EXHIBIT 10.45
SECOND AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO SECURITY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY
AGREEMENT ("this Amendment") is made and entered into effective as of August
11, 1995 (the "Effective Date") by and among TRITON ENERGY CORPORATION, a
Texas corporation ("Borrower"), and the FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (individually referred to herein as a "Lender" and
collectively as "Lenders") and BANQUE PARIBAS HOUSTON AGENCY, as agent for the
Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower and Banque Paribas Houston Agency ("Paribas"), with the
Agent as Agent thereunder are parties to a Credit Agreement, dated as of March
28, 1995, which Credit Agreement was amended by First Amendment to Credit
Agreement effective May 16, 1995, by and among Borrower, the Agent and
Lenders.
WHEREAS, Borrower has requested that it be permitted to replace United
States Trust Company of New York as the custody agent for certain of its money
market instruments, securities and cash and Lenders have agreed to amend the
Credit Agreement to reflect such replacement;
WHEREAS, Borrower and Lenders desire to conform the Security Agreement to
the amendments to the Credit Agreement contained herein;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, Lenders and the Agent, each intending to be legally
bound, hereby mutually agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to such terms in
the Credit Agreement.
2. Amendments to the Credit Agreement.
(a) For all purposes and whenever the same appears in the Credit
Agreement the defined term "U.S. Trust Custodial Account" is hereby deleted
and the defined terms "Bank of New York Custodial Account and NationsBank
Custodial Account" are substituted therefor which substituted defined terms
shall have the following respective meanings:
"Bank of New York Custodial Account" means, collectively, the
custody accounts maintained by Borrower with The Bank of New York Company,
Inc. pursuant to the Bank of New York Short Term Money Management Account,
current account no. 364982.
"NationsBank Custodial Account" means, collectively, the custody
accounts maintained by Borrower with NationsBank of Texas, N.A. pursuant to
the NationsBank Custody Agreement, current account no. 30061000016246.
(b) For all purposes and whenever the same appears in the Credit
Agreement the defined term "U.S. Trust Custody Agreement" is hereby deleted
and the defined terms "Bank of New York Custody Agreement and NationsBank
Custody Agreement" are substituted therefor which substituted defined terms
shall have the following respective meanings:
"Bank of New York Custody Agreement" means the Custody Agreement
dated December 2, 1994, between Borrower and The Bank of New York Company,
Inc., as such agreement may be amended, supplemented or modified from time to
time.
"NationsBank Custody Agreement" means the Custody Agreement dated
August 11, 1995, between Borrower and NationsBank of Texas, N.A., as such
agreement may be amended, supplemented or modified from time to time.
(c) For all purposes and whenever the same appears in the Credit
Agreement the defined term "U.S. Trust Custodial Account Statement" is hereby
deleted and the defined terms "Bank of New York Custodial Account Statement
and NationsBank Custodial Account Statement" are substituted therefor which
substituted defined terms shall have the following respective meanings:
"Bank of New York Custodial Account Statement" means a statement
to be delivered by or on behalf of Borrower on or before each of the third
(3rd) Business Day and the third (3rd) Business Day following the fifteenth
(15th) calendar day of each month during the term hereof, which shall reflect
the Market Value of the Marketable Securities on deposit in the Bank of New
York Custodial Account and upon which the Agent will determine the current
Borrowing Base. Such statement to be delivered shall be prepared by Borrower
from a summary statement attached thereto which was furnished to Borrower by
The Bank of New York Company, Inc.
"NationsBank Custodial Account Statement" means a statement to be
delivered by or on behalf of Borrower on or before each of the third (3rd)
Business Day and the third (3rd) Business Day following the fifteenth
(15th) calendar day of each month during the term hereof, which shall reflect
the Market Value of the Marketable Securities on deposit in the NationsBank
Custodial Account and upon which the Agent will determine the current
Borrowing Base. Such statement to be delivered shall be prepared by Borrower
from a summary statement attached thereto which was furnished to Borrower by
NationsBank of Texas, N.A.
3. Amendments to the Security Agreement.
(a) For all purposes and whenever the same appears in the
Security Agreement, the defined term "U.S. Trust Custodial Account" is hereby
deleted and the identical terms and respective meanings are substituted
therefor as provided in paragraph 2(a) above.
(b) As defined in Section 3(c) and utilized throughout the
Security Agreement, the term "Depository" shall hereafter mean, collectively,
The Bank of New York Company, Inc. and NationsBank of Texas, N.A. In all
other portions of the Security Agreement, the name United States Trust Company
of New York shall be replaced by the term "Depository".
(c) Section 6(a)(i) of the Security Agreement shall hereafter
provide in its entirety:
(i) to exercise exclusive dominion and control over the
Bank of New York Custodial Account and the NationsBank Custodial Account and
to exercise all of the Agent's rights as set forth in those certain Letter
Agreements dated as of August 11, 1995, entered into by and among the
Grantor, the Agent, The Bank of New York Company, Inc. and NationsBank of
Texas, N.A., forms of which are attached hereto as Annex I (collectively, the
"Letter Agreement"), including, without limitation, the Agent's right to
provide written instructions to The Bank of New York Company, Inc. and
NationsBank of Texas, N.A., respectively, with respect to the disposition of
any and all monies, instruments and other property deposited or accumulated
in the Bank of New York Custodial Account and the NationsBank Custodial
Account, or that become withdrawable from a payable out of the Bank of New
York Custodial Account and the NationsBank Custodial Account, including any
balances that may remain to the credit of the Bank of New York Custodial
Account and the NationsBank Custodial Account upon the closing thereof;
(d) Annex I to the Security Agreement is hereby amended in its
entirety by substituting therefor the two (2) Annex I's attached hereto.
4. Further Representations of Borrower.
(a) The execution, delivery and performance by Borrower of this
Amendment and the consummation of the transactions contemplated hereby:
(i) are within Borrower's corporate powers;
(ii) have been duly authorized by all necessary corporate
action, including, without limitation, the consent of stockholders where
required;
(iii) do not and will not (A) contravene Borrower's
certificate of incorporation or bylaws or other comparable governing
documents, (B) violate any other applicable Requirement of Law (including,
without limitation, Regulations G, T, U and X of the Board of Governors of
the Federal Reserve System), or any order or decree of any Governmental
Authority or arbitrator, (C) conflict with or result in the breach of, or
constitute a default under, or result in or permit the termination or
acceleration of, any Contractual Obligation of any Loan Party or any of the
Material Subsidiaries, or (D) result in the creation or imposition of any
Lien upon any of the property of any Loan Party or any of its Material
Subsidiaries, other than those in favor of the Agent pursuant to the
Collateral Securities; and
(iv) do not require the consent of, authorization by,
approval of, notice to, or filing or registration with, any Governmental
Authority or any other Person, other than those which have been or will be,
prior to the Effective Date, obtained or made and copies of which in the case
of those involving a Governmental Authority have been or will be delivered to
the Agent, and each of which on the Effective Date will be in full force and
effect.
(b) This Amendment has been duly executed and delivered by
Borrower. This Amendment is the legal, valid and binding obligation of
Borrower, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar law
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding of law or in equity).
(c) Borrower further represents and warrants that (i) all of the
representations and warranties made by Borrower in Article IV of the Credit
Agreement, and in each other Loan Document, are true and correct on and as of
the date hereof, as though made on the date hereof; (ii) Borrower has
complied with all terms and conditions set forth in the Credit Agreement, and
in each other Loan Document, as of the date hereof; and (iii) there has not
occurred, and currently there exists no, Default or Event of Default.
5. Conditions. The obligations of Lenders and the Agent under this
Amendment are subject to the condition precedent that (i) this Amendment shall
have been duly executed by Borrower and delivered to Lenders, and each Lender
and the Agent shall have executed a counterpart hereof and (ii) the Agent
shall have received the Letter Agreements duly executed by The Bank of New
York Company, Inc. and NationsBank of Texas, N.A.
6. Ratification of Credit Agreement. All terms and provisions of
the Credit Agreement and the Security Agreement not expressly amended hereby
are hereby ratified and reaffirmed and shall remain in full force and effect
without interruption, change, or impairment of any kind.
7. General.
(a) Applicable Law. This Amendment has been delivered and
accepted in, and shall be a contract made under and governed by the laws of
the State of New York.
(b) Binding Effect. This Amendment shall be binding upon and
inure to the benefit of Borrower and Lenders and their respective successors
and assigns.
(c) Payment of Expenses. Borrower agrees to reimburse the
Agent for out-of-pocket expenses and will pay fees of counsel on behalf of the
Agent reasonably incurred in the review of this Amendment.
(d) Headings. The Section and subsection headings of this
Amendment are for convenience and shall not affect, limit or expand any term
or provision hereof.
(e) Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and each counterpart
shall be deemed an original. No one counterpart need be signed by all parties
hereto, but all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to Credit Agreement and First Amendment to Security Agreement to be executed
and delivered at Dallas, Texas, by their duly authorized officers, and to be
deemed effective as of the Effective Date.
TRITON ENERGY CORPORATION
By: /s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Treasurer
BANQUE PARIBAS HOUSTON AGENCY,
as the Agent and as a Lender
By: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
UNION BANK
By: /s/Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Vice President
By: /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title:
MEESPIERSON N.V.
By: /s/Xxxxxxx X. Xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title:Vice President
CHEMICAL BANK
By: /s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Assistant Manager
