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EXHIBIT 10.45
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") is made
and entered into as of this 16th day of February 1996, by and between NOBLE
DRILLING CORPORATION, a Delaware corporation ("Borrower"), FIRST INTERSTATE
BANK OF TEXAS, N.A., a national banking association executing this Amendment in
its individual capacity ("First Interstate") and as agent for Credit Lyonnais
Cayman Island Branch ("Credit Lyonnais"), and Credit Lyonnais.
W I T N E S S E T H:
WHEREAS, that certain Credit Agreement dated as of June 16, 1994,
between the Borrower, Credit Lyonnais, and First Interstate in its individual
capacity and as agent (the "Agent") for Credit Lyonnais was amended by that
certain First Amendment to Credit Agreement dated as of June 30, 1995 (such
Credit Agreement, as the same is hereby amended and may hereafter be amended
from time to time, being hereinafter referred to as the "Credit Agreement"),
certain credit facilities were made available to the Borrower;
WHEREAS, the indebtedness and obligations of the Borrower to the Banks
(as defined in the Credit Agreement) have been evidenced by (i) the Credit
Agreement, (ii) the Applications, and (iii) each of the revolving notes dated
June 30, 1995, made by Borrower to the order of each of the Banks (the
"Notes");
WHEREAS, to secure, in part, the indebtedness under the Credit
Agreement and the Notes (as defined in the Credit Agreement), and all renewals,
extensions, modifications, increases and/or rearrangements thereof and in
connection therewith, and all other indebtedness, liabilities and obligations
of the Borrower to the Agent or the Banks, then existing or thereafter arising,
(i) each of Noble Drilling (U.S.) Inc., a Delaware corporation ("ND-US"), Noble
Drilling (West Africa) Inc., a Delaware corporation ("ND-WA"), Noble Drilling
(Mexico) Inc., a Delaware corporation ("ND-M"), and Noble Offshore Corporation,
a Delaware corporation ("NOC") (collectively, the "Guarantors"), have
guaranteed to the Agent and the Banks the payment and performance of the
Obligations (as defined in the Credit Agreement) pursuant to the Guaranties (as
defined in the Credit Agreement), (ii) the Borrower has executed and delivered
to the Agent (as defined in the Credit Agreement) that certain Security
Agreement dated as of June 16, 1994, in favor of the Agent for the benefit of
the Banks (the "Security Agreement") and (iii) Intercompany Revolving Credit
Demand Notes, each dated June 16, 1994, made to the order of Borrower in the
original principal amount of $20,000,000 by each of (a) Noble International
Limited, a Cayman Islands corporation ("Noble International"), (b) Noble
Drilling (U.K.) Limited, a Scotland corporation ("Noble UK"), (c) Noble
Drilling De Venezuela C.A., a Venezuela corporation ("Noble Venezuela"), and
(d) Noble Drilling (West Africa) Ltd., a Bermuda corporation ("Noble West
Africa"), have been pledge by Borrower to the Banks
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pursuant to the Security Agreement (such four Intercompany Revolving Credit
Demand Notes hereinafter collectively referred to as the "Prior Collateral
Notes");
WHEREAS, to secure, in part, the indebtedness under the Credit
Agreement and each of the Notes (and all renewals, extensions, modifications
and/or rearrangements, liabilities and obligations of the Borrower to the Agent
and the Banks then existing or thereafter arising, the Borrower has heretofore
executed in favor of the Agent for the benefit of the Banks: (i) the Security
Agreement, (ii) the Applications (as defined in the Credit Agreement), (iii)
the Guaranty, and (iv) all other security agreements, guaranties, financing
statements and other agreements executed in connection with the Credit
Agreement prior to the date hereof, all of which shall continue as amended in
connection herewith in full force and effect after the execution of this
Amendment, and shall secure the Borrower's payment of the Obligations (as
defined in the Credit Agreement) all as more fully set forth therein and
herein;
WHEREAS, the Borrower desires to increase the total amount of Letter
of Credit available to it by reducing the total amount of the Revolving Loan
Commitment by the excess of Total Letter of Credit Liabilities over $5,000,000;
WHEREAS, in furtherance of the foregoing and to evidence the
agreements of the parties hereto in relation thereto the parties hereto desire
to amend the Credit Agreement as hereinafter provided;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration and
reasonably equivalent value, the receipt and sufficiency of which are hereby
expressly acknowledged, the Borrower, the Agent and the Banks hereby agree as
follows:
I. CERTAIN DEFINITIONS:
Section 1.01 Certain Definitions. All terms used herein shall have the
respective meanings set forth therefor in the Credit Agreement except as
otherwise expressly defined herein.
(b) Revised Definitions. Effective as of the date hereof as used
in the Credit Agreement, the following terms shall have the following meanings:
"Loan Formula Certificate" means a duly certified report, in
form and substance substantially similar to that which is attached
hereto as Annex A attached hereto, with the blanks therein properly
and accurately completed, and setting forth the limitations on Total
Loans and the limitations on Letters of Credit in Article II hereof,
such certificate being executed by an Authorized Representative of
Borrower.
"Revolving Loan Commitment" means as of any date of
determination thereof, the commitment of the Banks to make Revolving
Loans as set forth in Section 2.03 hereof, up to the maximum aggregate
amount of the Total Credit Commitment less the sum of (a) $5,000,000,
and (b) the excess at any such date (if a positive number) of the
Total Letter of Credit Liabilities over $5,000,000.
II. AMENDMENT; CONDITIONS TO AMENDMENT
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Section 2.01 Amendments to Credit Agreement. (a) (Section 2.01(a) is
hereby amended so as to read in its entirety as follows:
(a) Subject to the terms and conditions of this
Agreement, each of the Banks severally agrees to lend to the Borrower,
and the Borrower has the right to borrow from each of the Banks, from
time to time during the period from the date hereof to and including
the Credit Maturity Date, amounts not to exceed at any one time
outstanding such Bank's Specified Percentage of the Revolving Loan
Commitment, provided, however, that (i) the sum of the aggregate
principal amount of all Revolving Loans by the Banks at any one time
outstanding together with all Letter of Credit Liabilities shall not
exceed the lesser of (a) the Total Credit Commitment, and (b) the
Borrowing Base in effect from time to time, and (ii) the aggregate
principal amount of all Revolving Loans by the Banks at any one time
outstanding shall not exceed the lesser of (a) $25,000,000 less the
excess (if a positive number) of Total Letter of Credit Liabilities
over $5,000,000 and (b) the Total Credit Commitment and (iii) all
Letter of Credit Liabilities shall not exceed $8,000,000. The credit
described in the preceding sentence shall be a revolving credit
entitling the Borrower to borrow, prepay and reborrow by means of
Advances of any Type in accordance with the terms hereof. Each Type
of Advance shall be made at Agent's Applicable Lending Office for such
Type of Advance.
(b) Section 2.08 of the Credit Agreement is hereby
amended so as to read in its entirety as follows:
2.08 Letters of Credit. Subject to all the terms of
this Agreement, prior to the Credit Maturity Date, First Interstate
agrees to issue, renew and extend Letters of Credit, and each of the
Banks agrees to maintain a participation interest, to the extent of
the Specified Percentage of each, in all such Letters of Credit;
provided that in no event shall Total Letter of Credit Liabilities
exceed nor shall any Letter of Credit be issued, renewed or extended
which would result in Total Letter of Credit Liabilities exceeding,
the lesser of (i) $8,000,000, (ii) the Total Credit Commitment, less
the aggregate principal amount of all Revolving Loans outstanding, and
(iii) the Borrowing Base. Each Letter of Credit shall be issued by
First Interstate with the Banks each participating based on their
respective Specified Percentages, shall be for the account of the
Borrower or any of its Subsidiaries, shall have an expiration date
prior to the Credit Maturity Date and shall be for the purpose of
securing the contractual obligations of the Borrower or any of its
Subsidiaries, provided however, that neither the Agent, First
Interstate nor any of the other Banks shall be obligated to issue any
Letter of Credit if the face amount thereof would exceed the various
limits on the Total Letter of Credit Liabilities as set forth in this
Agreement. If First Interstate makes a payment under any Letter of
Credit and the Borrower has not made available to First Interstate
sufficient funds to honor such payment, each of the Banks other than
First Interstate will forthwith upon request forward to or deposit
with Agent for the account of First Interstate an amount equal to its
Specified Percentage of such payment, with interest as set forth in
Section 2.10 hereof. Such deposit by the
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Banks shall not relieve the Borrower from its reimbursement
obligations under the applicable Application or hereunder.
Section 2.02 Conditions to Amendment. This Amendment shall become
effective as of the date hereof upon satisfaction, to the Agent, of the
following conditions by the Borrower:
(a) The Borrower and each Significant Subsidiary other
than a Foreign Subsidiary (other than Noble Drilling (Canada) Ltd.)
shall have delivered to the Agent, in form and substance satisfactory
to the Agent, certified copies of resolutions of the Board of
Directors of each such Person authorizing the execution, delivery and
performance of this Amendment and any other Loan Documents executed by
each such Person in connection herewith;
(b) The Borrower and each Significant Subsidiary other
than a Foreign Subsidiary (other than Noble Drilling (Canada) Ltd.
shall have delivered to the Agent, in form and substance satisfactory
to the Agent, certificates of incumbency certified by the secretary or
assistant secretary of the Borrower and each such Significant
Subsidiary with specimen signatures of the president, vice president
and secretary thereof;
(c) The Borrower shall have paid all legal fees and
expenses incurred in connection with this Amendment; and
(d) The Borrower shall have duly executed and delivered
all other documents requested by the Agent in connection herewith.
III. REPRESENTATIONS, WARRANTIES AND RATIFICATIONS
Section 3.01 Representations and Warranties. The Borrower, by
executing this Amendment, hereby represents and warrants to the Agent that the
representations and warranties contained in Section 3 of the Credit Agreement,
as amended hereby, and the exhibits thereto, and the information therein, are
true and correct on and as of the date hereof as though made on and as of the
date hereof (except as to representations and warranties that were limited by
their express terms to a specific date or as to which disclosure has been made
to, and written approval has been received from, the Agent), and no event has
occurred and is continuing which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement of notice or lapse of
time or both.
Section 3.02 Ratification. (a) The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Credit Agreement, but except as expressly modified and
superseded by this Amendment, the terms and provisions of the Credit Agreement
are ratified and confirmed and shall continue in full force and effect, the
Borrower hereby agreeing that the Credit Agreement, as amended hereby, and the
other Loan Documents, whether or not amended hereby, are and shall continue to
be outstanding, validly existing and enforceable in accordance with their
respective terms.
(b) Furthermore, the Borrower confirms, ratifies and continues as
valid and subsisting all liens and security interests established by the Loan
Documents to secure the Obligations, including, but without limitation, all
Reimbursement Obligations and all indebtedness that has arisen, now exists or
hereafter arises under or is evidenced by the Notes and all extensions,
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renewals, modifications, increases and rearrangements thereof, and any and all
other indebtedness, liabilities and obligations whatsoever of the Borrower to
the Banks, the Reimbursement Obligations and the Notes having been contemplated
by the parties hereto and to the Loan Documents, and intended to be secured by
the Loan Documents.
Section 3.03 Continuity of Agreement and Promissory Notes. The
indebtedness of the Borrower to the Banks was and is governed by the terms of
the Credit Agreement, and has been evidenced in part by the Notes and the
Credit Agreement. The terms of any agreement, promissory note or any other
document notwithstanding, the Credit Agreement has been since its execution,
and remains, in full force and effect and, together with the Notes and the Loan
Documents, represents the written obligation of the Borrower to make payments
of the outstanding principal balance of and interest on the outstanding
principal balance of, the Loans, the Reimbursement Obligations, and other
indebtedness and liabilities to the Agent or the Banks.
IV. MISCELLANEOUS
Section 4.01 Reference to Credit Agreement. Each of the Loan
Documents, including the Credit Agreement, the Notes, and any and all other
promissory notes, mortgages, deeds of trust, security agreements and other Loan
Documents heretofore, now, or hereafter executed and delivered pursuant to the
terms hereof or pursuant to the terms of the Credit Agreement as amended
hereby, or as further evidence of or security for or in connection with the
Credit Agreement as amended hereby, are hereby amended so that any reference in
the Credit Agreement or in the other Loan Documents to the Credit Agreement
shall mean a reference to the Credit Agreement as amended hereby.
Section 4.02 Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
instrument.
Section 4.03 Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND FOR ALL PURPOSES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. This Amendment
has been entered into in ▇▇▇▇▇▇ County, Texas and shall be performable for all
purposes in ▇▇▇▇▇▇ County, Texas. Courts within the State of Texas shall have
jurisdiction over any and all disputes arising under or pertaining to this
Amendment; and venue in any such dispute shall be laid in ▇▇▇▇▇▇ County--the
county or judicial district of the Agent's principal place of business.
Section 4.04 Parties Bound. This Amendment shall be binding upon and
inure to the benefit of Borrower and the Agent and the Banks, and their
respective successors and assigns; provided, however, that neither the Borrower
nor any of its successors or assigns may, without the prior written consent of
the Agent and the Banks, assign any rights, powers, duties or obligations
hereunder.
Section 4.05 Final Agreement. THIS AGREEMENT, TOGETHER WITH (i) THE
OTHER WRITTEN DOCUMENTS REQUIRED BY SECTION 2.02 HEREOF, (ii) THE CREDIT
AGREEMENT AND THE WRITTEN DOCUMENTS CONTEMPLATED IN
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SECTION 8 THEREOF, AND (iii) THE FIRST AMENDMENT TO CREDIT AGREEMENT DATED AS
OF JUNE 30, 1995, REPRESENT AND CONSTITUTE THE FINAL AGREEMENT BY AND AMONG THE
BORROWER, THE GUARANTORS, THE AGENT OR THE BANKS AND MAY NOT BE ALTERED,
MODIFIED OR CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE BORROWER OR THE GUARANTORS WITH THE AGENT OR THE BANKS.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OR COMMITMENTS AMONG THE BORROWER, THE
GUARANTORS, THE AGENT OR THE BANKS. THIS PROVISION SHALL CONSTITUTE NOTICE TO
THE BORROWER AND THE GUARANTORS UNDER SECTION 26.02 OF THE TEXAS BUSINESS &
COMMERCE CODE OF THE PROVISIONS THEREOF AND HEREOF.
EXECUTED as of the date first above stated.
NOBLE DRILLING CORPORATION
By:
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FIRST INTERSTATE BANK OF TEXAS, N.A.
By:
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
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Guarantors' Acknowledgment and Reaffirmation
of Amendment and Guaranty
Noble Drilling (U.S.) Inc., a Delaware corporation ("ND-US"), Noble
Drilling (West Africa) Inc., a Delaware corporation ("ND-WA"), Noble Drilling
(Mexico) Inc., a Delaware corporation ("ND-M"), having executed an
unconditional guaranty agreement, in favor of the Agent and the Banks and dated
as of June 16, 1994, and Noble Offshore Corporation, a Delaware corporation
("NOC"), having executed an unconditional guaranty agreement, in favor of the
Agent and the Banks and dated as of June 30, 1995, hereby acknowledge, consent
and agree to the terms of the foregoing Second Amendment to Credit Agreement,
and further agree that the Guaranty Agreements executed and delivered by each
of ND-US, ND-WA, ND-M and NOC has been and continues in full force and effect
in accordance with its terms guaranteeing the payment and performance of all
indebtedness and obligations of the Borrower to the Agent and the Banks without
limitation, adverse effect or restriction by the foregoing Second Amendment to
Credit Agreement.
ND-US
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Noble Drilling (U.S.) Inc.
By:
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ND-WA
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Noble Drilling (West Africa) Inc.
By:
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ND-M
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Noble Drilling (Mexico) Inc.
By:
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Index to Annexes:
Annex A - Loan Formula Certificate
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