EXHIBIT 4.4
THIRD AMENDMENT TO SECURED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECURED CREDIT AGREEMENT (this "Amendment") dated
as of October 22, 1999, is by and among Transocean Enterprise Inc., a Delaware
corporation (the "Borrower"), the lenders from time to time parties hereto (each
a "Lender" and collectively, the "Lenders"), ABN AMRO Bank N.V. ("ABN AMRO"), a
Netherlands chartered bank, as agent for the Lenders (in such capacity, the
"Agent"), and Australia and New Zealand Banking Group Limited, Bank of Montreal,
The Bank of Nova Scotia, Atlanta Agency, The Bank of Tokyo-Mitsubishi, Ltd.,
Houston Agency and Westdeutsche Landesbank Girozentrale, as co-agents for the
Lenders (in such capacity, collectively, the "Co-Agents").
WITNESSETH
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WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agents have
entered into that certain Secured Credit Agreement dated as of January 17, 1997,
as amended by First Amendment to Secured Credit Agreement dated December 21,
1998, as amended by Second Amendment to Secured Credit Agreement dated August
13, 1999 (such agreement, as amended, "Credit Agreement"), pursuant to which the
Lenders have made and agreed to make Loans to the Borrower; and
WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agents desire to
amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders, the Agent and the Co-Agents hereby
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by amending
the definitions of "Acceptance Date", "Conversion Date" and "Maturity Date" by
deleting "October 31, 1999" in each such definition and inserting "January 31,
2000" in lieu thereof; and
(b) Clause (z) of Section 2.7(c)(i) of the Credit Agreement is hereby
amended to read as follows: "(z) any change in the Conversion Date from January
31, 2000."
(c) Section 3.1(a) of the Credit Agreement is hereby amended by
deleting "October 31, 1999" in such Section and inserting "January 31, 2000" in
lieu thereof.
(d) Each of Sections 4.2(ii) and 6.18(c) of the Credit Agreement is
hereby amended by deleting "October 31, 1999" in such Sections and inserting
"January 31, 2000" in lieu thereof.
(e) Section 3.1(c) is hereby added, which reads in its entirety as
follows:
(c) Conversion Fees. If, as of December 31, 1999, the Conversion
Date has not occurred, then the Borrower shall pay to the
Agent, for the account of each Lender, a fee equal to .025% of the
Commitment of such Lender.
2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the
Lenders, the Agent and the Co-Agents to enter into this Amendment, the Borrower
hereby reaffirms, as of the date hereof, that its representations and warranties
contained in the Credit Agreement are true and correct in all material respects
(except to the extent such representations and warranties are not so true and
correct in all material respects as a result of the transactions expressly
permitted under the Credit Agreement or under the other Credit Documents, or
relate solely to an earlier date) and additionally represents and warrants as
follows:
(i) The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under this Amendment
and the Credit Agreement, as amended hereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action of the Borrower and do not and will not contravene in any material
respect any provision of applicable law or contravene or conflict with any
provision of the certificate of incorporation, bylaws or any material
agreements binding upon the Borrower, and the execution and delivery by the
Borrower of this Amendment have received all necessary governmental
approvals or other consents (if any shall be required);
(ii) This Amendment and the Credit Agreement, as amended hereby,
are legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, subject as to
enforcement only to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and equitable principles;
(iii) There are no actions, suits, proceedings or counterclaims
(including, without limitation, derivative or injunctive actions) pending
or, to the knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries which purports to affect the legality, validity or
enforceability of this Amendment, the Credit Agreement, as amended hereby,
or any other Credit Document; and
(iv) No Default or Event of Default has occurred and is
continuing (after giving effect to this Amendment).
3. REAFFIRMATION OF CREDIT AGREEMENT. This amendment shall be deemed to
be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement in the Credit Agreement and the other
Credit Documents (excluding this Amendment) shall hereafter be deemed to refer
to the Credit Agreement, as amended hereby. The parties hereto hereby
undertake, in good faith, to amend any other Credit Documents necessary so as to
reflect the agreements of the parties set forth in this Amendment.
4. DEFINED TERMS. Terms used but not defined herein when defined in the
Credit Agreement shall have the same meanings herein unless the context
otherwise requires.
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5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The effectiveness
of this Amendment is subject to receipt by the Agent of the following documents,
all in form and substance reasonably satisfactory to the Agent:
(i) Transocean Performance Guaranty. Ratification by Transocean
of its obligations under the Second Amended and Restated Transocean
Performance Guaranty in substantially the form of Exhibit A;
(ii) Payment of Amendment Fee. Payment by the Borrower to the
Agent, for the account of each Lender, of an amendment fee equal to .025%
of the Commitment of such Lenders; and
(iii) Other Documents. Such other documents as the Agent may
reasonably request.
6. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) This Amendment and the other Credit Documents, and the rights and
duties of the parties hereto and thereto, shall be construed in accordance with
and governed by the internal laws of the state of New York.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HERETO AGREE THAT ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AMENDMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE AGENT, THE CO-AGENTS, THE LENDERS OR THE BORROWER MAY BE BROUGHT AND
MAINTAINED IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF
MANHATTAN OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY AND ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
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COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AMENDMENT, THE CREDIT AGREEMENT, ANY
OTHER CREDIT DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AMENDMENT, THE CREDIT AGREEMENT, ANY OTHER CREDIT DOCUMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same agreement.
8. SEVERABILITY. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. HEADINGS. Section headings used in this Amendment are for reference
only and shall not affect the construction of this Amendment.
10. NOTICE OF ENTIRE AGREEMENT. This Amendment, together with the other
Credit Documents, constitute the entire understanding among the Borrower, the
Lenders, the Agent and the Co-Agents and supersede all earlier or
contemporaneous agreements, whether written or oral, concerning the subject
matter of the Credit Documents. THIS WRITTEN AMENDMENT, TOGETHER WITH THE OTHER
CREDIT DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have entered into this Third
Amendment to Secured Credit Agreement as of the date first written above.
BORROWER:
--------
TRANSOCEAN ENTERPRISE INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------------------
Title: Vice President - Finance
-------------------------------------------------
LENDERS:
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ABN AMRO BANK N.V., as Agent, Collateral
Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Title: Senior Vice President
-------------------------------------------------
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, as Co-Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------------------------------
Title: Director - Oil and Gas Americas
-------------------------------------------------
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THE BANK OF NOVA SCOTIA, ATLANTA
AGENCY, as Co-Agent and as a Lender
By: /s/ F.C.H. Xxxxx
----------------------------------------------------
Name: F.C.H. Xxxxx
--------------------------------------------------
Title: Senior Manager - Loan Operations
-------------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY, as Co-agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------------
Title: Vice President and Manager
-------------------------------------------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Co-Agent and as a Lender
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxxxx Xxxxxx
--------------------------------------------------
Title: Managing Director
-------------------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
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XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX,
Xxx Xxxx Branch, as a Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------------------
Title: Director
-------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------------
Title: Associate Director
-------------------------------------------------
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Ki Xxxxx
----------------------------------------------------
Name: Ki Xxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
SUNTRUST BANK, ATLANTA, as a Lender
By: /s/ Xxxx X. Xxxxxx, Xx.
----------------------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
--------------------------------------------------
Title: Vice President
-------------------------------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------------------
Title: Assistant Vice President
-------------------------------------------------
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BANK ONE N.A., formerly known as
The First National Bank of Chicago, as a Lender
By: /s/ Xxxxx X. Xxxx
----------------------------------------------------
Name: Xxxxx X. Xxxx
--------------------------------------------------
Title: First Vice President
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THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, AG, as Lender
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
By: /s/ Xxxxx XxXxxxxx
----------------------------------------------------
Name: Xxxxx XxXxxxxx
--------------------------------------------------
Title: Assistant Vice President
-------------------------------------------------
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ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxx X. Xxxxxx
----------------------------------------------------
Name: Xxx X. Xxxxxx
--------------------------------------------------
Title: Senior Manager
-------------------------------------------------
KBC BANK, N.V., as a Lender
By: /s/ Xxxxxx Snaffer
----------------------------------------------------
Name: Xxxxxx Snaffer
--------------------------------------------------
Title: First Vice President
-------------------------------------------------
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
--------------------------------------------------
Title: Vice President
-------------------------------------------------
THE ROYAL BANK OF SCOTLAND plc, as a Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
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Exhibit "A"
RATIFICATION AND AMENDMENT OF SECOND AMENDED AND RESTATED
TRANSOCEAN PERFORMANCE GUARANTY
THIS RATIFICATION AND AMENDMENT OF THE SECOND AMENDED AND RESTATED
TRANSOCEAN GUARANTY (this "Guaranty Ratification"), dated as of October 22,
1999, is from Transocean Offshore Inc., a Cayman Islands exempted company (the
"Guarantor"), to the Lenders, as such term is defined in the Second Amended and
Restated Transocean Performance Guaranty as amended by that certain Ratification
of the Second Amended and Restated Transocean Guaranty dated as of August 13,
1999 (the "Guaranty"), and ABN AMRO BANK N.V., a Netherlands chartered bank, as
Agent for the Lenders, and certain Co-Agents (as such term is defined in that
certain Third Amendment to Secured Credit Agreement, executed as of the date
hereof):
WITNESSETH:
A. Whereas, Transocean Enterprise Inc., a Delaware corporation, as
Borrower, Lenders, Agent and Co-Agents have entered into that certain Third
Amendment to Secured Credit Agreement as of the date hereof (the "Amendment")
to, among other things, extend the time for completion of the Drillship until
January 31, 2000; and
B. Whereas, it is a condition precedent to execution of the Amendment
that Guarantor execute this Guaranty Ratification; and
C. Whereas, in order to induce the Lenders to execute the Amendment,
Guarantor has agreed to enter into this Guaranty Ratification;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
to make and maintain the Loans to the Borrower pursuant to the Amendment: (i)
each of the Agent and Guarantor agrees that the date "October 31, 1999" in
Section 1.2(a) of the Guaranty is hereby deleted and the date "January 31, 2000"
is inserted in lieu thereof, and the date "November 15, 1999" in Section 1.2(a)
of the Guaranty is hereby deleted and the date "February 15, 2000" is inserted
in lieu thereof, and (ii) Guarantor hereby agrees that Guarantor has received a
copy of the Amendment and Guarantor's performance obligations and liabilities
under the Guaranty shall remain enforceable against Guarantor in accordance with
the terms of the Guaranty, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditor
rights generally and equitable principles, and shall not be reduced, altered,
limited, lessened or in any way affected by the execution and delivery of the
Third Amendment to Secured Credit Agreement. Guarantor hereby confirms and
ratifies its performance obligations and liabilities under the Guaranty in all
respects.
A-1
Executed as of the date first set forth above.
Transocean Offshore Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------------
Title: Vice President - Finance
--------------------------------------
Accepted and Agreed to:
ABN AMRO BANK N.V., as Agent
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
A-2
