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EXHIBIT 10.28
GLOBAL AMENDMENT and ASSIGNMENT AND ACCEPTANCE, dated as of October
9, 1996 (this "Global Amendment"), among: i) RIGCO NORTH AMERICA, L.L.C., a
Delaware limited liability corporation (the "Borrower"); ii) the several
lenders and other financial institutions listed on the signature pages of this
Global Amendment (individually, a "Lender", and collectively, the "Lenders")
and iii) BHF-BANK AKTIENGESELLSCHAFT, as Administrative Agent (the
"Administrative Agent") iv) HIBERNIA NATIONAL BANK, as Collateral and
Documentation Agent (the "Collateral and Documentation Agent") and v) XXXXXX
COMMERCIAL PAPER INC., as Syndication Agent, Arranger and as a Lender ("LCPI").
W I T N E S S E T H :
WHEREAS, the Borrower and LCPI are parties to the Credit
Agreement (as amended, supplemented or otherwise modified prior to the date
hereof, the "Credit Agreement") and the other Loan Documents thereunder, each
dated as of September 30, 1996;
WHEREAS, the parties wish to amend the Credit Agreement and
the other Loan Documents to, among other things, add the Lenders as parties to
the Credit Agreement, replace LCPI, as administrative agent and collateral and
documentation agent with the Administrative Agent and the Collateral and
Documentation Agent, respectively, and to effectuate certain other changes
requested by the Lenders, all as set forth in this Global Amendment;
NOW THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Unless otherwise defined herein and
except as set forth in this Global Amendment, terms defined in the Credit
Agreement are used herein as therein defined.
SECTION 2. AMENDMENT OF CREDIT AGREEMENT.
2.1 Amendment to Subsection 2.10. Subsection 2.10 of the
Credit Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following new subsection 2.10:
"2.10 Fees. The Borrower shall pay to the Arranger
an annual agent's fee in an amount equal to $25,000, payable on the
Closing Date and on the first anniversary thereof. The Arranger
hereby acknowledges that it has received from the Borrower the agent's
fee payable on the Closing Date. The Arranger shall pay to each of
the Administrative Agent and the Collateral and Documentation Agent
for their own accounts an annual agent's fee in an amount equal to
$25,000, payable on each of the Second Closing Date and on the first
anniversary of the Closing Date."
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2.2 Amendment to Subsection 3.3. Subsection 3.3 of the
Credit Agreement is hereby amended as follows:
(a) by inserting the phrase "and the other Loan Parties"
immediately following the word "Subsidiaries" in the second line
thereof; and
(b) inserting the phrase "and the other Loan Parties
(other than the Borrower)" immediately following the word "Borrower"
in the third line thereof and immediately following the word
"Borrower" in the seventh line thereof.
2.3 Amendment to Section 5. Section 5 of the Credit
Agreement is hereby amended by inserting, immediately after Subsection 5.14,
the following new subsection 5.15:
"5.15 Monthly Schedule. Within 10 days after the
end of each calendar month, provide each Lender with a
schedule of the number of days each Rig was in use during such
calendar month and the average day rate payable with respect
to such Rig during such month."
2.4 Amendment to Subsection 5.7. Subsection 5.7 of the
Credit Agreement is hereby amended by inserting the phrase ", and the
Collateral and Documentation Agent" immediately following the words
"Administrative Agent" in the first line thereof.
2.5 Amendment to Subsection 5.8. Subsection 5.8 of the
Credit Agreement is hereby amended by adding the phrase "and the operators of
the Rigs" immediately following the word "subtenants" in the second line
thereof.
2.6 Amendment to Subsection 9.1. Subsection 9.1 of the
Credit Agreement is hereby amended as follows:
(a) by adding the phrase "or increase any Commitment
thereunder" immediately following the words "payment thereof" at the
end of clause (i) of the proviso thereof;
(b) by adding the phrase "without the written consent of
all of the Lenders" immediately following the word "Collateral" in the
second line of clause (iv) of the proviso thereof; and
(c) by deleting the phrase ",in each case" immediately
following the term "subsection 2.5" in the second line of clause (iv)
of the proviso thereof.
2.7 Amendment to Subsection 9.2. Subsection 9.2 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the name and address of the
Administrative Agent therein and substituting in lieu thereof the
following:
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BHF-Bank Aktiengesellschaft
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax: (000) 000-0000
(b) by deleting the name and address of the Collateral
and Documentation Agent therein and substituting in lieu thereof the
following:
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
2.8 Amendment to Subsection 9.15. Subsection 9.15 of the
Credit Agreement is hereby amended by inserting the phrase "or prospective
Transferee" immediately following the word "Transferee" in the fifth line
thereof.
2.9 Amendment to Schedule I. The Credit Agreement is
hereby amended by inserting as a new Schedule I the Schedule I attached hereto.
SECTION 3. AMENDMENT OF OTHER LOAN DOCUMENTS.
3.1 Amendment to Section 5.3(e) of the Borrower Security
Agreement. Section 5.3(e) of the Borrower Security Agreement is hereby amended
by inserting immediately after the word "shall" in the second line thereof the
following phrase ", after consulting with the Administrative Agent to ensure
that no Default or Event of Default has occurred and is continuing,".
3.2 Amendment to Warrant Agreement. (a) the Warrant
Agreement is hereby amended to reflect that the Borrower will, on the Effective
Date, issue, in exchange for the Warrant delivered to an affiliate of LCPI on
the Closing Date, new Warrants (the "New Warrants") to each Lender (or its
affiliate), each such New Warrant representing the ownership interest in the
Borrower specified by the Arranger to the Borrower;
(b) Subsection 2.1 of the Warrant Agreement is hereby
amended by deleting such subsection in its entirety and substituting in lieu
thereof the following new subsection 2.1:
"2.1. Issuance of Warrants. The Company
hereby agrees that, upon receipt for cancellation of the
Warrant issued on the Closing Date in favor of an Affiliate of
the Arranger, it will, on the Second Closing Date, issue in
favor of the Persons specified on Exhibit B hereto, Warrants
representing the percentage of Interests in the Company
opposite such Person's name on Exhibit B. On the Second
Closing Date the Company shall deliver to such Persons Warrant
Certificates evidencing the Warrants issued to such Persons.
Each Warrant issued
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on the Closing Date shall entitle the Holder thereof to
purchase from the Company the percentage of Interests in the
Company (after giving effect to any such exercise of the
Warrants) set forth opposite such Person's name on Exhibit B
(subject to adjustment as provided in Section 4)."
(c) Exhibit B to the Warrant Agreement is hereby amended
to reflect the information specified by the Arranger to the Borrower with
respect to the ownership interests in the Borrower held by the Lenders (or
their affiliates) and represented by the New Warrants and the Company agrees to
adjust the Warrant Register to reflect the issuance on the Second Closing Date
of the New Warrants in favor of the Lenders (or their affiliates) and the
retirement of the Warrant issued on the Closing Date.
SECTION 4. REPLACEMENT OF ADMINISTRATIVE AGENT AND
COLLATERAL AND DOCUMENTATION AGENT.
Pursuant to subsection 8.9 of the Credit Agreement, LCPI
hereby resigns as administrative agent and collateral and documentation agent
under the Credit Agreement and the other Loan Documents and LCPI and each of
the Lenders hereby appoint BHF-Bank Aktiengesellschaft as administrative agent
and Hibernia National Bank as collateral and documentation agent under the
Credit Agreement and the other Loan Documents and such parties hereby accept
such appointments. The Borrower hereby consents to such resignation and
appointments. Each of the Credit Agreement and the other Loan Documents are
hereby amended to reflect such resignation and appointments and BHF-Bank
Aktiengesellschaft shall be treated as the Administrative Agent and Hibernia
National Bank shall be treated as the Collateral and Documentation Agent under
the Credit Agreement and the other Loan Documents.
SECTION 5. ADDITION OF LENDERS.
By their signature below each of the Lenders (other than LCPI
which is already a Lender) shall become a Lender party to the Credit Agreement
and the other Loan Documents with all rights, powers and obligations of a
Lender thereunder and with an aggregate Commitment as set forth on Schedule I
attached hereto. All notices to the Lenders under the Credit Agreement shall
be given to the Lenders at the address specified on Schedule I hereto. On the
Effective Date each of the Lenders shall transfer in immediately available
funds to LCPI at an account previously instructed by LCPI to each such Lender
the amount set forth opposite its name on Schedule I hereto.
SECTION 6. MISCELLANEOUS.
6.1 Effectiveness. The amendments provided for herein shall
become effective as of October 9, 1996 (the "Effective Date") upon the
satisfaction of the following condition precedent:
(a) the Administrative Agent shall have received
counterparts of this Global Amendment, duly executed and delivered by
the Borrower and each of the other parties hereto;
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(b) UCC financing statements shall have been executed by
the appropriate parties and assignments of the Ship Mortgages shall
have been executed and filed in the appropriate filing office (with an
accompanying opinion of Bahamian counsel with respect to such
assignments), in each case to reflect the replacement of LCPI with
Hibernia National Bank as Collateral and Documentation Agent, and such
further actions as may be reasonably requested by the Arranger in
connection with the modifications and events contemplated hereby shall
have been taken; and
(c) LCPI (or its affiliate) shall have surrendered the
Warrant issued to its affiliate on the Closing Date and the Borrower
shall have executed and delivered the New Warrants to each Lender (or
its affiliate), each such New Warrant representing the ownership
interest in the Borrower notified by the Arranger to the Borrower.
6.2 Representations and Warranties. After giving effect to
the amendments contained herein, on the Effective Date, the Borrower hereby
confirms, reaffirms and restates the representations and warranties set forth
in Section 3 of the Credit Agreement; provided that each reference in such
Section 3 to "this Agreement" shall be deemed to be a reference both to this
Global Amendment and to the Credit Agreement as amended by this Global
Amendment.
6.3 Continuing Effect; No Other Amendments. Except as
expressly amended or waived hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full
force and effect. The amendments contained herein shall not constitute an
amendment or waiver of any other provision of the Credit Agreement or the other
Loan Documents or for any purpose except as expressly set forth herein.
6.4 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Effective Date after giving effect to this
Global Amendment.
6.5 Counterparts. This Global Amendment may be executed in
any number of counterparts by the parties hereto, each of which counterparts
when so executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
6.6 GOVERNING LAW. THIS GLOBAL AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Global
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
RIGCO NORTH AMERICA, L.L.C.
By:
Title:
BHF-BANK AKTIENGESELLSCHAFT, as
Administrative Agent and as a Lender
By:
Title:
By:
Title:
HIBERNIA NATIONAL BANK, as Collateral and
Documentation Agent and as a Lender
By:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By:
Title:
PRIME INCOME TRUST
By:
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XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Title:
PROTECTIVE LIFE INSURANCE COMPANY
By:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT L.P.,
as Investment Adviser
By:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
Title:
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SCHEDULE I
Lender Commitment
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BHF-BANK AKTIENGESELLSCHAFT 9,800,000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
XXXX XXXXXX PRIME INCOME TRUST 9,800,000
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
HIBERNIA NATIONAL BANK 3,000,000
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
XXXXXX COMMERCIAL PAPER INC. 16,300,000
3 World Financial center
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
XXXXXXX XXXXX PRIME RATE PORTFOLIO 4,900,000
Xxxxxxx Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC. 4,900,000
Xxxxxxx Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
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PROTECTIVE LIFE INSURANCE COMPANY 9,800,000
1150 Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
XXX XXXXXX AMERICAN CAPITAL 6,500,000
PRIME RATE INCOME TRUST
0 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
