EXHIBIT 4.2
AMENDMENT NO. 2
TO
CREDIT AGREEMENT
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THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 26, 2002, among TRANSOCEAN INC., formerly known as Transocean Sedco
Forex Inc. (the "Borrower"), a Cayman Islands company, the lenders from time to
time parties hereto (each a "Lender" and collectively, the "Lenders"), SUNTRUST
BANK, a Georgia banking corporation ("STB"), as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), ABN AMRO BANK, N.V., as
syndication agent for the Lenders (in such capacity, the "Syndication Agent"),
BANK OF AMERICA, N.A., as documentation agent for the Lenders (in such capacity,
the "Documentation Agent"), XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION, as
senior managing agent for the Lenders (in such capacity, the "Senior Managing
Agent"), and STB, as issuing bank of the Letters of Credit hereunder (STB and
any other Lender that issues a Letter of Credit hereunder, in such capacity, an
"Issuing Bank").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Senior Managing Agent, and the
Issuing Bank are parties to a certain Credit Agreement dated as of December 29,
2000, as amended by that certain Amendment No. 1 to Credit Agreement, dated as
of December 27, 2001 (the "Credit Agreement");
WHEREAS, the Borrower has requested that the Credit Agreement be amended in
certain respects as set forth herein;
WHEREAS, Lenders constituting the "Required Lenders" for purposes of the
Credit Agreement are willing to make such amendments on the terms and subject to
the conditions and requirements herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise expressly defined herein, capitalized
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terms used in this Amendment that are defined in the Credit Agreement are used
herein with the respective meanings assigned to such capitalized terms in the
Credit Agreement.
2. Amendment to Section 1.1 ("Definitions").
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(a) Section 1.1 of the Credit Agreement is hereby amended by deleting
in their entirety the defined terms "Consolidated Indebtedness", "Indebtedness",
"SPV" and "364-Day
Credit Agreement" and their accompanying definitions, and substituting in lieu
thereof in appropriate alphabetical order the following defined terms and
accompanying definitions:
"Consolidated Indebtedness" means all Indebtedness of the Borrower and
its Subsidiaries that would be reflected on a consolidated balance sheet of
such Persons prepared in accordance with GAAP.
"Indebtedness" means, for any Person, the following obligations of
such Person, without duplication: (i) obligations of such Person for
borrowed money; (ii) obligations of such Person representing the deferred
purchase price of property or services other than accounts payable and
accrued liabilities arising in the ordinary course of business and other
than amounts which are being contested in good faith and for which reserves
in conformity with GAAP have been provided; (iii) obligations of such
Person evidenced by bonds, notes, bankers acceptances, debentures or other
similar instruments of such Person, or obligations of such Person arising,
whether absolute or contingent, out of letters of credit issued for such
Person's account or pursuant to such Person's application securing
Indebtedness; (iv) obligations of other Persons, whether or not assumed,
secured by Liens (other than Permitted Liens) upon property or payable out
of the proceeds or production from property now or hereafter owned or
acquired by such Person, but only to the extent of such property's fair
market value; (v) Capitalized Lease Obligations of such Person; (vi)
obligations under Interest Rate Protection Agreements and Currency Rate
Protection Agreements, and (vii) obligations of such Person pursuant to a
Guaranty of any of the foregoing obligations of another Person; provided,
however, Indebtedness shall exclude Non-recourse Debt and any Indebtedness
attributable to the xxxx-to-market treatment of obligations of the type
described in clause (vi) in the definition of Indebtedness and any actual
fair value adjustment arising from any Interest Rate Protection Agreements
and Currency Rate Protection Agreements that have been cancelled or
otherwise terminated before their scheduled expiration, in each case in
respect of Interest Rate Protection Agreements and Currency Rate Protection
Agreements entered into in the ordinary course of business and not for
investment or speculative purposes. For purposes of this Agreement, the
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture to the extent such Indebtedness is recourse to
such Person.
"364-Day Credit Agreement" means the 364-Day Credit Agreement dated as
of December 26, 2002, among the Borrower, the lenders that are parties
thereto, SunTrust Bank, as Administrative Agent, ABN AMRO Bank N.V. and The
Royal Bank of Scotland plc, as co-syndication agents for the Lenders, ,
Bank of America, N.A. and Xxxxx Fargo Bank Texas, National Association, as
co-documentation agents for the Lenders, Citibank, N.A., Credit Lyonnais
New York Branch and HSBC Bank USA, as managing agents for the Lenders, as
the same may be amended, supplemented and restated from time to time.
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"SPV" means any Person that is designated by the Borrower as a
SPV, provided that the Borrower shall not designate as a SPV any Subsidiary
that owns, directly or indirectly, any other Subsidiary (other than a
Subsidiary of SIW Newco) that has total assets (including assets of any
Subsidiaries of such other Subsidiary, but excluding any assets that would
be eliminated in consolidation with the Borrower and its Subsidiaries)
which equates to at least five percent (5%) of the Borrower's Total Assets,
or that had net income (including net income of any Subsidiaries of such
other Subsidiary, all before discontinued operations and income or loss
resulting from extraordinary items, all determined in accordance with GAAP,
but excluding revenues and expenses that would be eliminated in
consolidation with the Borrower and its Subsidiaries) during the most
recently completed fiscal year of the Borrower in excess of the greater of
(i) $1,000,000, and (ii) fifteen percent (15%) of the net income (before
discontinued operations and income or loss resulting from extraordinary
items) for the Borrower and its Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP during such fiscal year of the
Borrower. The Borrower may elect to treat any Subsidiary as a SPV (provided
such Subsidiary would otherwise qualify as such), and may rescind any such
prior election, by giving written notice thereof to the Administrative
Agent specifying the name of such Subsidiary or SPV, as the case may be,
and the effective date of such election, which shall be a date within sixty
(60) days after the date such notice is given. The election to treat a
particular Person as a SPV may only be made once.
(b) Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions of "Currency Rate Protection Agreement" and "SIW
Newco" in appropriate alphabetical order:
"Currency Rate Protection Agreement" shall mean any foreign
currency exchange and future agreements, arrangements and options designed
to protect against fluctuations in currency exchange rates.
"SIW Newco" means the Subsidiary of the Borrower organized to
hold, together with any Subsidiaries of such Subsidiary, all or
substantially all of the assets of the shallow and inland water business
segment of the Borrower and its Subsidiaries (including the jackup rig and
drilling barge operations in the U.S. Gulf of Mexico and the drilling
operations in Trinidad and Venezuela), at such time as there have been
issued and are outstanding publicly traded shares of any such Subsidiary.
3. Amendment to Section 4.2 ("All Borrowings"). Section 4.2 of the Credit
Agreement is hereby amended by deleting subsection (b) of such Section in its
entirety and substituting the following subsection (b) in lieu thereof:
(b) Warranties True and Correct. In the case of any advance, Borrowing, or
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issuance or increase of any Letter of Credit that increases the aggregate
amount of
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Loans and L/C Obligations outstanding after giving effect to such advance,
Borrowing or issuance or increase, each of the representations and
warranties of the Borrower and its Subsidiaries set forth herein (other
than those set forth in Sections 5.4 and 5.10) and in the other Credit
Documents shall be true and correct in all material respects as of the time
of such advance, Borrowing, or issuance or increase of any Letter of
Credit, except as a result of the transactions expressly permitted
hereunder or thereunder and except to the extent that any such
representation or warranty relates solely to an earlier date, in which case
it shall have been true and correct in all material respects as of such
earlier date;
4. Amendment to Section 6.6 ("Financial Reports and Other Information").
Section 6.6 of the Credit Agreement is hereby amended by deleting subsection (e)
of such Section in its entirety and substituting the following subsection (e) in
lieu thereof:
(e) Notices of Default, Litigation, Etc. The Borrower will promptly, and in
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any event within five (5) Days, after an officer of the Borrower has
knowledge thereof, give written notice to the Administrative Agent of (who
will in turn provide notice to the Lenders of): (i) the occurrence of any
Default or Event of Default; (ii) any litigation or governmental proceeding
of the type described in Section 5.4; (iii) any circumstance that has had
or could reasonably be expected to have a Material Adverse Effect; (iv) the
occurrence of any event which has resulted in a breach of, or is likely to
result in a breach of, Sections 6.16 or 6.17; and (v) any notice received
by it, any Subsidiary or any SPV from the holder(s) of Indebtedness of the
Borrower, any Subsidiary or any SPV in an amount which, in the aggregate,
exceeds $50,000,000, where such notice states or claims the existence or
occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such
Indebtedness.
5. Amendment to Section 6.11 ("Indebtedness"). Section 6.11 of the Credit
Agreement is hereby amended by deleting subsection (d) of such Section in its
entirety and substituting the following subsection (d) in lieu thereof:
(d) Indebtedness under any Interest Rate Protection Agreements and any
Currency Rate Protection Agreements;
6. Amendment to Section 7.1 ("Events of Default and Remedies"). Section 7.1
of the Credit Agreement is hereby amended by deleting subsection (i) of such
Section in its entirety and substituting the following subsection (i) in lieu
thereof:
(i) (x) the Borrower or any Subsidiary of the Borrower fails to pay when
due an amount that it is liable to pay to the PBGC or to a Plan under Title
IV of ERISA; or a notice of intent to terminate a Plan having Unfunded
Vested Liabilities of the Borrower or any of its Subsidiaries in excess of
$50,000,000 (a "Material Plan") is filed under Title IV of ERISA; or the
PBGC institutes
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proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Material Plan or a proceeding is instituted
by a fiduciary of any Material Plan against any Borrower or any Subsidiary
to collect any liability under Section 515 or 4219(c)(5) of ERISA, and in
each case such proceeding is not dismissed within thirty (30) days
thereafter; or a condition exists by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated, and (y) the occurrence of one or more of the matters in the
preceding clause (x) could reasonably be expected to result in liabilities
in excess of $50,000,000; or
7. Representations and Warranties. The Borrower represents and warrants to
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the Lenders as follows:
(a) All representations and warranties set forth in the Credit
Agreement are true and correct in all material respects with the same effect as
though such representations and warranties have been made on and as of the date
hereof, except to the extent that any such representation or warranty relates
solely to an earlier date, in which case it shall have been true and correct in
all material respects as of such earlier date;
(b) No Default or Event of Default has occurred and is continuing on
the date hereof;
(c) Since the date of the most recent consolidated financial
statements of the Borrower submitted to the Lenders pursuant to Section 6.6 of
the Credit Agreement, there has been no change which has had or could reasonably
be expected to have a Material Adverse Effect;
(d) The Borrower has the corporate power and authority to make, deliver
and perform this Amendment and has taken any and all necessary corporate action
to authorize the execution, delivery and performance of this Amendment. No
consent or authorization of, or filing with, any Person (including, without
limitation, any governmental authority), is required in connection with the
execution, delivery or performance by the Borrower, or the validity or
enforceability against the Borrower, of this Amendment, other than such
consents, authorizations or filings which have been made or obtained; and
(e) This Amendment has been duly executed and delivered by the Borrower
and this Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
8. Effectiveness of Amendment. This Amendment shall become effective upon
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(i) the execution and delivery to the Administrative Agent of counterparts
hereof (whether originals or facsimile transmissions thereof) on behalf of the
Borrower and those Lenders constituting the Required Lenders for purposes of the
Credit Agreement, and (ii) payment by the Borrower of all costs and expenses of
the Administrative Agent (including reasonable fees and expenses of its counsel)
incurred in respect of the preparation and execution of this Amendment.
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9. References to Credit Agreement. On and after the date this Amendment
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becomes effective as provided in paragraph 8 above, each and every reference in
the Credit Documents to the Credit Agreement shall be deemed to refer to and
mean the Credit Agreement as amended by this Amendment. The Borrower further
confirms and agrees that (i) except as expressly amended herein, the Credit
Agreement remains in full force and effect in accordance with its terms, and
(ii) all other Credit Documents remain in full force and effect in accordance
with their respective terms.
10. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
11. Miscellaneous. This Amendment and the rights and obligations of the
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parties hereunder shall be construed in accordance with and be governed by the
law (without giving effect to the conflict of law principles thereof) of the
State of New York. This Amendment shall be binding on and shall inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
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TRANSOCEAN INC.,
(FORMERLY TRANSOCEAN SEDCO FOREX INC.),.
a Cayman Islands company
By:
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Name:
Title:
7
SUNTRUST BANK,
As Administrative Agent, Issuing Bank,
and a Lender
By:
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Name:
Title:
8
ABN AMRO BANK, N.V.,
As Syndication Agent and a Lender
By:
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Name:
Title:
By:
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Name:
Title:
9
BANK OF AMERICA, N.A.,
As Documentation Agent and a Lender
By:
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Name:
Title:
10
XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCIATION,
As Senior Managing Agent and a Lender
By:
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Name:
Title:
11
THE ROYAL BANK OF SCOTLAND PLC,
As a Lender
By:
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Name:
Title:
12
THE BANK OF TOKYO-MITSUBISHI, LTD.
As a Lender
By:
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Name:
Title:
13
MIZUHO BANK, LTD.,
As a Lender
By:
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Name:
Title:
14
BANK ONE, N.A.
As a Lender
By:
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Name:
Title:
00
XXX XXXX XX XXX XXXX
As a Lender
By:
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Name:
Title:
16
CITIBANK, N.A.,
As a Lender
By:
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Name:
Title:
17
CREDIT LYONNAIS NEW YORK BRANCH,
As a Lender
By:
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Name:
Title:
18
DEN NORSKE BANK ASA,
As a Lender
By:
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Name:
Title:
19
CREDIT SUISSE FIRST BOSTON,
As a Lender
By:
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Name:
Title:
00
XXX XXXX XX XXXX XXXXXX,
As a Lender
By:
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Name:
Title:
00
XXXXXX XXXX XXXXXXX XXX,
XXX XXXX BRANCH,
(AS SUCCESSOR TO CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH),
As a Lender
By:
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Name:
Title:
22
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
As a Lender
By:
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Name:
Title:
00
XXXXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXX XXXX BRANCH,
As a Lender
By:
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Name:
Title:
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