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` Exhibit 10.2
XXXXX REFINING & MARKETING, INC.
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") is dated as of July 12, 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 Syndication 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, (ii) the Second Amendment to Amended and Restated
Credit Agreement dated as of November 27, 1995 and (iii) the Third
Amendment to Amended and Restated Credit Agreement dated as of January
31, 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 covenants herein contained, the parties
hereto agree as follows;
Article I.
AMENDMENTS TO THE CREDIT AGREEMENT
1.01 Amendment to Section 1.01: Certain Defined Terms. The
definition of "Long Term Treasury Securities" 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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"Long Term Treasury Securities" means (a) the U.S. Treasury
Notes specified in Schedule 1.01(d) owned by the Company on the Closing
Date and (b) U.S. Treasury Notes or similar investments backed by the
full faith and credit of the United States with maturities not exceeding
five years.
1.02 Amendments to Section 8.01: Limitation on Liens.
(a) Subsection 8.01(n) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"(n) Liens (other than Liens on the Collateral) (i)
arising from precautionary filings of UCC Financing Statements relating
solely to operating leases permitted by this Agreement and (ii) on
equipment or intangible assets purchased in connection with an operating
lease permitted by this Agreement granted to secure obligations under
such operating lease."
(b) Section 8.01 is hereby amended by adding the following new
subsection (r) at the end thereof:
"(r) Liens (other than Liens on the Collateral) to provide
additional security for obligations under operating leases or
Capitalized Leases permitted by this Agreement not exceeding
$30,000,000, which Liens shall be in addition to the Liens permitted
pursuant to subsections (k) and (n) of this Section 8.01."
Article II.
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of business in
San Francisco on the Business Day (the "Fourth Amendment Effective
Date") on which the Administrative Agent has notified the Company and
the Banks that the Administrative Agent has (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.
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Article III.
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) On and after the Fourth 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.
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 Counter Parts. 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/ X. Xxxxxxx
Name: Xxxx Xxxxxxx
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
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UNION BANK, as a Bank
By: /s/ X. X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By: /s/ Xxxxxxx-Xxxx Xxxxxxx
Name: Xxxxxxx-Xxxx Xxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH, as a Bank
By: /s/ Xxxxxxx-Xxxx Xxxxxxx
Name: Xxxxxxx-Xxxx Xxxxxxx
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/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: 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: Joint General Manager
COMERICA BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
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: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
