EXHIBIT 10.228
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated as of the Second Amendment Effective Date (hereinafter defined) is
among: R&B FALCON CORPORATION, and the REQUIRED LENDERS under the
hereinafter defined Credit Agreement.
R E C I T A L S
A. The Borrower and the Lenders (as defined in the Credit
Agreement hereafter defined) have entered into that certain Credit
Agreement dated as of April 24, 1998 (as amended by First Amendment to
Credit Agreement dated as of November 13, 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 requested approval of certain amendments to
the Credit Agreement in order to, among other things, permit the Borrower
to incur certain additional indebtedness;
C. The Chase Manhattan Bank, in it capacity as Administrative
Agent under the Credit Agreement, is resigning as Administrative Agent,
effective as of the date hereof;
D. The Required Lenders, as set forth below, shall select a
successor Administrative Agent;
E. The Borrower and the Lenders now desire to make certain
amendments to the Credit Agreement to effectuate the foregoing.
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. The following terms, defined in Section 1.01 of the Credit
Agreement, are hereby amended as follows:
(a) The term "Administrative Agent" is hereby amended to
read in its entirety as follows:
"Administrative Agent" means Paribas, in its
capacity as administrative agent for the Lenders
hereunder.
(b) The chart contained in the definition of "Applicable
Margin" is hereby amended to read in its entirety as follows:
ABR Eurodollar Facility Fee
Index Debt Ratings: Spread Spread Rate
------ Tranche A Tranche B ------------
Loans Loans
--------- ---------
Category 1 0.0 0.45 1.075 0.175
Category 2 0.0 0.55 1.175 0.200
Category 3 0.0 0.65 1.275 0.225
Category 4 0.0 0.75 1.375 0.250
Category 5 0.0 1.00 1.625 0.250
(c) The term "Commitment" is hereby amended to read in
its entirety as follows:
"Commitment" means, with respect to each Lender,
the commitment of such Lender to make Revolving Loans
and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the
maximum aggregate amount that such Lender's Revolving
Credit Exposure could be hereunder, as such
commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial
amount of each Lender's Commitment is set forth on
Schedule 2.01 attached to and made a part of the
Second Amendment, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate
amount of the Lenders' Commitments is $350,000,000.
"Commitment", with respect to each Lender, shall
equal the sum of its Tranche A Commitment and Tranche
B Commitment, as set forth on Schedule 2.01 attached
to the Second Amendment.
(d) The term "Issuing Bank" is hereby amended to read in
its entirety as follows:
"Issuing Bank" means Paribas, in its capacity as
the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in
Section 2.04(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in
which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit
issued by such Affiliate.
(e) The term "Maturity Date" is hereby amended to read in
its entirety as follows:
"Maturity Date" means January 24, 2002, or such
later date as such date may be extended pursuant to
Section 2.07(d).
(f) The term "Permitted Encumbrances" is hereby amended by (i)
deleting the word "and" at the end of clause (f) thereof, (ii)
adding the word "and" at the end of clause (g) thereof, (iii)
deleting the proviso at the end thereof, and (iv) adding the
following clause "(h)":
"(h) Liens securing the payment of all or any
portion of the Indebtedness created hereunder;
provided that the term "Permitted Encumbrances" shall
not include any Lien securing Indebtedness other than
the Indebtedness created hereunder."
(g) The term "Permitted Investments" is hereby amended by
adding the word "Paribas" after the "comma (,)" and before the word
"any" found in the third line thereof.
(h) The term "Permitted Project Debt" is hereby amended
to read in its entirety as follows:
"Permitted Project Debt" means Indebtedness
(including, without limitation or duplication, the
Guarantee of any such Indebtedness by the Borrower)
incurred in connection with the construction of
Deepwater Pathfinder, Deepwater Frontier, Drillship
III and the semi-submersible rig RBS8M (formerly
known as the RBS6), by the respective joint venture
or Subsidiary owning such vessel, and all extensions,
renewals and replacements of any such Indebtedness by
the primary obligor thereof that do not increase the
outstanding principal amount thereof; provided,
however, that such Indebtedness shall not exceed
$625,000,000 in the aggregate; and provided further,
however, that all such Indebtedness relating to the
rig RBS8M shall be nonrecourse upon the acceptance
and delivery of such rig.
3. Section 1.01 of the Credit Agreement is hereby supplemented,
where alphabetically appropriate, with the addition of the following
definitions:
"Drilling Inc." shall mean R&B Falcon Drilling
(International & Deepwater) Inc., a Delaware corporation.
"Notes Offering" means that certain $400,000,000 Notes
Offering by the Borrower anticipated to close prior to January
15, 1999.
"Notes Offering Closing Date" means the date the proceeds
are received by the Borrower pursuant to the Notes Offering.
"Second Amendment" means that certain Second Amendment to
Credit Agreement dated as of the Second Amendment Effective
Date, among the Borrower and the Required Lenders.
"Second Amendment Effective Date" shall mean the day on
which the last of the events set forth in Paragraph 15 of the
Second Amendment as conditions shall have occurred.
"Tranche A Commitment" means in the aggregate the first
$100,000,000 principal amount of the Commitment.
"Tranche B Commitment" means in the aggregate the
principal amount of the Commitment in excess of the Tranche A
Commitment.
4(a) Pursuant to and subject to all of the provisions contained in
Section 2.07 of the Credit Agreement, the Borrower hereby voluntarily
reduces (and the Lenders hereby accept the reduction of) the aggregate
amount of the Lenders' Commitments under the Credit Agreement to
$350,000,000, such reduction to be made pro rata among the Lenders in
accordance with their Commitment.
(b) Section 2.07 of the Credit Agreement is hereby amended by
adding thereto a new subsection, to be Subsection 2.07(e), to
read in its entirety as follows:
"(e) The aggregate amount of the Tranche B Commitments in
effect on March 31, 2001, shall be reduced by an amount equal
to $15,000,000, commencing March 31, 2001 and on the last day
of each calendar quarter thereafter until the Maturity Date."
5. Section 2.09 of the Credit Agreement is hereby amended by
adding thereto two new subsections, to be Subsections 2.09(c) and
2.09(d), to read in their entirety as follows:
"(c) If, following any reduction in the Tranche B
Commitments pursuant to Section 2.07(e) hereof, the sum of the
outstanding aggregate principal amount of the Loans
attributable to the Tranche B Commitments exceed the then
current Tranche B Commitments, the Borrower shall pay or prepay
the amount of such excess amount together with accrued interest
to the extent required by Section 2.11 and subject to the
provisions of Section 2.14 for break funding payments."
(d) All payments of principal and interest by Borrower shall
be applied first in the reduction of Indebtedness incurred under the
Tranche B Commitment."
6. Section 6.01 of the Credit Agreement is hereby amended to add
the following clause (h):
"(h) additional Indebtedness of the Borrower not to exceed
$600,000,000 at any time outstanding; provided, however (i) no
such additional Indebtedness shall be senior to the
Indebtedness created under this Agreement, (ii) not more than
$400,000,000 of such additional Indebtedness shall be pari pasu
with the Indebtedness created under the Tranche B Commitment,
and (iii) no such additional Indebtedness shall have a maturity
of less than four (4) years."
7. Section 6.02(c) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(c) any Lien on the Deepwater Pathfinder, Deepwater
Frontier, RBS8M and Drillship III and on the equity of the
entity that owns such vessel to secure the respective Permitted
Project Debt incurred to construct such vessel, and any related
drilling or other contract to secure the respective Permitted
Project Debt incurred in connection with the financing of such
vessel;"
8. Section 6.06 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Section 6.06. Restricted Payments. The Borrower will
not, and will not permit any of its Subsidiaries to, declare or
make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay
dividends with respect to its capital stock payable solely in
additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their capital
stock, (c) the Borrower may make Restricted Payments pursuant
to and in accordance with stock option plans or other benefit
plans for management or employees of the Borrower and its
Subsidiaries, and (d) Arcade Drilling A/S (a 74.4% owned
Subsidiary of the Borrower) may make share capital reduction
distributions pro rata to its shareholders (including the
Borrower)."
9. Section 6.10 of the Credit Agreement is hereby amended and
supplemented by deleting the graph found therein and substituting
therefor the following:
Period EBITDA Leverage Ratio
------ ---------------------
9/1/98 through 12/31/99 3.75X
1/1/00 through 12/31/00 3.25X
1/1/01 and thereafter 2.75X
10. Notwithstanding the provisions of Section 6.12 of the Credit
Agreement, the Borrower may amend, modify or supplement the Indenture in
such manner as it deems appropriate to effectuate the Notes Offering.
11. Article VI of the Credit Agreement is hereby amended by adding
thereto the following three (3) new sections, to be Sections 6.13, 6.14
and 6.15, to read in their entirety as follows:
"Section 6.13. Fundamental Changes With Respect to
Drilling Inc. Notwithstanding anything to the contrary
contained in Section 6.03 hereof, with respect to Drilling Inc.
and its subsidiaries, neither Drilling Inc. nor any of its
subsidiaries shall merge into or consolidate with any other
Person, nor permit any Person to merge into or consolidate with
it, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be
continuing (i) any subsidiary of Drilling Inc. may merge into
Drilling Inc. in a transaction in which Drilling Inc. is the
surviving corporation, and (ii) any subsidiary of Drilling Inc.
may merge into any other subsidiary of Drilling Inc. in a
transaction in which the surviving entity is a subsidiary of
Drilling Inc."
"Section 6.14. Investments, Loans, Advances, Guarantees
and Acquisitions with Respect to Drilling Inc. Notwithstanding
anything to the contrary contained in Section 6.04 hereof, with
respect to Drilling Inc. and its subsidiaries, neither Drilling
Inc. nor any of its subsidiaries shall Guarantee any
obligations of any other Person, or purchase, hold or acquire
any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to
acquire any of the foregoing) or make or permit any loans or
advances to , or make or permit to exist any investment or any
other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit, except
that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be
continuing, the following shall be permitted:
(a) investments by Drilling Inc. or by any of
its subsidiaries in the capital stock of Drilling
Inc.'s subsidiaries;
(b) loans or advances made by Drilling Inc. to
any of its subsidiaries and made by any of Drilling
Inc.'s subsidiaries to Drilling Inc. or any other
subsidiary of Drilling Inc.; and
(c) purchases and acquisitions on an arms-
length basis in the ordinary course of business;
(d) guarantees of obligations of Drilling Inc.
and its subsidiaries; and
(e) other investments, loans and advances
consistent with prior practices of the Borrower and
its Subsidiaries reflected in the regularly
maintained financial records of the Borrower and its
Subsidiaries."
"Section 6.15. Restricted Payments with Respect to Drilling Inc.
Notwithstanding anything to the contrary contained in Section 6.06, with
respect to Drilling Inc. and its subsidiaries, neither Drilling Inc. nor
any of its subsidiaries shall declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except, if at the time
thereof and immediately after giving effect thereto no Default shall
occurred and be continuing (a) any subsidiary of Drilling Inc. may
declare and pay dividends to Drilling Inc. or to another subsidiary of
Drilling Inc., and (b) Drilling Inc. or any of its subsidiaries may
declare and pay dividends consistent with prior practices of the Borrower
and its Subsidiaries reflected in the regularly maintained financial
records of the Borrower and its Subsidiaries.
12. The Borrower and the Required Lenders hereby select and appoint
Paribas as successor Administrative Agent for the Lenders under the
Credit Agreement, as amended hereby, effective upon the resignation of
The Chase Manhattan Bank as Administrative Agent, and Paribas hereby
accepts such appointment and agrees to act as Administrative Agent for
the Lenders under the Credit Agreement, as amended hereby, effective upon
the resignation of The Chase Manhattan Bank, as Administrative Agent.
13. Section 9.01 is hereby amended in its entirety to read as
follows:
"Section 9.01. Notices. Except in the case of notices
and other communications expressly permitted to be given by
telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered
mail or sent by telecopy, as follows:
(a) if to the Borrower, to
R&B Falcon Corporation
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention of Chief Financial Officer
Telecopy No.: (000) 000-0000;
(b) if to the Administrative Agent, to:
Paribas
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with respect, Eurodollar Lending Office, to:
Paribas
_______________________
_______________________
Attention: _______________
Phone No.: ______________
Telecopy No.: ____________
(c) if to the Issuing Bank, to:
Paribas
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Ms. Xxxxxx Xxxxxxx
Phone No.: _______________
Telecopy No.: ____________; and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt.
14. The Borrower hereby agrees to pledge, as security for all
amounts owing in connection with the Tranche A Commitment, all of the
issued and outstanding capital stock of Drilling Inc. pursuant to a
security agreement, financing statements and stock powers, satisfactory
to Paribas.
15. In addition to all other applicable conditions precedent
contained in the Credit Agreement, the obligation of the Lenders under
this Amendment and to their agreement and consent to the matters set
forth herein, shall be conditioned upon the following:
(a) Paribas shall have received a copy of this Amendment, duly
completed and executed by the Borrower and the Required Lenders;
(b) Paribas shall have received a legal opinion of Xxxxxxxx X.
Xxxx, Esq., counsel to the Borrower with respect to this Amendment
and the matters addressed herein, non-contravention and such other
matters as Paribas reasonably request, all in form and substance
satisfactory to Paribas;
(c) The Notes Offering shall have been completed, and the net
proceeds received by the Borrower from the Notes Offering shall be
delivered to Paribas or the Administrative Agent, for the benefit of
the Lenders, to be applied as a principal reduction of the
Indebtedness created under the Credit Agreement, as amended hereby;
(d) Paribas shall have received a Security Agreement (Stock)
duly completed and executed by the Borrower, pledging all of the
capital stock of Drilling Inc., as security for all amounts owing in
connection with the Tranche A Commitment, together with an
Assignment Separate from Stock Certificate duly executed in blank by
the Borrower, the original stock certificate representing such
capital stock and appropriate Uniform Commercial Code financing
statement relating thereto.
(e) Paribas shall have received such other information,
documents or instruments as it or its counsel may reasonably
request;
16. All provisions of this Amendment except for Section 12 shall be
deemed effective at 12:01 a.m. Houston, Texas time on the date that the
conditions set forth in Section 15 have been met. The provisions of
Paragraph 12 shall be effective upon the last to occur of (i) the
resignation of The Chase Manhattan Bank as Administrative Agent and (ii)
the execution of this Amendment by Borrower and the Required Lenders.
17. Pursuant to Section 2.04(i) of the Credit Agreement, The Chase
Manhattan Bank is hereby replaced as Issuing Bank by Paribas. This
Paragraph 13 shall satisfy the written agreement and notification
requirements of Section 2.04(i).
18. The Borrower shall pay to each Lender which executes this
Amendment and delivers its signature pages to Paribas or the
Administrative Agent (or its counsel) on or before 2:00 p.m., Houston,
Texas time, December 16, 1998, an amendment fee equal to 25 basis points
on such Lender's then current Commitment (based upon $350,000,000 of
total Commitments), which shall be due and payable on or before the third
Business Day after the Notes Offering Closing Date.
19. 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.
20. 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;
provided, for purposes of this paragraph, Section 3.04(b) shall read:
"(b) Except as disclosed in reports filed by the Company
under the Securities Exchange Act of 1934, since December 31,
1997, there has been no material adverse change in the
business, assets, operations, prospects or condition, financial
or otherwise, of the Borrower and its subsidiaries, taken as a
whole."
20. 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.
21. 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.
NOTICE. THIS WRITTEN AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED
HEREBY AND THE NOTES REPRESENT 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.
[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
RESIGNING ADMINISTRATIVE THE CHASE MANHATTAN BANK
AGENT AND LENDER:
By:_____________________________
Name:
Title:
SYNDICATION AGENT CREDIT SUISSE FIRST BOSTON
AND LENDER:
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
SUCCESSOR ADMINISTRATIVE PARIBAS
AGENT; DOCUMENTATION
AGENT 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:
BANK ONE, LOUISIANA, NA,
as successor to 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:
