Exhibit 10.38
EXECUTION COPY
AMENDMENT NO. 1, dated as of July 28, 2003 (this "Amendment No. 1"),
to the Credit Agreement dated as of November 20, 2002 (as amended, supplemented,
amended and restated or otherwise modified from time to time) (the "Credit
Agreement") among Constar International Inc. (the "Borrower"), the Lenders party
thereto, Citicorp North America, Inc., as Administrative Agent (the
"Administrative Agent"), JPMorgan Chase Bank, as Documentation Agent, SunTrust
Bank, as Co-Documentation Agent, Deutsche Bank Securities Inc. ("DBSI") as
Syndication Agent and Citigroup Global Markets Inc. (f/k/a Xxxxxxx Xxxxx Xxxxxx
Inc.) and DBSI as Joint Lead Arrangers and Joint Bookrunners. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned to them
in the Credit Agreement.
WHEREAS, pursuant to Section 9.08 of the Credit Agreement, the
Borrower and the Required Lenders desire to amend certain provisions of the
Credit Agreement;
WHEREAS, the consent of the Requisite Lenders is necessary to effect
this Amendment No. 1;
NOW, THEREFORE, in consideration of the promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
Section 1. Amendments.
(a) Section 5.19. Article V of the Credit Agreement is hereby amended
by adding a new Section 5.19 at the end of Article V as follows:
Section 5.19 Updated Projected Financial Statements. As soon as
available and in any event no later than September 2, 2003, the Borrower
will furnish to each Lender and the Administrative Agent consolidated
income statement, balance sheet and cash flow statement projections for the
fiscal years ending 2003 through 2010, inclusive (such projections for 2003
being broken down quarterly), in form and substance reasonably satisfactory
to the Administrative Agent. After delivery, these projected financial
statements will be deemed to be the "Projected Financial Statements"
referred to in Section 3.15(c); provided that the reference to the
Effective Date in the second sentence of Section 3.15(c) shall be deemed a
reference to the Effective Date of this Amendment No. 1.
(b) Section 6.15: Total Leverage Ratio. Section 6.15 of the Credit
Agreement is hereby amended by deleting the Test Period of June 30, 2003 and the
corresponding ratio thereto and replacing them as follows:
June 30, 2003 ..........................4.85 to 1.00
(c) Section 6.16: Senior Leverage Ratio. Section 6.16 of the Credit
Agreement is hereby amended by deleting the Test Period of June 30, 2003 and the
corresponding ratio thereto and replacing them as follows:
June 30, 2003 ..........................2.60 to 1.00
(d) Section 9.17 of the Credit Agreement is hereby amended by
replacing all references to "SSB Direct" in such Section with "Fixed Income
Direct", replacing references to the web address xxxxxxxxxxxxxxx@xxxx.xxx in
such Section to xxxxxxxxxxxxxxx@xxxxxxxxx.xxx and deleting paragraph (b) of such
Section and replacing it with the following:
(b) Each Loan Party further agrees that the Administrative
Agent may make the Communications available to the Lenders by posting
the Communications on Intralinks, Fixed Income Direct or a
substantially similar electronic transmission systems (the
"Platform"). Each Loan Party acknowledges that the distribution of
material through an electronic medium is not necessarily secure and
that there are confidentiality and other risks associated with such
distribution.
Section 2. Representations and Warranties. The Borrower represents
and warrants to the Lenders, as of the date hereof and as of the Effective Date,
that:
(a) The execution and delivery of this Amendment No. 1 by the
Borrower has been duly authorized.
(b) Neither the execution or delivery by the Borrower of this
Amendment No. 1, nor compliance by it with the terms and provisions hereof, (i)
will contravene any applicable provision of any law, statute, rule or
regulation, or any order, writ, injunction or decree of any court or
Governmental Authority, (ii) will conflict or be inconsistent with, or result in
any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, the terms of any indenture, mortgage, deed of trust,
loan agreement, credit agreement or any other material agreement, contract or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which its Subsidiaries' property or assets is bound or to which the Borrower or
any of its Subsidiaries may be subject, including without limitation the Credit
Agreement, or (iii) will violate any provision of the Borrower's certificate of
incorporation or by-laws or the certificate of incorporation or bylaws (or
equivalent organizational or other charter documents) of any of its respective
Subsidiaries.
(c) Before and after giving effect to this Amendment No. 1, the
representations and warranties set forth in the Credit Agreement, are true and
correct in all respects with the same effect as if made on the Effective Date,
except to the extent such representations and warranties expressly relate to an
earlier date.
(d) At the time of and after giving effect to this Amendment No. 1,
no Default or Event of Default has occurred and is continuing.
Section 3. Conditions to Effectiveness. This Amendment No. 1 shall
become effective on the date (the "Effective Date") on which each of the
following conditions is satisfied (or waived in accordance with Section 9.08 of
the Credit Agreement):
(a) The Administrative Agent (or its counsel) shall have received
from Lenders constituting the Required Lenders and each of the other parties
hereto either (i) a counterpart of this Amendment No. 1 signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed
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signature page of this Amendment No. 1) that such party has signed a counterpart
of this Amendment No. 1;
(b) The Administrative Agent shall have received reimbursement or
payment of all out-of-pocket expenses (including fees, charges and disbursements
of counsel) required to be reimbursed or paid by the Borrower in connection with
this Amendment No. 1 or any Loan Document;
(c) The Borrower shall have paid to the Administrative Agent on
behalf of each Lender executing this Amendment No. 1 an amendment fee in an
amount equal to 0.125% of such Lender's outstanding Term Loans and Revolving
Credit Commitments; and
(d) All corporate and other proceedings taken or to be taken in
connection with this Amendment No. 1 and all documents incidental thereto,
whether or not referred to herein, shall be satisfactory in form and substance
to the Administrative Agent and their counsel.
Section 4. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses incurred by it in connection
with this Amendment No. 1, including the reasonable fees, charges and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative
Agent.
Section 5. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all of which when taken together shall constitute a single instrument.
Delivery of an executed counterpart of a signature page of this Amendment No. 1
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
Section 6. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. Headings. The headings of this Amendment No. 1 are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed as of the date first above written.
CONSTAR INTERNATIONAL INC.
as Borrower
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
CITICORP NORTH AMERICA, INC.
as Administrative Agent and as Lender
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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New York Life Insurance and Annuity Corporation,
By: New York Life Investment Management, LLC,
Its Investment Manager
------------------------------------------------
as a Lender
By: /s/ F. Xxxxx Xxxxx
-------------------------------------------
Name: F. Xxxxx Xxxxx
Title: Vice President
Deutsche Bank Trust Company Americas
as a Lender
By: /s/ M. A. Orlando
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
ELF Funding Trust III,
By: New York Life Investment Management, LLC,
As Attorney-in-fact
------------------------------------------------
as a Lender
By: /s/ F. Xxxxx Xxxxx
-------------------------------------------
Name: F. Xxxxx Xxxxx
Title: Vice President
Export Development Canada
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Loan Asset Manager
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: Loan Portfolio Manager
Franklin CLO II, Limited
as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
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Franklin CLO III, Limited
as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
Franklin Floating Rate
Daily Access Fund
as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
Franklin Floating Rate Master Series
as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
Franklin Floating Rate Trust
as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
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General Electric Capital Corporation
as a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. Risk Manager
ING PRIME RATE TRUST
By: ING Investments, LLC
as Its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investments, LLC
as Its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By: ING Investments, LLC
as Its Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
XX Xxxxxx Xxxxx Bank
---------------------------------------------
as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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SunTrust Bank
---------------------------------------------
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
Katonah I, LTD.
---------------------------------------------
as a Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
Katonah II, LTD.
---------------------------------------------
as a Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
Katonah III, LTD.
---------------------------------------------
as a Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
Katonah IV, LTD.
---------------------------------------------
as a Lender
By: /s/ Xxxxx Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.
As Manager
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Black Diamond CLO 1998-1, Ltd.
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Director
Black Diamond CLO 2000-1, Ltd.
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Director
AMMC CDO I, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Canadian Imperial Bank of Commerce
as a Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Authorized Signatory
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Centurion CDO II, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
Centurion CDO VI, Ltd.
By: American Express Asset Management
Group, Inc. as Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
CSAM Funding I
---------------------------------------------
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Atrium CDO
---------------------------------------------
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
First Dominion Funding I
---------------------------------------------
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
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CSAM Funding II
---------------------------------------------
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
APEX (IDM) CDO I, LTD.
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
ELC (CAYMAN) LTD.
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
ELC (CAYMAN) LTD. CDO SERIES 1999-I
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
ELC (CAYMAN) LTD. 1999-II
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
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ELC (CAYMAN) LTD. 1999-III
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
XXXXX CLO LTD. 2000-I
---------------------------------------------
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
Xxxxx X. Xxxxxx, & Co. Inc. As collateral
Manager for:
ELC (CAYMAN) LTD. 2000-I
---------------------------------------------
as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx, CPA
Title: Managing Director
Golden Tree High Yield Opportunities II, L.P.
By: Golden Tree Asset Management, LP
as a Lender
By: /s/ Xxxxxx X'Xxxx
-----------------------------------------
Name: Xxxxxx X'Xxxx
Title: Analyst
Golden Tree Loan Opportunities I, Limited
By: Golden Tree Asset Management, LP
as a Lender
By: /s/ Xxxxxx X'Xxxx
-----------------------------------------
Name: Xxxxxx X'Xxxx
Title: Analyst
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Xxxxxx Xxxx Xxxx Xxxxx Xxxxxxxxxxxxx I, L.P.
By: Golden Tree Asset Management, LP
as a Lender
By: /s/ Xxxxxx X'Xxxx
--------------------------------------------
Name: Xxxxxx X'Xxxx
Title: Analyst
Natexis Banques Populaires
---------------------------------------------
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Harbourview CLO IV, LTD.
------------------------------------------------
as a Lender
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
Xxxxxxxxxxx Senior Floating Rate Fund
------------------------------------------------
as a Lender
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
Sequils - Centurion V, Ltd.
By: American Express Asset Management Group Inc.
as Collateral Manager
------------------------------------------------
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
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Xxxxxxxxx CLO Ltd.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
Xxxxxxxxx Carrera CLO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
as its Asset Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
Xxxxxxxx CDO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
Xxxxxxxxx Quattro CLO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
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Xxxxxxxxx/RMF Transatlantic CDO Ltd.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
Xxxxxxxxx Arbitrage CDO, Ltd.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
SunAmerica Senior Floating Rate Fund Inc.
By: Xxxxxxxxx Capital Partners LLC
as subadvisor
---------------------------------------------
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
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