EXHIBIT 10.172
FOURTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
FOURTH AMENDMENT TO LETTER OF CREDIT AGREEMENT, dated as of
January 21, 1999 (this "Amendment"), among R&B FALCON CORPORATION, a
Delaware corporation (the "Obligor") and CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH (the "Bank"). All capitalized terms used herein and not
otherwise defined shall have the meanings provided such terms in the L/C
Agreement.
W I T N E S S E T H :
WHEREAS, the Obligor and the Bank are parties to a Letter of
Credit Agreement, dated as of December 30, 1996 (as amended to date, the
"L/C Agreement"); and
WHEREAS, the parties hereto wish to amend the L/C Agreement as
herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to L/C Agreement.
1. Section 7.01 of the L/C Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (g) thereof, (ii)
redesignating clause (h) thereof as clause (i), (iii) inserting the
following new clause (h) immediately following clause (g) thereof:
(h) Indebtedness of the Obligor (including any extensions or
refinancing thereof, provided that any such refinancing or extension
does not increase the principal amount thereof beyond that
outstanding on the date of such extension or refinancing), the
proceeds of which are used solely to discharge indebtedness of
Cliffs Drilling under the 10.25% senior notes of Cliffs Drilling due
2003, and in an aggregate principal amount not to exceed that
necessary to discharge the portion of such notes required to be
redeemed pursuant to the offer to repurchase made pursuant to the
Cliffs Acquisition; provided that such Indebtedness (or refinancing
thereof, as the case may be) shall (i) be unsecured and subordinate
to the Loans and (ii) shall have a maturity date not earlier than
one year after the Maturity Date (as such term is defined from time
to time), except that such maturity may occur earlier if and to the
extent such maturity results solely in the conversion of such
Indebtedness into, or exchange for, other Indebtedness of the
Obligor, in the same aggregate principal amount, which is unsecured
and subordinated to the Loans and has a maturity date not earlier
than one year after the Maturity Date (as such term is defined from
time to time); and
, and (iv) deleting clause (f) thereof in its entirety and inserting the
following new clause (f) in lieu thereof :
(f) Indebtedness of Cliffs Drilling acquired pursuant to the
Cliffs Acquisition (including any loans made pursuant to unused
revolving commitments) in an aggregate principal amount not to
exceed $235,000,000, provided that (i) such Indebtedness (or
commitments, as the case may be) existed at the time of the
consummation of the Cliffs Acquisition and was not created in
contemplation thereof (and the provisions thereof were not altered
in any material respect in contemplation thereof), (ii) the Obligor
has no liability with respect to any such Indebtedness and (iii) any
Liens securing such Indebtedness apply only to the assets of Cliffs
Drilling acquired pursuant to the Cliffs Acquisition (and no
additional assets are granted as security following, or in
contemplation of, the Cliffs Acquisition), and any extension or
refinancing of such Indebtedness, provided that such extension or
refinancing (x) does not increase the principal amount of such
Indebtedness above the outstanding amount thereof immediately prior
to giving effect to such refinancing, (y) does not have a maturity
date prior to one year after the Maturity Date (as defined from time
to time) and (z) is not secured by any assets not securing the
Indebtedness to be refinanced; and
2. Section 7.06 of the L/C Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (c) thereof and
inserting a comma in lieu thereof and (ii) inserting the following new
clause (e) immediately prior to the period at the end of clause (d)
thereof:
and (e) so long as no Default or Event of Default then exists or
would result immediately after giving effect thereto, the Obligor
may pay dividends on its preferred stock not to exceed a rate
commensurate with a 10% coupon on such preferred stock.
3. Section 7.09 of the L/C Agreement is hereby amended by
deleting said section in its entirety and inserting the following new
Section 7.09 in lieu thereof:
7.09. Tangible Net Worth. The Obligor will not permit at any
time its Tangible Net Worth to be less than $600,000,000 plus (i)
50% of its cumulative Consolidated Net Income, if positive, for the
period from April 1, 1998 through the date of calculation, plus (ii)
100% of any equity issued by the Obligor after the Effective Date;
provided that , for purposes of this Section 7.09, the Cliffs
Acquisition shall be deemed to constitute the issuance by the
Obligor of equity in an amount equal to the increase in the
Obligor's Tangible Net Worth resulting from the Cliffs Acquisition.
4. Section 7 of the L/C Agreement is hereby amended by
inserting the following new Section 7.13:
Section 7.13 Restriction on Certain Debt Payments. The
Obligor shall not repay any indebtedness incurred pursuant to
Section 7.01(h) except out of net proceeds from the issuance by the
Obligor of (i) capital stock permitted to be issued hereunder or
(ii) refinancing Indebtedness permitted pursuant to Section 7.01(h);
provided that, so long as no Default or Event of Default exists or
would result immediately after giving effect to such payment, this
Section 7.13 shall not be deemed to prevent the Obligor from making
regularly scheduled payments of accrued interest on such
Indebtedness.
5. Annex 7.01 of the L/C Agreement is hereby amended by adding
thereto the following item:
"20. Guaranty by R&B dated as of November 28, 1995 in favor of
Deep Sea Investors, L.L.C. with respect to the obligations of
Reading & Xxxxx Drilling Co. under the Memorandum of Agreement
and a charter as of the same date with respect to the
semisubmersible drilling unit X.X Xxxxx."
6. Annex V of the L/C Agreement is hereby amended by adding
thereto the following item:
"12. Preferred Mortgage on the Xxx Xxxxxxxxxx dated November
28, 1995 between Reading & Xxxxx Drilling Co. and Wilmington
Trust Company, as Trustee, for the benefit of Deep Sea
Investors, L.L.C., in connection with item 20 of Schedule
7.01."
II Miscellaneous Provisions.
1. In order to induce the Bank to enter into this Amendment,
the Obligor hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Fourth
Amendment Effective Date both before and after giving effect to this
Amendment; and
(b) all of the representations and warranties contained in the
L/C Agreement and the other Credit Documents are true and correct in
all material respects on the Fourth Amendment Effective Date both
before and after giving effect to this Amendment, with the same
effect as though such representations and warranties had been made
on and as of the Fourth Amendment Effective Date (it being
understood that any representation or warranty made as of a specific
date shall be true and correct in all material respects as of such
specific date).
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of
the L/C Agreement or any other Credit Document.
3. This Amendment may be executed in any number of
counterparts and by the parties hereto on separate counterparts, each of
which counterparts when executed and delivered shall be an original, but
all of which shall together constitute one and the same instrument. A
complete set of counterparts shall be lodged with the Obligor and the
Bank.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the
"Fourth Amendment Effective Date") when each of the Obligor and the Bank
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Bank at its Notice Office.
6. From and after the Fourth Amendment Effective Date, all
references in the L/C Agreement and each of the other Credit Documents to
the L/C Agreement shall be deemed to be references to the L/C Agreement
as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date
first above written.
R&B FALCON CORPORATION
By:_________________________
Title:
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK
BRANCH
By:_________________________
Title:
By:_________________________
Title:
