EXHIBIT 10.12
XXXXX REFINING & MARKETING, INC.
AMENDMENT NO. 2
TO CREDIT AGREEMENT
This AMENDMENT NO. 2 (the "Amendment") is dated as of November 7, 1997
and entered into by and among Xxxxx Refining & Marketing, Inc., a Delaware
corporation (the "Borrower"), 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. 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 Borrower;
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 Amendment to Section 1.01 of the Credit Agreement.
(a) The following definitions shall be inserted in Section 1.01
of the Credit Agreement:
"Agents" means the Administrative Agent, the Syndication Agent and the
Documentation Agent, collectively.
"Floating and Fixed Rate Notes" means the senior and subordinated, as
the case may be, Floating and Fixed Rate Notes or loans to be issued under the
Floating and Fixed Rate Note Indentures in an aggregate amount not to exceed
$400,000,000 for the purposes described in, and otherwise in accordance with,
Section 8.05(i).
"Floating and Fixed Rate Note Indentures" means each of the indentures
and/or credit agreements to be entered into by the Company pursuant to which the
Floating and Fixed Rate Notes are to be issued.
(b) The definition of "Cumulative Cash Flow" shall be amended by
deleting the words "Senior Notes" from clause (b)(v) thereto and inserting
the words "9-1/2% Notes or the Floating and Fixed Rate Notes" in lieu
thereof.
(c) The definition of "Institutional Finance Documents" shall be
amended by deleting the words "the Senior Notes, the Senior Note Indenture"
therein and inserting the words "the 9-1/2% Notes, the 9-1/2% Note
Indentures, the Floating and Fixed Rate Notes, the Floating and Fixed Rate
Note Indentures" in lieu thereof.
(d) The definition of "Holdings Note Indentures" shall be
amended by changing its name to "Holdings Note Indenture", by deleting
clause (i) thereof in its entirety and by deleting the words "and (ii)"
therein.
(e) The definition of "Holdings Notes" shall be amended by
deleting clause (i) thereof in its entirety and by deleting the words "and
(ii)" therein.
(f) The definitions of "Senior Notes", "Senior Note Indentures",
"10-1/2% Notes" and "10-1/2% Note Indenture" shall be deleted from Section
1.01 of the Credit Agreement.
(g) All references to the "Holdings Note Indentures" in the
Credit Agreement shall be construed to refer to the "Holdings Note
Indenture".
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1.02 Amendment to Section 6.24. Section 6.24 of the Credit Agreement
shall be deleted in its entirety and the following Section 6.24 shall be
inserted in lieu thereof (provided that, until the Holdings Senior Secured Zero
Coupon Notes due 2000 are repurchased or redeemed in whole, that portion of
existing Section 6.24 relating to the indenture governing such Notes shall
continue in effect):
"6.24 Holdings Note Indenture, 9-1/2% Note Indenture and Floating
and Fixed Rate Note Indentures. The Indebtedness to be incurred by the Company
under this Agreement will be (i) "Permitted Indebtedness" under the Floating and
Fixed Rate Note Indentures pursuant to the definition of such term contained
therein and (ii) "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, 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
Indenture or the Floating and Fixed Rate Notes."
1.03 Amendment to Section 8.05.
(a) Clause (g) of Section 8.05 of the Credit Agreement shall be
amended by deleting the words "Senior Notes" therein and inserting the
words "9-1/2% Notes or the Floating and Fixed Rate Notes" in lieu thereof
and by deleting the words "Senior Note Indentures" therein and inserting
the words "9-1/2% Note Indenture and/or the applicable Floating and Fixed
Rate Note Indenture" in lieu thereof.
(b) Clause (h) of Section 8.05 of the Credit Agreement shall be
deleted in its entirety and the following clause (h) shall be inserted in
lieu thereof:
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"(h) Indebtedness incurred by Unrestricted Subsidiaries to the extent
permitted under the 9-1/2% Note Indenture, the Holdings Note Indenture and the
Floating and Fixed Rate Note Indentures;".
(c) The following clause (i) shall be inserted after clause (h)
of Section 8.05 of the Credit Agreement and clause (i) shall be re-lettered
as clause (j):
"(i) Indebtedness of the Company, in an aggregate amount not to exceed
$400,000,000 (in the form of floating and fixed rate notes or loans), incurred
to refinance in whole the 10-1/2% Notes and to replenish the Company's cash
reserves following a dividend payment to Holdings, the proceeds of which will
have been or shall be used to repurchase and/or redeem in whole the Holdings
Senior Secured Zero Coupon Notes due 2000 and to pay certain fees and expenses,
which Indebtedness shall be substantially on the terms set forth in the 1997
Refinancing Indebtedness Term Sheet attached hereto as Annex I and such other
terms (including, as applicable, as to subordination) as are satisfactory to the
Agents in their discretion; provided, that a minimum of $250,000,000 of such
Indebtedness provides for a fixed interest rate and $175,000,000 of such
$250,000,000 of Indebtedness is subordinated in right of payment to all the
Obligations; and".
1.04 Amendments to Section 8.11.
(a) Section 8.11 of the Credit Agreement shall be amended by
inserting the following clause (c) at the end of the first proviso thereof:
"and (c) redeem the 10-1/2% Notes in accordance with Section 8.05(i)".
(b) Clause (iii) and clause (b) of the first proviso in Section
8.11 of the Credit Agreement shall be amended by deleting the words "Senior
Notes" each place where such words appear and inserting the words "9-1/2% Notes
or the Floating and Fixed Rate Notes" in lieu thereof and by deleting clause (c)
in its entirety and inserting the following clause (c) in lieu thereof:
"(c) in addition to clause (b) above, prepay or redeem not more than 35%
of the aggregate principal amount of the Floating and Fixed Rate Notes
originally issued which bear a
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fixed interest rate, with the proceeds received from the issuance of Capital
Stock of the Company or Holdings in accordance with the terms of such Notes as
in effect on the dates of their respective indentures or credit agreements".
1.05 Amendments to Section 8.16. Clause (c) of Section 8.16 of the
Credit Agreement shall be amended by deleting the amount "$300,000,000" and
inserting the amount "$280,000,000" in lieu thereof and by inserting at the end
of such clause the following proviso:
"provided, that such required amount shall be decreased by an amount equal
to the cash and non-cash equity adjustments of the Company in respect of matters
identified to the Administrative Agent prior to November 7, 1997, in an
aggregate amount not to exceed $80,000,000 (a maximum of $10,000,000 of which
may be cash equity adjustments), at the time any such adjustments are actually
made".
1.06 Amendments to Section 8.18. Section 8.18 of the Credit Agreement
shall be amended by deleting the words "any of the Senior Notes," and inserting
the words "any of the 9-1/2% Notes, any of the Floating and Fixed Rate Notes,"
in lieu thereof and deleting the words "Senior Note Indentures" and inserting
the words "the 9-1/2% Note Indenture, the Floating and Fixed Rate Note
Indentures," in lieu thereof.
1.07 Amendment to Section 9.01.
(a) Section 9.01(e) of the Credit Agreement shall be amended by
inserting the following proviso at the end thereof:
"(it being understood that the obligation of the Company to offer to
repurchase the 9-1/2% Notes, the 10-1/2% Notes or the Holdings Notes arising
solely out of the sale by TrizecHahn of all of its equity interest in the
Company to one or more of the Fund Affiliates shall not itself be deemed an
Event of Default under this Section 9.01(e))".
(b) Section 9.01 (o) of the Credit Agreement shall be amended by
deleting the provisos at the end thereof.
1.08 Addition of Annex I. Annex I attached hereto shall be attached
to the Credit Agreement as Annex I to the Credit Agreement.
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1.09 Extensions of Credit. It shall be a condition precedent to the
making of each Loan and the issuance of each Letter of Credit that (a) the
Obligations in respect thereof will be "Senior Debt" as such term will be
defined in the indenture or credit agreement relating to the Floating and Fixed
Rate Notes that are senior subordinated and (b) each Notice of Borrowing and L/C
Request will contain a representation and warranty by the Company to that
effect.
Article II
EFFECTIVENESS OF AMENDMENTS
2.01 Effectiveness of Amendments under Section 1.01 (a), 1.03(c),
1.04 (a), 1.07(a) and 1.08. The provisions of Sections 1.01(a), 1.03(c),
1.04(a), 1.07(a) and 1.08 of this Amendment shall become effective on the
opening of business in New York on the Business Day on which the Administrative
Agent has notified the Borrower and the Banks that the Administrative Agent has
executed a counterpart signature page of this Amendment and has received
executed counterpart signature pages of this Amendment from the Borrower and the
Majority Banks.
2.02 Effectiveness of Amendments under Sections 1.01(b) - (g), 1.02,
1.03 (a) and (b), 1.04(b), 1.06, 1.07(b) and 1.09. The provisions of Sections
1.01 (b) - (g), 1.02, 1.03 (a) and (b), 1.04(b), 1.06, 1.07(b) and 1.09 shall
become effective concurrently with the issuance of the Floating and Fixed Rate
Notes.
2.03 Effectiveness of Amendments under Section 1.05. The provisions
of Section 1.05 shall become effective concurrently with the Company's payment
to Holdings of the dividend described in Section 8.05(i) of the Credit
Agreement, as amended hereby.
Article III
MISCELLANEOUS
3.01 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
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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 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.
3.02 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 Borrower 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).
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3.03 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.
3.04 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.
3.05 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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Amendment No. 2 to Credit Agreement
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: /s/ Xxxxxxx X. Xxxxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Vice President--Corporate Development
AGENTS
------
BANKERS TRUST COMPANY
as Administrative Agent
and Collateral Agent
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE TORONTO DOMINION BANK
as Syndications Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager Credit Admin
BANKBOSTON, N.A.
as Documentation Agent
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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LENDERS
-------
ABN AMRO BANK
as a Bank
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. Honda
------------------------------
Name: Xxxx X. Honda
Title: Vice President
BANKBOSTON, N.A.
as a Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
BANKERS TRUST COMPANY
as a Bank
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF SCOTLAND
as a Bank
By: /s/ Xxxxx Xxxx Tat
------------------------------
Name: Xxxxx Xxxx Tat
Title: Vice President
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COMERICA BANK
as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank
By: /s/ Philippe Soustra
-------------------------------------------------------
Name: Philippe Soustra
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
as a Bank
By: -----------------------------------------------------
Name:
Title:
11
GREEN TREE FINANCIAL SERVICING
CORPORATION
as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: V.P., General Manager
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: /s/ Xx. Xxxxx Xxxxxxxx
-------------------------------------------------------
Name: Xx. Xxxxx Xxxxxxxx
Title: Chief Manager
THE SANWA BANK LIMITED
as a Bank
By:
-------------------------------------------------------
Name:
Title:
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STANDARD CHARTERED BANK
as a Bank
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx XxXxxxx
-------------------------------------------------------
Name: Xxxxxxxx XxXxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
as a Bank
By: /s/ Xxxx Xxxxxxx
-------------------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
as a Bank
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK (TEXAS), N.A.
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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DEN NORSKE BANK ASA
as a Bank
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ J. Xxxxxx Xxxxxx
-------------------------------------------------------
Name: J. Xxxxxx Xxxxxx
Title: Vice President
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ISSUING BANKS
-------------
BANKERS TRUST COMPANY
as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
as Issuing Bank
By:
----------------------------
Name:
Title:
BANKBOSTON, N.A.
as Issuing Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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