[CONFORMED COPY]
AMENDMENT NO. 3 TO APD RECEIVABLES PURCHASE AGREEMENT
AMENDMENT dated as of March 25, 1994 to the Receivables Purchase
Agreement dated as of August 29, 1991, as heretofore amended (the "Agreement")
among APL LAND TRANSPORT SERVICES, INC. (the "Seller"), the PURCHASERS listed on
the signature pages thereof, J.P. MORGAN DELAWARE, as Administrative Agent (the
"Administrative Agent") and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Co-
Agent.
WITNESSETH:
WHEREAS, American President Companies, Ltd. (the "Parent") is
entering into a Credit Agreement dated as of the date hereof with the banks
listed on the signature pages thereof and Morgan Guaranty Trust Company of New
York, as Agent (the "Credit Agreement");
WHEREAS, the Seller wishes to reduce the fees and margins
provided for in the Agreement and modify certain other provisions of the
Agreement to conform to the comparable provisions of the Credit Agreement; and
WHEREAS, after the Amendment No. 3 Effective Date (as defined
below) Citibank, N.A. will no longer be a Purchaser under the Agreement and ABN
AMRO Bank N.V. will be a Purchaser thereunder;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement has the meaning assigned to such term in the Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Agreement shall from and after the Amendment No. 3
Effective Date refer to the Agreement as amended hereby.
SECTION 2. Amendment of Section 1.01. Section 1.01 of the
Agreement is amended as follows:
(a) The definition of "Applicable Base Rate Margin" is amended
to read as follows:
"Applicable Base Rate Margin" means (i) for any day during
a Level I Period, a Level II Period, a Level III Period or a
Level IV Period, 0% and (ii) for any day during a Level V Period,
.500%.
(b) The definition of "Credit Agreement" is amended to read as
follows:
"Credit Agreement" means the Credit Agreement dated as of
March 25, 1994 among the Parent, the banks listed on the
signature pages thereof and Morgan Guaranty Trust Company of New
York, as agent for such banks, as amended from time to time.
(c) The definitions of "Level I Period", "Level II Period", "Level
III Period" and "Level IV Period" are deleted and replaced by the
following new definitions:
"Level I Period" means a period during which the Parent's
senior long-term public debt is rated BBB+ or higher by S&P and
Baa1 or higher by Moody's.
"Level II Period" means a period (i) during which the
Parent's senior long-term public debt is rated BBB or higher by
S&P and Baa2 or higher by Moody's and (ii) which is not a Level I
Period.
"Level III Period" means a period (i) during which the
Parent's senior long-term public debt is rated BBB- or higher by
S&P and Baa3 or higher by Moody's and (ii) which is not a Level I
Period or a Level II Period.
"Level IV Period" means a period (i) during which the
Parent's senior long-term public debt is rated BB+ or higher by
S&P and Ba1 or higher by Moody's and (ii) which is not a Level I
Period, a Level II Period or a Level III Period.
"Level V Period" means any period which is not a Level I
Period, a Level II Period, a Level III Period or a Level IV
Period. A period during which the Parent's senior long-term
public debt is not rated by both S&P and Moody's shall constitute
a Level V Period.
(d) The definition of "Material Plan" is amended by changing the
dollar amount therein from "$5,000,000" to "$15,000,000".
(e) The definition of "Pricing Period" is amended to read as
follows:
"Pricing Period" means a Level I Period, a Level II
Period, a Level III Period, a Level IV Period or a Level V
Period.
(f) The definition of "Termination Date" is amended by changing
the date therein from "December 31, 1996" to "March 25, 1999".
SECTION 3. New Section 1.04. The following new Section 1.04 is
added at the end of Article I of the Agreement:
SECTION. 1.04 Basis for Ratings. The credit ratings to be
utilized in the determination of a Pricing Period are the ratings
assigned to unsecured obligations of the Seller without third party
credit support. Ratings assigned to any obligation which is secured or
which has the benefit of third party credit support shall be
disregarded.
SECTION 4. Amendment of Section 2.04. The definition of
"Applicable Margin" in Section 2.04(a) of the Agreement is amended to read as
follows:
The "Applicable Margin" for any Discount Period means for any day
the percentage set forth below opposite the Pricing Period during which
such day falls:
Level I Period .50%
Level II Period .625%
Level III Period .75%
Level IV Period 1.00%
Level V Period 1.50%
SECTION 5. Amendment of Section 2.07. The second sentence of
Section 2.07(a) of the Agreement is amended to read as follows:
Such commitment fees shall accrue for each day from and including the
Amendment No. 3 Effective Date to but excluding the Termination Date on
the Unused Combined Commitment (i) at the rate of .1875% per annum for
any day during a Level I Period, (ii) at the rate of .22% per annum for
any day during a Level II Period, (iii) at the rate of .25% per annum
for any day during a Level III Period, (iv) at the rate of .375% per
annum for any day during a Level IV Period and (v) at the rate of .50%
per annum for any day during a Level V Period; provided that (i) any
amounts paid on any date by or on behalf of the Parent pursuant to
Section 2.08 of the Credit Agreement (to the extent such amounts accrue
prior to the termination of the Commitments thereunder) or by or on
behalf of APL pursuant to Section 2.07(a) of the Other Receivables
Agreement shall be credited to (and reduce) the amounts payable by the
Seller under this Section on such date and (ii) to the extent (if any)
that facility fees payable by the Parent on any date pursuant to Section
2.08 of the Credit Agreement are reduced because Base Rate Loans were
outstanding thereunder, the amount by which such fees are so reduced
shall also be credited to (and reduce) the amounts payable by the Seller
under this Section on such date.
SECTION 6. Amendment of Section 3.02. Section 3.02(c) of the
Agreement is amended by replacing the reference to "all amounts payable by APD"
with "all amounts payable by the Parent".
SECTION 7. Amendment of Section 6.01. Section 6.01 of the
Agreement is amended by:
(a) changing the dollar amount in clause (e) from "$5,000,000"
to "$15,000,000";
(b) changing the dollar amount in clause (f) from "$5,000,000"
to "$15,000,000";
(c) changing the first dollar amount in clause (l) from
"$10,000,000" to "$15,000,000" and changing the second dollar amount
therein from "$5,000,000" to "$10,000,000"; and
(d) changing the dollar amount in clause (m) from "$10,000,000"
to "$15,000,000".
SECTION 8. Amendment of Section 8.03. Sections 8.03(a) and (b)
of the Agreement are each amended by deleting the final period and adding the
following proviso:
; provided that the Seller shall not be obligated to pay such
compensation for any period that is more than 90 days before such
Purchaser notifies the Seller pursuant to Section 8.04 of the event that
entitles such Purchaser to such compensation.
SECTION 9. Adjustment of Committed Amounts. The signature pages
of the Agreement are amended by changing the Committed Amount set forth thereon
for each Purchaser (except Citibank, N.A.) to be the same as the Committed
Amount set forth on the signature pages hereof for such Purchaser.
SECTION 10. Substitution of Purchaser. (a) After the Amendment
No. 3 Effective Date, Citibank, N.A. will no longer be a Purchaser for purposes
of the Agreement and will have no further rights or obligations of any kind
thereunder; provided that Citibank, N.A.'s rights and obligations with respect
to the period prior to the Amendment No. 3 Effective Date will continue to be
governed by the provisions of the Agreement as then in effect.
(b) On the Amendment No. 3 Effective Date, ABN AMRO Bank N.V.
will for all purposes of the Agreement become a Purchaser party to the Agreement
and will thereafter have all the rights and obligations of a Purchaser under the
Agreement to the same extent as if it were an original party thereto with a
Committed Amount of $18,750,000; provided that ABN AMRO Bank N.V. will have no
such rights or obligations with respect to the period prior to the Amendment No.
3 Effective Date.
(c) On the Amendment No. 3 Effective Date the signature pages of
the Agreement will be amended by deleting the signature block for Citibank N.A.
and its Committed Amount of $24,000,000 and substituting the signature block for
ABN AMRO Bank N.V. as set forth on the signature pages hereof and its Committed
Amount of $18,750,000.
SECTION 11. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 12. Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective on the date (the "Amendment
No. 3 Effective Date") when each of the following conditions shall have been
satisfied (or waived in accordance with Section 10.05 of the Agreement):
(a) the Administrative Agent shall have received counterparts
hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received,
telegraphic, telex, facsimile or other written confirmation from such
party of execution of a counterpart hereof by such party);
(b) all conditions set forth in Section 3.01 of the Credit
Agreement shall have been satisfied;
(c) each of (i) Amendment No. 3 dated as of March 25, 1994 to
the Other Receivables Agreement and (ii) the Credit Agreement shall
become effective concurrently with the effectiveness hereof; and
(d) the Administrative Agent shall have received from Citibank,
N.A., a written waiver of any requirement in Section 10.05 of the
Agreement that this Amendment must be signed by it to become effective;
provided that this Amendment shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
April 8, 1994. The Administrative Agent shall promptly notify the Seller, the
Purchasers, Citibank N.A. and the Co-Agent of the Amendment No. 3 Effective
Date, and such notice shall, in the absence of manifest error, be conclusive and
binding on all parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
APL LAND TRANSPORT SERVICES, INC.
By /s/ Randall K. Gausman
Title: Assistant Treasurer
1111 Broadway
Oakland, California 94607
Telex number: 335478
Facsimile number: (510) 272-8931
PURCHASERS:
Committed
Amount
$16,875,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Diana H. Imhof
Title: Associate
$15,000,000 J.P. MORGAN DELAWARE
By /s/ Philip S. Detjens
Title: Vice President
Committed
Amount
$31,875,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Michael J. Dasher
Title: Vice President
$26,250,000 THE FIRST NATIONAL BANK OF BOSTON
By /s/ Daniel O'Connor
Title: Director
$22,500,000 BARCLAYS BANK PLC
By /s/ Keith Mackie
Title: Associate Director
Committed
Amount
$18,750,000 ABN AMRO BANK N.V.
By /s/ Carol A. Levine
Title: Vice President
By /s/ Robert N. Hartinger
Title: Group Vice President
555 California Street
Suite 2750
San Francisco, CA 94104
Telex number: 278137 ABSF UR
Facsimile number: (415) 362-3524
Attention: Carol A. Levine, VP
$18,750,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Gerald F. Mackin
Title: Vice President
____________
$150,000,000
ADMINISTRATIVE AGENT:
J.P. MORGAN DELAWARE,
as Administrative Agent
By /s/ Philip S. Detjens
Title: Vice President
CO-AGENT:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent
By /s/ Diana H. Imhof
Title: Associate