SECOND AMENDMENT TO FIRST RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST RESTATED CREDIT AGREEMENT (THIS "AMENDMENT")
IS MADE AS OF THE 13TH DAY OF AUGUST, 1998 AND EFFECTIVE AS OF JUNE 30, 1998,
AMONG: CROWN CENTRAL PETROLEUM CORPORATION, A CORPORATION DULY ORGANIZED AND
VALIDLY EXISTING UNDER THE LAWS OF THE STATE OF MARYLAND (THE "COMPANY"); EACH
BANK SIGNATORY HERETO; BANKBOSTON, N.A., AS DOCUMENTATION AGENT, AND
NATIONSBANK, N.A. (F/K/A NATIONSBANK OF TEXAS, N.A.), AS ADMINISTRATIVE AGENT
AND AS LETTER OF CREDIT AGENT.
RECITALS
1. THE COMPANY AND THE BANK PARTIES ENTERED INTO THAT CERTAIN FIRST
RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 1, 1997, AS AMENDED BY FIRST
AMENDMENT TO FIRST RESTATED CREDIT AGREEMENT DATED AS OF MAY 14, 1998 (AS
AMENDED, THE "ORIGINAL AGREEMENT"), FOR THE PURPOSE AND CONSIDERATION THEREIN
EXPRESSED.
2. THE COMPANY AND THE BANK PARTIES SIGNATORY HERETO DESIRE TO AMEND THE
ORIGINAL AGREEMENT AS EXPRESSLY SET FORTH HEREIN.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS
AND AGREEMENTS CONTAINED HEREIN AND IN THE ORIGINAL AGREEMENT AND IN
CONSIDERATION OF THE CREDIT WHICH MAY HEREAFTER BE EXTENDED BY THE BANKS TO THE
COMPANY, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS
FOLLOWS:
ARTICLE I. -- DEFINITIONS AND REFERENCES
Section 1.1. TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise requires,
the following terms when used in this Amendment shall have the meanings assigned
to them in this Section 1.2.
"Amendment" shall mean this Second Amendment to First Restated Credit
Agreement.
"Credit Agreement" shall mean the Original Agreement as amended
hereby.
ARTICLE II. -- AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. DEFINITION OF CUMULATIVE ADJUSTED LIQUIDITY Capacity. Clause
(a) of the definition of "Cumulative Adjusted Liquidity Capacity" set forth in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
(a) (i) $38,000,000 for the Determination Dates of July 31, 1998,
August 31, 1998, and September 30, 1998;
(ii) $43,000,000 for the Determination Date of October 31, 1998;
(iii) $48,000,000 for the Determination Date of November 30, 1998;
(iv) $53,000,000 for the Determination Date of December 31, 1998; and
(v) $28,000,000 for each Determination Date after January 1, 1999;
plus (minus)
the cumulative amount (without duplication) of the following as determined
for the Company on a Consolidated basis for the period (a "Determination
Period" in this definition) beginning on and including July 1, 1995, and
ending on and including such Determination Date:
Section 2.2. YEAR 2000 REPRESENTATION AND WARRANTY. Section 7 of the
Original Agreement is hereby amended by adding a new Section 7.18 at the end
thereof, to read as follows:
7.18 YEAR 2000 COMPLIANCE. The Company has (i) initiated a review
and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by suppliers and vendors)
that could be adversely affected by the "Year 2000 Problem" (that is, the
risk that computer applications used by the Company or any of its
Subsidiaries (or its suppliers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. The Company
reasonably believes that all computer applications (including those of its
suppliers and vendors) that are material to its or any of its Subsidiaries'
business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to
do so would not present a material probability of a Material Adverse
Change.
Section 2.3. SHORT-TERM FIFO NET INCOME (LOSS). Section 8.23 of the
Original Agreement is hereby amended in its entirety to read as follows:
8.23 SHORT-TERM FIFO NET INCOME (LOSS). The Company shall cause FIFO
Net Income (Loss) to be greater than ($15,200,000) for each short-term
measurement period commencing on or after July 1, 1997 (i.e., either to be
positive or, if a loss, not to be a loss of more than $15,200,000), except
for (i) the short-term measurement period commencing on July 1, 1997, for
which the Company shall cause FIFO Net Income (Loss) to be greater than
($22,500,000) for such period and (ii) the short-term measurement periods
commencing on August 1, 1997, September 1, 1997, October 1, 1997, November
1, 1997 and December 1, 1997, for which the Company shall cause FIFO Net
Income (Loss) to be greater than ($45,000,000) for such periods. As used
in this Section 8.23, "short-term measurement period" means any period of
twelve consecutive calendar months.
Section 2.4. MID-TERM FIFO NET INCOME (LOSS). Section 8.24 of the
Original Agreement is hereby amended in its entirety to read as follows:
8.24 MID-TERM FIFO NET INCOME (LOSS). The Company shall cause FIFO
Net Income (Loss) to be greater than ($25,200,000) for each mid-term
measurement period commencing on or after July 1, 1996 (i.e., either to be
positive or, if a loss, not to be a loss of more than $25,200,000), except
for the mid-term measurement periods commencing on August 1, 1996,
September 1, 1996, October 1, 1996, November 1, 1996 and December 1, 1996,
for which the Company shall cause FIFO Net Income (Loss) to be greater than
($35,000,000) for such periods. As used in this Section 8.24, "mid-term
measurement period" means any period of twenty-four consecutive calendar
months.
Section 2.5. LIMITATION ON CAPITAL EXPENDITURES. Section 8 of the
Original Agreement is hereby amended by adding a new Section 8.27 at the end
thereof, to read as follows:
8.27 LIMITATION ON CAPITAL EXPENDITURES. The Company shall not incur
Consolidated Capital Expenditures (less the net book value of fixed assets,
plant or equipment sold in the ordinary course of business) greater than
$48,000,000 in calendar year 1998.
Section 2.6. PRODUCT HEDGING OBLIGATIONS. Section 8 of the Original
Agreement is hereby amended by adding a new Section 8.28 at the end thereof, to
read as follows:
8.28 PRODUCT HEDGING OBLIGATIONS. The Company shall not incur any
Product Hedging Obligation for any purpose other than to hedge changes in
underlying recognized assets or liabilities or firm commitments, as such
terms are defined by GAAP.
Section 2.7. YEAR 2000 COMPLIANCE. Section 8 of the Original Agreement is
hereby amended by adding a new Section 8.29 at the end thereof, to read as
follows:
8.29 YEAR 2000 COMPLIANCE. The Company will promptly notify
Administrative Agent in the event the Company discovers or determines that
any computer application (including those of its suppliers and vendors)
that is material to its or any of its Subsidiaries' business and operations
will not be Year 2000 compliant on a timely basis, except to the extent
that such failure would not present a material probability of causing a
Material Adverse Change.
Section 2.8. EVENTS OF DEFAULT. (a) The reference to "Sections 8.8
through and including 8.26 hereof" contained in clause (d) of Section 9.1 of the
Original Agreement is hereby amended to refer instead to "Sections 8.8 through
and including 8.29 hereof".
(b) Section 9.1 of the Original Agreement is hereby amended by adding new
clauses (m) and (n) at the end thereof, to read as follows:
(m) In the event the Company is, with respect to Product Hedging
Obligations, in a "speculative position" as defined by and determined
pursuant to GAAP, and the Company shall continue to be in such "speculative
position" for a period in excess of five consecutive Business Days; or
(n) The Company shall fail to substantially restructure the
Obligations on or prior to November 30, 1998, on terms and conditions
satisfactory to each and every Bank, in its own sole and absolute
discretion;
(c) The references to "clause (g) or (h)" in the last sentence of Section
9.1 of the Credit Agreement are hereby amended to refer instead to "clause (g),
(h) or (n)".
ARTICLE III. -- CONDITIONS OF EFFECTIVENESS
Section 3.1. EFFECTIVE DATE. This Amendment shall become effective when,
and only when, (i) Administrative Agent shall have received, at Administrative
Agent's office, a counterpart of this Amendment executed and delivered by the
Company, the Administrative Agent, the Letter of Credit Agent and the Majority
Banks and (ii) Administrative Agent shall have additionally received such
supporting documents as Administrative Agent may reasonably request.
Section 3.2. AMENDMENT FEE. In consideration hereof, and provided
Majority Banks shall have executed and delivered this Amendment on or before
5:00 p.m. EDT, Friday, August 13, 1998 (each such Bank executing and delivering
this Amendment on or before such date and time, an "Amending Bank"), the Company
hereby agrees to pay to the Administrative Agent, for the account of each Bank
signatory hereto on or before such date and time:
(a) an amendment fee, due and payable on the date hereof, equal to fifteen
Basis Points times such Bank's Commitment; and
(b) in the event the Credit Agreement and the Obligations thereunder are
not substantially restructured on or prior to October 31, 1998, an additional
amendment fee, due and payable on November 1, 1998, equal to ten Basis Points
times such Bank's Commitment.
ARTICLE IV. -- REPRESENTATIONS AND WARRANTIES
Section 4.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to
induce each Bank to enter into this Amendment, the Company represents and
warrants to each Bank that:
(a) The representations and warranties contained in Section 7 of the
Original Agreement are true and correct and no Default or Event of Default
exists at and as of the time of the effectiveness hereof, in each case
after giving effect to the amendments herein made.
(b) The Company is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies
and to perform its obligations under the Credit Agreement. The Company has
duly taken all corporate action necessary to authorize the execution and
delivery of this Amendment and to authorize the performance of the
obligations of the Company hereunder.
(c) The execution and delivery by the Company of this Amendment, the
performance by the Company of its obligations hereunder and the
consummation of the transactions contemplated hereby do not and will not
conflict with any provision of law, statute, rule or regulation or of the
articles or certificate of incorporation and bylaws of the Company, or of
any material agreement, judgment, license, order or permit applicable to or
binding upon the Company, or result in the creation of any lien, charge or
encumbrance upon any assets or properties of the Company. Except for those
which have been obtained, no consent, approval, authorization or order of
any court or governmental authority or third party is required in
connection with the execution and delivery by the Company of this Amendment
or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and the
Credit Agreement will be a legal and binding obligation of the Company,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the
enforcement of creditors' rights and by equitable principles of general
application.
ARTICLE V. -- MISCELLANEOUS
Section 5.1. RATIFICATION OF AGREEMENTS. The Original Agreement as hereby
amended, together with all of the other Loan Documents, are hereby ratified and
confirmed in all respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Agreement as hereby
amended. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Banks under the Credit Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Credit Agreement, the
Notes or any other Loan Document.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of the Company herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by the Company hereunder or
under the Credit Agreement to any Bank shall be deemed to constitute
representations and warranties by, and/or agreements and covenants of, the
Company under this Amendment and under the Credit Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
Section 5.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
Section 5.5. COUNTERPARTS. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
CROWN CENTRAL PETROLEUM CORPORATION
By: /s/ - - John E. Wheeler, Jr.
John E. Wheeler, Jr. Executive
Vice President and
Chief Financial Officer
NATIONSBANK, N.A.
(f/k/a NationsBank of Texas, N.A.),
as Administrative Agent, Letter of Credit Agent
and a Bank
By: /s/ - - Patrick M. Delaney
Patrick M. Delaney
Senior Vice President
BANKBOSTON, N.A.,
as Documentation Agent and a Bank
By:
Name:
Title:
FIRST NATIONAL BANK OF MARYLAND, as a Bank
By: /s/--Susan Elliott Benninghoff
Name:Susan Elliott Benninghoff
Title:Vice President
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ -- Kevin Mahon
Name: Kevin Mahon
Title: Vice President
DEN NORSKE BANK ASA, as a Bank
By: /s/ -- Byron L. Cooley
Name: Byron L. Cooley
Title: Senior Vice President
By: /s/ -- Charles E. Hall
Name: Charles E. Hall
Title: Senior Vice President
HIBERNIA NATIONAL BANK, as a Bank
By: /s/ -- S. John Castellano
Name: S. John Castellano
Title: Vice President
CRESTAR BANK, as a Bank
By: /s/--Paul R. Beliveau
Name: Paul R. Beliveau
Title: Vice President
PNC BANK, N.A., as a Bank
By: /s/--John R. Way
Name: John R. Way
Title:Assistant Vice President