EXHIBIT 10.220
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of January 21,
1999 (this "Amendment"), among R&B FALCON CORPORATION, a Delaware
corporation ("Holdings"), RBF DEEPWATER EXPLORATION III INC., a Nevada
corporation (f/k/a RB Deepwater Exploration III Inc.) (the "Borrower"),
the various lending institutions party to the Credit Agreement referred
to below (each, a "Bank" and, collectively, the "Banks"), CREDIT LYONNAIS
NEW YORK BRANCH, as Syndication Agent and CHRISTIANIA BANK OG
KREDITKASSE, NEW YORK BRANCH, as Administrative Agent for the Banks (the
"Agent"). All capitalized terms used herein and not otherwise defined
shall have the meanings provided such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Banks and the Agent are
parties to a Credit Agreement, dated as of February 24, 1998 (as amended
to date, the "Credit Agreement"); and
WHEREAS, the parties thereto and hereto wish to amend the
Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
1. Section 7.01 of the Credit 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 Holdings (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
Borrower, 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) Holdings and
the Borrower have 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 Credit 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, Holdings 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 Credit 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. Holdings 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 Holdings after the Effective Date;
provided that , for purposes of this Section 7.09, the Cliffs
Acquisition shall be deemed to constitute the issuance by Holdings
of equity in an amount equal to the increase in Holdings' Tangible
Net Worth resulting from the Cliffs Acquisition.
4. Section 7 of the Credit Agreement is hereby amended by
inserting the following new Section 7.13:
Section 7.13 Restriction on Certain Debt Payments. Holdings
shall not repay any indebtedness incurred pursuant to Section
7.01(h) except out of net proceeds from the issuance by the Borrower
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 Holdings from making
regularly scheduled payments of accrued interest on such
Indebtedness.
5. Annex 7.01 of the Credit 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 Credit 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 Banks to enter into this Amendment,
the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Fifth
Amendment Effective Date both before and after giving effect to this
Amendment; and
(b) all of the representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct
in all material respects on the Fifth 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 Fifth 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. In order to induce the Banks to enter into this Amendment,
Holdings and the Borrower hereby agree that in the event the Borrower
takes delivery of the Drillship pursuant to the Construction Contract at
any time prior to the Maturity Date, the Borrower shall grant to the
Collateral Agent on such date a first preferred ship mortgage on the
Drillship, and shall deliver to the Agent such legal opinions and other
documentation with respect to such security interest as the Agent may
reasonably request, all of which shall be reasonably satisfactory in form
and substance to the Agent.
3. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of
the Credit Agreement or any other Credit Document.
4. This Amendment may be executed in any number of
counterparts and by the different 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 Borrower and the Agent.
5. 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.
6. This Amendment shall become effective on the date (the
"Fifth Amendment Effective Date") when (i) each of Holdings, the Borrower
and the Required Banks 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 Agent at its Notice
Office and (ii) Holdings and/or the Borrower shall have paid to each Bank
that has executed and delivered a counterpart hereof on or before 12:00
Noon (New York time) on January 21, 1999 an amendment fee equal to 0.15%
of such Banks Commitment as in effect on the Fifth Amendment Effective
Date immediately prior to giving effect to this Amendment. The Agent
will give the Borrower and each Bank prompt notice of the occurrence of
the Fifth Amendment Effective Date.
7. From and after the Fifth Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents
to the Credit Agreement shall be deemed to be references to the Credit
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:
RBF DEEPWATER EXPLORATION III INC.
By:_________________________
Title:
CHRISTIANIA BANK OG KREDITKASSE, NEW YORK
BRANCH, Individually and as Agent
By:_________________________
Title:
By:_________________________
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Syndication Agent
By:_________________________
Title:
SKANDINAVISKA ENSKILDA XXXXXX XX (Publ.)
By:_________________________
Title:
By:_________________________
Title:
CREDIT AGRICOLE INDOSUEZ
By:_________________________
Title:
By:_________________________
Title:
