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Exhibit 10.1
AGREEMENT REGARDING LIMITED CONSENT AND WAIVER
This Agreement Regarding Limited Consent and Waiver (this "Agreement")
is dated as of September 30, 1996 and is entered into by and among
Xxxxx Refining & Marketing, Inc., a Delaware corporation (the
"Company"), and the financial institutions party hereto (the "Banks").
RECITALS
WHEREAS, the Company has entered into the Amended and Restated
Credit Agreement dated as of April 19, 1995 with the financial
institutions party thereto, as amended by (i) the First Amendment
to Amended and Restated Credit Agreement dated as of June 14, 1995,
(ii) the Second Amendment to Amended and Restated Credit Agreement
dated as of November 27, 1995, (iii) the Third Amendment to Amended
and Restated Credit Agreement dated as of January 31, 1996, and (iv)
the Fourth Amendment to Amended and Restated Credit Agreement dated
as of July 12, 1996 (as so amended, the "Credit Agreement") Capitalized
terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
WHEREAS, Holdings has entered into a crude oil supply arrangement
consisting of (i) a Crude Oil Purchase Contract dated as of December 1,
1995 between Holdings and Occidental C.O.B. Partners, (ii) a Crude Oil
Marketing Contract dated as of December 1, 1995 between Holdings and
Occidental Crude Sales, Inc., (iii) a Letter of Credit Agreement dated
as of December 1, 1995 between Holdings and Occidental Petroleum
Corporation, and (iv) a Guaranty of occidental Petroleum Company
in favor of Holdings dated as of December 1, 1995 (collectively, the
"Crude Oil Purchase Agreements").
WHEREAS, Holdings has entered into various hedging and forward sale
contracts (the "Forward Contracts") with various financial and trading
institutions that relate to deliveries expected under the Crude Oil
Purchase Agreements.
WHEREAS, there would be a positive cash value resulting from the
liquidation of Holdings' position with respect to the Crude Oil Purchase
Agreements and the Forward Contracts.
WHEREAS, Holdings desires to assign and contribute as additional
capital to the Company, in exchange for newly issued shares of the
Company, all of Holdings' interests in the Crude Oil Purchase Agreements
and the Forward Contracts.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and Covenants herein contained, the parties
hereto agree as follows:
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1. Contribution by Holdings. An amount equal to the cash proceeds
(net of all costs and expenses incurred by Holdings or the Company in
connection with the transactions Contemplated hereby) that result from
the transfer described in Section 2(ii) below (such amount being the
"Net Cash Proceeds") shall be deemed to be a contribution by Holdings
of additional capital to the Company in the form of cash.
2. Consent to Dividends. The undersigned Banks hereby consent to
(i) one or more cash dividends (the "Dividends") declared and made by
the Company to Holdings in an aggregate amount not exceeding the Net
Cash Proceeds and (ii) the sale or assignment of all of the Company's
interests in the Crude Oil Purchase Agreements and the Forward Contracts
to a third party.
3. Limited Waiver. The undersigned Banks hereby waive compliance by
the Company with the requirements of Sections 8.02 (regarding
disposition of assets) and 8.11 (regarding restricted payments) of the
Credit Agreement, to the extent, and only to the extent, necessary to
permit Holdings and the Company to consummate the transactions described
in Sections 1 and 2 of this Agreement.
4. Conditions Precedent. This Agreement shall become effective upon
the satisfaction in full of each of the following conditions:
(i) each of the Company, the Administrative Agent and Banks sufficient
to constitute Majority Banks under the Credit Agreement shall have
executed and delivered to Administrative Agent a counterpart signature
page hereto; and
(ii) Administrative Agent, on behalf of the Banks, shall have received
an opinion of Xxxxx, Xxxxx & Xxxxx, counsel to the Company, addressed
to the Administrative Agent and the Banks, in form and substance
satisfactory to Administrative Agent and the Banks.
5. Effect. The agreements and waivers set forth herein shall be
limited precisely as written and nothing in this Agreement shall be
deemed to waive any other term, provision or condition of the Credit
Agreement or prejudice any right or remedy that the Banks or the
Administrative Agent may now have or may in the future have under or
in connection with the Credit Agreement. Except as expressly set forth
herein, the terms, provisions and conditions of the Credit Agreement
shall remain in full force and effect and in all other respects are
hereby ratified and confirmed.
6. Applicable Law. THIS AGREEMENT 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 CONFLICTS OF LAWS PRINCIPLES.
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7. Counterparts. This Agreement 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 to be an
original, but all such counterparts together shall constitute but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
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/ X. X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
& Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as an
Issuing Bank and as a Bank
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE TORONTO-DOMINION BANK, as
Syndications Agent, as a
Co-Arranger, as an Issuing Bank
and as a Bank
` By: /s/ X. Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Manager, Credit Administration
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BANKERS TRUST COMPANY, as
Documentation Agent, as a Co-Arranger,
as an Issuing Bank and as a Bank
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON, as an Issuing Bank and
as a Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
BANK OF AMERICA ILLINOIS, N.A.,
as an Issuing Bank
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
UNION BANK, as a Bank
By: /s/ X. X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By:
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH, as
a Bank
By:
Name:
Title:
NBD BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: First Vice President
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ABN AMRO BANK N.V , CHICAGO
BRANCH, 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
BANK OF SCOTLAND, NEW YORK
BRANCH, as a Bank
By: /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By: /s/ Hidekazu Seo
Name: Hidekazu Seo
Title: General Manager
COMERICA BANK, as a Bank
By: /s/ Xxxxxxx Persons
Name: Xxxxxxx Persons
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Bank
By: /s/ Hiroski Nakamura
Name: Xxxxxxx Xxxxxxxx
Title: Joint General Manager
NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as
a Bank
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Manager
THE YASUDA TRUST AND BANKING
CO., LTD., CHICAGO BRANCH
as a Bank
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Deputy General Manager
XXXXX FARGO BANK, N.A.,
as a Bank
By:
Name:
Title:
