentine | |
Name: David Valentine | ||
Title: Vice President |
Signature Page to Incremental Commitment Agreement
SKANDINAVISKA ENSKILDA BANKEN AB, as a 2013 Incremental Lender | ||
By | /s/ Erling Amundsen | |
Name: Erling Amundsen | ||
Title: | ||
By | /s/ Kristin Kongsrud | |
Name: Kristin Kongsrud | ||
Title: |
Signature Page to Incremental Commitment Agreement
BARCLAYS BANK PLC, as a 2013 Incremental Lender | ||
By | /s/ Vanessa A. Kurbatskiy | |
Name: Vanessa A. Kurbatskiy | ||
Title: Vice President |
Signature Page to Incremental Commitment Agreement
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a 2013 Incremental Lender | ||
By | /s/ Mikhail Faybusovich | |
Name: Mikhail Faybusovich | ||
Title: Authorized Signatory | ||
By | /s/ Tyler R. Smith | |
Name: Tyler R. Smith | ||
Title: Authorized Signatory |
Signature Page to Incremental Commitment Agreement
Agreed and Accepted | ||
this 25th day of July, 2013: | ||
ATWOOD OFFSHORE WORLDWIDE LIMITED | ||
By: | /s/ Hiew Yoke Lan | |
Name: Hiew Yoke Lan | ||
Title: Director | ||
NORDEA BANK FINLAND PLC, NEW YORK BRANCH, as Administrative Agent | ||
By: | /s/ Martin Lunder | |
Name: Martin Lunder | ||
Title: Senior Vice President | ||
By: | /s/ Lynn Sauro | |
Name: Lynn Sauro | ||
Title: Vice President |
Signature Page to Incremental Commitment Agreement
ANNEX I
Name of Lender | Incremental Commitment | |||
Nordea Bank Finland plc, New York Branch | $ | 50,000,000 | ||
DNB Bank ASA, Grand Cayman Branch | $ | 35,000,000 | ||
HSBC Bank USA, N.A. | $ | 35,000,000 | ||
Wells Fargo Bank, N.A. | $ | 35,000,000 | ||
BNP Paribas SA | $ | 30,000,000 | ||
ING Capital LLC | $ | 30,000,000 | ||
NIBC Bank N.V. | $ | 30,000,000 | ||
Regions Bank | $ | 30,000,000 | ||
Skandinaviska Enskilda Banken AB | $ | 30,000,000 | ||
Barclays Bank PLC | $ | 25,000,000 | ||
Credit Suisse AG, Cayman Islands Branch | $ | 20,000,000 | ||
Total | $ | 350,000,000 |
ANNEX II
Applicable Credit Ratings levels assigned by the Ratings Agencies | Applicable Margin | |||
Category 1 | 2.00 | % | ||
Equal to or greater than BBB- and Baa3 | ||||
Category 2 | 2.125 | % | ||
BB+ and Ba1 | ||||
Category 3 | 2.25 | % | ||
Less than or equal to BB and Ba2 (or no Applicable Credit Rating is available from either Rating Agency) |
For purposes of the foregoing, (i) if either Moodys or S&P shall not have in effect a corporate (or corporate family) rating in respect of the Parent (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a rating in Category 3; (ii) if the ratings established or deemed to have been established by Moodys and S&P for the Parent shall fall within different Categories, the Applicable Margin shall be based on the higher (the highest category being Category 1) of the two ratings unless one of the two ratings is two or more ratings lower than the other, in which case the Applicable Margin shall be determined by reference to the Category next below that of the higher of the two ratings; and (iii) if the ratings established or deemed to have been established by Moodys and S&P in respect of the Parent shall be changed (other than as a result of a change in the rating system of Moodys or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moodys or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to amend the definition of Applicable Margin to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation. The Borrower will furnish to the Administrative Agent promptly after Moodys or S&P shall have announced a change in the rating established or deemed to have been established, written notice of such rating change.
ANNEX III
The effectiveness of this Agreement shall be subject the satisfaction of the conditions precedent for the incurrence of Incremental Commitments as set forth in Section 2.13 of the Credit Agreement, including, but not limited to the following:
(a) | the ATWOOD CONDOR shall have been delivered to Alpha International Drilling Company S.á r.l. and shall have been pledged as a Collateral Rig pursuant to the terms of the Credit Agreement; |
(b) | the Collateral and Guaranty Requirements with respect to the pledging of the ATWOOD CONDOR shall have been satisfied and each Credit Document with respect to the ATWOOD CONDOR and Alpha International Drilling Company S.á r.l. shall be in full force and effect; |
(c) | the Incremental Availability Date shall have occurred; |
(d) | each Credit Document with respect to Atwood Offshore (Gibraltar) Limited shall be in full force and effect; |
(e) | the Borrower and each Lender which agrees to provide a 2013 Incremental Commitment shall execute and deliver to the Administrative Agent a counterpart of this Agreement; and |
(f) | the satisfaction of such other Collateral and Guaranty Requirements as may be required pursuant to the Credit Agreement. |