EXHIBIT 10.214
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is
entered into as of January 29, 1999 (the "Effective Date"), among
DEEPWATER DRILLING II L.L.C., a Delaware limited liability company (the
"Company"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent (the "Administrative Agent") for the Banks, and
NATIONAL WESTMINSTER BANK PLC, as Documentation Agent (the "Documentation
Agent", and together with the Administrative Agent, the "Agents") and the
financial institutions party to this Third Amendment (collectively, the
"Banks"; individually, a "Bank"). Capitalized terms which are used
herein without definition and which are defined in the Credit Agreement
referred to below shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Company, the Banks and the Exiting Banks (as herein
defined), the Administrative Agent and the Documentation Agent are
parties to a certain Credit Agreement dated as of November 10, 1997 as
amended by First Amendment and Release of Guaranty dated as of April 24,
1998, as amended by Second Amendment dated as of November 9, 1998 (as at
any time further amended, modified or supplemented and in effect from
time to time, the "Credit Agreement"); and
WHEREAS, immediately prior to the effectiveness of this Third
Amendment, seven financial institutions were parties as "Banks" to the
Credit Agreement, the aggregate Commitments were $225,000,000 and the
Revolving Termination Date was January 30, 1999; and simultaneously with
the effectiveness of this Third Amendment, the Commitments of four of
said financial institutions (the "Exiting Banks") expire and the Company
is repaying outstanding Loans owed to the Exiting Banks; and
WHEREAS, the Company has requested that the Banks extend the Revolving
Termination Date and permit certain loans from members as herein
described; and
WHEREAS, subject to the terms and conditions herein contained, the
Banks are willing to consent to the above-described requests by executing
this Third Amendment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. (a) Amendment to Section 7.05 (Limitation on
Indebtedness). Section 7.05 is hereby amended by deleting the period at
the end of clause (c) and adding the following at the end of said
Section: "; and (d) Indebtedness consisting of loans from the members of
the Company not to exceed the aggregate principal amount of $135,000,000,
for the purpose of repaying amounts owed hereunder to the Exiting Banks
and funding costs associated with construction of the Drillship."
(b) Reference is made to Section 2 of the Consent and Waiver Letter
dated effective as of January 21, 1999, which stated that "the Company
shall be permitted to incur Indebtedness in an amount not to exceed
$45,000,000 in principal amount in order to fund costs associated with
construction of the Drillship". The parties agree that such Section 2 of
said Consent and Waiver is superseded hereby and therefore is of no
further force or effect.
SECTION 2. Definition of Applicable Margin. Clause (ii) of the
definition of "Applicable Margin" set forth in Schedule 1.01 of the
Credit Agreement is hereby amended deleting "0.35%" and inserting
"0.50%".
SECTION 3. Extension of Revolving Termination Date. The definition
of "Revolving Termination Date" set forth in Schedule 1.01 of the Credit
Agreement is hereby amended by deleting "January 30, 1999" and inserting
"March 31, 1999."
SECTION 4. Amended Schedule 2.01; Banks and Commitments. Schedule
2.01 of the Credit Agreement is hereby deleted and replaced with Schedule
2.01 in the form attached hereto. The parties to this Third Amendment
hereby acknowledge and agree that from and after the effectiveness of
this Third Amendment, the Exiting Banks are no longer "Banks" as defined
in the Credit Agreement and are no longer parties to the Credit
Agreement.
SECTION 5. Additional Commitment Fee. The Company agrees that on
March 1, 1999, if the Commitments have not been terminated by the Company
pursuant to Section 2.05 of the Credit Agreement by such date (and all
Obligations repaid at the time of such termination), then on March 1,
1999 the Company shall pay to each Bank a commitment fee equal to 5 basis
points based on such Bank's Commitment in effect at such time.
SECTION 6. Representations and Warranties of the Company. The
Company represents and warrants to the Agents and to each of the Banks
that:
(a) This Third Amendment has been duly authorized, executed and
delivered by the Company and the Credit Agreement as amended hereby
constitutes the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or
by equitable principles relating to enforceability.
(b) The representations and warranties set forth in Article V of
the Credit Agreement are true and correct in all material respects before
and after giving effect to this Third Amendment with the same effect as
if made on the date hereof, except to the extent such representations and
warranties expressly related to an earlier date, in which case they were
true and correct in all material respects on and as of such earlier date.
(c) As of the date hereof, at the time of and immediately after
giving effect to this Third Amendment, no Default or Event of Default has
occurred and is continuing.
SECTION 7. Conditions of Effectiveness. The Company shall deliver
the following to the Administrative Agent as conditions precedent to the
effectiveness of this Third Amendment:
(a) Payment by the Company of an amount sufficient to repay all
outstanding loans made by the Exiting Banks, together with accrued
interest thereon and any other amounts owed to the Exiting Banks under
the Credit Agreement;
(b) This Third Amendment, signed by the Company, the Agents, and
each of the Banks, together with each Consent of Guarantor attached
hereto, executed by R&B Falcon and by Conoco;
(c) Payment by the Company to each Bank of an amendment fee in an
amount equal to 5 basis points based on each Bank's Commitment;
(d) A Certificate signed by the members of the Borrower, consenting
to the execution and delivery of this Third Amendment and certifying the
name and true signature of the representative authorized to sign this
Third Amendment;
(e) Copies of resolutions of the board of directors of each
Guarantor authorizing its officer to execute this document, certified as
by the Secretary or an Assistant Secretary of such Guarantor, or other
evidence of authority; and
(f) Such other evidence as the Agent or the Majority Banks may
request to establish the consummation of the transactions contemplated
hereby or the compliance with the conditions set forth herein.
SECTION 8. Effect of Amendment. This Third Amendment (i) except as
expressly provided herein, shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Credit
Agreement or of any of the instruments or agreements referred to therein
and (ii) shall not prejudice any right or rights which the Administrative
Agent or the Banks may now have under or in connection with the Credit
Agreement, as amended by this Third Amendment. Except as otherwise
expressly provided by this Third Amendment, all of the terms, conditions
and provisions of the Credit Agreement shall remain the same. It is
declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect,
and that this Third Amendment and such Credit Agreement shall be read and
construed as one instrument.
SECTION 9. Miscellaneous This Third Amendment shall for all purposes
be construed in accordance with and governed by the laws of the State of
New York. The captions in this Third Amendment are for convenience of
reference only and shall not define or limit the provisions hereof. This
Third Amendment may be executed in separate counterparts, each of which
when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Third
Amendment, it shall not be necessary to produce or account for more than
one such counterpart.
NO ORAL AGREEMENTS. THE CREDIT AGREEMENT (AS AMENDED BY THIS THIRD
AMENDMENT) AND THE OTHER LOAN DOCUMENTS 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 ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed and delivered by their proper and duly
authorized representatives or officers as of the date and year first
above written.
DEEPWATER DRILLING II L.L.C.
By:_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent and as a
Bank
By_________________________
Xxxxxx X. Xxx
Managing Director
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH, as
Documentation Agent and as a
Bank
By_________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH, as a Bank
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
RZB FINANCE LLC
By_________________________
Name:
Title:
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
CONSENT OF GUARANTOR
The undersigned Guarantor hereby consents to the provisions of the
foregoing Third Amendment to Credit Agreement, and confirms that the
Guaranty Agreement dated as of November 10, 1997 executed by it remains
in full force and effect in accordance with its terms.
CONOCO INC. (formerly
Continental Oil Company)
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
CONSENT OF GUARANTOR
The undersigned Guarantor hereby consents to the provisions of the
foregoing Third Amendment to Credit Agreement, and confirms that the
Guaranty Agreement dated as of April 24, 1998 is in full force and effect
in accordance with its terms.
R&B FALCON CORPORATION
By_________________________
Name:
Title:
[THIS IS A SIGNATURE PAGE TO THE THIRD AMENDMENT
TO CREDIT AGREEMENT]
SCHEDULE 2.01
COMMITMENTS, OUTSTANDING LOANS AND PRO RATA SHARE
AFTER THIRD AMENDMENT
Bank Commitment Pro Rata Share
---- ---------- --------------
Bank of America NT&SA $ 87,500,000 65.00%
National Westminster Bank PLC $ 32,500,000 24.00%
RZB Finance LLC $ 15,000,000 11.00%
$135,000,000 100.00%
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