EXHIBIT 10.7.1
EXECUTION
LIMITED WAIVER AND CONSENT AND
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AND PROMISSORY NOTE
RECITALS:
Reference is made to that certain Third Restated Credit
Agreement dated as of July 29, 1998 (as heretofore amended or
supplemented, the "Agreement"), among Cliffs Drilling Company, a
Delaware corporation ("Borrower"), Cliffs Oil and Gas Company, a
Delaware corporation ("COG"), Cliffs Drilling International, Inc.,
a Delaware corporation ("CDI") and ING (U.S.) Capital LLC (formerly
known as ING (U.S.) Capital Corporation; in its capacities as the
sole Lender and Agent under the Agreement, "ING"). Terms used and
not defined herein shall have the meanings given them in the
Agreement.
Borrower, COG and CDI have requested that ING consent to the
provisions set forth in this Limited Waiver and Consent and
Amendment No. 1 to Credit Agreement and Promissory Note (this
"Limited Waiver and Consent").
WAIVER AND CONSENT:
Sections 6.1 and 6.2 of the Agreement contain certain
restrictions on each Related Person's ability to incur Indebtedness
or Contingent Obligations without Majority Lenders' consent.
Without Majority Lenders' consent, each Related Person's ability to
merger or consolidate with any other Person is restricted by
Section 6.6.4 of the Agreement, and each Related Person's ability
to make Investments is restricted by Section 6.11 of the Agreement.
Subject to the conditions and limitations set forth below, ING
hereby consents to, and waives any violation of Sections 6.1, 6.2,
6.6.4 and 6.11 of the Agreement caused by:
(a) the merger of Falcon Drilling de Venzuela,
Inc.("Falcon Venezuela"), an in-direct wholly owned Subsidiary
of R&B Falcon Corporation, with and into Borrower, with
Borrower being the surviving entity; and
(b) the guaranty by Borrower, as successor by merger to
Falcon Venzuela, of approximately $5,250,000 of unsecured
Indebtedness of R&B Falcon Holdings, Inc.
AMENDMENTS
The definition of "Commitment Termination Date" is hereby
amended in its entirety to read as set forth below:
"`Commitment Termination Date' shall mean January 3, 2000
or, if such date is not a Business Day, the Business Day next
preceding such date, or any earlier date on which the
Commitment has been reduced to zero by Borrower or has been
terminated pursuant to Section 7.2."
The paragraph on page two of ING's Note which immediately
follows the definitions set forth therein and currently reads as
follows:
"The principal amount of this Note, together with all
interest occurred hereon, shall be due and payable in full on
May 31, 2000."
is hereby amended in its entirety to read as follows:
"The principal amount of this Note, together with all
interest accrued hereon, shall be due and payable in full on
January 3, 2000."
LIMITATIONS AND CONDITIONS:
Borrower, COG and CDI each hereby represent and warrant to ING
that immediately after giving effect to this Limited Waiver and
Consent there shall exist no Default or Event of Default and
immediately after giving effect to this Limited Waiver and Consent
all representations and warranties contained herein, in the
Agreement or otherwise made in writing by any Related Person in
connection herewith or therewith shall be true and correct in all
material respects with the same force and effect as if those
representations and warranties had been made on and as of the date
hereof.
Except as expressly waived or agreed herein, all covenants,
obligations and agreements of Borrower, COG and CDI contained in
the Agreement shall remain in full force and effect in accordance
with their terms. Without limitation of the foregoing, the
consents, waivers and agreements set forth herein are limited
precisely to the extent set forth herein and shall not be deemed to
(a) be a consent or agreement to, or waiver or modification of, any
other term or condition of the Agreement or any of the documents
referred to therein, or (b) except as expressly set forth herein,
prejudice any right or rights which ING may now have or may have in
the future under or in connection with the Agreement or any of the
documents referred to therein. Except as expressly modified or
amended hereby, the terms and provisions of the Agreement and any
other documents or instruments executed in connection with any of
the foregoing, are and shall remain in full force and effect, and
the same are hereby ratified and confirmed by Borrower, COG and CDI
in all respects. Any reference to the Agreement in any Loan
Document shall be deemed to be a reference to the Agreement as
modified and amended hereby.
Borrower agrees to reimburse and save ING harmless from and
against liabilities for the payment of all out-of-pocket costs and
expenses arising in connection with the preparation, execution,
delivery, amendment, modification, waiver and enforcement of, or
the preservation of any rights under, this Limited Waiver and
Consent, including, without limitation, the reasonable fees and
expenses of legal counsel to ING which may be payable in respect
of, or in respect of any modification of, this Limited Waiver and
Consent.
This Limited Waiver and Consent and the rights and obligations
of the parties hereunder shall be construed in accordance with and
be governed by the laws of the State of New York.
This Limited Waiver and Consent is a "Loan Document" as
defined and described in the Agreement and all of the terms and
provisions of the Agreement relating to Loan Documents shall apply
hereto.
This Limited Waiver and Consent may be separately executed in
counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
constitute one and the same agreement.
THIS LIMITED WAIVER AND CONSENT AND THE DOCUMENTS REFERRED TO
HEREIN 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.
IN WITNESS WHEREOF, the undersigned parties have executed this
Limited Waiver and Consent as of the ___ day of June, 1999.
ING (U.S.) CAPITAL CORPORATION,
in its capacity as Agent and as
sole Lender
By:_____________________________
Xxxxx Xxxxxxx
Senior Associate
CLIFFS DRILLING COMPANY
By:_____________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
CLIFFS OIL AND GAS COMPANY
By:_____________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
CLIFFS DRILLING INTERNATIONAL,
INC.
By:_____________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
