EXHIBIT 4.4(a)
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"),
dated as of February 12, 2003, is among STERLING CHEMICALS, INC., a Delaware
corporation ("Chemicals"), STERLING CHEMICALS ENERGY, INC., a Delaware
corporation (together with the Chemicals, collectively, the "Borrowers"), the
several Lenders parties to this Amendment, and THE CIT GROUP/BUSINESS CREDIT,
INC., as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"). Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement referred to
below.
R E C I T A L S:
A. The Borrowers are parties to a Revolving Credit Agreement dated as
of December 19, 2002 (the "Credit Agreement"), among the Borrowers, the
Administrative Agent, and the several Lenders from time to time parties thereto.
B. The Borrowers have requested that the Lenders amend the Credit
Agreement as hereinafter set forth.
C. The Lenders parties to this Amendment (which Lenders constitute the
Lenders required to effect the amendments intended hereby) are willing to so
amend the Credit Agreement, subject to the performance and observance in full of
each of the covenants, terms and conditions, and in reliance upon the
representations and warranties of the Borrowers, set forth herein.
NOW, THEREFORE, in consideration of the covenants, terms, conditions,
representations and warranties herein contained, the parties agree as follows:
SECTION 1. AMENDMENTS TO SECTION 7.1.1 OF THE CREDIT AGREEMENT. Subject
to the covenants, terms and conditions set forth herein and in reliance upon the
representations and warranties herein contained, the Borrowers and the several
Lenders parties to this Amendment (which Lenders constitute the Lenders required
to effect the following amendments) hereby agree that, effective as of the
Amendment Effective Date (as hereinafter defined), Section 7.1.1 of the Credit
Agreement is amended as follows:
(a) the word "and" is deleted from the end of clause (m);
(b) the word "and" is inserted to the end of clause (n);
(c) the semicolon and the word "and" at the end of clause (o) is
deleted and replaced with a period in lieu thereof; and
(d) clause (p) is deleted in its entirety.
SECTION 2. CONDITIONS PRECEDENT. The parties agree that the amendments
to the Credit Agreement contained in Section 1 shall not be effective until the
satisfaction of each of the following conditions precedent:
(a) EXECUTION AND DELIVERY OF THIS AMENDMENT. The Administrative Agent
shall have received a counterpart of this Amendment executed and delivered by
each of the Borrowers and by Lenders constituting the Required Lenders.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment (except to the extent such representations
and warranties relate expressly to an earlier date, which representations and
warranties shall have been true and correct as of such earlier date).
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the several Lenders parties hereto to enter into this Amendment, each
of the Borrowers represents and warrants to the Administrative Agent and the
Lenders as follows:
(a) DUE AUTHORIZATION; NON-CONTRAVENTION. The execution, delivery and
performance by each Borrower of this Amendment and the performance by each
Borrower of the Credit Agreement, as amended hereby, are within each Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
and will not: (i) contravene any (A) Organic Documents of such Borrower, (B)
material agreement or indenture (including the Indenture) binding on or
affecting such Borrower, (C) court decree or order binding on or affecting such
Borrower or (D) law or governmental regulation binding on or affecting such
Borrower; or (ii) result in, or require the creation or imposition of, any Lien
on any of such Borrower's Properties (except as contemplated by the Loan
Documents or as otherwise permitted by the Credit Agreement).
(b) GOVERNMENTAL APPROVAL. No material authorization or material
approval or other action by, and no material notice to or material filing with,
any Governmental Authority or regulatory body or other Person (other than those
that have been, or on the Amendment Effective Date will be, duly obtained or
made and which are, or on the Amendment Effective Date will be, in full force
and effect) is required for the due execution, delivery or performance by any
Borrower of this Amendment or the Credit Agreement, as amended hereby.
(c) NO DEFAULT. No Default or Event of Default exists under any of the
Loan Documents.
(d) BINDING EFFECT. This Amendment and the Credit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Borrowers
enforceable against such Borrowers in accordance with their respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles of general applicability.
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(e) REPRESENTATIONS AND WARRANTIES. The representations and warranties
set forth in the Credit Agreement and the other Loan Documents are true and
correct in all material respects on and as of the Amendment Effective Date, both
before and after giving effect to the amendments contemplated in Section 1 of
this Amendment, as if such representations and warranties were being made on and
as of the Amendment Effective Date (except to the extent such representations
and warranties relate expressly to an earlier date, which representations and
warranties are true and correct as of such earlier date).
SECTION 4. MISCELLANEOUS
(a) RATIFICATION. Except for the specific amendments expressly set
forth in Section 1 this Amendment, the terms, provisions, conditions and
covenants of the Credit Agreement and the other Loan Documents remain in full
force and effect and are hereby ratified and confirmed, and the execution,
delivery and performance of this Amendment shall not in any manner operate as a
waiver of, consent to or amendment of any other term, provision, condition or
covenant of the Credit Agreement or any other Loan Document.
(b) FEES AND EXPENSES. The Borrowers jointly and severally agree to pay
on demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution, and delivery of this
Amendment and any other documents prepared in connection herewith, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent.
(c) HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) COUNTERPARTS AND AMENDMENT EFFECTIVE DATE. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective when each of the conditions precedent set forth in Section 2 of this
Amendment have been satisfied (the "Amendment Effective Date").
(f) CONFIRMATION OF LOAN DOCUMENTS AND LIENS. As a material inducement
to the Lenders to amend the Credit Agreement, the Borrowers hereby (i)
acknowledge and confirm the continuing existence, validity and effectiveness of
the Loan Documents to which they are parties, including, without limitation the
Security Documents, and the Liens granted under the Security Documents, (ii)
agree that the execution, delivery and performance of this Amendment shall not
in
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any way release, diminish, reduce or otherwise impair such Loan Documents and
Liens and (iii) acknowledge and agree that the Liens granted under the Security
Documents secure payment of the Obligations under the Loan Documents in the same
priority as on the date such Liens were created and perfected, and the
performance and observance by the Borrowers of the covenants, agreements and
conditions to be performed and observed by each under the Credit Agreement, as
amended hereby.
(g) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT AGREEMENT
AND OTHER LOAN 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 caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers
effective as of the Amendment Effective Date.
BORROWERS:
STERLING CHEMICALS, INC.
By:
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Title:
STERLING CHEMICALS ENERGY, INC.
By:
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Title:
ADMINISTRATIVE AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.
as Administrative Agent
By:
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Title:
LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
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Title:
CONGRESS FINANCIAL CORPORATION
By:
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Title:
FOOTHILL CAPITAL CORPORATION
By:
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Title:
WHITEHALL BUSINESS CREDIT
CORPORATION
By:
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Title:
