EXHIBIT 4.9
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") dated as of May
22, 1998, is by and among Transocean Offshore Inc., a Delaware corporation (the
"BORROWER"), the lenders from time to time parties hereto (each a "LENDER" and
collectively, the "LENDERS"), ABN AMRO Bank N.V. ("ABN AMRO"), a Netherlands
chartered bank acting through its Houston agency, as agent for the Lenders (in
such capacity, the "AGENT"), SunTrust Bank, Atlanta, and Credit Lyonnais New
York Branch, as documentation agents for the Lenders (in such capacity, each a
"DOCUMENTATION AGENT" and together, the "DOCUMENTATION AGENTS"), and Bank of
Montreal, The Fuji Bank, Limited, Houston Agency, Royal Bank of Canada, Xxxxx
Fargo Bank (Texas), National Association, and Bank of Tokyo- Mitsubishi, Ltd.,
Houston Agency, as co-agents for the Lenders (in such capacity, each a "CO-
AGENT" and collectively, the "CO-AGENTS").
WITNESSETH
WHEREAS, the Borrower, the Lenders, the Agent, the Documentation Agents and
the Co-Agents have entered into that certain Credit Agreement dated as of July
30, 1996, as amended by that certain First Amendment to Credit Agreement dated
as of April 18, 1997, and that certain Second Amendment to Credit Agreement
dated as of December 19, 1997 (the "CREDIT AGREEMENT"), pursuant to which the
Lenders have made and agreed to make Loans to the Borrower and issued and agreed
to issue Letters of Credit for the account of the Borrower; and
WHEREAS, the Borrower, the Lenders, the Agent, the Documentation Agents and
the Co-Agents desire to further amend the Credit Agreement as hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders, the Agent, the Documentation Agents
and the Co-Agents hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 (Definitions) of the Credit Agreement is amended as
follows:
(i) The following definitions of "Consolidated Net Assets" and
"Subsidiary Debt Basket Amount" are hereby added in the
correct alphabetical order:
"`Consolidated Net Assets' means, as of any date of
determination, an amount equal to the aggregate book value
of the assets of the Borrower, its Subsidiaries and, to the
extent of the equity interest of the Borrower and its
Subsidiaries therein, SPVs at such time minus
the current liabilities of the Borrower and its
Subsidiaries, all determined on a consolidated basis in
accordance with GAAP."
"`Subsidiary Debt Basket Amount' has the meaning ascribed to
such term in Section 6.15(j)."
(ii) The definition of "Public Debt Issue" is hereby deleted in
its entirety.
(b) Section 6.14 (Liens) of the Credit Agreement is amended as
follows:
(i) 6.14(g), (h) and (w) of the Credit Agreement are hereby
deleted in their entirety and the following inserted in their
place, in each case in the correct alphabetical order:
"(g) Liens on assets and interests acquired after the
Effective Date ("After-Acquired Assets") securing (i) any
obligation incurred for the purpose of financing all or any
part of the purchase price of any such After-Acquired Assets
or for the purpose of financing all or any part of the cost
of the completion of construction and commencement of
commercial operation, alteration, repair or improvement of
any such After-Acquired Assets, or (ii) any Non-recourse
Debt;
(h) Liens on property existing at the time such property is
acquired by the Borrower or any Subsidiary of the Borrower
and not created in contemplation of such acquisition (or on
repairs, renewals, replacements, additions, accessions and
betterments thereto) and Liens on the assets of any Person
at the time such Person becomes a Subsidiary of the Borrower
and not created in contemplation of such Person becoming a
Subsidiary of the Borrower (or on repairs, renewals,
replacements, additions, accessions and betterments
thereto);
(w) Liens on the Transocean Amirante and the Discoverer
Enterprise to secure Indebtedness incurred pursuant to the
Secured Credit Agreement dated as of January 17, 1997, among
Transocean Enterprise Inc., various lenders and ABN AMRO, as
agent for such lenders, as amended from time to time, or any
Lease Securitization Facility (as defined in such Secured
Credit Agreement), as amended from time to time;"
(ii) New subsections (x) and (y) are hereby added in the correct
alphabetical order:
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"(x) Liens on the stock or assets of SPVs; and
(y) Liens (not otherwise permitted by this Section 6.14) on
property securing Indebtedness (or other obligations) not
exceeding $50,000,000 in the aggregate at any time
outstanding."
(c) Section 6.15 (Indebtedness) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in its place:
"Section 6.15 Indebtedness. The Borrower and its Subsidiaries
shall not incur, assume or suffer to exist any Indebtedness
except:
(a) Indebtedness under the Credit Documents;
(b) existing Indebtedness outstanding on the Effective Date and
listed on Schedule 5.21, and any subsequent extensions, renewals
or refinancings thereof so long as such Indebtedness is not
increased in amount, the scheduled maturity date thereof (if
prior to the Maturity Date) is not accelerated, the interest rate
per annum applicable thereto is not increased, any scheduled
amortization of principal thereunder prior to the Maturity Date
is not shortened and the payments thereunder are not increased;
(c) unsecured intercompany loans and advances to the Borrower or
its Subsidiaries, and unsecured intercompany loans and advances
from any of such Subsidiaries or SPVs to the Borrower or any
other Subsidiaries of the Borrower;
(d) Indebtedness under any Interest Rate Protection Agreements
and under foreign exchange futures agreements, arrangements or
options designed to protect against fluctuations in currency
exchange rates;
(e) Indebtedness of the Borrower that may be incurred, assumed or
suffered to exist without violating any section of this
Agreement, including, without limitation, Sections 6.23 and 6.24
hereof;
(f) Indebtedness of any Subsidiary of the Borrower (i) under
overdraft lines of credit or for working capital purposes in
foreign countries with financial institutions on terms no more
favorable to the lenders thereunder than under this Agreement,
and (ii) arising from the honoring by a bank or other Person of a
check, draft or similar instrument inadvertently drawing against
insufficient funds, all such Indebtedness not to exceed
$35,000,000 in the aggregate at any time outstanding, provided
that amounts under overdraft lines of credit or outstanding as a
result of drawings against
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insufficient funds shall be outstanding for one (1) Business Day
before being included in such aggregate amount;
(g) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Borrower or is merged with or into
the Borrower or any Subsidiary of the Borrower and not incurred
in contemplation of such transaction;
(h) Indebtedness of any Subsidiary of the Borrower (i) under
Performance Guaranties and Performance Letters of Credit, and
(ii) with respect to letters of credit issued in the ordinary
course of business of such Subsidiary;
(i) Indebtedness of the nature described in the last sentence of
the definition of the term "Indebtedness";
(j) Indebtedness of any Subsidiary of the Borrower in an
aggregate principal amount not to exceed an amount equal to ten
percent (10%) of Consolidated Net Assets (the "Subsidiary Debt
Basket Amount") in the aggregate at any time outstanding; and
(k) other Indebtedness of any Subsidiary of the Borrower so long
as such Subsidiary has in force a Subsidiary Guaranty in
substantially the form of Exhibit 4.1C, provided that such
Subsidiary Guaranty shall contain a provision that such
Subsidiary Guaranty and all obligations thereunder of the
guarantor party thereto shall be terminated upon delivery to the
Agent by the Borrower of a certificate stating that (i) the
aggregate principal amount of Indebtedness of all Subsidiaries
permitted to be outstanding pursuant to Section 6.15(j) and (k)
of the Credit Agreement is equal to or less than the Subsidiary
Debt Basket Amount, and (ii) no Default or Event of Default has
occurred and is continuing."
(d) Section 6.19(h) of the Credit Agreement is hereby deleted in its
entirety and the following inserted in its place:
"(h) sale and leaseback transactions that may be incurred,
assumed or suffered to exist without violating any section of
this Agreement, including, without limitation, Sections 6.23 and
6.24 hereof;"
2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the
Lenders, the Agent, the Collateral Agent, the Documentation Agents and the Co-
Agents to enter into this Amendment, the Borrower hereby reaffirms, as of the
date hereof, that its representations and warranties contained in the Credit
Agreement are true and correct in all material respects (except to the extent
such representations and warranties (x) are not so true and correct in all
material respects
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as a result of the transactions expressly permitted under the Credit Agreement
or under the other Credit Documents or (y) relate solely to an earlier date) and
additionally represents and warrants as follows:
(i) The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of its obligations under this
Amendment and the Credit Agreement, as amended hereby, are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action of the Borrower and do not and will
not contravene in any material respect any provision of
applicable law or contravene or conflict with any provision of
the certificate of incorporation, bylaws or any material
agreements binding upon the Borrower, and the execution and
delivery by the Borrower of this Amendment have received all
necessary governmental approvals or other consents (if any shall
be required);
(ii) This Amendment and the Credit Agreement, as amended hereby,
are legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms,
subject as to enforcement only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and equitable
principles;
(iii) There are no actions, suits, proceedings or counterclaims
(including, without limitation, derivative or injunctive actions)
pending or, to the knowledge of the Borrower, threatened against
the Borrower or any of its Subsidiaries which purports to affect
the legality, validity or enforceability of this Amendment, the
Credit Agreement, as amended hereby, or any other Credit
Document;
(iv) No Default or Event of Default has occurred and is
continuing; and
(v) There have been no amendments to the certificate of
incorporation or bylaws of the Borrower since April 18, 1997.
3. REAFFIRMATION OF CREDIT AGREEMENT. This Amendment shall be deemed to
be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement in the Credit Agreement and the other
Credit Documents (excluding this Amendment) shall hereafter be deemed to refer
to the Credit Agreement, as amended hereby.
4. DEFINED TERMS. Terms used but not defined herein when defined in the
Credit Agreement shall have the same meanings herein unless the context
otherwise requires.
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5. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(A) THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS, AND THE RIGHTS AND
DUTIES OF THE PARTIES HERETO AND THERETO, SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HERETO AGREE THAT ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AMENDMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE AGENT, THE DOCUMENTATION AGENTS, THE CO-AGENTS, THE COLLATERAL AGENT, THE
LENDERS OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN XXX XXXXXX XX XXX XXXXX
XX XXX XXXX SITTING IN THE BOROUGH OF MANHATTAN OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS, BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS.
(C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY
HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
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AMENDMENT, THE CREDIT AGREEMENT, ANY OTHER CREDIT DOCUMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AMENDMENT, THE CREDIT
AGREEMENT, ANY OTHER CREDIT DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same agreement.
7. SEVERABILITY. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8. HEADINGS. Section headings used in this Amendment are for reference
only and shall not affect the construction of this Amendment.
9. NOTICE OF ENTIRE AGREEMENT. This Amendment, together with the other
Credit Documents, constitute the entire understanding among the Borrower, the
Lenders, the Agent, the Documentation Agents and the Co-Agents and supersede all
earlier or contemporaneous agreements, whether written or oral, concerning the
subject matter of the Credit Documents. THIS WRITTEN AMENDMENT, TOGETHER WITH
THE OTHER CREDIT DOCUMENTS, REPRESENTS 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.
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IN WITNESS WHEREOF, the parties hereto have entered into this Third
Amendment to Credit Agreement as of the date first written above.
BORROWER:
TRANSOCEAN OFFSHORE INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President and CFO
LENDERS:
ABN AMRO BANK N.V., Houston Agency, as Agent and
Collateral Agent and as a Lender
By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President and Director
By: /s/ XXXXXXXXX XXXXXXX
------------------------------------
Xxxxxxxxx Xxxxxxx
Assistant Vice President
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SUNTRUST BANK, ATLANTA, as Documentation Agent and
as a Lender
By: /s/ XXXX X. XXXXXX, XX.
------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Corporate Banking Officer
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent and as a Lender
By: /s/ PASCAL POUPELLE
------------------------------------
Name: Pascal Poupelle
Title: Executive Vice President
BANK OF MONTREAL, as Co-Agent and as a Lender
By: /s/ X. X. XXXXXXXX
------------------------------------
Name: X. X. Xxxxxxxx
Title: Director
THE FUJI BANK, LIMITED, HOUSTON AGENCY,
as Co-Agent and as a Lender
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President and Manager
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XXXXX XXXX XX XXXXXX, as Co-Agent and as a Lender
By: /s/ XXX X. XXXXXXX
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Manager
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as
Co-Agent and as a Lender
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF TOKYO - MITSUBISHI, LTD., HOUSTON AGENCY,
as Co-Agent and as a Lender
By: /s/ XXXXXXX XXXXX
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
SKANDINAVISKA ENSKILDA XXXXXX XX (publ.)
By: /s/ XXXXXX XXX
------------------------------------
Name: Xxxxxx Xxx
Title: Managing Director
By: /s/ PER FROLICH
------------------------------------
Name: Per Frolich
Title: Head of Administration
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XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ XXXXXX XXX
------------------------------------
Name: Xxxxxx Xxx
Title: Associate
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: /s/ X. XXXXXXXX
------------------------------------
Name: X. Xxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ TAN X. XXXXXXX
------------------------------------
Name: Tan X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, ATLANTA AGENCY
By: /s/ F.C. H. XXXXX
------------------------------------
Name: F.C. H. Xxxxx
Title: Senior Manager
Loan Operations
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DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: /s/ XXXX X. XXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
FIRST NATIONAL BANK OF COMMERCE
By: /s/ J. XXXXXXX XXXXX, XX.
------------------------------------
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Senior VIce President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ BET HUNTER
------------------------------------
Name: Bet Hunter
Title: Director
THE SANWA BANK, LIMITED
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ XXXXXXX X. XXXXXX, III
------------------------------------
Name: Xxxxxxx X. XxXxxx, III
Title: Vice President and Manager
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