Exhibit 10.7.1
THIRD AMENDMENT
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THIRD AMENDMENT (this is "Amendment"), dated as of
December 18, 2001, among SUNOCO, INC. (f/k/a Sun Company, Inc.), a Pennsylvania
corporation (the "Company"), the Banks party to the Credit Agreement referred to
below (the "Banks"), and BANKERS TRUST COMPANY, as agent (the "Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
WITNESSETH:
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WHEREAS, the Company, the Banks and the Agent are parties to
a Credit Agreement, dated as of October 3, 1995 (as amended, modified and/or
supplemented through, but not including, the date hereof, the "Credit
Agreement"); and
WHEREAS, the Company has requested, and the Banks have agreed
to, the amendments provided herein on the terms and conditions set forth
herein;
NOW, THEREFORE, it is agreed:
1. Section 7 of the Credit Agreement is hereby amended
by inserting the following new Section 7.14 at the end
of such Section:
"7.14 Business. Notwithstanding anything to the contrary
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contained in this Agreement, no general partner of any Excluded Entity
will engage in any business or own any material asset or have any
material liability other than the ownership of its general partnership
interest in such Excluded Entity."
2. The definition of "Significant Subsidiary" appearing
in Section 10 of the Credit Agreement is hereby amended by deleting the last
sentence thereof and inserting the following new last sentence in lieu thereof:
"Notwithstanding the above, (I) the term "Significant Subsidiary"
shall in any event include (a) [Sun Company, Inc. (R&M)], (b) Atlantic
Petroleum Corporation, (c) any Subsidiary of any Person listed in
clauses (a) and (b) above and (d) any Subsidiary of the Company which
purchases any Margin Stock with the proceeds of any Loans hereunder
and (II) the term "Significant Subsidiary", solely for purposes of
Sections 7.06 and 7.08(a) (and not for any other purpose), shall
exclude (a) each entity (each such entity, an "`Excluded Entity" and,
collectively, the "Excluded Entities"; the term "Excluded Entity" to
include, without limitation, any limited partnership, master limited
partnership, operating limited partnership, general partnership,
limited liability company or corporation, and, in each case, any
Subsidiary thereof) which, upon formation, will be the
Subsidiary of the Company which succeeds to any part of the Company's
business of, and only so long as substantially all of the business of
such entity (and its Subsidiaries) consists of (and continues to
consist of), crude oil and refined product pipeline operations,
terminalling and transport operations, domestic lease crude oil
acquisition, marketing and related trucking operations and/or any
business related to any of the foregoing, and (b) any general partner
of any Excluded Entity, so long as the only material asset of such
general partner is its general partnership interest in such Excluded
Entity."
3. Section 10 of the Credit Agreement is hereby further
amended by inserting the following new definition in the appropriate
alphabetical order:
"Excluded Entity" shall have the meaning provided in the
definition of "Significant Subsidiary".
4. This Amendment is limited as specified and shall not
constitute a moditication, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
5. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Company and the Agent.
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
7. This Amendment shall become effective on the date (the
"Third Amendment Effective Date") when (i) the Company and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent at the Notice Office and (ii) the Company
shall have paid to each Bank which executes and delivers to the Agent a
counterpart of this Amendment on or before 5:00 p.m. (New York time) on December
18, 2001, a fee equal to 0.075% of such Bank's Commitment on the Third Amendment
Effective Date.
8. In order to induce the Banks to enter into this
Amendment, the Company hereby represents and warrants that (i) no Default or
Event of Default exists as of the Third Amendment Effective Date, both before
and after giving effect to this Amendment, and (ii) on the Third Amendment
Effective Date, both before and after giving effect to this Amendment, all
representations and warranties contained in the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be true and correct in all material respects
only as of such specified date).
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9. From and after the Third Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby. This Amendment shall constitute a Credit Document for all
purposes under the Credit Agreement and the other Credit Documents.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
SUNOCO, INC. (f/k/a Sun Company, Inc.)
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Treasurer
BANKERS TRUST COMPANY,
Individually and as Agent
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Director
XX XXXXXX XXXXX BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
Title: Managing Director
BANK OF SCOTLAND
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: X. Xxxxxxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Vanena Xxxxx
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Name: Vanena Xxxxx
Title: Associate
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FLEET BANK, N.A.
By: /s/ Xxxxx Nadlec
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Name: Xxxxx Nadlec
Title: MD
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: VP
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
MELLON BANK, S.A.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
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BANK OF MONTREAL
By:
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Name:
Title:
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THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Chimie T. Pemba
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Name: CHIMIE T. PEMBA
Title: ACCOUNT OFFICER
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