EXHIBIT 10.7
SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT FACILITY
AGREEMENT, dated as of November 29, 1995 (this "Amendment"), is entered
into by and among READING & XXXXX CORPORATION, a Delaware corporation
("RBC"), READING & XXXXX DRILLING CO., an Oklahoma corporation ("RBD"),
READING & XXXXX EXPLORATION CO., an Oklahoma corporation ("RBX"),
READING AND XXXXX, INC., an Oklahoma corporation ("RBI"), READING AND
XXXXX BORNEO DRILLING CO., LTD., an Oklahoma corporation ("RBB"), READING
& XXXXX (A) PTY. LTD., a company incorporated under the laws of the state
of Western Australia, Commonwealth of Australia ("RBA") (RBC, RBD, RBX,
RBI, RBB and RBA being referred to collectively as the "Borrowers" and
individually as a "Borrower"), and INTERNATIONALE NEDERLANDEN BANK N.V.,
a company incorporated under the laws of The Netherlands, formerly known
as NMB POSTBANK GROEP N.V. (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lender are parties to a certain
Amended and Restated Credit Facility Agreement dated as of April 27,
1995 (as amended by that certain First Amendment to Amended and Restated
Credit Facility Agreement, dated as of July 31, 1995, and as the same
may hereafter be amended, the "Credit Agreement"; all terms used herein
without definition shall have the meanings ascribed to such terms in the
Credit Agreement);
WHEREAS, the Borrowers desire to repay Facility A and Facility
B, terminate Facility F, and obtain the release of the first preferred
ship mortgage on the semi-submersible drilling unit "X. X. XXXXX, XX."
and the preferred fleet mortgage on the semi-submersible drilling unit
"XXX XXXXXXXXXX", together with the related Assignments of Insurances
and Drilling Contract Earnings and Revenues applicable to those rigs;
and
WHEREAS, the Borrowers and the Lender have agreed to amend the
Credit Agreement, all upon the terms and subject to the conditions and
requirements acceptable to the Lender as set forth herein;
NOW THEREFORE, for and in consideration of the mutual premises
contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Definitions. Section 1.1 of the Credit Agreement is hereby
amended by deleting the following definitions:
(a) deleting the existing definitions of "Charter Trustee",
"Charters", "Facility A", "Facility A Maturity Date", "Facility B",
"Facility F", "Facility F Maturity Date", "Installment Payment
Dates", "Interest Period" and "LIBOR".
(b) deleting the existing definitions of "Advance" "Assign-
ments", "Business Day", "Commitment", "Facility", "Interest Payment
Date", "Letters of Credit", "Mortgage Amendment", "Notes", "Rigs"
and "Security Deposits" and substituting in lieu thereof the
following:
"Advance" means a loan by the Lender to any Borrower
under Facility C.
"Assignments" means the Assignment, Assumption and
Amendment of the Assignment of Insurances and the Assignment,
Assumption and Amendment of the Assignment of Drilling Contract
Revenues and Earnings dated March 27, 1991, as amended,
substantially in the forms of Exhibits M-1 and N-1,
respectively, attached hereto.
"Business Day" means any day on which commercial banks are
open for business in Amsterdam, The Netherlands, and New York,
New York.
"Commitment" means a maximum of USD 35,000,000.
"Facility" means any facility described in Section 4, 5 or
6 of this Credit Agreement.
"Interest Payment Date" means June 1, 1995, September 1,
1995, December 1, 1995 and December 31, 1995.
"Letters of Credit" means the standby letters of credit
issued by Lender pursuant to Section 5.1 and 6.1 below,
respectively, under Facility D or Facility E, substantially in
the forms attached hereto as Exhibit H-1 and H-2 or as agreed
to by Lender.
"Mortgage Amendment" means Amendment No. 7 to the U.S.
Preferred Fleet Mortgage, substantially in the form of Exhibit
E-1 attached hereto.
"Notes" means the amended and restated promissory notes of
the Borrower substantially in the form of Exhibits X-0, X-0 and
A-4.
"Rigs" means the seven (7) U.S. flag drilling rigs, the
one (1) Panamanian flag drilling rig and the one (1) Australian
flag drilling rig listed in Schedule 1-A attached hereto.
"Security Deposits" means the deposits required to be made
by the Borrowers with the Lender pursuant to Sections 5.1, 6.1,
10.4, 10.8(a), 10.8(b)(iii)(C), 10.9(b) and 17.1 hereof
(c) adding the following definition in appropriate alphabetical
order:
"Hulme Leveraged Lease" means the sale of the semi-
submersible drilling unit "X. X. XXXXX, XX." by Reading and Xxxxx,
Inc. to a group of investors including GATX Capital Corporation, ATT
Capital Corporation, XxXxxxxx Xxxxxxx Finance Corporation and Xxxxxx
Financial for a purchase price of not less than USD 50,000,000, the
lease of such unit by Reading and Xxxxx, Inc., on a bareboat charter
basis for a term of ten (10) years.
2. Facility A. Facility A is repaid in full, and Section 2 of the
Credit Agreement and Exhibit A-1 attached thereto are hereby deleted in
their entirety.
3. Facility B. By separate instrument Lender has sold all of its
rights, title and interest in and to the Charter Notes to Reading & Xxxxx
Offshore, Limited, an Affiliate of the Borrowers, the Charter Payments
Guaranty has been terminated and Section 3 of the Credit Agreement is
hereby deleted in its entirety.
4. Facility F. Section 7 of the Credit Agreement and Exhibit A-5
attached thereto are hereby deleted in their entirety.
5. Manner of Drawdown and Issuance of Letters of Credit. Section 8
of the Credit Agreement is hereby amended by:
(a) deleteing reference to "Facility F" in subsection 8.1(c)(i),
8.2(c) and 8.3(a);
(b) deleting subsection 8.2(a); and
(c) deleting reference to "Facility F Notes" in subsection 8.3(b).
6. Interest. Section 9 of the Credit Agreement is hereby amended by:
(a) deleting subsections 9.1(a)(i) and (v) and 9.1(c);
(b) deleting subsection 9.1(b) in its entirety and substituting
in lieu thereof the following:
"Interest on unpaid principal amounts outstanding under this
Agreement shall be computed on the basis of a year of 365
days and the actual number of days elapsed for all
Facilities."
(c) deleting subsection 9.1(d) in its entirety and substituting
in lieu thereof the following subsection 9.1(d):
"(d) All Interest Periods shall end on March 31, June 30,
July 31, August 31, September 30, October 31, November 30 or
December 31.
(d) deleting Section 9.2 in its entirety and substituting in lieu
thereof the following Section 9.2:
"9.2 Payment of Interest. Interest shall be paid by the
relevant Borrowers as follows:
(a) In respect of the unpaid principal amounts outstanding
under Facility C, in arrears, on June 1, 1995, September 1, 1995,
December 1, 1995 and December 31, 1995; provided, however, that
all amounts of unpaid Interest outstanding under Facility C shall
be paid in full on the Facility C Maturity Date.
(b) In respect of any Guaranty Payment under Facility D or
Facility E interest from the date of such Guarantee Payment up to
the date such amount is paid by the relevant Borrowers on the
date such payment is made; provided, however, that all amounts of
unpaid Interest outstanding under Facility D and Facility E shall
be paid in full on the Facility D Maturity Date and the Facility
E Maturity Date, respectively."
7. Payments; Repayment. Section 10 of the Credit Agreement is hereby
amended by:
(a) deleting subsection 10.2(a) in its entirety;
(b) deleting Section 10.3 in its entirety;
(c) deleting subsection 10.4(a) in its entirety and substituting
in lieu thereof the following:
"(a) Upon the sale or actual or constructive total loss of any
Rig the sale or insurance proceeds shall be used to (i) prepay any
amounts outstanding under Facility C along with all interest accrued
on such amounts and all fees and other costs incurred by the Lender
and (ii) if all amounts referred to in (i) above have been paid, any
such proceeds shall be paid to the Lender and held in an interest
bearing account at the Lender which shall serve as additional security
for the Credit Facility (unless the Borrowers provide the Lender with
other security acceptable to the Lender in an amount equal to, or in
excess of, any such proceeds). If such proceeds are placed in an
interest bearing account, such funds and any interest earned on them
will be returned to the Borrowers upon the repayment of all amounts
due under this Agreement and the termination of all Letters of Credit.
The Borrowers shall immediately upon receipt of the payments referred
to in this Section 10.4 place such proceeds of such sale as are
necessary to make the prepayment required by this Section 10.4 in an
interest bearing account at the Lender for the benefit of the Lender
and all amounts in such account shall be paid to the Lender on the
next Interest Payment Date; provided, however, that all interest
earned thereon shall be paid to the Borrowers."; and
(d) deleting subsection 10.8(b)(iii)(B) in its entirety and
substituting in lieu thereof the following:
"(B) if the efforts referred to in (A) above fail to have the
effect of eliminating the increased cost or the reduction in the
amount of any payment received, the Borrowers shall on demand (whether
made before or after any repayment of the amounts outstanding under
Facilities C and E pay to the Lender such amount as the Lender
certifies together with supporting documentation to be necessary to
compensate it for such additional cost or reduction; and".
8. Fees and Expenses. Section 13 is amended by deleting subsection
13.1(e) and (f) in their entirety.
9. Negative Covenants of Borrowers. Section 16 of the Credit
Agreement is hereby amended by:
(a) deleting subsection 16.1(g) and the paragraph following
subsection 16.1(g) in their entirety and substituting in lieu thereof
the following:
"(g) liens incurred on the semi-submersible drilling unit
"XXX XXXXXXXXXX" pursuant to the Hulme Leveraged Lease; and
(h) liens existing as of the date of this Agreement and
disclosed in writing to the Lender.
Notwithstanding anything in this Section 16.1 to the
contrary, in no event shall the liens, encumbrances and security
interests permitted by this Section 16.1 materially impair (in
the opinion of the Lender in its sole discretion) the business or
financial condition of the Borrowers or the value of the
properties of the Borrowers taken as a whole.";
(b) deleting subsection 16.12 in its entirety and substituting
in lieu thereof the following subsection 16.12:
"Sale of Rigs, Etc. Sell, transfer or assign any of the Rigs,
any right to receive the revenue from the Rigs or any other
material asset, other than pursuant to the Hulme Leveraged Lease.
10. Representations and Warranties. Borrowers, without limiting
the representations and warranties provided in the Credit Agreement,
represent and warrant to the lender as follows:
(a) The execution, delivery and performance by the
Borrowers of this Amendment have been duly authorized by all
necessary action on the part of each of the Borrowers and do not
and will not (i) violate any provision of any Borrower's articles
of incorporation, by-laws, or other organizational documents or
any Applicable Law, or (ii) be in conflict with, result in a
breach of, or constitute (following notice or lapse of time or
both) a default under any agreement to which any Borrower is a
party or by which any Borrower or any of its property is bound.
(b) This Amendment creates legal, valid and binding
obligations of each of the Borrowers enforceable against each of
the Borrowers in accordance with its terms, subject to laws
affecting creditors' rights generally and applicable equitable
legal principles.
(c) No Event of Default or event which with the giving of
notice or lapse of time or both would constitute an Event of
Default exists.
(d) All representations and warranties by the Borrowers
contained in the Credit Agreement, as amended hereby, are true
and correct in all material respects with the same effect as
though such representations and warranties had been made on and
as of the date hereof.
11. Credit Agreement Ratified and Confirmed. Except as expressly
amended and modified herein, all terms and covenants and provisions of the
Credit Agreement and all Loan Documents shall remain unaltered and in full
force and effect, and the parties hereto do expressly ratify and confirm
the Credit Agreement and all Loan Documents as modified herein. All future
references to the Credit Agreement shall be deemed to refer to the Credit
Agreement as amended hereby.
12. Expenses. The Borrowers agree to pay on demand all reasonable
costs and expenses of the Lender in connection with the preparation,
execution and delivery of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto and with respect to advising the Lender as to its rights
and responsibilities hereunder and thereunder.
13. Conditions Precedent. This Amendment shall be effective upon
receipt by the Lender of all of the following, each in form and substance
satisfactory to the Lender:
(a) Fully executed counterparts of this Amendment.
(b) Certified copies of the resolutions of the Boards of
Directors of each of the Borrowers authorizing the execution and
delivery by each of the Borrowers of this Amendment on behalf of each
of the Borrowers, and all documents evidencing other necessary
corporate action with respect to this Amendment.
(c) Certificate of the Secretary or the Assistant Secretary of
each Borrower certifying the names and true signatures of the officers
of each Borrower authorized to sign this Amendment on behalf of such
Borrower and the other documents or certificates to be executed by
such Borrower pursuant to this Amendment.
(d) Copies certified as of a recent date by the Secretary or the
Assistant Secretary of each Borrower of its By-Laws.
(e) A copy of each Borrower's Certificate of Incorporation
certified by the Secretary of State of the state of incorporation
within thirty (30) days from the date of this Amendment and
certificates dated as of a recent date of the Secretary of State of
the state of incorporation as to the existence and good standing of
each Borrower.
(f) An opinion of counsel to the Borrowers in form and substance
acceptable to the Lender.
(g) If the date of this Amendment is not a Drawdown Date, a
certificate dated the first Drawdown Date of an officer of each of the
Borrowers certifying that:
(i) The representations and warranties contained in
Section 14 of the Credit Agreement are correct on and as of the
Drawdown Date as though made on and as of such date; and
(ii) No event has occurred and is continuing, or would
result from the Advance, or the issuance of a Letter of Credit
which constitutes an Event of Default or with the passing of time
or the giving of notice would constitute an Event of Default.
(h) All orders, consents, approvals, licenses, authorizations
and validations of, filings, recordings and registrations with and
exemptions by any Governmental Agency or any Person (other than any
routine filings which may be required after the date hereof with
appropriate governmental authorities in connection with the operation
of the Rigs) required to (i) authorize the execution, delivery and
performance by the Borrowers of this Amendment or (ii) prevent the
execution, delivery and performance by the Borrowers of this Amendment
from resulting in a breach of any of the terms and conditions of, or
resulting in a breach of any of the terms or conditions of, or
resulting in the imposition of any lien, charge or encumbrance upon
any properties of the Borrowers pursuant to, or constituting a default
(with due notice or lapse of time or both), if such breach, imposition
or default would result in a materially adverse change in the
financial position of the Borrowers, or resulting in an occurrence of
any event for which any holder or holders of Indebtedness may declare
the same due and payable under, any indenture, agreement, order,
judgment or instrument under which any Borrower is a party (other than
the Mortgage, the Pledges or the Assignments) or to the Borrowers'
knowledge after due inquiry by which the Borrowers or their property
may be bound or affected, or under the Certificates of Incorporation
or By-Laws of the Borrowers, shall have been obtained or made.
(i) Hulme Leveraged Lease shall have been closed, Facility A,
Facility B, Facility F and the Charter Payments Guaranty shall have
been repaid, terminated or otherwise satisfied, the Borrower shall
have purchased all of the Lender's interests in the Charter Notes for
the aggregate price of USD 44,197,422.51 [less the principal portion
of all Charter Payments (as defined in the Charter Payments Guaranty)
heretofore made to Lender] and the Lender shall have received copies
of all of the material agreements executed in connection therewith in
a form reasonably satisfactory to the Lender.
14. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs,
successors, successors-in-titles, and assigns.
15. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, notwithstanding any
principles regarding conflicts of laws thereof.
16. Entire Agreement. This Amendment sets forth the entire under-
standing of the parties with respect to the matters set forth herein,
and shall supersede any prior negotiations or agreements, whether written
or oral, with respect thereto.
17. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts and
may be delivered by telecopier. Each counterpart so executed and delivered
shall be deemed an original and all of which taken together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment through
their authorized officers as of the date first above written.
READING & XXXXX CORPORATION
By:
Name: X. X. Xxxxx
Title: Executive Vice President,
Finance and Administration
READING & XXXXX DRILLING CO.
By:
Name: X. X. Xxxxx
Title: Vice President and Treasurer
READING & XXXXX EXPLORATION CO.
By:
Name: X. X. Xxxxx
Title: Vice President and Treasurer
READING AND XXXXX, INC.
By:
Name: X. X. Xxxxx
Title: Vice President and Treasurer
READING AND XXXXX BORNEO DRILLING CO., LTD.
By:
Name: X. X. Xxxxx
Title: Vice President and Treasurer
THE COMMON SEAL OF READING & XXXXX (A) PTY. LTD.
READING & XXXXX (A)
PTY. LTD. was hereunto
affixed by authority of
the Board of Directors By: _________________________________
in the presence of: Name: X. X. Xxxxx
Title: Vice President and Treasurer
-----------------------
X. X. Xxxxx, Director
-----------------------
X. X. Xxxxxx, Secretary
INTERNATIONALE NEDERLANDEN BANK N.V.
By:
Name:
Title:
[SIGNATURE PAGE FOR SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT]
Schedule 1-A
List of Rigs
Name Official No. Flag Owner
XXX XXXXXXXXX - Australian Reading & Xxxxx
(A) Pty. Ltd.
X. X. XXXXXXX 626904 U.S. Reading & Xxxxx
Exploration Co.
X. X. XxXXXXXX 591662 U.S. Reading & Xxxxx
Exploration Co.
X. X. XXXX 583169 U.S. Reading & Xxxxx
Exploration Co.
XXXXXXX XXXXXX 6618-76-B Panamanian Reading and Xxxxx
Borneo Drilling Co.,
Ltd.
XXXXXXXX XXXX 601699 U.S. Reading & Xxxxx
Drilling Co.
XXXXX X. XXXXXX 645360 U.S. Reading & Xxxxx
Drilling Co.
X. X. XXXXX 651645 U.S. Reading & Xxxxx
Drilling Co.
XXXX XXXXX 906283 U.S. Reading & Xxxxx
Drilling Co.
