EXHIBIT 10.229
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated
as of January 19, 1999 is among: R&B FALCON CORPORATION, and the REQUIRED
LENDERS under the hereinafter defined Credit Agreement.
R E C I T A L S
A. The Borrower and the Lenders (as defined in the Credit Agreement
hereafter defined) have entered into that certain Credit Agreement dated
as of April 24, 1998 (as the same has been heretofore amended, the
"Credit Agreement"), pursuant to which the Lenders have agreed to make
certain loans and extensions of credit to the Borrower upon the terms and
conditions as provided therein;
B. The Borrower has requested approval of certain amendments to the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements
herein expressed, the parties hereto now agree as follows:
1. (a) All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings ascribed to such terms
in the Credit Agreement.
(b) "Cliffs Senior Debt" shall mean the indebtedness of Cliffs
Drilling Company under its 10.25% senior notes due 2003 not to exceed
$200,000,000 face principal amount outstanding, and any extensions,
renewals, replacements and refinancings (but not increases) thereof,
provided the maturity is not prior to May 15, 2003.
2. Section 6.01 (f) of the Credit Agreement is amended to read as
follows:
"(f) Cliffs Senior Debt;"
1. Section 6.01 of the Credit Agreement is amended by adding thereto a
clause (i) as follows:
"(i) Indebtedness of the Borrower (including renewals,
extensions, and replacements thereof), the proceeds of which are
used solely to discharge Cliffs Senior Debt; provided (i) such
Indebtedness is unsecured and subordinate to the Loans, and (ii) the
maturity of such Indebtedness is not prior to one year after the
Maturity Date, except for maturities that result in such
Indebtedness being converted into or exchanged for Indebtedness that
is unsecured and subordinate to the Loans and has a maturity not
prior to one year after the Maturity Date. A guaranty by Borrower
of Cliffs Senior Debt shall be considered Indebtedness of the
Borrower within the meaning of this clause, provided such guaranty
obligation is unsecured, subordinate to the Loans, and has a
maturity not prior to one year after the Maturity Date."
4. Sections 6.04(b) and (c) of the Credit Agreement are amended to
read as follows:
"(b) investments by the Borrower or any Subsidiary in the
capital stock of its Subsidiaries; provided, neither the Borrower
nor any Subsidiary that is not in the Cliffs Group may invest in any
member of the Cliffs Group except for the investment to acquire
Cliffs pursuant to the Merger and except as otherwise permitted by
clause (f) of this Section;
(c) loans or advances made by the Borrower to any Subsidiary or
made by any Subsidiary to the Borrower or any other Subsidiary;
provided, neither the Borrower nor any Subsidiary that is not in the
Cliffs Group may make loans or advances to any member of the Cliffs
Group except as otherwise permitted by clause (f) of this Section;"
5. Section 6.04 of the Credit Agreement is amended by adding thereto
the following clause (f):
"(f) loans to Cliffs and investments in Cliffs, provided (i)
the aggregate amount thereof does not exceed the aggregate net
proceeds received by Borrower and its Subsidiaries after the date
hereof from the issuance of (A) capital stock and/or (B)
Indebtedness that is subordinate to the Loans, and (ii) all amounts
so loaned or invested are used to repay Cliffs Senior Debt."
6. Section 6.06 of the Credit Agreement is amended by adding at the
end thereof the following:
"and (e) Borrower may pay dividends on preferred stock;
provided (i) at the time of the payment of such dividend, no Event
of Default shall be existing, (ii) the payment of such dividend
would not result in an Event of Default immediately thereupon, and
(iii) aggregate cash dividends paid on preferred stock shall not at
any time exceed 10% per annum of the price at which the Company sold
such preferred stock, computed from the date of sale of such
preferred stock."
2. Section 6.07 of the Credit Agreement is amended by adding at the
end thereof the following:
"and any investments and loans permitted by Section 6.04."
8. Section 6.09 of the Credit Agreement is amended in its
entirety to read as follows:
"SECTION 6.09 Tangible Net Worth. The Borrower will not permit
at any time its Tangible Net Worth to be less than $600,000,000 plus
(i) 50% of its cumulative Consolidated Net Income, if positive, for
the period from April 1, 1998 through the date of calculation, plus
(ii) 100% of any equity issued by the Borrower after the date of
this Agreement; provided, for purposes of this Section, the Merger
shall be deemed to be the issuance by the Borrower of equity in an
amount equal to the increase in the Borrower=s Tangible Net Worth
resulting from the Merger."
9. There is added to the Credit Agreement a Section 6.16 as follows:
"Section 6.16 Restriction on Certain Debt Payments. The
Borrower shall not repay any Indebtedness incurred pursuant to
Section 6.01(i) except out of the net proceeds of the issuance by
the Borrower of (i) capital stock or (ii) Indebtedness which is
subordinate to the Loans and has a maturity which is not prior to
one year after the Maturity Date; provided, Borrower may in any
event pay accrued interest on such Indebtedness as long as no Event
of Default has occurred and is continuing.
10. Schedule 6.01 is amended by adding thereto the following, which
was inadvertently omitted when such Exhibit was prepared:
"21. Guaranty by R&B dated as of November 28, 1995 in favor of
Deep Sea Investors, L.L.C. with respect to the obligations Reading &
▇▇▇▇▇ Drilling Co. under a Memorandum of Agreement and a Charter as
of the same date with respect to the semisubmersible drilling unit
▇. ▇. ▇▇▇▇▇."
11. Schedule 6.02 is amended by adding thereto the following, which
was inadvertently omitted when such Exhibit was prepared:
"12. Preferred Mortgage on the ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ dated November
28, 1995 between Reading & ▇▇▇▇▇ Drilling Co. and Wilmington Trust
Company, as Trustee for the benefit of Deep Sea Investors, L.L.C.,
in connection with item 21 of Schedule 6.01."
12. The parties hereto hereby acknowledge and agree that, except as
specifically supplemented and amended, changed or modified hereby, the
Credit Agreement shall remain in full force and effect in accordance with
its terms.
13. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF LAWS
RULES THEREOF.
14. This Amendment may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be
contained on any one counterpart hereof; each counterpart shall be deemed
an original, but all of which together shall constitute one and the same
instrument. This amendment shall become effective when executed by the
Required Lenders and the Borrower. Within three business days after the
effective date of this amendment, Borrower shall pay to each Lender who
has executed and returned a counterpart hereof to the Administrative
Agent prior to 5:00 p.m. Houston, Texas time on January 22, 1999, a fee
equal to 0.15% times such Lender=s Commitment.
15. On the date that this amendment becomes effective, the Facility
Fee Rate set forth in the chart contained in the definition of
"Applicable Rate" shall be increased by 0.10%.
NOTICE. THIS WRITTEN AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED
HEREBY AND THE NOTES 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 NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
R&B FALCON CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director Title: Vice President
PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: First Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ▇▇▇▇▇
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Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager
Loan Operations
BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP & Manager
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/R. Tentlave
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: R. Tentlave
Title: Vice President Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/▇▇▇▇-▇▇▇▇ Gueritaud
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇-▇▇▇▇ Gueritaud
Title: Account Manager Title: First Vice President
BANK ONE, LOUISIANA, NA, as successor to First National Bank of Commerce
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Vice President & Manager
SKANDINAVISKA ENSKILDA ▇▇▇▇▇▇ ▇▇ (PUBL)
By: /s/▇▇▇ ▇▇▇▇▇▇ By:_______________________
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Name: ▇▇▇ ▇▇▇▇▇▇ Name:
Title: Senior Client Executive Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Director
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK, CAYMAN ISLAND BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President Title: Senior Vice President
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ C. ▇▇▇▇ ▇▇▇▇
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Name: C. ▇▇▇▇ ▇▇▇▇
Title: Associate
KBC BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager Title: First Vice President
NATEXIS BANQUE
By:_________________________ By:________________________
Name: Name:
Title: Title: