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EXHIBIT 10.13.2
SECOND AMENDMENT TO SECOND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND RESTATED CREDIT AGREEMENT (herein
called this "Amendment") made as of the 26th day of September, 1995 by and
among Cliffs Drilling Company, a Delaware corporation ("Borrower"), Cliffs Oil
and Gas Company, a Delaware corporation ("COG"), Cliffs Drilling International,
Inc., a Delaware corporation ("CDI") and Internationale Nederlanden (U.S.)
Capital Corporation, a Delaware corporation ("Lender"),
W I T N E S S E T H:
WHEREAS, Borrower, COG, CDI and Lender have entered into that certain
Second Restated Credit Agreement dated as of March 28, 1994, as amended by that
certain First Amendment to Second Restated Credit Agreement dated as of May 17,
1994 (as so amended, the "Original Agreement") for the purposes and
consideration therein expressed, pursuant to which Lender made, and became
obligated to make, loans to Borrower as therein provided; and
WHEREAS, Borrower and Lender desire to amend the Original Agreement
for the purposes set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lender to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1 Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this Second Amendment to Second Restated
Credit Agreement.
"Credit Agreement" means the Original Agreement as amended
hereby.
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ARTICLE II.
Amendments to Original Agreement
Section 2.1. Letters of Credit. Clause (b)(ii) of the first
sentence of Section 2.1.4 of the Original Agreement, which currently reads:
"(ii) the L/C Exposure would exceed $5,000,000", is hereby amended in its
entirety to read as follows: "(ii) the L/C Exposure would exceed $10,000,000."
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective
as of the date first above written when and only when Lender shall have
received, at Lender's office, a counterpart of this Amendment executed and
delivered by Borrower.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In order
to induce Lender to enter into this Amendment, Borrower represents and warrants
to Lender that:
(a) The representations and warranties contained in
subsections 4.1, 4.2, 4.4, 4.6 and 4.27 of Article 4 of the Original
Agreement are true and correct at and as of the time of the
effectiveness hereof.
(b) Borrower, COG and CDI are each duly authorized to
execute and deliver this Amendment, and Borrower is and will continue
to be duly authorized to borrow and to perform its obligations under
the Credit Agreement. Borrower, COG and CDI have each duly taken all
corporate action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the obligations of
Borrower, COG and CDI hereunder.
(c) The execution and delivery by Borrower, COG and CDI of
this Amendment, the performance by Borrower, COG and CDI of their
respective obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the articles of
incorporation and bylaws of Borrower, COG or CDI, or of any material
agreement, judgment, license, order or permit applicable to
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or binding upon Borrower, COG or CDI, or result in the creation of any
lien, charge or encumbrance upon any assets or properties of Borrower,
COG or CDI. Except for those which have been duly obtained, no
consent, approval, authorization or order of any court or governmental
authority or third party is required in connection with the execution
and delivery by Borrower, COG and CDI of this Amendment or to
consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this
Amendment and the Credit Agreement will be a legal and binding
instrument and agreement of Borrower, COG and CDI, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency
and similar laws applying to creditors' rights generally and by
principles of equity applying to creditors' rights generally.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
Lender under the Credit Agreement or any other Loan Document nor constitute a
waiver of any provision of the Credit Agreement or any other Loan Document.
Section 5.2. Survival of Agreements. All representations,
warranties, covenants and agreements of Borrower herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making or granting of the Loan, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by any Related
Person hereunder or under the Credit Agreement to Lender shall be deemed to
constitute representations and warranties by, or agreements and covenants of,
such Related Person under this Amendment and under the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and
all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.
Section 5.4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING
CONSTRUCTION, VALIDITY AND PERFORMANCE.
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Section 5.5. Counterparts. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Amendment.
Section 5.6. AMENDMENT SUPERSEDING. THIS AMENDMENT CONSTITUTES THE
ENTIRE AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF AND
SHALL SUPERSEDE ANY PRIOR AGREEMENT BETWEEN THE PARTIES HERETO, WHETHER WRITTEN
OR ORAL, RELATING TO THE SUBJECT HEREOF. FURTHERMORE IN THIS REGARD, THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT, COLLECTIVELY, THE FINAL
AGREEMENT AMONG 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 AMONG THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
CLIFFS DRILLING COMPANY
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President - Finance
CLIFFS OIL AND GAS COMPANY
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President - Finance
CLIFFS DRILLING INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President - Finance
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
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CONSENT AND AGREEMENT
Each of Cliffs Oil and Gas Company and Cliffs Drilling International,
Inc., hereby consents to the provisions of this Amendment and the transactions
contemplated herein, and hereby ratifies and confirms the First Restated
Guaranty dated as of December 13, 1991 (as heretofore amended) made by it for
the benefit of Lender, and agrees that its obligations and covenants thereunder
are unimpaired hereby and shall remain in full force and effect.
CLIFFS OIL AND GAS COMPANY
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President - Finance
CLIFFS DRILLING INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President - Finance
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