EXHIBIT 10.11
XXXXX REFINING & MARKETING, INC.
AMENDMENT NO. 1
TO CREDIT AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") is dated as of October 29, 1997
and entered into by and among Xxxxx Refining & Marketing, Inc., a Delaware
corporation (the "Borrower"), Bankers Trust Company, a New York Banking
corporation, as Administrative Agent and Collateral Agent, The Toronto-Dominion
Bank, a Canadian chartered bank, as Syndication Agent, and BankBoston, N.A., a
national banking association, as Documentation Agent, and the other financial
institutions party hereto. This Amendment amends the Credit Agreement (as
amended, amended and restated, supplemented or otherwise modified, the "Credit
Agreement") dated as of September 25, 1997 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 a loan facility to the Borrower;
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
The definition of "Change of Control" set forth in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and the following definition
is inserted in lieu thereof:
"Change of Control" means any of (a) the failure of Holdings to own at all
times 100% of the outstanding Voting Shares of the Company, (b) any person or
"group" (as such term is defined in Section 13(d) of the Exchange Act) other
than TrizecHahn, or Occidental or the shareholders of TrizecHahn and their
families, related trusts and controlled entities controls, directly or
indirectly, whether by ownership of Voting Shares, contract or otherwise, the
power to direct the affairs of or control the composition of at least a majority
of the board of directors or other equivalent body of Holdings or (c) the
acquisition of the beneficial ownership, whether directly or indirectly of more
than 25% of the outstanding capital stock of Holdings (including any stock so
owned on the Effective Date) by any Person or "group" (as such term is defined
in Section 13(d) of the Exchange Act), other than TrizecHahn or Occidental or
the shareholders of TrizecHahn and their families, related trusts and controlled
entities provided, that, (i) the entering into a definitive agreement to sell
and the subsequent sale by TrizecHahn of all of its equity interests in Holdings
to one or more of the Fund Affiliates shall not be deemed a Change of Control
and (ii) as long as the Fund Affiliates maintain the power to direct the affairs
or control the board or other equivalent body of Holdings(as described in clause
(b) above), a Change of Control shall not be deemed to occur under clause (c)
above unless and until a Person or "group" (as such term is defined in Section
13(d) of the Exchange Act) acquires or holds more than 35% of the outstanding
capital stock of Holdings. Upon the sale by TrizecHahn of its equity interest
in Holdings to the Fund Affiliates, "Fund Affiliates" shall be substituted for
"TrizecHahn" in clauses (b) and (c) of this definition.
The following definition shall be added to Section 1.01 of the Credit
Agreement:
"Fund Affiliates" means Blackstone Capital Partners III Merchant Banking
Fund L.P., a Delaware limited partnership, Blackstone Offshore Capital Partners
III L.P., a Delaware limited partnership, each of their respective Affiliates
that is not an operating company or controlled by an operating company and each
general partner of any of them who is a partner or employee of the Blackstone
Group L.P. and their families, related trusts and controlled entities.
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Article II
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of business in
New York on the Business Day on which the Administrative Agent has notified the
Borrower and the Banks that the Administrative Agent has executed a counterpart
signature page of this Amendment and has received executed counterpart signature
pages of this Amendment from the Borrower and the Majority Banks.
Article III
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) This Amendment modifies the Credit Agreement to the extent
set forth herein, is hereby incorporated by reference into the Credit
Agreement and is made a part thereof. On and after the 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
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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 CONFLICT 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 one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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Amendment No. 1 to Credit Agreement
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/ Xxxxxxx X. Xxxxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Vice President--Corporate Development
AGENTS
------
BANKERS TRUST COMPANY
as Administrative Agent
and Collateral Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE TORONTO DOMINION BANK
as Syndications Agent
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager--Credit Admin.
BANKBOSTON, N.A.
as Documentation Agent
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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LENDERS
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ABN AMRO BANK
as a Bank
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
BANKBOSTON, N.A.
as a Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
BANKERS TRUST COMPANY
as a Bank
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK OF SCOTLAND
as a Bank
By: /s/ Xxxxx Xxxx Tat
-----------------------------
Name: Xxxxx Xxxx Tat
Title: Vice President
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COMERICA BANK
as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank
By: /s/ Philippe Soustra
-----------------------------
Name: Philippe Soustra
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
as a Bank
By:
-----------------------------
Name:
Title:
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XXXXX XXXX FINANCIAL SERVICING
CORPORATION
as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: V.P., General Manager
HIBERNIA NATIONAL BANK
as a Bank
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxxx
Title: Officer
MERCANTILE BANK NATIONAL ASSOCIATION
as a Bank
By:
-----------------------------
Name:
Title:
MITSUBISHI TRUST & BANKING CORP.
as a Bank
By: /s/ Xx. Xxxxxxx Xxxxxx
-----------------------------
Name: Xx. Xxxxxxx Xxxxxx
Title: Deputy General Manager
By: /s/ Xx. Xxxxx Xxxxxxxx
-----------------------------
Name: Xx. Xxxxx Xxxxxxxx
Title: Chief Manager
THE SANWA BANK LIMITED
as a Bank
By: /s/ X. X. Xxxxxx
-----------------------------
Name: X. X. Xxxxxx
Title: Senior Vice President
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STANDARD CHARTERED BANK
as a Bank
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as a Bank
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
as a Bank
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
XXXXX FARGO BANK (TEXAS), N.A.
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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DEN NORSKE BANK ASA
as a Bank
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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ISSUING BANKS
-------------
BANKERS TRUST COMPANY
as Issuing Bank
By: ____________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as Issuing Bank
By: /s/ Xxxxxxxx Xxxxxx
____________________________
Name: Xxxxxxxx Xxxxxx
Title: Vice President
BANKBOSTON, N.A.
as Issuing Bank
By: /s/ Xxxxxxxxxxx Xxxxxxxx
____________________________
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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