EXHIBIT 4.4
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") dated as of
December 19, 1997, is by and among Transocean Offshore 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 acting through its Houston agency, as agent for the
Lenders (in such capacity, the "AGENT"), SunTrust Bank, Atlanta, and Credit
Lyonnais New York Branch, as documentation agents for the Lenders (in such
capacity, each a "DOCUMENTATION AGENT" and together, the "DOCUMENTATION
AGENTS"), and Bank of Montreal, The Fuji Bank, Limited, Houston Agency, Royal
Bank of Canada, Xxxxx Fargo Bank (Texas), National Association, and Bank of
Tokyo- Mitsubishi, Ltd., Houston Agency, as co-agents for the Lenders (in such
capacity, each a "CO-AGENT" and collectively, the "CO-AGENTS").
WITNESSETH
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WHEREAS, the Borrower, the Lenders, the Agent, the Documentation Agents and
the Co-Agents have entered into that certain Credit Agreement dated as of July
30, 1996, as amended by that certain First Amendment to Credit Agreement dated
as of April 18, 1997 (the "CREDIT AGREEMENT"), pursuant to which the Lenders
have made and agreed to make Loans to the Borrower and issued and agreed to
issue Letters of Credit for the account of the Borrower; and
WHEREAS, the Borrower, the Lenders, the Agent, the Documentation Agents and
the Co-Agents desire to further 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, the Documentation Agents
and the Co-Agents hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 6.12(b) of the Credit Agreement is hereby amended by
deleting the first sentence thereof and inserting in its place the following
sentence: "The Borrower may redeem, purchase or otherwise acquire shares of its
capital stock at any time so long as no Default or Event of Default shall have
occurred and be continuing or would occur as a result of such redemption,
purchase or acquisition."
(b) Section 6.25 (Consolidated Net Worth) of the Credit Agreement is
hereby deleted in its entirety.
2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the
Lenders, the Agent, the Collateral Agent, the Documentation Agents 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 (x) are not so true and correct in all
material respects
as a result of the transactions expressly permitted hereunder or under the other
Credit Documents or (y) 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,
the replacement Revolving Notes or any other Credit Document;
(iv) No Default or Event of Default has occurred and is
continuing; and
(v) There have been no amendments to the certificate of
incorporation or bylaws of the Borrower since April 18, 1997.
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.
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.
5. CONDITION PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The effectiveness
of this Amendment is subject to the Agent's receipt of a consent to this
Amendment from each of the Guarantors in form and substance satisfactory to the
Agent.
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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 DOCUMENTATION AGENTS, THE CO-AGENTS, THE COLLATERAL AGENT, 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 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 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 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 OR THE CREDIT
AGREEMENT, AND AGREES THAT ANY SUCH
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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, the Documentation Agents 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.
IN WITNESS WHEREOF, the parties hereto have entered into this Second
Amendment to Credit Agreement as of the date first written above.
BORROWER:
TRANSOCEAN OFFSHORE INC.,
a Delaware corporation
By: /s/ X.X. XXXX
-------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------
Title: Senior Vice President & CFO
----------------------------
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LENDERS:
ABN AMRO BANK N.V., Houston Agency, as Agent
and Collateral Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
Group Vice President and Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President and Managing Director
SUNTRUST BANK, ATLANTA, as Documentation
Agent and as a Lender
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title: Corporate Banking Officer
-----------------------------
By: /s/ XXXX X. XXXXXX, XX.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
------------------------------
Title: Vice President
-----------------------------
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent and as a Lender
By: /s/ XAVIER RATOUIS
--------------------------------
Name: Xavier Ratouis
------------------------------
Title: Senior Vice President
-----------------------------
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BANK OF MONTREAL, as Co-Agent and as a
Lender
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Director
-----------------------------
THE FUJI BANK, LIMITED, HOUSTON AGENCY,
as Co-Agent and as a Lender
By: /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
------------------------------
Title: Vice President & Manager
-----------------------------
ROYAL BANK OF CANADA, as Co-Agent and as
a Lender
By: /s/ X.X. XXXXX
--------------------------------
Name: X.X. Xxxxx
------------------------------
Title: Senior Manager
-----------------------------
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, as Co-Agent and as a Lender
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------
Title: Vice President
-----------------------------
BANK OF TOKYO - MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ XXXXXXX XXXXX
--------------------------------
Name: Xxxxxxx Xxxxx
------------------------------
Title: Vice President
-----------------------------
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SKANDINAVISKA ENSKILDA XXXXXX XX
(publ.)
By: /s/ XXXXX XXXXXXXXX /s/ XXXXXX XXX
--------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxx Xxx
------------------------------------
Title: Head of Credits Head of Unit
-----------------------------------
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ XXXXXXXXX XXXXXXXXXX /s/ XXXXXX XXX
----------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx Xxxxxx Xxx
--------------------------------------
Title: Vice President Associate
Credit Department
--------------------------------------
By: /s/ X.X. XXXXXX
--------------------------------
Name: X.X. Xxxxxx
------------------------------
Title: Vice President
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AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
------------------------------
Title: Vice President
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THE BANK OF NEW YORK
By: /s/ XXXXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxxxx X. Xxxx
------------------------------
Title: Vice President
-----------------------------
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XXX XXXX XX XXXX XXXXXX,
XXXXXXX AGENCY
By: /s/ F.C.H. XXXXX
----------------------------------
Name: F.C.H. Xxxxx
--------------------------------
Title: Senior Manager Loan Operations
-------------------------------
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CAYMAN ISLAND
BRANCH
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
By: /s/ XXXXX XxXXXXXX
--------------------------------
Name: Xxxxx XxXxxxxx
------------------------------
Title: Asst. Vice President
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FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. XXXXXXX XXXXX, XX.
--------------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
------------------------------
Title: Senior Vice President
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SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ XXXX X. XXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxx
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Title: First Vice President
-----------------------------
THE SANWA BANK, LIMITED
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
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THE SUMITOMO BANK, LIMITED
By: /s/ XXXXX XXXX
--------------------------------
Name: Xxxxx Xxxx
------------------------------
Title: Joint General Manager
-----------------------------
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CONSENT AND ACKNOWLEDGMENT
Each of the undersigned Guarantors, by its signature hereto, acknowledges
and agrees to the terms and conditions of that certain Second Amendment to
Credit Agreement (the "AMENDMENT") dated as of December 19, 1997, by and among
Transocean Offshore Inc., a Delaware corporation (the "BORROWER"), the lenders
from time to time parties thereto (collectively, the "LENDERS"), ABN AMRO Bank
N.V., a Netherlands chartered bank acting through its Houston agency, as agent
for the Lenders, SunTrust Bank, Atlanta, and Credit Lyonnais New York Branch, as
documentation agents for the Lenders, and Bank of Montreal, The Fuji Bank,
Limited, Houston Agency, Royal Bank of Canada, Xxxxx Fargo Bank (Texas),
National Association, and Bank of Tokyo-Mitsubishi, Ltd., Houston Agency, as co-
agents for the Lenders. Each of the undersigned acknowledges and reaffirms its
obligations under its Subsidiary Guaranty dated September 6, 1996 (collectively,
the "GUARANTIES") and agrees that the Guaranties shall remain in full force and
effect. Although the undersigned Guarantors have been informed by the Borrower
of the matters set forth in the Amendment, and the undersigned have acknowledged
and agreed to same, the undersigned understand the Lenders have no duty to
notify any of the Guarantors of, or to seek any of the Guarantor's
acknowledgment or agreement to, the Amendment, and nothing contained herein
shall create such a duty as to any transactions hereafter.
Dated as of December 19, 1997.
TRANSOCEAN OFFSHORE NORWAY INC.
TRANSOCEAN OFFSHORE VENTURES INC.
TRANSOCEAN DRILLING SERVICES INC.
TRANSOCEAN OFFSHORE (U.K.) INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
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