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EXHIBIT 10.31
FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of July 31, 1997 (this "Fourth
Amendment"), to the Credit Agreement, dated as of September 30, 1996 (as amended
by the Global Amendment and Assignment and Acceptance, dated as of October 9,
1996, the Second Amendment, dated as of April 23, 1997, the Third Amendment,
dated as of May 13, 1997 and as may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among RIGCO NORTH
AMERICA, L.L.C., a Delaware limited liability company (the "Borrower"), the
several banks and other financial institutions from time to time parties thereto
(the "Lenders"), XXXXXX COMMERCIAL PAPER INC. ("LCPI"), as Advisor, Syndication
Agent and Arranger, HIBERNIA NATIONAL BANK, as Collateral and Documentation
Agent and BHF-BANK AKTIENGESELLSCHAFT, as Administrative Agent.
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain Loans to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders amend,
and the Lenders have agreed to amend, certain of the provisions of the Credit
Agreement, upon the terms and subject to the conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. (a) As used herein, terms defined in this
Fourth Amendment or in the Credit Agreement are used herein as so defined.
(b) The definition of the term "Permitted Issuance" contained
in subsection 1.1 of the Credit Agreement is hereby amended by deleting the
amount "$5,000,000" in the fourth line thereof and substituting in lieu thereof
the amount "$20,000,000".
2. Amendment to Subsection 5.13. Subsection 5.13 of the Credit
Agreement is hereby amended by deleting the number "$48,000,000" in the last
line thereof and substituting in lieu thereof the number "$56,000,000".
3. Amendment to Subsection 6.1. Subsection 6.1 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
"6.1 Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Net Worth at the last day
of any fiscal quarter set forth below to be less than the amount set
forth opposite such fiscal quarter below (provided, however, to the
extent not included in Net Income in accordance with GAAP during the
fiscal quarter then ended or in any previous fiscal quarter, Net Worth
shall include any Mobilization Fees actually received by the Borrower
during the fiscal quarter then ended and provided, further, to the
extent deducted in computing Net Worth in accordance with GAAP during
the fiscal
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quarter then ended or in any previous fiscal quarter, Net Worth shall
include the amount of any deferred corporate income taxes of the
Borrower (less any reductions in deferred corporate income taxes of the
Borrower during any of such periods) resulting from an election by the
Borrower to be treated as a corporation for U.S. federal income tax
purposes):
Fiscal Quarter Ending Amount
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December 31, 1996 $3,000,000
March 31, 1997 $3,000,000
June 30, 1997 $3,000,000
September 30, 1997 $5,000,000
December 31, 1997 $6,000,000
March 31, 1998 $6,000,000
June 30, 1998 $6,000,000
September 30, 1998 $6,000,000
(b) Maintenance of EBITDA to Interest Expense Ratio. Permit
the ratio of (i) EBITDA for any period of four consecutive fiscal
quarters ending with any fiscal quarter set forth below to (ii) Cash
Interest Expense for such period of four consecutive fiscal quarters to
be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
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March 31, 1997 .50 to 1.00
June 30, 1997 .50 to 1.00
September 30, 1997 1.25 to 1.00
December 31, 1997 1.75 to 1.00
March 31, 1998 2.25 to 1.00
June 30, 1998 2.75 to 1.00
September 30, 1998 3.00 to 1.00
(c) Maintenance of EBITDA. Permit EBITDA for any period of
four consecutive fiscal quarters ending with any fiscal quarter set
forth below to be less than the amount set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending Amount
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March 31, 1997 $ 1,750,000
June 30, 1997 $ 1,750,000
September 30, 1997 $ 9,000,000
December 31, 1997 $14,000,000
March 31, 1998 $20,000,000
June 30, 1998 $20,000,000
September 30, 1998 $21,000,000
(d) Maintenance of Working Capital. Permit at any time prior
to the date on which the Xxxxxxxxx is delivered to commence work under
a Drilling Contract Working Capital to be less than $500,000."
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4. Consent. The Lenders hereby consent to the amendment of the
Charter with respect to the Pincay (the "Pincay Charter") to the extent such
amendment (i) increases the daily payments by the Borrower to the Charterer
thereunder from $2,800 to $5,000 and (ii) eliminates the participation discount
rate in the event the Pincay is deployed for drilling activities on behalf of
affiliates of the Borrower.
5. Waiver. The Lenders hereby waive any Default or Event of
Default which may have occurred prior to the date hereof resulting solely from
the failure of the upgrade contemplated by the Xxxxxxxxx Upgrade Agreement to be
completed by June 15, 1997 (it being a condition to such waiver that such
upgrade was completed on July 9, 1997).
6. Effectiveness. The amendments provided for herein shall
become effective on the date (the "Effective Date") of satisfaction of the
following condition precedent:
(a) The Administrative Agent shall have received counterparts
of this Fourth Amendment, duly executed and delivered by the Borrower
and each of the other parties hereto.
(b) The Lenders shall have received and be reasonably
satisfied with the amendment to the Pincay Charter referred to in
paragraph 4.
(c) The Lenders shall have received satisfactory revised
financial projections of the Borrower for the period of July 1997
through June 1998.
(d) All governmental and third party approvals (including
landlords' and other consents) necessary or advisable in connection
with this Fourth Amendment shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose materially adverse
conditions on the Credit Agreement as amended by this Fourth Amendment.
(e) All limited liability company and other proceedings, and
all documents, instruments and other legal matters in connection with
the transactions contemplated by this Fourth Amendment shall be
satisfactory in form and substance to the Arranger and the
Administrative Agent.
7. Representations and Warranties. After giving effect to the
amendments contained herein, on the Effective Date, the Borrower hereby
confirms, reaffirms and restates the representations and warranties set forth in
Section 3 of the Credit Agreement; provided that each reference in such Section
3 to "this Agreement" shall be deemed to be a reference both to this Fourth
Amendment and to the Credit Agreement as amended by this Fourth Amendment.
8. Continuing Effect; No Other Amendments. Except as expressly
amended or waived hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect. The amendments contained herein shall not constitute an amendment or
waiver of any other provision of the Credit Agreement or the other Loan
Documents or for any purpose except as expressly set forth herein.
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9. No Default. Other than as contemplated by paragraph 5
above, no Default or Event of Default shall have occurred and be continuing as
of the Effective Date after giving effect to this Fourth Amendment.
10. Costs and Expenses. The Borrower agrees to pay the
reasonable costs and expenses of the Administrative Agent, the Collateral and
Documentation Agent and the Arranger in connection with this Fourth Amendment,
including, without limitation, legal fees and expenses.
11. Counterparts. This Fourth Amendment may be executed in any
number of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
12. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the parties have caused this Fourth
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
RIGCO NORTH AMERICA, L.L.C.
By:
Title:
BHF-BANK AKTIENGESELLSCHAFT, as
Administrative Agent and as a Lender
By:
Title:
By:
Title:
HIBERNIA NATIONAL BANK, as Collateral and
Documentation Agent and as a Lender
By:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Title:
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PROTECTIVE LIFE INSURANCE COMPANY
By:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT L.P.,
as Investment Adviser
By:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
Title:
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT L.P.,
as Investment Adviser
By:
Title:
ML CBO IV (CAYMAN) LTD.
By: Protective Asset Management, L.L.C.,
as Collateral Manager
By:
Title:
