EXHIBIT 10.227
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of November
13, 1998 (this "Amendment") is among: R&B FALCON CORPORATION, the LENDERS
party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent.
R E C I T A L S
A. The Borrower, the Administrative Agent, and the Lenders (as
defined in the Credit Agreement as hereafter defined) have entered into
that certain Credit Agreement dated as of April 24, 1998 (the "Credit
Agreement"), pursuant to which the Lenders have agreed to make certain
loans and extensions of credit to the Borrower upon the terms and
conditions as provided therein;
B. The Borrower has entered into a merger agreement pursuant to
which Cliffs Drilling Company would merge with a wholly owned subsidiary
of the Borrower in a stock-for-stock exchange; and
C. The Borrower, the Administrative Agent, and the Lenders now
desire to make certain amendments to the Credit Agreement in connection
with the proposed merger.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements
herein expressed, the parties hereto now agree as follows:
1. All capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
2. Section 1.01 of the Credit Agreement is hereby supplemented,
where alphabetically appropriate, with the addition of the following
definitions:
"Cliffs" means Cliffs Drilling Company, a Delaware
corporation.
"Cliffs Group" means Cliffs and its subsidiaries.
"EBITDA" shall mean, for any period, the sum of
Consolidated Net Income for such period plus the following
expenses or charges to the extent deducted from Consolidated
Net Income in such period: interest, taxes, depreciation,
depletion and amortization for the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"First Amendment" means that certain First Amendment to
Credit Agreement dated as of November 13, 1998, among the
Borrower, the Lenders and the Administrative Agent."
"Merger" means the merger of RBF Cliffs Acquisition Corp.,
a Delaware corporation and a direct wholly owned subsidiary of
the Borrower, with and into Cliffs, as a result of which Cliffs
would become a direct wholly owned subsidiary of the Borrower.
3. Section 6.01 of the Credit Agreement is hereby amended to add
the following clauses (f) and (g):
"(f) Indebtedness of Cliffs existing under the 10.25%
senior notes of Cliffs due 2003 not to exceed $203,103,000
outstanding, but not any extensions, renewals and replacement
of any such Indebtedness."
"(g) Indebtedness of Cliffs (and its subsidiaries party
thereto) under a revolving credit facility with ING (U.S.)
Capital Corporation as the agent not to exceed $35,000,000
outstanding, but not any extensions, renewals and replacement
of any such Indebtedness."
4. Section 6.02 of the Credit Agreement is hereby further amended
to add the following clause (e):
"(e) Liens on any property or assets of the Cliffs Group
to secure the Indebtedness permitted by Section 6.01(g)."
5. Section 6.03 of the Credit Agreement is hereby waived for the
limited purpose of permitting the Merger on the terms and conditions set
forth in the Form S-4 of the Borrower filed with the Securities and
Exchange Commission on September 15, 1998.
6. Section 6.03 of the Credit Agreement is hereby amended by
adding the following sentence at the end of the section:
"Notwithstanding any other provision in this Section 6.03
to the contrary, for so long as any Indebtedness permitted by
Sections 6.01(f) and (g) of the Credit Agreement is outstanding
(or any commitment for any such Indebtedness is outstanding),
no member of the Cliffs Group may merge with or consolidate
into the Borrower or any other Subsidiary of the Borrower not
in the Cliffs Group."
7. Section 6.04 of the Credit Agreement is hereby amended by
adding the following clause (e):
"(e) the acquisition by the Borrower of Cliffs pursuant
to the Merger."
8. Sections 6.04(b) and (c) of the Credit Agreement are hereby
amended to read as follows:
"(b) investments by the Borrower or by any Subsidiary in
the capital stock of its Subsidiaries; provided that neither
the Borrower nor any Subsidiary that is not in the Cliffs
Group may invest in any member of the Cliffs Group except for
the investment to acquire Cliffs pursuant to the Merger;
(c) loans or advances made by the Borrower to any
Subsidiary and made by any Subsidiary to the Borrower or any
other Subsidiary; provided that neither the Borrower nor any
Subsidiary that is not in the Cliffs Group may make loans or
advances to any member of the Cliffs Group; and"
9. Section 6.08 of the Credit Agreement is hereby amended by
adding the following clause (vi) before the period at the end of the
sentence:
"and (vi) the foregoing shall not apply to restrictions
and conditions existing on the date of the Merger and contained
in the instruments evidencing the Indebtedness permitted by
Sections 6.01(f) and (g) (but shall apply to any extension or
renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition)."
10. Section 6.09 of the Credit Agreement is hereby amended by
adding the following clause before the period at the end of the sentence:
", plus (iii) 100% of any equity issued by the Borrower in
connection with the Merger to the extent not included in clause
(ii) above."
11. Section 6.10 of the Credit Agreement is hereby supplemented by
adding the following sentence at the end of the present Section 6.10
following the graph:
"Notwithstanding anything to the contrary herein, for the
purposes of determining the EDITBA Leverage Ratio pursuant to
this Section 6.10 for the periods ending December 31, 1998,
March 31, 1999, June 30, 1999 and September 30, 1999,
Consolidated Net Income and interest, taxes, depreciation,
depletion and amortization in such ratio shall be determined on
a pro forma basis as if the Merger had occurred on October 1,
1997 and as if the Merger had been accounted for as a pooling
of interests (except without duplication for months already
consolidated) and (ii) such ratio shall be calculated as if the
Merger had occurred on October 1, 1997 and been accounted for
as a pooling of interests."
12. This Amendment shall become binding on the Lenders when, and
only when, the Administrative Agent shall have received each of the
following in form and substance satisfactory to the Administrative Agent
or its counsel:
(a) counterparts of this Amendment executed by the Borrower
and the Required Lenders;
(b) all conditions precedent to the Merger shall have been
waived or satisfied except for the effectiveness of this Amendment
and the Merger shall become effective promptly thereafter; and
(c) such other documents as it or its counsel may reasonably
request.
13. The parties hereto hereby acknowledge and agree that, except as
specifically supplemented and amended, changed or modified hereby, the
Credit Agreement shall remain in full force and effect in accordance with
its terms.
14. The Borrower hereby reaffirms that as of the date of this
Amendment, the representations and warranties contained in Article III of
the Credit Agreement are true and correct on the date hereof as though
made on and as of the date of this Amendment, except as such
representations and warranties are expressly limited to an earlier date.
15. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF LAWS
RULES THEREOF.
16. This Amendment may be executed in two or more counterparts, and
it shall not be necessary that the signatures of all parties hereto be
contained on any one counterpart hereof; each counterpart shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURES BEGIN NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
BORROWER: R&B FALCON CORPORATION
By:_____________________________
Xxxxxx Xxxxxx
Executive Vice President
ADMINISTRATIVE AGENT THE CHASE MANHATTAN BANK
AND LENDER:
By:_____________________________
Name:
Title:
SYNDICATION AGENT CREDIT SUISSE FIRST BOSTON
AND LENDER:
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DOCUMENTATION AGENT PARIBAS
AND LENDER:
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
CO-SYNDICATION AGENT CHRISTIANIA BANK OG KREDITKASSE ASA,
AND LENDER: NEW YORK BRANCH
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
MANAGING AGENT THE BANK OF NOVA SCOTIA
AND LENDER:
By:_____________________________
Name:
Title:
MANAGING AGENT BANK OF TOKYO-MITSUBISHI, LTD.
AND LENDER:
By:_____________________________
Name:
Title:
MANAGING AGENT XXXXX FARGO BANK (TEXAS), N.A.
AND LENDER:
By:_____________________________
Name:
Title:
OTHER LENDERS: BANK AUSTRIA AKTIENGESELLSCHAFT
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE
By:_____________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:_____________________________
Name:
Title:
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
ABN AMRO BANK N.V.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:_____________________________
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:_____________________________
Name:
Title:
THE FUJI BANK, LIMITED
By:_____________________________
Name:
Title:
KREDIETBANK N.V.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
NATEXIS BANQUE
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
