EXHIBIT 10.212
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT AND RELEASE OF GUARANTY
(this "Second Amendment") is entered into as of November 9, 1998 (the
"Effective Date"), among DEEPWATER DRILLING II L.L.C., a Delaware limited
liability company (the "Company"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent (the "Administrative Agent")
for the Banks, and NATIONAL WESTMINSTER BANK PLC, as Documentation Agent
(the "Documentation Agent", and together with the Administrative Agent,
the "Agents") and the several financial institutions party to this Second
Amendment (collectively, the "Banks"; individually, a "Bank").
Capitalized terms which are used herein without definition and which are
defined in the Credit Agreement referred to below shall have the meanings
ascribed to them in the Credit Agreement.
WHEREAS, the Company, the Banks, the Administrative Agent and the
Documentation Agent are parties to a certain Credit Agreement dated as of
November 10, 1997 as amended by First Amendment and Release of Guaranty
dated as of April 24, 1998 (as at any time further amended, modified or
supplemented and in effect from time to time, the "Credit Agreement");
and
WHEREAS, the Company has requested that the Banks increase their
Commitments and extend the Revolving Termination Date; and
WHEREAS, subject to the terms and conditions herein contained, the
Banks are willing to consent to the above-described requests by executing
this Second Amendment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Increased Commitments. Schedule A-1 attached hereto
sets forth the Commitment, outstanding Revolving Loans and Pro Rata Share
of each of the Banks prior to the Effective Date of this Second
Amendment. Schedule 2.01 attached hereto sets forth the Commitment and
Pro Rata Share of each of the Banks on and after the Effective Date of
this Second Amendment. Schedule 2.01 to the Credit Agreement is hereby
deleted and replaced with Schedule 2.01 in the form attached hereto.
SECTION 2. Amendment to Section 6.12 (Use of Proceeds). Section
6.12 of the Credit Agreement is hereby amended to add the following
sentence: "In addition, proceeds of Loans may be used to repay
Indebtedness of the Borrower owed to Bank of America NT & SA in the
principal amount of $10,000,000 together with interest thereon. The
Borrower represents that the proceeds of said Indebtedness were used to
fund costs incurred in connection with construction of the Drillship."
SECTION 3. Extension of Revolving Termination Date. The
definition of "Revolving Termination Date" set forth in Schedule 1.01 of
the Credit Agreement is hereby amended by deleting "November 9, 1998" and
inserting "January 30, 1999."
SECTION 4. Representations and Warranties of the Company. The
Company represents and warrants to the Agents and to each of the Banks
that:
(a) This Second Amendment has been duly authorized, executed
and delivered by the Company and the Credit Agreement as amended hereby
constitutes the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or
by equitable principles relating to enforceability.
(b) The representations and warranties set forth in Article V
of the Credit Agreement are true and correct in all material respects
before and after giving effect to this Second Amendment with the same
effect as if made on the date hereof, except to the extent such
representations and warranties expressly related to an earlier date, in
which case they were true and correct in all material respects on and as
of such earlier date.
(c) As of the date hereof, at the time of and immediately
after giving effect to this Second Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 5. Conditions of Effectiveness. The Company shall
deliver the following to the Administrative Agent as conditions precedent
to the effectiveness of this Second Amendment:
(a) This Second Amendment, signed by the Company, the Agents,
and each of the Banks, together with each Consent of Guarantor attached
hereto, executed by R&B Falcon and by Conoco;
(b) Payment by the Company to each Bank of an amendment fee in
an amount equal to 15 basis points based on each Bank's Commitment as set
forth on Schedule 2.01 attached hereto;
(c) A Certificate signed by the members of the Borrower,
consenting to the execution and delivery of this Second Amendment and
certifying the name and true signature of the representative authorized
to sign this Second Amendment;
(d) Copies of resolutions of the board of directors of each
Guarantor authorizing its guaranty of the increased and extended
Commitments, certified as of the Effective Date by the Secretary or an
Assistant Secretary of such Guarantor or other evidence of authority;
(e) Opinions of counsel to the Borrower substantially in the
form attached hereto as Exhibit A;
(f) An opinion of counsel to each Guarantor, substantially in
the form attached hereto as Exhibit A; and
(g) Such other evidence as the Agent or the Majority Banks may
request to establish the consummation of the transactions contemplated
hereby or the compliance with the conditions set forth herein.
SECTION 6. Effect of Amendment. This Second Amendment (i)
except as expressly provided herein, shall not be deemed to be a consent
to the modification or waiver of any other term or condition of the
Credit Agreement or of any of the instruments or agreements referred to
therein and (ii) shall not prejudice any right or rights which the
Administrative Agent or the Banks may now have under or in connection
with the Credit Agreement, as amended by this Second Amendment. Except
as otherwise expressly provided by this Second Amendment, all of the
terms, conditions and provisions of the Credit Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the
Credit Agreement, as amended hereby, shall continue in full force and
effect, and that this Second Amendment and such Credit Agreement shall be
read and construed as one instrument.
SECTION 7. Miscellaneous This Second Amendment shall for all
purposes be construed in accordance with and governed by the laws of the
State of New York. The captions in this Second Amendment are for
convenience of reference only and shall not define or limit the
provisions hereof. This Second Amendment may be executed in separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument. In
proving this Second Amendment, it shall not be necessary to produce or
account for more than one such counterpart.
NO ORAL AGREEMENTS. THE CREDIT AGREEMENT (AS AMENDED BY THIS SECOND
AMENDMENT) AND THE OTHER LOAN DOCUMENTS 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 ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly
authorized representatives or officers as of the date and year first
above written.
DEEPWATER DRILLING II L.L.C.
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent and as a
Bank
By:_________________________
Xxxxxx X. Xxx
Managing Director
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH, as a Bank
By:_________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH, as a Bank
By:________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
BANCA POPOLARE DI MILANO,
NEW YORK BRANCH
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
CREDITO ITALIANO
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
BANCA MONTE DEI PASCHI DI SIENA
S. P. A.
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
CONSENT OF GUARANTOR
The undersigned Guarantor hereby consents to the provisions of the
foregoing Second Amendment to Credit Agreement, and confirms that the
Guaranty Agreement dated as of November 10, 1997 executed by it remains
in full force and effect in accordance with its terms.
CONOCO INC. (formerly Continental
Oil Company)
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
CONSENT OF GUARANTOR
The undersigned Guarantor hereby consents to the provisions of the
foregoing Second Amendment to Credit Agreement, and confirms that the
Guaranty Agreement dated as of April 24, 1998 is in full force and effect
in accordance with its terms.
R&B FALCON CORPORATION
By:__________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE SECOND AMENDMENT
TO CREDIT AGREEMENT]
SCHEDULE A-1
COMMITMENTS, OUTSTANDING LOANS AND PRO RATA SHARE
PRIOR TO SECOND AMENDMENT
Outstanding Pro Rata
Bank Commitment Revolving Loans Share
---- ---------- --------------- --------
Bank of America NT&SA $ 32,500,000 $ 32,500,000 18.57142857%
National Westminster Bank PLC $ 32,500,000 $ 32,500,000 18.57142857%
Banca Popolare diMilano,
New York Branch $ 25,000,000 $ 25,000,000 14.28571429%
Bayerische Hypo-Und Vereinsbank
AG, New York Branch $ 25,000,000 $ 25,000,000 14.28571429%
Credito Italiano $ 25,000,000 $ 25,000,000 14.28571429%
Great-West Life & Annuity
Insurance Company $ 20,000,000 $ 20,000,000 11.42857143%
Banca Monte dei Paschi di Siena
S.p.A., New York Branch $ 15,000,000 $ 15,000,000 8.57142857%
------------ ------------ ------------
$175,000,000 $175,000,000 100.00000000%
============ ============ ============
SCHEDULE 2.01
COMMITMENTS, OUTSTANDING LOANS AND PRO RATA SHARE
AFTER SECOND AMENDMENT
Pro Rata
Bank Commitment Share
---- ---------- --------
Bank of America NT&SA $102,500,000 45.56%
National Westminster Bank PLC $ 32,500,000 14.44%
Banca Popolare di Milano,
New York Branch $ 25,000,000 11.11%
Bayerische Hypo-Und Vereinsbank
AG, New York Branch $ 25,000,000 11.11%
Credito Italiano $ 25,000,000 11.11%
Banca Monte dei Paschi di Siena
S.p.A., New York Branch $ 15,000,000 6.67%
------------ ------
$225,000,000 100%
============ ======
