XXXXX REFINING & MARKETING, INC.
AMENDMENT NO. 4
TO CREDIT AGREEMENT
This AMENDMENT NO. 4 (the "Amendment") is dated as of October 2, 1998
and entered into by and among Xxxxx Refining & Marketing, Inc., a Delaware
corporation (the "Company"), Bankers Trust Company, a New York Banking
corporation, as Administrative Agent and Collateral Agent, The Toronto-Dominion
Bank, a Canadian chartered bank, as Syndication Agent, and BankBoston, N.A., a
national banking association, as Documentation Agent, and the other financial
institutions party hereto (the "Banks"). This Amendment amends the Credit
Agreement (as amended, amended and restated, supplemented or otherwise
modified, the "Credit Agreement") dated as of September 25, 1997 by and among
the parties hereto. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the parties hereto entered into the Credit Agreement, which
provides for a loan facility to the Company;
WHEREAS, the parties hereto desire to make certain amendments to the
Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows;
Article I
AMENDMENTS TO THE CREDIT AGREEMENT
1.01 Amendments to Section 1.01 of the Credit Agreement.
(a) The definition of "Borrowing Base" shall be amended by deleting
clauses (e) and (f) in their entirety and the following clauses (e) and (f)
shall be inserted in lieu thereof:
"(e) 80% of Eligible Petroleum Inventory,
(f) 80% of Eligible Petroleum Inventory-Not-Received, and".
(b) The definition of "Facility Expiry Date" shall be amended by deleting
the date "December 31, 1999" and inserting the date "December 31, 2000" in lieu
thereof.
(c) The following definitions shall be inserted in Section 1.01 of the
Credit Agreement:
"Year 2000 Compliant" means, with respect to all Information Systems
and Equipment, that all such systems and equipment accurately
process, in all material respects date data (including, but not
limited to, calculating, comparing and sequencing), before, during
and after the year 2000, as well as same and multi-century dates, or
between the years 1999 and 2000, taking into account all leap years,
including the fact that the year 2000 is a leap year, and further,
that when used in combination with, or interfacing with, other
Information Systems and Equipment, shall accurately accept, release
and exchange date data, and shall in all material respects continue
to function in the same manner as it performs today and shall not
otherwise impair the accuracy or functionality of Information Systems
and Equipment.
"Information Systems and Equipment" means all computer hardware,
firmware and software, as well as other information processing
systems, or any equipment containing embedded microchips, whether
directly owned, licensed, leased, operated or otherwise controlled by
the Company or any of its Subsidiaries, including through third-party
service providers, and which, in whole or in part, are used,
operated, relied upon, or integral to, the Company's or any of its
Subsidiaries' conduct of their business.
1.02 Amendment to Section 2.01 of the Credit Agreement.
(a) Section 2.01. shall be amended by inserting the following sentence at
the end of the first paragraph thereof:
"Notwithstanding anything herein to the contrary, the maximum
Effective Amount of loans permitted to be outstanding at any time
hereunder may not be increased to an amount greater than $200,000,000
without the written consent of all Banks and the Company, and acknowledged
by the Administrative Agent."
1.03 Amendment to Section 6.24 of the Credit Agreement.
(a) Section 6.24 shall be amended by deleting it in its entirety and
inserting the following in lieu thereof:
6.24. Holdings Note Indenture, 9-1/2% Note Indenture and Floating
and Fixed Rate Note Indentures and 1998 Floating and Fixed Rate Note
Indentures. The Indebtedness to be incurred by the Company under
this Agreement is (i) "Permitted Indebtedness" under the Floating and
Fixed Rate Note Indentures pursuant to the definition of such term
contained therein and "Senior Debt"under the Floating and Fixed Rate
Note Indenture described in clause (ii) of the definition of Floating
and Fixed Rate Note Indentures pursuant to the definition of such
term contained therein, (ii) "Permitted Indebtedness" under the 1998
Floating and Fixed Rate Note Indentures pursuant to the definition of
such term contained therein, and (iii) "Permitted Indebtedness" under
the 9-1/2% Note Indenture pursuant to clause (ii) of the definition
of such term contained in the 9-1/2% Note Indenture as this Agreement
constitutes a refinancing, renewal, extension, refunding or
replacement of the Existing Credit Agreement (which constitutes the
"Credit Agreement" as defined in the 9-1/2% Note Indenture). The
Loan Documents, when executed and delivered by the parties thereto,
are the "Credit Agreement" as such term is used in clause (b) of
Section 1016 of the 9-1/2% Note Indenture. The execution, delivery
and performance of the Loan Documents and the provisions contained
herein and therein do not contravene or conflict with,
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result in a breach or violation of, or constitute a default under any
of the terms, conditions or provisions of the Holdings Note
Indenture, the Holdings Notes, the 9-1/2% Note Indenture, the 9-1/2%
Notes, the Floating and Fixed Rate Note Indentures, the Floating and
Fixed Rate Notes, the 1998 Floating and Fixed Rate Note Indentures or
the 1998 Floating and Fixed Rate Notes.
1.04 Amendment to Article VI of the Credit Agreement. Article VI of
the Credit Agreement shall be amended by inserting the following Section 6.26
at the end thereof:
6.26 Year 2000 Compliance. All Information Systems and Equipment
are either Year 2000 Compliant, or any reprogramming, remediation, or any
other corrective action, including the internal testing of all such
Information Systems and Equipment, will be completed by September 30, 1999
except where the failure to be so completed would not have a Material
Adverse Effect. Further, to the extent that such reprogramming/remediation
and testing action is required, the cost thereof, as well as the cost of
the reasonably foreseeable consequences of failure to become Year 2000
Compliant, to the Borrower and its Subsidiaries (including, without
limitation, reprogramming errors and the failure of other systems or
equipment) will not result in an Event of Default or a Material Adverse
Effect.
1.05 Amendment to Article VII of the Credit Agreement. Article VII
of the Credit Agreement shall be amended by inserting the following Section
7.16 at the end thereof:
7.16 Year 2000 Compliance. The Company shall ensure that its
Information Systems and Equipment are, at all times after January 1,
1999, Year 2000 Compliant, except insofar as the failure to do so
will not result in a Material Adverse Effect, and shall notify the
Administrative Agent and the Banks promptly upon detecting any
failure of the Information Systems and Equipment to be Year 2000
Compliant if such failure would reasonably be expected to have a
Material Adverse Effect.
1.06 Amendments to Section 11.01 of the Credit Agreement.
(a) Section 11.01 shall be amended by deleting clause (a) in its entirety
and substituting "(a) intentionally omitted" in lieu thereof.
(b) Section 11.01 shall be further amended by inserting, at the beginning
of the second proviso thereto, the following clause (i) and by re-lettering
clauses (i) through (iv) thereto accordingly:
"(i) no amendment, waiver or consent shall increase or extend the
Commitment of any Bank (or reinstate any Commitment terminated
pursuant to Section 9.02(a)) unless such amendment, waiver or consent
is in writing and signed by such Bank"
1.07 Replacement of Schedule 1.01(a). Schedule 1.01(a) attached
hereto shall be attached to the Credit Agreement as Schedule 1.01(a)
(Commitments) to the Credit Agreement and shall replace the existing Schedule
1.01(a).
1.08 Adjustments of Commitments. Each Bank's participation in
letters of credit under the Credit Agreement shall be automatically adjusted
such that their participation shall be in accordance with their pro rata
commitments as reflected on Schedule 1.01(a) (as amended hereby) to the Credit
Agreement.
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Article II
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of business in
New York on the Business Day (the "Effective Date") on which the Administrative
Agent has notified the Company and the Banks that the Administrative Agent has
executed a counterpart signature page of this Amendment, has received executed
counterpart signature pages of this Amendment from the Company and the Majority
Banks, and upon the satisfaction of the following conditions precedent and the
prior receipt by the Administrative Agent of all of the following (and in the
case of any agreements, documents, opinions and certificates, in sufficient
copies for the Administrative Agent and each Bank) dated the Effective Date or
such other date satisfactory to the Administrative Agent in form and substance
satisfactory to the Administrative Agent:
(a) Amendment and Notes. This Amendment and Notes drawn to the order of
each requesting Bank in an amount of such requesting Bank's new Commitment as
set forth in Schedule 1.01(a) hereto, executed by each party thereto;
(b) Payment of Fees and Expenses. Evidence of payment by the Company of
all accrued and unpaid Fees and Expenses to the extent then due and payable on
the Effective Date and invoiced, together with any reasonable estimate of
reasonable fees and expenses of outside counsel incurred or to be incurred by
it through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and such
counsel);
(c) Legal Opinions.
(i) an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Company, addressed to the Administrative Agent and the Banks, in form and
substance satisfactory to the Administrative Agent; and
(ii) a reliance letter by Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to
the Company, addressed to the Administrative Agent and certain Banks,
permitting such Banks to rely on the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
given in connection with Amendment No. 3 to the Credit Agreement, dated as
of July 24, 1998.
Notwithstanding the foregoing, Sections 1.01 and 1.04 of this
Amendment shall not be effective until the opening of business in New York on
the Business Day on which the Administrative Agent has notified the Company and
the Banks that the Administrative Agent has received executed counterpart
signature pages of this Amendment from each of the then participating Banks and
upon satisfaction of all other conditions set forth in this Section 2.
Article III
MISCELLANEOUS
3.1 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) This Amendment modifies the Credit Agreement to the extent set forth
herein, is hereby incorporated by reference into the Credit Agreement and is
made a part thereof. On and after the effective date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in
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the other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.
(b) Except as specifically amended by this Amendment, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of,
or operate as a waiver of any right, power or remedy of the Administrative
Agent, any Bank or any Issuing Bank under, the Credit Agreement or any of the
other Loan Documents.
3.2 Representations and Warranties; No Default or Event of Default.
On the date of effectiveness of any of the amendments herein (after giving
effect to the consummation of the transactions contemplated by this Amendment
to have occurred on or prior to such date), the Company shall be deemed to have
certified to the Banks that, after giving effect to the amendments contained
herein that become effective on such date all of the representations and
warranties contained in the Credit Agreement are true and correct on and as of
the date thereof with the same effect as if made on and as of such date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date and
except to the extent (x) the representations and warranties set forth in
Section 6.05 of the Credit Agreement relate to any litigation which has been
specifically disclosed to the Banks and which has been added to Schedule 6.05
to the Credit Agreement with the written approval of the Majority Banks and (y)
the representation and warranty set forth in Section 6.25 of the Credit
Agreement relates to any event or condition which has been specifically
disclosed to the Banks and which has been added to Schedule 6.25 to the Credit
Agreement with the written approval of the Majority Banks).
3.3 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.
3.4 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
3.5 Counterparts. 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 one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXXXX REFINING & MARKETING, INC.
By:_________________________________
Name:
Title:
AGENTS
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BANKERS TRUST COMPANY
as Administrative Agent
and Collateral Agent
By:_________________________________
Name:
Title:
THE TORONTO DOMINION BANK
as Syndication Agent
By:_________________________________
Name:
Title:
BANKBOSTON, N.A.
as Documentation Agent
By:_________________________________
Name:
Title:
BANKS
-----
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ABN AMRO BANK
as a Bank
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
ARAB BANKING CORPORATION (B.S.C.)
as a Bank
By:_________________________________
Name:
Title:
BANKBOSTON, N.A.
as a Bank
By:_________________________________
Name:
Title:
BANKERS TRUST COMPANY
as a Bank
By:_________________________________
Name:
Title:
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BANK OF SCOTLAND
as a Bank
By:_________________________________
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:_________________________________
Name:
Title:
COMERICA BANK
as a Bank
By:_________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank
By:_________________________________
Name:
Title:
DEN NORSKE BANK ASA
as a Bank
By:_________________________________
Name:
Title:
By:_________________________________
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Name:
Title:
FINOVA CAPITAL CORPORATION
By:_________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
as a Bank
By:_________________________________
Name:
Title:
FREMONT FINANCIAL CORPORATION
By:_________________________________
Name:
Title:
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THE FUJI BANK, LIMITED
as a Bank
By:_________________________________
Name:
Title:
GREEN TREE FINANCIAL SERVICING
CORPORATION
as a Bank
By:_________________________________
Name:
Title:
HIBERNIA NATIONAL BANK
as a Bank
By:_________________________________
Name:
Title:
MERCANTILE BANK NATIONAL ASSOCIATION
as a Bank
By:_________________________________
Name:
Title:
MITSUBISHI TRUST & BANKING CORP.
as a Bank
By:_________________________________
Name:
Title:
THE SANWA BANK LIMITED
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as a Bank
By:_________________________________
Name:
Title:
STANDARD CHARTERED BANK
as a Bank
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:_________________________________
Name:
Title:
TORONTO DOMINION(TEXAS), INC.
as a Bank
By:_________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
as a Bank
By:_________________________________
Name:
Title:
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XXXXX FARGO BANK (TEXAS), N.A.
as a Bank
By:_________________________________
Name:
Title:
ISSUING BANKS
-------------
BANKERS TRUST COMPANY
as Issuing Bank
By:_________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as Issuing Bank
By:_________________________________
Name:
Title:
BANKBOSTON, N.A.
as Issuing Bank
By:_________________________________
Name:
Title:
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