Exhibit 10.14
XXXXX REFINING & MARKETING, INC.
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendement") is dated as of January 31, 1996 and entered into by and among
Xxxxx Refining & Marketing, Inc., a Delaware corporation, Bank of America
National Trust and Savings Association, a national banking association, as
Administrative Agent, Bankers Trust Company, a New York banking corporation, as
Documentation Agent, The Toronto-Dominion Bank, a Canadian chartered bank, as
Syndications Agent, BA Securities, Inc., a Delaware corporation, as Technical
Agent, and the other financial institutions party hereto. This Amendment amends
the Amended and Restated Credit Agreement dated as of April 19, 1995, as amended
by (i) the First Amendment to Amended and Restated Credit Agreement dated as of
June 14, 1995 and (ii) the Second Amendment to Amended and Restated Credit
Agreement dated as of November 27, 1995 (as amended, the "Credit Agreement"), 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 aggregate Commitments of $400,000,000;
WHEREAS, the parties hereto desire to make certain amendments as set
forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and convenants herein contained, the parties hereto agree as follows:
Article I
AMENDMENTS TO THE CREDIT AGREEMENT
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1.01 Amendments to Section 1.01: Certain Defined Terms.
(a) The definition of EBITDA set forth in Section 1.01 of the
Credit Agreement is hereby amended by deleting it in its entirety and
substituting the following therefor:
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"`EBITDA' means, for any period, an amount equal to (a) Net Income
determined on a LIFO basis for such period, plus (b) gross accrued interest
expense (other than capitalized interest) during such period, plus (c) an amount
equal to the Company's income tax expense as reflected on the Company's books of
account during such period, plus (d) charges for depreciation and amortization
during such period, plus (e) the amount of expense, if any, from inventory
write-down to market, minus (f) the amount of income, if any, from inventory
write-up to market, plus (g) any items of loss which are extraordinary items as
defined by GAAP, together (without duplication) with the amount of any write-
down of book value with respect to the DHDS Unit, minus (h) any items of gain
which are extraordinary items as defined by GAAP, together (without duplication)
with the amount of any gain from the sale of the DHDS Unit, plus (i) for the
fiscal quarter ended December 31, 1995, an amount equal to the amount of equity
capital contributions made by Holdings to the Company during the period
beginning on December 29, 1995 and ending on the Third Amendment Effective Date,
which amount shall not be less than $20,000,000 nor more than $40,000,000;
provided, that the full amount of such equity capital contributions shall be
deemed made in the fiscal quarter ended December 31, 1995, but with respect to
the four fiscal quarters ended December 31, 1996, the full amount of such equity
capital contributions shall be deemed made in the fiscal quarter ended March 31,
1996."
(b) The definition of GAAP set forth in Section 1.01 of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting the
following therefor:
"`GAAP' means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are (a) for all purposes as used in the Loan Documents (other
than for purposes of Section 7.01) as in effect on the Closing Date, and (b) for
purposes of Section 7.01 as in effect on the date of determination; provided
that if such generally accepted accounting principles as of such date of
determination differ from those as of the Closing Date, the Company shall
deliver to the Administrative Agent and the Banks, concurrently with the
delivery of financial statements required to be delivered under Section 7.01,
reconciliation statements in form and substance satisfactory to the Majority
Banks; provided further, that with respect to the financial statements required
to be delivered under Section 7.01, any adjustment under Statement of Financial
Accounting Standards No. 121 shall be given effect when any
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such adjustment is made and the Company shall be required to deliver only one
reconciliation statement as described above with respect to such adjustment."
(c) The definition of "DHDS Unit" is hereby added to Section 1.01 of
the Credit Agreement as follows:
"`DHDS Unit' means all equipment and related costs constituting the project
initiated to produce low sulfur diesel fuel at the Hartford refinery."
(d) The definition of "Third Amendment Effective Date" is hereby
added to Section 1.01 of the Credit Agreement as follows:
"`Third Amendment Effective Date' has the meaning specified in Article II
of the Third Amendment to Amended and Restated Credit Agreement dated as of
January 31, 1995."
1.02 Amendments to Section 7.02: Certificates; Other Information.
Subsection 7.02(f) of the Credit Agreement is hereby amended by deleting it in
its entirety and substituting the following therefor:
"(f) prior to the close of business on the fifth Business Day after (i)
the Sunday most proximate to the fifteenth day of each month, (ii) the last
Business Day of each month, including the month in which the Closing Date
occurs, and (iii) any other Sunday upon two Business Days' prior written request
of the Administrative Agent, a certificate (the "Borrowing Base Certificate")
substantially in the form of Exhibit D hereto, signed by a Responsible Officer,
setting forth, on an itemized basis, the Borrowing Base, as of the close of
business on such Sunday, month end or other Sunday as requested by the
Administrative Agent, and the Borrowing Base computations based thereon, as well
as certifications by a Responsible Officer of the Company that the information
set forth in such Borrowing Base Certificate is true and correct and that from
the date of the most recent Borrowing Base Certificate previously delivered to
the date of the new Borrowing Base Certificate being delivered with such
certification, no Default or Event of Default has occurred. Each Borrowing Base
Certificate shall become effective upon the Administrative Agent's receipt
thereof and shall remain in effect until the earlier of (A) the receipt by the
Administrative Agent of the next Borrowing Base Certificate to be delivered
hereunder, and (B) the close of business on the date on which the next Borrowing
Base Certificate is required to be delivered hereunder; provided, that during
any month in which the United States Environmental Protection Agency or
Department of Transportation mandates a change in gasoline vapor pressure, the
Company shall provide two Borrowing Base Certificates in lieu of the Borrowing
Base Certificate
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described in clause (i) above, each dated as of one of the two Sundays during
such month other than the Sunday affected by the mandated change;"
1.03 Amendments to Section 8.16: Financial Covenants.
(a) Subsection 8.16(a) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(a) The Company shall not permit Working Capital to be less than
$150,000,000."
(b) Subsection 8.16(c) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(c) The Company shall not permit the Tangible Net Worth of the Company
plus the amount of any after tax writedown of book value with respect to the
DHDS Unit minus any after tax gain from the sale of the DHDS Unit, at any time,
to be less than $254,209,812.78 plus a cumulative amount determined by adding
(i) 50% of Net Income for all fiscal quarters ending after September 30, 1995
and on or before such date of determination plus (ii) 50% of the aggregate
amount of equity capital contributions made by Holdings to the Company after the
later of (x) the Second Amendment Effective Date and (y) the issuing date of the
Additional Holdings Indebtedness; provided, that the following equity capital
contributions shall be excluded for all purposes from this clause (ii) (but
shall be included for the purpose of calculating Net Worth): (A) the equity
capital contribution made by Holdings to the Company on December 29, 1995 in
the amount of $6,400,000 and (B) any equity capital contributions made by
Holdings to the Company during the period after December 29, 1995 and before the
Third Amendment Effective Date in an amount of not less than $13,600,000 and not
more than $33,600,000."
1.04 Amendments to Compliance Certificate. The form of Compliance
Certificate set forth in Exhibit C to the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor Exhibit C attached to this
Amendment.
Article II
EFFECTIVENESS OF AMENDMENT
This Amendment shall become effective on the opening of business in San
Francisco on the Business Day (the "Third Amendment Effective Date") on which
the Administrative Agent has notified the Company and the Banks that the
conditions
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precedent set forth in subsections 2.01 and 2.02 have been satisfied; provided,
that the Third Amendment Effective Date shall not be later than March 31, 1996.
2.01 Receipt of Signatures. The Administrative Agent shall have (i)
executed a counterpart signature page of this Amendment and (ii) received
executed counterpart signature pages of this Amendment from the Company and the
Majority Banks.
2.02 Equity Contribution. The Administrative Agent shall have received an
officer's certificate signed by a Responsible Officer certifying that Holdings
has made equity capital contributions to the Company during the period beginning
on December 29, 1995 and ending on the business day prior to the Third Amendment
Effective Date in a total amount of not less $20,000,000 and not more than
$40,000,000.
Article III
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(a) On and after the Third Amendment 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 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.
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3.03 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 CONFLICTS OF LAWS PRINCIPLES.
3.04 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 but 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: /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/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Vice President
BA SECURITIES, INC.,
as Technical Agent
By: N/A
Name:
Title:
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
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THE TORONTO-DOMINION BANK, as
Syndications Agent, as a Co-Arranger,
as an Issuing Bank and as a Bank
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Manager, Credit Administration
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: /s/ Pascal Poupelle
Name: Pascal Poupelle
Title: Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By: /s/ Pascal Poupelle
Name: Pascal Poupelle
Title: Authorized Signature
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH, as
a Bank
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: V.P. & Deputy General Manager
NBD BANK, as a Bank
By: /s/ D. Xxxxxx Xxxxxxx
Name: D. Xxxxxx 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/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
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: Joint General Manager
COMERICA BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Bank
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Joint General Manager
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NATIONAL CITY BANK, as a Bank
By:
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as
a Bank
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Deputy General Manager
THE YASUDA TRUST AND BANKING
CO., LTD., CHICAGO BRANCH
as a Bank
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Joint General Manager
XXXXX FARGO BANK, N.A.,
as a Bank
By: /s/ K. H. Szagg
Name: K. H. Szagg
Title: Vice President
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