REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (the "Agreement"), dated as of April 6,
2001 between R&B FALCON CORPORATION (the "Borrower"), a Delaware corporation,
and TRANSOCEAN SEDCO FOREX INC., a Cayman Islands company (the "Lender").
WHEREAS, the Board of Directors of Borrower adopted on April 6, 2001 a
resolution authorizing and empowering each of the officers of Borrower to
authorize a promissory note in a form approved by an officer executing the same
on behalf of Borrower.
WHEREAS, the Borrower desires for this and other purposes to borrow from
time to time sums in an aggregate principal amount not to exceed at any time
outstanding $1,800,000,000, including a borrowing in such amount in connection
with entering into this Agreement; and
WHEREAS, the Lender is willing to make such loans to the Borrower on the
terms and subject to the conditions and requirements hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the parties hereto agree as
SECTION 1. LOANS.
1.01. Procedure for Loans. Subject to and upon the terms and
conditions set forth in this Agreement (including without limitation Section
1.03(b) hereof), the Borrower may request the Lender to make loans in United
States dollars (the "Loans") to the Borrower from time to time during the
Availability Period in an aggregate principal amount at any time outstanding up
to but not exceeding One Billion Eight Hundred Million United States dollars
(US$1,800,000,000) (the "Credit Facility Commitment").
1.02. Availability Period. The "Availability Period" shall be the
period commencing on the date of this Agreement and ending on April 6, 2003;
provided, however, that (i) the Lender may, in its sole discretion, declare the
expiration of the Availability Period at any time by giving one hundred twenty
(120) days' prior notice to the Borrower to such effect and (ii) the Borrower
may terminate the Availability Period at any time by notice to such effect to
1.03. Procedure for Loans.
(a) Within the limits of the Credit Facility Commitment, the Borrower may
from time to time request the Lender to make a Loan during the Availability
(b) After receiving any such Loan request, the Lender may, if it in its
sole discretion determines in any such case to do so (the Lender being under no
obligation to do so), make the Loan available to the Borrower; provided that no
Default or Event of Default shall have occurred and be continuing.
(c) Amounts borrowed hereunder and repaid can (subject to the terms and
conditions hereof (including without limitation Section 1.03(b) hereof)) be
reborrowed in accordance with the terms of this Agreement so long as the
aggregate principal amount of Loans at any time outstanding does not exceed the
Credit Facility Commitment.
1.04. Repayment of Loans; Payment of Interest. Without limitation of
Section 1.03(b), as a condition to the making of any Loans hereunder, the
Borrower shall execute and deliver to the Lender a promissory note in the form
of Exhibit A hereto (the "Promissory Note"). The Promissory Note sets forth,
and evidences, the obligations of the Borrower with respect to, inter alia,
repayment of the Loans and the payment of interest at the Applicable Rate on the
aggregate unpaid principal amount of the Loans from time to time. As further
described in the Promissory Note, subject to Section 4 herein, interest on the
Loans shall be paid quarterly and principal of the Loans shall be paid on the
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender (and shall, at the date of
making of any Loan hereunder, be deemed again to have represented and warranted
to the Lender as of such date) as follows:
2.01 Corporate Organization. The Borrower (i) is duly organized and
existing in good standing under the laws of the jurisdiction of its
organization; (ii) has all necessary company power and authority to own the
property and assets it uses in its business and otherwise to carry on its
present business; and (iii) is duly licensed or qualified and in good standing
in each jurisdiction in which the nature of the business transacted by it or the
nature of the property owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
or to be in good standing, as the case may be, would not have a Material Adverse
2.02 Power and Authority; Validity. The Borrower has the
organizational power and authority to execute, deliver and carry out the terms
and provisions of this Agreement and the Promissory Note and has taken all
necessary company action to authorize the execution, delivery and performance of
this Agreement and the Promissory Note. The Borrower has duly executed and
delivered this Agreement and the Promissory Note and this Agreement and the
Promissory Note constitutes the legal, valid and binding obligation of the
Borrower enforceable against it in accordance with its terms, subject as to
enforcement only to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
2.03 No Violation. Neither the execution, delivery or performance by
the Borrower of this Agreement and the Promissory Note nor compliance by it with
the terms and provisions thereof, nor the consummation by it of the transactions
contemplated herein or therein, will (i) contravene in any material respect any
applicable provision of any law, statute, rule or regulation, or any applicable
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) conflict with or result in any breach of any term, covenant, condition or
other provision of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any lien upon any of the
property or assets of the Borrower under, the terms of any material contractual
obligation to which the Borrower is a party or by which it or any of its
properties or assets are bound or to which it may be subject, or (iii) violate
or conflict with any provision of the Memorandum and Articles of Association,
charter, articles or certificate of incorporation, partnership or limited
liability company agreement, by-laws, or other applicable governance documents
of the Borrower.
2.04 Litigation. 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
that are reasonably likely to have a Material Adverse Effect.
2.05 True and Complete Disclosure. All factual information (taken as a
whole) furnished by the Borrower in writing to the Lender in connection with
this Agreement or the Promissory Note or any transaction contemplated therein
did not, as of the date such information was furnished (or, if such information
expressly related to a specific date, as of such specific date), contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein (taken as a whole), in light of the circumstances
under which such information was furnished, not misleading, except for such
statements, if any, as have been updated, corrected, supplemented, superseded or
modified pursuant to a written correction or supplement furnished to the Lender
prior to the date of this Agreement.
2.06 No Material Adverse Change. Since the date of this Agreement,
there has occurred no event or effect that has had or could reasonably be
expected to have a Material Adverse Effect.
2.07 Labor Controversies. There are no labor controversies pending or,
to the best knowledge of the Borrower, threatened against the Borrower that
could reasonably be expected to have a Material Adverse Effect.
2.08 Taxes. The Borrower has filed all income tax returns, and all
other material tax returns required to be filed, and has paid all governmental
taxes, rates, assessments, fees, charges and levies (collectively, "Taxes")
shown to be due and payable on such returns or on any assessments made against
the Borrower or any of its properties (other than any such assessments, fees,
charges or levies that are not more than ninety (90) days past due, or which can
thereafter be paid without penalty, or which are being contested in good faith
by appropriate proceedings and for which reserves have been provided in
conformity with GAAP, or which the failure to pay could not reasonably be
expected to have a Material Adverse Effect.
2.09 Insurance. The Borrower currently maintains or causes to be
maintained in effect, with responsible insurance companies, insurance against
any loss or damage to all insurable property and assets owned by it, which
insurance is of a character and in or in excess of such amounts as are
customarily maintained by companies similarly situated and operating like
property or assets (subject to self-insured retentions and deductibles), and
insurance with respect to employers' and public and product liability risks
(subject to self-insured retentions and deductibles).
2.10 Compliance with Statutes, Etc. The Borrower is in compliance with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic and foreign, in
respect of the conduct of its businesses and the ownership of its properties,
except for such instances of non-compliance as could not reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect.
2.11 Pari Passu. The obligations of the Borrower under this Agreement
or the Promissory Note are direct, unconditional and general obligations of the
Borrower, which do and will rank until paid at least pari passu to all other
unsecured Indebtedness of the Borrower.
SECTION 3. COVENANTS.
The Borrower covenants to the Lender that from the date hereof and until the
expiration or termination of the Availability Period (and, if any amount shall
remain outstanding under the Promissory Note as of the date of expiration or
termination of the Availability Period, until such date thereafter when the
Promissory Note shall have been paid in full):
3.01 Corporate Existence. The Borrower will preserve and maintain its
3.02 Taxes. The Borrower will duly pay and discharge all Taxes upon or
against it or its properties before penalties accrue thereon (or, if later,
within ninety (90) days of becoming past due), unless and to the extent that (i)
the same is being contested in good faith and by appropriate proceedings and
reserves have been established in conformity with GAAP, or (ii) the failure to
effect such payment or discharge could not reasonably be expected to have a
Material Adverse Effect.
3.03 Insurance. The Borrower will maintain or cause to be maintained,
with responsible insurance companies, such insurance to be of a character and in
or in excess of such amounts as are customarily maintained by companies
similarly situated and operating in like industry (subject to self-insured
retentions and deductibles).
3.04 Indebtedness. The Borrower shall not incur, assume or suffer to
exist any Indebtedness, except for Indebtedness under this Agreement and other
Indebtedness permitted by the Lender.
SECTION 4. EVENTS OF DEFAULT.
If any Event of Default shall have occurred and be continuing:
THEN, without in any way limiting the terms of the Promissory Note, (i) in
the case of any Event of Default other than an Event of Default specified in
clause (b) of the definition of the term "Event of Default," the Lender may, by
a written notice to the Borrower, terminate the Availability Period, whereupon
such Availability Period shall immediately terminate, accelerate the maturity of
the Loans without notice to the Borrower, whereupon all principal of, accrued
and unpaid interest on the Loans shall become due and payable and (ii) in the
case of any Event of Default described in clause (b) of the definition of the
term "Event of Default," the Availability Period automatically shall terminate
and the principal of and accrued and unpaid interest on the Loans shall become
due and payable without notice. In addition, upon the occurrence of any Event
of Default, the Lender may exercise any of its other rights or remedies at law
or in equity.
The Borrower expressly waives presentment, demand, protest, notice of
dishonor, notice of nonpayment, notice of intent to accelerate, notice of
maturity, notice of protest, or presentment for the purpose of accelerating
Any forbearance, failure or delay by the Lender in exercising any right,
power or remedy under this Agreement or the Promissory Note or otherwise
available to the Lender shall not be deemed to be a waiver of such right, power
or remedy, nor shall any single or partial exercise of any right, power or
remedy preclude the further exercise thereof.
The Borrower shall pay on demand all costs and expenses of the Lender
(including, without limitation, reasonable attorneys' fees) in connection with
the enforcement or collection (whether through negotiation, legal proceedings or
otherwise) of any amounts due under this Agreement or the Promissory Note.
SECTION 5. GOVERNING LAW AND JURISDICTION.
This Agreement shall be construed in accordance with and governed by the
laws of the Cayman Islands without regard to its conflicts of laws principles.
SECTION 6. DEFINED TERMS.
As used herein, the following terms shall have the following meanings:
"Applicable Margin" means, for any day, at such times as a debt rating (either
express or implied) by S&P or Moody's (or in the event that both cease the
issuance of debt ratings generally, such other ratings agency agreed to by the
Borrower and the Lender) is in effect on the Borrower's non-credit enhanced
senior unsecured long-term debt, the percentage set forth opposite such debt
Debt Rating Percentage
A+/A1 or above 0.575%
BBB-/Baa3 or below 1.300%
If the ratings issued by S&P and Moody's differ (i) by one rating, the higher
rating shall apply to determine the Applicable Margin, (ii) by two ratings, the
rating which falls between them shall apply to determine the Applicable Margin,
or (iii) by more than two ratings, the rating immediately above the lower of the
two ratings shall apply to determine the Applicable Margin. If at any time the
Borrower has in effect such a debt rating on its respective non-credit enhanced
senior unsecured long-term debt, the Borrower shall seek and obtain (if not
already in effect), within thirty (30) days after such debt rating first ceases
to be in effect, a corporate credit rating or a bank loan rating from Moody's or
S&P, or both, and the Applicable Margin shall thereafter be based on such
ratings in the same manner as provided herein with respect to the senior
unsecured long-term debt rating (with the Applicable Margin in effect prior to
the issuance of such corporate credit rating or bank loan rating being the same
as the Applicable Margin in effect at the time the senior unsecured long-term
debt rating ceases to be in effect).
"Applicable Rate" means the sum of the current day's London Interbank Offered
Rate ("LIBOR") and the Applicable Margin.
"Availability Period" has the meaning as ascribed to such term in Section 1.02.
"Business Day" means any day other than a Saturday or Sunday on which banks are
not authorized or required to close in Houston, Texas; GeorgeTown, Grand Cayman,
the Cayman Islands; or London, England.
"Default" means any event or condition the occurrence of which would, with the
passage of time or the giving of notice, or both, constitute an Event of
"Event of Default" means, with regard to this Agreement and the Promissory
Note, any of the following events:
(a) failure by the Borrower to pay all or any portion of principal or
interest under this Agreement and the Promissory Note when the same shall be due
and payable, whether upon the end of the Availability Period or otherwise;
(b) any one or more events constituting "Bankruptcy", which shall mean for
purposes of this Agreement and the Promissory Note, (i) the filing by the
Borrower of a voluntary petition seeking liquidation, reorganization,
arrangement or readjustment, in any form, of its debts under Title 11 of the
United States Code (or corresponding provisions of future laws) or any other
federal, state or foreign insolvency law, or the filing by the Borrower of an
answer consenting to or acquiescing in any such petition, (ii) the making by the
Borrower of any assignment for the benefit of its creditors or the admission by
the Borrower in writing of its inability to pay its debts as they mature, or
(iii) the expiration of thirty (30) days after the filing of an involuntary
petition against the Borrower under Title 11 of the United States Code (or
corresponding provision of future laws) or any other federal, state or foreign
insolvency law, seeking an application for the appointment of a receiver,
custodian, trustee or similar entity for the assets or operations of the
Borrower, or an involuntary petition against the Borrower seeking liquidation,
reorganization, arrangement or readjustment of its debts under any other
federal, state or foreign insolvency law, provided that the same shall not have
been vacated, set aside or stayed within such thirty (30) day period;
(c) the Borrower shall sell or otherwise transfer all or substantially all
of its assets; or
(d) if it shall become impossible or unlawful for the Borrower to fulfill
any of its obligations contained herein.
"GAAP" means generally accepted accounting principles from time to time in
effect as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the statements and pronouncements of the Financial Accounting Standards Board or
in such other statements, opinions and pronouncements by such other entity as
may be approved by a significant segment of the U.S. accounting profession.
"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 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 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; (vii) obligations of
such Person pursuant to a guaranty of any of the foregoing obligations of
another Person and (viii) obligations of any partnership or joint venture
recourse to such Person.
"Material Adverse Effect" means a material adverse effect on (i) the business,
assets, operations or condition of the Borrower taken as a whole, or (ii) the
Borrower's ability to perform any of its payment obligations under this
Agreement or the Promissory Note.
"Maturity Date" means the earliest to occur of (i) the date that the maturity
of the Loans has been accelerated pursuant to Section 4, and (ii) April 6, 2003.
"Promissory Note" means that certain note attached hereto as Exhibit A.
"Taxes" has the meaning as ascribed to such term in Section 2.08.
SECTION 7. MISCELLANEOUS.
7.01 No Waiver; Remedies Cumulative. No failure on the part of the
Lender to exercise, and no delay in exercising, any right, power or privilege
under this Agreement or the Promissory Note shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege under
this Agreement or the Promissory Note preclude any other or further exercise of
any right, power or privilege. The remedies provided herein are cumulative and
not exclusive of any other remedies provided by law.
7.02 Benefit of Assignment. This Agreement shall inure to the benefit
of the parties hereto and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations
hereunder without the consent of the Lender.
7.03 Amendment. This Agreement and the Promissory Note may not be
modified or amended in any way except by agreement in writing between the Lender
and the Borrower.
7.04 Separability. In case any provision of this Agreement or the
Promissory Note shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
7.05 Counterparts. This Agreement may be signed in two counterparts,
each of which when executed shall be deemed an original.
7.06 No Other Agreements. This Agreement and the Promissory Note set
forth the entire agreement of the parties respecting these matters and supersede
all prior agreements and understandings relating to such matters.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by their respective officers thereunto duly authorized.
R&B FALCON CORPORATION
By: /s/ Eric B. Brown
Name: Eric B. Brown
Title: Vice President and Secretary
TRANSOCEAN SEDCO FOREX INC.
By: /s/ Robert L. Long
Name: R. L. Long
Title: Executive Vice President
U.S.$1,800,000,000 April 6, 2001
FOR VALUE RECEIVED, the undersigned, R&B Falcon Corporation, a corporation
organized under the laws of Delaware (the "Borrower"), HEREBY PROMISES TO PAY to
Transocean Sedco Forex Inc, a corporation organized under the laws of the Cayman
Islands (the "Lender"), and its successors or assigns, the principal sum of one
billion eight hundred million United States Dollars ($1,800,000,000) or if less,
the aggregate unpaid principal amount of all Loans (as defined in the Revolving
Credit Agreement dated as of April 6, 2001 (the "RC Agreement") at any time made
by the Lender to the Borrower under the RC Agreement. Unless otherwise defined,
all capitalized terms used herein shall have the meanings assigned to such terms
in the RC Agreement. The Borrower promises to pay interest on the unpaid
principal of the Loans from time to time, for the period commencing on the date
of the first such Loan until the Loans shall be paid in full, at the Applicable
Rate (as defined in the RC Agreement), payable in the manner provided herein.
This Note is the Promissory Note referred to in the RC Agreement between
the Borrower and the Lender dated as of April 6, 2001 between Borrower and
1. Payment of Principal
Subject to Section 5 hereof, the then unpaid principal amount of this Note,
together with all accrued and unpaid interest hereon (such accrued interest
being calculated at the Applicable Rate through the Business Day immediately
prior to the date of such repayment, shall be due and payable in full on April
The Borrower agrees to pay interest, on the aggregate outstanding principal
balance of the Loans from time to time, for the period from (and including) the
date the first such Loan is made to (and excluding) the date the Loans are paid
in full, at a rate per annum equal, for any calendar quarter, to the Applicable
Rate in effect from time to time during such calendar quarter. Interest accrued
on the Loans during any calendar quarter shall be due and payable on the tenth
Business Day after the end of such calendar quarter.
Any amount of principal or interest thereon which is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall bear interest
from the date on which such amount is due until such amount is paid in full,
payable on demand, at the rate that would otherwise be payable hereunder, plus
five (5) percent per annum.
All payments by the Borrower will be applied first to pay outstanding and
unpaid interest and then to reduce principal.
3. Prepayment and Mode of Payments.
The Borrower may prepay the principal amount of the Loans, at any time or
from time to time, in whole or in part, without premium or penalty. Any such
prepayment of any of the principal of the Loans shall be accompanied by interest
accrued and unpaid on the principal amount being prepaid (calculated as set
forth in Section 1 hereof).
Payments of principal of, or interest on, the Loans and all other amounts
due hereunder shall be made in lawful money of the United States and in
immediately available funds, to a bank account designated from time to time by
4. Payment of Taxes
Lender shall be free and clear of all taxes imposed with respect to
payments on the Promissory Note, except for taxes imposed by a taxing
jurisdiction by reason of Lender's presence or activity in such jurisdiction
other than holding this Promissory Note. If any withholding or deduction of
payments is required, the Borrower shall pay such amounts as may be necessary in
order that net payments by the Lender after such withholding or deduction shall
equal the payments that would have been received in the absence of such
withholding or deduction.
5. Events of Default.
Upon the occurrence and during the continuation of an Event of Default, the
Lender shall be entitled to exercise its rights and remedies under this
Promissory Note, the RC Agreement or applicable law or equity.
Notwithstanding anything to the contrary contained in this Note, in no
event shall the total of all interest or other charges payable under this Note
that are or could be held to be in the nature of interest exceed the maximum
rate permitted to be charged by applicable law. Should the Lender receive any
payment that is or would be in excess of that permitted to be charged under such
applicable law, then such payment shall be deemed to have been made in error and
shall automatically be applied to reduce the principal sum outstanding under
6. Governing Law.
This note shall be construed in accordance with and governed by the laws of the
Cayman Islands. This Note shall be binding upon the permitted successors and
assigns of the parties as described in the RC Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed on the
date first above written.
R&B FALCON CORPORATION
By: /s/ Eric B. Brown
Name: Eric B. Brown
Title: Vice President and Secretary