Exhibit 10.1
THE PREMCOR REFINING GROUP INC.
AMENDMENT NO. 2
TO CREDIT AGREEMENT
This AMENDMENT NO. 2 (this "Amendment No. 2") is dated as of May 29,
2002 and entered into by and among The Premcor Refining Group Inc., a Delaware
corporation (the "Company"), Deutsche Bank Trust Company Americas, formerly
known as Bankers Trust Company, as Administrative Agent and Collateral Agent, TD
Securities (USA) Inc., a Delaware corporation, as Syndication Agent, and Fleet
National Bank, a national banking association, as Documentation Agent, and the
other financial institutions party hereto (the "Banks"). This Amendment No. 2
amends the Amended and Restated Credit Agreement (as amended, amended and
restated, supplemented or otherwise modified, the "Credit Agreement") dated as
of August 23, 2001 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 Company; and
WHEREAS, the Parent desires to consummate a series of restructuring
transactions (the "Restructuring") which will result in Sabine River Holding
Corp. ("Sabine"), Neches River Holding Corp. ("Neches River"), Port Arthur Coker
Company L.P. ("PACC") and Port Arthur Finance Corp. ("PAFC," and together with
Sabine, Neches River and PACC, the "Project Companies") becoming wholly owned
direct or indirect subsidiaries of the Company;
WHEREAS, in connection with the Restructuring, the Company and its
Affiliates will be engaging in a series of contribution and financing
transactions as more fully described in PAFC's Consent Solicitation Statement
and Private Placement Memorandum dated May 16, 2002 (the "Consent Solicitation
Statement"); and
WHEREAS, in connection with the Restructuring and the transactions
contemplated in connection therewith, the Company has requested and the Banks
have agreed to make certain amendments to the Credit Agreement 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
1.1 Amendments to Section 1.01 of the Credit Agreement.
(a) The following defined terms shall be added to Section 1.01 of
the Credit Agreement in the proper alphabetical order:
"Amendment No. 2" shall mean Amendment No. 2 to the Credit
Agreement, dated as of May 29, 2002 among the Company, the Agents and
the Banks.
"Amendment No. 2 Effective Date" shall mean the date that is the
"Amendment No. 2 Effective Date" as defined in Amendment No. 2.
"Commitment Increase Amount" has the meaning specified in Section
2.11.
"Common Security Agreement" shall mean the Amended and Restated
Common Security Agreement dated as of the Amendment No. 2 Effective
Date among PAFC, PACC, Sabine, the Company, Deutsche Bank Trust
Company Americas, formerly known as Bankers Trust Company, as
Collateral Trustee for the Senior Lenders, HSBC Bank USA, as Capital
Markets Trustee for the Capital Markets Senior Lenders, and Deutsche
Bank Trust Company Americas, formerly known as Bankers Trust Company,
as Depository Bank, as the same may hereafter be amended, amended and
restated, supplemented or otherwise modified, refinanced or replaced,
in each case in accordance with the terms thereof and of this
Agreement.
"Neches River" shall mean Neches River Holding Corp., a Delaware
corporation.
"New Bank" has the meaning specified in Section 2.11.
"PACC" shall mean Port Arthur Coker Company L.P., a Delaware
limited partnership.
"PACC Bond Accounts" shall mean the Principal and Interest
Accrual Account, the Debt Service Reserve Account, the Casualty and
Insurance Account and the Mandatory Prepayment Account maintained in
accordance with the provisions of Article V of the Common Security
Agreement.
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"PACC Operating Account" shall mean unsecured accounts of PACC
maintained in accordance with the provisions of Section 5.10 of the
Common Security Agreement and Section 6.21 of this Agreement.
"PAFC" shall mean Port Arthur Finance Corp., a Delaware
corporation.
"PAFC Bond Indenture" shall mean that certain Indenture dated as
of August 19, 1999 between the Company, the Project Companies, HSBC
Bank USA, as Capital Markets Trustee, and Deutsche Bank Trust Company
Americas, formerly known as Bankers Trust Company, as Collateral
Trustee, relating to the PAFC Bonds, as amended by Amendment No. 1
thereto as of the Amendment No. 2 Effective Date and as the same may
hereafter be amended, amended and restated, supplemented or otherwise
modified, refinanced or replaced, in each case in accordance with the
terms thereof and of this Agreement.
"PAFC Bonds" shall mean the 12.5% Senior Secured Notes of PAFC
due 2009.
"PAFC Bond Guarantee" shall mean the unconditional guarantee of
the Company, on a senior unsecured basis, of the payment obligations
of PAFC under the PAFC Bonds, as the same may hereafter be amended,
amended and restated, supplemented or otherwise modified, refinanced
or replaced, in each case in accordance with the terms thereof and of
this Agreement.
"Permitted PACC Accounts" shall mean the PACC Bond Accounts and
the PACC Operating Account.
"Pledge Agreement" shall mean the Pledge Agreement dated as of
the Amendment No. 2 Effective Date between the Company, the Collateral
Agent and the Administrative Agent on behalf of the Banks and the Bank
Swap Parties, as the same may hereafter be amended, amended and
restated, supplemented or otherwise modified, refinanced or replaced,
in each case in accordance with the terms thereof and of this
Agreement as in effect.
"Project Companies" shall mean, Sabine, Neches River, PACC and
PAFC.
"Sabine" shall mean Sabine River Holding Corp., a Delaware
corporation.
"Subsidiary Security Agreement" shall mean the Security Agreement
dated as of the Amendment No. 2 Effective Date among PACC, the
Collateral Agent and the Administrative Agent on behalf of the Banks,
as the same may hereafter be amended, amended and restated,
supplemented or otherwise modified, refinanced or replaced, in each
case in accordance with the terms thereof and of this Agreement as in
effect.
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(b) The defined term "Collateral Documents" shall be amended by
inserting the phrase "the Pledge Agreement, the Subsidiary Security Agreement,"
immediately following the words "the Custodian Account Agreement," contained
therein.
(c) The defined term "Eligible Cash" shall be amended by
inserting the following at the end of such definition: "less any intercompany
payables or other amounts owed by the Company to any of the Project Companies
with respect to the purchase and sale of Petroleum Products".
(d) The defined term "Eligible Petroleum Inventory" shall be
amended by deleting the number "20,000,000" and inserting the number
"40,000,000" in lieu thereof.
(e) The defined term "Institutional Finance Documents" shall be
amended by inserting the words ", the PAFC Bonds, the PAFC Bond Indenture, the
Common Security Agreement," immediately preceding the words "Holdings Exchange
Debentures" contained therein.
1.2 Addition of Section 2.11 to the Credit Agreement. The following
Section 2.11 will be added immediately following Section 2.10 of the Credit
Agreement:
"2.11 Increase of Commitments. So long as no Default or Event of
Default then exists or would result therefrom, the Company may, at any
time and from time to time and upon at least five (5) Business Days'
notice, deliver a written request to the Administrative Agent to
increase the aggregate Commitments under this Agreement by up to
$50,000,000 in the aggregate ("Commitment Increase Amount"). Each such
request to increase the Commitments shall be a Commitment Increase
Amount of not less than $5,000,000 or in an integral multiple of
$5,000,000 in excess thereof. The Commitment Increase Amount will be
in the form of increases in the Commitments under the Tranche 2
Facility. In the event the Company desires to increase the
Commitments, the Administrative Agent, upon receipt of the written
request from the Company described above, may offer to (x) any Bank or
(y) one or more banks, financial institutions or other entities, which
are not Banks and are acceptable to the Administrative Agent in its
sole discretion ("New Banks"), the opportunity to participate in any
or all of the Commitment Increase Amount. Any such increase shall
become effective upon the execution by the Company, the Administrative
Agent and any lender providing a portion of the Commitment Increase
Amount of an assumption agreement in form and substance reasonably
satisfactory to the Administrative Agent and the Company, pursuant to
which, if such lender is a New Bank, such New Bank shall become a Bank
under this Agreement and the other Loan Documents with respect to its
portion of the Commitment Increase Amount. Upon the effectiveness of a
Commitment Increase Amount, each Bank's Pro Rata Share in the
liability of each outstanding Letter of Credit shall be reallocated in
accordance with the definition of "Pro Rata
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Share" and if there are any outstanding Loans, the Banks and/ or such
New Bank providing the Commitment Increase Amount shall make such
payments among themselves as directed by the Administrative Agent so
that each Bank is responsible for its Pro Rata Share of such Loans.
This Agreement and the other Loan Documents shall be deemed to be
amended to reflect the Commitment Increase Amount and the addition of
any New Banks as Banks party hereto and thereto."
1.3 Amendment to Section 3.01 of the Credit Agreement. Section 3.01
of the Credit Agreement is hereby amended by deleting the number
"50,000,000" contained in subsection (b) thereof and inserting the number
"70,000,000" in lieu thereof.
1.4 Amendment to Section 6.21 of the Credit Agreement. Section 6.21
of the Credit Agreement is hereby amended by adding the phrase "other than
the Permitted PACC Accounts" at the end of such section.
1.5 Amendment to Section 7.06 of the Credit Agreement. Section 7.06
of the Credit Agreement is hereby amended by inserting the words "and shall
name the Administrative Agent as an additional insured" immediately
following the words "shall name the Collateral Agent as loss payee"
contained therein.
1.6 Addition of Section 7.16 to the Credit Agreement. The following
Section 7.16 will be added immediately following Section 7.15 of the Credit
Agreement:
"7.16 Periodic Distributions by the Project Companies. The
Company shall cause the Project Companies to distribute to the
Company, through the declaration of a dividend, all Cash in excess of
$20,000,000 at any time held by any of the Project Companies in the
PACC Operating Account to the extent that doing so would not result in
a breach of applicable law. In addition to the immediately preceding
sentence, in the event the aggregate amount (including intercompany
payables) owed by the Company to the Project Companies exceeds
$40,000,000 at any time, the Company shall immediately cause the
Project Companies to forgive such amounts to the extent that doing so
would not result in a breach of applicable law."
1.7 Amendment to Section 8.01 of the Credit Agreement. Section 8.01
of the Credit Agreement is hereby amended by (i) deleting the word "and" at
the end of clause (u); (ii) deleting the period at the end of clause (v)
and inserting the phrase "; and" in lieu thereof; and (iii) inserting the
following new clause:
"(w) Liens on the assets of any of the Project Companies as in
effect as of the Amendment No. 2 Effective Date.
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1.8 Amendment to Section 8.02 of the Credit Agreement. Section 8.02
of the Credit Agreement is hereby amended by deleting the period at the end of
such section and inserting the phrase "; and" in lieu thereof and by inserting
the following new clause:
"(h) the sale or transfer of any property or assets consummated
in compliance with Section 8.04."
1.9 Amendment to Section 8.04 of the Credit Agreement. Section 8.04
of the Credit Agreement is hereby amended by (i) adding the sentence
"Notwithstanding the foregoing, each of the Project Companies shall be a
Restricted Subsidiary of the Company without being required to be a co-borrower
or guarantor hereunder." immediately following the first sentence thereof; (ii)
deleting the word "and" at the end of clause (i); (iii) deleting the period at
the end of clause (j) and inserting a semicolon in lieu thereof; and (iii)
inserting the following new clauses:
"(k) capital contributions by the Company to the Project
Companies necessary to fund the PACC Bond Accounts in an aggregate
amount not to exceed the amounts required by the Common Security
Agreement;
(l) the performance by the Company of its obligations to any of
the Project Companies and by the Project Companies to the Company and
each other; provided that if such obligations are incurred pursuant to
agreements entered into after the Amendment No. 2 Effective Date, such
obligations must comply with Section 8.06;
(m) "Authorized Investments" (as such term is defined in the
Common Security Agreement) by the Project Companies;
(n) loans or advances by any Project Company to any other
Project Company or to the Company; and
(o) Indebtedness permitted by Section 8.05(n)."
1.10 Amendment to Section 8.05 of the Credit Agreement. Section 8.05
of the Credit Agreement is hereby amended by (i) adding the phrase ", the PAFC
Bonds" after the phrase "1997 Fixed Rate Notes" and the phrase ", the PAFC Bond
Indenture" after the phrase "the 1997 Fixed Rate Note Indentures" in subsection
(g) thereof, (ii) deleting the word "and" at the end of clause (i), (iii)
deleting the period at the end of clause (j) and inserting a semicolon in lieu
thereof, and (iv) inserting the following new clauses:
"(k) Indebtedness of PAFC evidenced by the PAFC Bonds;
(l) Indebtedness of the Company evidenced by the PAFC Bond
Guarantee;
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(m) Indebtedness of the Project Companies evidenced by any
guarantee of the Project Companies of the PAFC Bonds;
(n) Indebtedness of any Project Company owing to the Company or
any other Project Company and Indebtedness of the Company to the
Project Companies, in each case in connection with the purchase of
Petroleum Products and other products, capital expenditures, turn
around maintenance expenditures and the performance of services; and
(o) Indebtedness of the Project Companies with respect to tax
exempt industrial development bonds in an aggregate amount not to
exceed $50,000,000."
1.11 Amendment to Section 8.08 of the Credit Agreement. Section 8.08
of the Credit Agreement is hereby amended by deleting the word "and" at the end
of clause (h), deleting clause (i) and inserting the following new clauses:
"(i) Contingent Obligations of the Project Companies with
respect to Indebtedness permitted by Section 8.05(k);
(j) Contingent Obligations of the Company with respect to
Indebtedness permitted by Section 8.05(l);
(k) Contingent Obligations of the Project Companies with respect
to Indebtedness permitted by Section 8.05(m);
(l) Contingent Obligations with respect to letters of credit
(other than Letters of Credit) permitted to be issued under the Credit
Agreement; and
(m) Other Contingent Obligations in an aggregate amount not to
exceed $2,000,000 at any time."
1.12 Amendment to Section 8.11 of the Credit Agreement. Section 8.11
of the Credit Agreement is hereby amended by deleting "and (f)" in the fourth
line from the end thereof and inserting the following in its place:
", (f) refinance the 1998 Floating Rate Loans, (g) make capital
contributions to the Project Companies on the Amendment No. 2 Effective
Date to fund the PACC Bond Accounts in an amount not to exceed
$9,400,000 and (h)".
1.13 Amendment to Section 8.15 of the Credit Agreement. Section 8.15
of the Credit Agreement is hereby amended by (i) deleting the word "The" at the
beginning of the first line of clause (a) and replacing it with: "Except for the
Permitted PACC Accounts, the"; (ii) deleting the word "The" at the beginning of
the first line of clause (b) and replacing it with: "Except for the Permitted
PACC Accounts, the"; and (iii) deleting
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the word "The" at the beginning of the first line of clause (c) and replacing it
with: "Except for the Permitted PACC Accounts, the".
1.14 Amendment to Section 8.16 of the Credit Agreement. Section
8.16(c) of the Credit Agreement is hereby amended by deleting the number
"150,000,000" therein and inserting the number "400,000,000" in lieu thereof.
1.15 Amendment to Section 8.18 of the Credit Agreement. Section 8.18
of the Credit Agreement is hereby amended by inserting the phrase ", the Common
Security Agreement, the PAFC Bonds," immediately preceding the phrase "any of
the 9 1/2% Notes" in line three thereof, and by inserting the phrase "the PAFC
Bond Guarantee, the PAFC Bond Indenture," immediately preceding the phrase "the
9 1/2% Note Indenture" contained therein.
1.16 Addition of Section 8.19 to the Credit Agreement. The following
Section 8.19 will be added immediately following Section 8.18 of the Credit
Agreement:
"8.19 Other Agreements. The Company shall not, and shall not
suffer or permit any Restricted Subsidiary to create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or
restriction which, by its terms, restricts the ability of any
Restricted Subsidiary of the Company to (i) pay dividends or make any
other distributions on any such Restricted Subsidiary's Capital Stock
or pay any Indebtedness owed to the Company or any Restricted
Subsidiary of the Company, (ii) make any loans or advances to the
Company or any Restricted Subsidiary of the Company, or (iii) transfer
any of its property or assets to the Company or any Restricted
Subsidiary of the Company, except for, in the case of clauses (i), (ii)
and (iii) above, any restrictions (a) existing under the Common
Security Agreement, (b) pursuant to an agreement relating to
Indebtedness incurred by such Restricted Subsidiary prior to the date
on which such Restricted Subsidiary was acquired by the Company and
outstanding on such date and not incurred in anticipation of becoming a
Restricted Subsidiary, (c) imposed by virtue of applicable corporate
law or regulation and relating solely to the payment of dividends or
distributions to stockholders, (d) with respect to restrictions of the
nature described in clause (iii) above, included in a contract entered
into in the ordinary course of business and consistent with past
practices that contains provisions restricting the assignment of such
contract or pursuant to any agreement creating a Lien on the applicable
property permitted by Section 8.01 or pursuant to any agreement
pursuant to which the applicable property is to be sold or leased in a
transaction permitted by this Agreement, (e) pursuant to an agreement
effecting a renewal, extension, refinancing, refunding or replacement
of Indebtedness referred to in (a) or (b) above, provided, however,
that the provisions contained in such renewal, extension, refinancing,
refunding or replacement agreement relating to such encumbrance or
restriction, taken as a whole are not materially more restrictive than
the provisions contained in the
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agreement the subject thereof, as determined in good faith by the
Administrative Agent, or (f) which shall not in the aggregate cause
the Company to not have the funds necessary to pay the principal of or
interest, on the Loans and/or L/C Obligations outstanding on any
Settlement Date."
1.17 Amendment to Section 10.10 of the Credit Agreement. Section
10.10(b) of the Credit Agreement is hereby amended by adding the following at
the end of the first sentence:
"and (v) as contemplated by Amendment No. 2."
ARTICLE II
AGREEMENTS OF THE BANKS
2.1 Exclusion from Collateral. The Banks agree that no property of
the Project Companies shall be Collateral or be subject to the Liens created by
the Loan Documents except for crude oil inventory, intermediate products and
refined products and the proceeds thereof that constitute cash or cash
equivalents (the "Project Companies Collateral").
2.2 Inclusion in Borrowing Base. The Banks agree that the Project
Companies Collateral shall be included in the calculation of the Borrowing Base
on the same basis as similar assets of the Company, mutatis mutandis.
2.3 Benefit of Letters of Credit. The Banks agree that Letters of
Credit may be issued for the benefit of, and to support the business of,
Subsidiaries of the Company.
ARTICLE III
AMENDMENTS TO THE SCHEDULES AND EXHIBITS TO THE CREDIT AGREEMENT
3.1 Amendment to Schedule 6.17 to the Credit Agreement. Schedule
6.17 to the Credit Agreement is hereby amended by replacing the existing
Schedule 6.17 with Schedule 6.17 attached hereto.
3.2 Amendment to Schedule 7.06 to the Credit Agreement. Schedule
7.06 to the Credit Agreement is hereby amended by replacing the existing
Schedule 7.06 with Schedule 7.06 attached hereto.
3.3 Amendment to Exhibit D to the Credit Agreement. Paragraph A of
Exhibit D to the Credit Agreement is hereby amended and restated as follows:
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"Attachment A to this Borrowing Base Certificate correctly sets
forth a summary of the types, locations and values of the Company's
Eligible Cash and Eligible Cash Equivalents and the amount of the
payables owed by the Company to the Project Companies, in each case as
of the date hereof."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Bank that:
4.1 On the date of effectiveness of any of the amendments and
waivers herein (after giving effect to the consummation of the Restructuring and
the transactions contemplated by this Amendment No. 2 to have occurred on or
prior to such date), the Company shall be deemed to have certified to the Banks
that, after giving effect to the amendments and waivers contained herein that
become effective on such date (i) all of the representations and warranties
contained in the Credit Agreement are true and correct on and as of such date
with the same effect as if made on and as of such date (except to the extent
such representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date and except to the
extent (x) the representations and warranties set forth in Section 6.05 of the
Credit Agreement relate to any litigation which has been specifically disclosed
to the Banks and which has been added to Schedule 6.05 to the Credit Agreement
with the written approval of the Majority Banks and (y) the representation and
warranty set forth in Section 6.25 of the Credit Agreement relates to any event
or condition which has been specifically disclosed to the Banks and which has
been added to Schedule 6.25 to the Credit Agreement with the written approval of
the Majority Banks) and (ii) no Default or Event of Default exists as of the
Amendment No. 2 Effective Date.
4.2 All of the representations and warranties of the Project
Companies contained in the Common Security Agreement are true and correct on and
as of the Amendment No. 2 Effective Date (as defined below) and are hereby
incorporated by reference into this Amendment No. 2 for the benefit of the Agent
and the Banks as if set forth herein. No Event of Default has occurred under the
Common Security Agreement.
4.3 The execution, delivery and performance by the Company and its
Restricted Subsidiaries of the documents to be executed and delivered in
connection with the Restructuring do not (a) contravene the terms of any of that
Person's Organization Documents, (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any documents evidencing
any Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any arbitrator or Governmental Authority to which
such Person or its property is subject or (c) violate any Requirement of Law.
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4.4 The Consent Solicitation Statement (including the documents
incorporated by reference therein) does not contain any untrue statement of
material fact or any omissions of material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE V
EFFECTIVENESS OF AMENDMENTS
This Amendment No. 2 shall become effective on the opening of business in
New York on the Business Day (the "Amendment No. 2 Effective Date") on which the
Administrative Agent has notified the Company and the Banks that (i) the
Administrative Agent has executed a counterpart signature page of this Amendment
No. 2 and has received executed counterpart signature pages of this Amendment
No. 2 from the Company and the Majority Banks and (ii) the conditions set forth
in Article VI hereof have been satisfied in the judgment of the Administrative
Agent.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions of Effectiveness. The obligations of each Bank hereunder
and under the Credit Agreement and the effectiveness of this Amendment No. 2 are
subject to the fulfillment of the following conditions precedent and the prior
receipt by the Administrative Agent of all of the following (and in the case of
any agreements, documents, opinions and certificates (other than those delivered
pursuant to Sections 5.1(g) and (h)), in sufficient copies for the
Administrative Agent and each Bank) dated the Amendment No. 2 Effective Date or
such other date as is satisfactory to the Administrative Agent in form and
substance satisfactory to each of the Lead Banks:
(a) Transactions Contemplated in Connection with the Restructuring.
Evidence that, as of the Amendment No. 2 Effective Date, (i) all of the material
transactions contemplated in connection with the Restructuring including, but
not limited to (A) the prepayment of all principal and interest and the
termination of all commitments under the Bank Senior Loan Agreement, dated as of
August 19, 1999 between the Project Companies, Deutsche Bank as Administrative
Agent and the Bank Senior Lenders signatory thereto and the Secured Working
Capital Facility, dated as of August 19, 1999 between the Project Companies,
Deutsche Bank as Administrative Agent and the Bank Senior Lenders signatory
thereto; (B) the termination of the Winterthur Oil Payment and Debt Service
Reserve Insurance Policies and AIG Breach of Contract Insurance Policies; and
(C) the release of any related guarantees, in each case have been consummated as
described in the Consent Solicitation Statement to the extent such transactions
were to be consummated on or prior to the Amendment No. 2 Effective Date; and
(ii) all necessary material third party consents approving the Restructuring
have been obtained.
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(b) Pledge Agreement and Subsidiary Security Agreement. Copies of the
Pledge Agreement and the Subsidiary Security Agreement duly executed and
delivered by the parties thereto and effective as of the Amendment No. 2
Effective Date, each of which shall be in form and substance satisfactory to the
Administrative Agent.
(c) Common Security Agreement. Copies of the Common Security
Agreement executed in connection with the Restructuring, which shall be amended
to, among other things, permit payments from the Project Companies to the
Company, which Common Security Agreement shall be in the form previously
provided to the Banks as it may be amended or otherwise modified in a manner not
materially adverse to the Banks or with the consent of the Majority Banks.
(d) Approval of Other Agreements. Copies of all other agreements
executed and delivered in connection with the Restructuring, including, but not
limited to, the PAFC Bonds, the PAFC Bond Indenture and the PAFC Bond Guarantee
(in each case including all schedules and exhibits thereto), each of which shall
be in form and substance reasonably satisfactory to each of the Lead Banks.
(e) Legal Opinion. An opinion of Simpson Thacher & Bartlett, counsel
to the Company, addressed to the Administrative Agent and the Banks, in form and
substance reasonably satisfactory to the Administrative Agent, dated as of the
Amendment No. 2 Effective Date, covering such matters incident to Amendment No.
2 as the Administrative Agent may reasonably request.
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Amendment No. 2 Effective Date, stating that: (i) the representations
and warranties contained in the Credit Agreement are true and correct on and as
of such date, as though made on such date; (ii) no Default or Event of Default
under the Credit Agreement exists on the Amendment No. 2 Effective Date after
giving effect to the Restructuring or the transactions contemplated thereby, or
would result from the execution and performance of any agreement entered into in
connection with the Restructuring; (iii) the condition precedent set forth in
Section 6.1(a) of this Amendment No. 2 has been satisfied; and (iv) except as
specifically disclosed in Schedule 6.25, there has occurred since December 31,
2001, no event or circumstance that has resulted or could reasonably be expected
to result in a Material Adverse Effect.
(g) Consent Fee. The Company shall have paid to each Bank which has
executed and delivered a counterpart of this Amendment No. 2 on or prior to 5:00
PM (New York time) on Wednesday, May 29, 2002, an amendment fee equal to 0.15%
of the Commitment of such Bank as in effect on such date.
(h) Administrative Agent Fee. The Company shall have paid to the
Administrative Agent such fees as may have been agreed to in writing among such
parties.
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ARTICLE VII
MISCELLANEOUS
7.1 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(a) This Amendment No. 2 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 Amendment No. 2 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 No. 2.
(b) Except as specifically amended by this Amendment No. 2, 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 No. 2
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.
7.2 Headings. Section and clause headings in this Amendment No. 2 are
included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 2 for any other purpose or be given any substantive
effect.
7.3 Applicable Law. THIS AMENDMENT NO. 2 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.
7.4 Counterparts. This Amendment No. 2 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 LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
THE PREMCOR REFINING GROUP INC.
By:
--------------------------------------
Name:
Title:
AGENTS
DEUTSCHE BANK TRUST COMPANY
AMERICAS
as Administrative Agent and Collateral
Agent
By:
--------------------------------------
Name:
Title:
TD SECURITIES (USA), INC.
as Syndication Agent
By:
--------------------------------------
Name:
Title:
FLEET NATIONAL BANK
as Documentation Agent
By:
--------------------------------------
Name:
Title:
TRANCHE 1 LENDER
DEUTSCHE BANK TRUST COMPANY
AMERICAS
as a Bank
By:
--------------------------------------
Name:
Title:
TRANCHE 2 LENDERS
DEUTSCHE BANK TRUST COMPANY
AMERICAS
as a Bank
By:
--------------------------------------
Name:
Title:
COMERICA BANK
as a Bank
By:
--------------------------------------
Name:
Title:
CONGRESS FINANCIAL CORPORATION
as a Bank
By:
--------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
as a Bank
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
as a Bank
By:
------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
as a Bank
By:
------------------------------------------
Name:
Title:
GMAC COMMERCIAL CREDIT LLC
as a Bank
By:
------------------------------------------
Name:
Title:
HELLER FINANCIAL, INC.
as a Bank
By:
------------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
as a Bank
By:
------------------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
as a Bank
By:
------------------------------------------
Name:
Title:
ORIX FINANCIAL SERVICES, INC.
as a Bank
By:
------------------------------------------
Name:
Title:
THE PROVIDENT BANK
as a Bank
By:
------------------------------------------
Name:
Title:
RZB FINANCE LLC
as a Bank
By:
------------------------------------------
Name:
Title:
SIEMENS FINANCIAL SERVICES, INC.
as a Bank
By:
------------------------------------------
Name:
Title:
SOVEREIGN BANK
as a Bank
By:
------------------------------------------
Name:
Title:
TEXTRON FINANCIAL CORPORATION
as a Bank
By:
------------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
as a Bank
By:
------------------------------------------
Name:
Title:
TRANSAMERICA BUSINESS CAPITAL CORPORATION
as a Bank
By:
------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
as a Bank
By:
------------------------------------------
Name:
Title:
VAN KAMPEN CLO I, LIMITED
as a Bank
By:
------------------------------------------
Name:
Title:
VAN KAMPEN CLO II, LIMITED
as a Bank
By:
------------------------------------------
Name:
Title:
WELLS FARGO BANK, N.A.
as a Bank
By:
------------------------------------------
Name:
Title:
ISSUING BANKS
DEUTSCHE BANK AG - NEW YORK BRANCH
as Issuing Bank
By:
------------------------------------------
Name:
Title:
------------------------------------------
By: Name
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
as Issuing Bank
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
as Issuing Bank
By:
------------------------------------------
Name:
Title:
THE TORONTO DOMINION BANK
as Issuing Bank
By:
------------------------------------------
Name:
Title: