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EXHIBIT 4.13
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of July 14, 2000 (this AMENDMENT NO. 1) between: ▇▇▇▇▇
CORPORATION, NAVAJO REFINING COMPANY, BLACK EAGLE, INC., NAVAJO CORP., NAVAJO
SOUTHERN, INC., NAVAJO NORTHERN, INC., LOREFCO, INC. NAVAJO CRUDE OIL
PURCHASING, INC., NAVAJO HOLDINGS, INC., ▇▇▇▇▇ PETROLEUM, INC., NAVAJO PIPELINE
CO., LEA REFINING COMPANY, NAVAJO WESTERN ASPHALT COMPANY, and MONTANA REFINING
COMPANY, A PARTNERSHIP, as Borrowers and Guarantors, the BANKS listed on the
signature pages hereof, CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative
Agent, CIBC INC. as Collateral Agent, FLEET NATIONAL BANK (formerly known as
Bank Boston Corp.), as Collateral Monitor and Documentation Agent, and CIBC
WORLD MARKETS CORP., as Sole Lead Arranger and Bookrunner.
WHEREAS
(A) The parties hereto are party to an Amended and Restated Credit and
Reimbursement Agreement dated as of April 14, 2000 (as in effect on the
date hereof, the CREDIT AGREEMENT), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Banks to the
Borrowers in an aggregate principal or face amount not exceeding
$100,000,000.
(B) The parties hereto wish to amend the Credit Agreement, and accordingly, the
parties hereto hereby agree as follows:
DEFINITIONS
1. Except as otherwise defined in this Amendment No. 1, terms defined in the
Credit Agreement are used herein as defined therein.
AMENDMENTS
2. Subject to the satisfaction of the conditions precedent set forth in
Section 4 below, the Credit Agreement shall be amended as follows effective
immediately on the date hereof upon the execution and delivery of this
Agreement No. 1 by the parties hereto:
A. References in the Credit Agreement to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be
deemed to be references to the Credit Agreement, as amended hereby and as
the same may from time to time be further amended or supplemented.
B. Section 5.7 of the Credit Agreement is amended by: (i) in Section
5.7(f)(iii), deleting the word "and" after the phrase "in the Refinery
Investment;"; (ii) changing the reference to Section 5.7"(g)" to Section
5.7"(h)"; (iii) deleting the word "or" after "(e)" in Section 5.7(h) and
replacing it with "," and adding
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"or (g)" after "(f)" in Section 5.7(h); and (iv) adding the following
after Section 5.7(f)(iii):
"(g) Investments in an asphalt joint venture between Navajo Refining
Company and ▇▇▇▇ Materials Company, PROVIDED that the assets to be
contributed by Navajo Refining Company shall only include (i) the
assets to be contributed by Navajo Refining Company listed in Exhibit A
to the letter agreement regarding the proposed asphalt joint venture
between Navajo Refining Company and ▇▇▇▇ Materials Company dated March
23, 2000, (ii)(x) cash and (y) Navajo Refining Company's existing
asphalt inventory (provided that the aggregate value of the items
contributed pursuant to clauses (x) and (y) shall not exceed
$10,000,000) and (iii) the annual cash contribution specified in clause
5 of such letter; and".
C. The reference in Section 5.14(a)(iv) of the Credit Agreement to "5 years"
is deleted and replaced with "4 years".
D. The first sentence of Section 5.15 of the Credit Agreement is deleted in
its entirety and the following shall be substituted therefor:
"Neither the Company nor any Restricted Subsidiary will declare or make
any Restricted Payment or make or acquire any Restricted Investment if,
after giving effect thereto, the aggregate amount of all Restricted
Payments declared or made and Restricted Investments made or acquired
during the period commencing on the first day of the eleventh
consecutive fiscal quarter most recently ended on or prior to the date
on which such Restricted Payment is to be declared or made or such
Restricted Investment is to be made or acquired (the DETERMINATION
DATE) and ending on the determination date would exceed (i) the sum of
(A) an amount equal to 50% of Consolidated Net Income for the period of
12 consecutive fiscal quarters most recently ended on or prior to the
determination date plus (B) $10,000,000 or (ii) the aggregate amount of
all Restricted Payments declared or made and Restricted Investments
made or acquired during the then current fiscal year of the Company
would exceed the Applicable Annual Limit."
REPRESENTATIONS AND WARRANTIES
3. Each of the Obligors represents and warrants to the Banks and the Agents that
(unless specifically limited to an earlier date) the representations and
warranties set forth in Section 4 of the Credit Agreement are true and complete
on and as of the date hereof with the same force and effect as if made on and as
of such date, and as if each reference in said Section 4 to "this Agreement"
included reference to this Amendment No. 1.
CONDITIONS PRECEDENT
4. As provided in Section 2, the amendments to the Credit Agreement set forth in
said Section 2 shall become effective, as of the date hereof, upon the execution
and delivery of this Amendment No. 1 by each of the parties hereto.
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ACKNOWLEDGEMENT OF OBLIGORS
5. Each Obligor hereby (a) agrees that each reference to the Credit Agreement
and words of similar import in each Financing Document to which such Obligor is
party shall be reference to the Credit Agreement as amended by this Amendment
No. 1 and (b) confirms that its obligations under each Financing Document to
which it is party remain in full force and effect after giving effect to the
amendment of the Credit Agreement by this Amendment No. 1.
MISCELLANEOUS
6. Except as herein provided, the Credit Agreement shall remain unchanged and in
full force and effect. This Amendment No. 1 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
duly executed and delivered as of the day and year first above written.
▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title: President
NAVAJO REFINING COMPANY
BLACK EAGLE, INC.
NAVAJO CORP.
NAVAJO SOUTHERN, INC.
NAVAJO NORTHERN, INC.
LOREFCO, INC.
NAVAJO CRUDE OIL PURCHASING, INC.
NAVAJO HOLDINGS, INC.
▇▇▇▇▇ PETROLEUM, INC.
NAVAJO PIPELINE CO.
LEA REFINING COMPANY
NAVAJO WESTERN ASPHALT COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Title:
MONTANA REFINING COMPANY, A PARTNERSHIP
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇
AUTHORIZED SIGNATORY
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CIBC INC., as Collateral Agent,
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇
AUTHORIZED SIGNATORY
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FLEET NATIONAL BANK, as Collateral Monitor and Documentation Agent
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
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CIBC WORLD MARKETS CORP., as Sole Lead Arranger and Bookrunner
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇
AUTHORIZED SIGNATORY
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CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Title: ▇▇▇▇▇▇▇▇ ▇▇▇▇
AUTHORIZED SIGNATORY
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FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
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▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By /s/ F.C.H. ▇▇▇▇▇
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Title: F.C.H. ▇▇▇▇▇
Senior Manager Loan Operations
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By /s/ [ILLEGIBLE]
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Title: VP & Manager/VP
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