EXHIBIT 10.13
CLARK REFINING & MARKETING, INC.
AMENDMENT NO. 3
TO CREDIT AGREEMENT
This AMENDMENT NO. 3 (the "Amendment") is dated as of July 24, 1998 and
entered into by and among Clark Refining & Marketing, Inc., a Delaware
corporation (the "Company"), 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 (the "Banks"). This Amendment amends the Credit
Agreement (as amended, 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 Company;
WHEREAS, the parties hereto desire 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
1.01 Amendments to Section 1.01 of the Credit Agreement.
(a) The following definitions shall be inserted in Section 1.01 of the
Credit Agreement:
"British Petroleum" means, collectively, BP Exploration & Oil
Inc., an Ohio corporation, The Standard Oil Company, an Ohio corporation,
BP Oil Pipeline Company, a Delaware corporation and BP Chemicals Inc., an
Ohio corporation.
"1998 Floating and Fixed Rate Notes" means the senior Floating
and Fixed Rate Notes or loans to be issued under the 1998 Floating and
Fixed Rate Note Indentures in an aggregate amount not to exceed
$250,000,000 for the purposes described in, and otherwise in accordance
with, Section 8.05(j).
"1998 Floating and Fixed Rate Note Indentures" means each of the
indentures and/or credit agreements to be entered into by the Company
pursuant to which the 1998 Floating and Fixed Rate Notes are to be issued.
"Lima Acquisition" means the acquisition by the Company of the
Lima, Ohio Oil Refinery, Vine Street Terminal and certain assets and
liabilities associated therewith from British Petroleum.
(b) The definition of "Borrowing Base" shall be amended by deleting
clauses (e) and (f) in their entirety and the following clauses (e) and (f)
shall be inserted in lieu thereof:
"(e) 80% of Eligible Petroleum Inventory,
(f) 80% of Eligible Petroleum Inventory-Not-Received, and".
(c) The definition of "Cumulative Cash Flow" shall be amended by inserting
after the words "Floating and Fixed Rate Notes" in clause (b)(v) thereof the
words "or the 1998 Floating and Fixed Rate Notes".
(d) The definition of "Eligible Petroleum Inventory" shall be amended by
deleting the amount "$125,000,000" from clause (a) thereof and inserting the
amount "$300,000,000" in lieu thereof.
(e) Clause (e) of the definition of "Eligible Petroleum Inventory-Not-
Received" shall be deleted in its entirety and the following clause (e) shall be
inserted in lieu thereof:
"(e) the Company's obligations to pay the purchase price of such
Inventory is supported by (A) a Commercial Letter of Credit Issued under
this Agreement which Commercial Letter of Credit requires the original bill
of lading (or other original "document of title" (as defined in the UCC))
relating to such Petroleum Inventory to be delivered to the applicable
Issuing Bank or its designee in connection with a drawing under such
Commercial Letter of Credit, or (B) a Standby Letter of Credit Issued under
this Agreement which Standby Letter of Credit provides that the beneficiary
thereunder is not permitted to make any drawing thereunder until the
beneficiary has delivered a certificate to the Issuing Bank certifying that
delivery of such Petroleum Inventory has been made by the beneficiary (to
be paid for by such drawing) to the Company and payment therefor is past
due and owing, and (i) such Petroleum Inventory, in the case of subclause
(B) of this clause (e), is to be delivered to the Company not more than
thirty (30) days from the date such Petroleum
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Inventory was shipped to the Company by the seller thereof and, if
delivered to a carrier, such carrier is an Eligible Carrier and (ii) for
purposes of inclusion of such Petroleum Inventory in the Borrowing Base,
such Petroleum Inventory shall be valued at an amount not to exceed the
maximum drawing amount of such Letter of Credit supporting the purchase
price thereof."
(f) Clause (j) of the definition of "Eligible Receivables" shall be
deleted in its entirety and the following clause (j) shall be inserted in lieu
thereof:
"(j) are due from a customer to the extent that such Accounts
due from such customer and its Affiliates do not exceed in the aggregate an
amount equal to (i) if such customer is a Person listed on Schedule 1.01(d)
(as such schedule may be amended from time to time with the approval of the
Administrative Agent), 25% of the aggregate of all Accounts at such time
and (ii) otherwise, 10% of the aggregate of all Accounts at such time;
provided that notwithstanding clause (i) above, Accounts due from Chevron
U.S.A. Inc. and its Affiliates may exceed 25% of the aggregate of all
Accounts at such time but shall not, if in excess of 25% of the aggregate
Accounts due at such time, have a face amount in the aggregate in excess of
$50,000,000 (it being understood that only such portions which exceed the
limit set forth above will be excluded from Eligible Receivables) and there
shall be no limit on Accounts due from British Petroleum and its Affiliates
which may be included as Eligible Receivables so long as, to the extent
that the amount of such receivables exceeds $50,000,000, such excess is
supported by a letter of credit from a financially sound financial
institution, on a dollar-for-dollar basis, for the benefit of the Company
(it being understood that only such portion of such excess which is not so
supported will be excluded from Eligible Receivables); and provided,
further, that notwithstanding anything herein to the contrary, there shall
be excluded from Accounts and the aggregate of all Accounts in the above
calculations, Accounts generated from the sale of West Texas Intermediate -
Cushing and due from certain Account Debtors (as previously disclosed, in
writing, to the Agents and as may be changed, from time to time, with the
approval of the Administrative Agent) so long as, to the extent that the
amount of such receivables from any such Account Debtor exceeds the
Company's internal credit policy limit (as previously disclosed, in
writing, to the Agents and as may be changed, from time to time, with the
approval of the Administrative Agent) in respect of such Account Debtor,
such excess is supported by a letter of credit from a financially sound
financial institution, on a dollar-for-dollar basis, for the benefit of the
Company (it being understood that only such portion of such excess which is
not so supported will be excluded from Eligible Receivables)".
(g) Clause (B) of the last paragraph of the definition of "Eligible
Receivables" shall be amended by inserting the parenthetical "(other than, for
the three-month period
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beginning on the closing date of the Lima Acquisition, in respect of amounts due
to British Petroleum and its Affiliates)" after the words "in respect thereof,".
(h) The definition of "Institutional Finance Documents" shall be amended by
(i) deleting the words "9-1/2% Note Indentures" and inserting the words "9-1/2%
Note Indenture" in lieu thereof and (ii) inserting after the words "the Floating
and Fixed Rate Note Indentures" therein the words "the 1998 Floating and Fixed
Rate Notes, the 1998 Floating and Fixed Rate Note Indentures".
1.02 Amendment to Section 2.01. Clause (b) of Section 2.01 of the
Credit Agreement shall be amended by deleting the amount "$50,000,000" therein
and inserting the amount "$150,000,000" in lieu thereof.
1.03 Amendment to Section 2.06. Clause (a)(i)(x) of Section 2.06 of
the Credit Agreement shall be amended by deleting the amount "$50,000,000"
therein and inserting the amount "$150,000,000" in lieu thereof.
1.04 Amendment to Section 2.11. Section 2.11 of the Credit Agreement
shall be amended by deleting the text thereof in its entirety and inserting
"[Intentionally Omitted]" in lieu thereof.
1.05 Amendment to Section 6.24. Section 6.24 of the Credit Agreement
shall be amended by (a) inserting the words "1998 Floating and Fixed Rate Note
Indentures" at the end of the heading thereof; and (b) deleting the words
"Indenture or" on the last line thereof and inserting the word "Indentures," in
lieu thereof; and (c) inserting before the period at the end thereof the words
", the 1998 Floating and Fixed Rate Note Indentures or the 1998 Floating and
Fixed Rate Notes".
1.06 Amendment to Section 7.02. Section 7.02(e) of the Credit
Agreement shall be amended by inserting the words "(each a "Borrowing Base
Measurement Date")" after the words "such Sunday or month end" in the first
sentence thereof; by inserting the sentence "Notwithstanding the foregoing, the
Borrower may deliver a Borrowing Base Certificate at any time, setting forth, on
an itemized basis, the Borrowing Base, as of the close of business on any day
(an "Interim Borrowing Base Measurement Date") following the Borrowing Base
Measurement Date in respect of the most recently delivered Borrowing Base
Certificate (it being understood that all items of the Borrowing Base shall be
itemized as of such Interim Borrowing Base Measurement Date and such date shall
be prior to the date of such Borrowing Base Certificate and the next Borrowing
Base Measurement Date) and otherwise in accordance with this Section 7.02(e)"
after the first sentence thereof; and by inserting the sentence "Notwithstanding
the foregoing, the Company shall, prior to the closing of the Lima Acquisition,
deliver a pro forma Borrowing Base Certificate, which certificate shall give
effect to the Lima Acquisition on a pro forma basis and such Borrowing Base
Certificate shall remain effective until the close of business on the date on
which the Borrowing Base Certificate immediately succeeding the next required
Borrowing Base Certificate is required to be delivered hereunder" at the end
thereof.
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1.07 Amendment to Section 8.01. The following clause (s) shall be
inserted after clause (r) of Section 8.01 of the Credit Agreement:
"(s) Liens on assets (other than assets of the same type as the
Collateral) securing Indebtedness acquired in connection with the
acquisition of such assets; provided, that such Indebtedness is permitted
to be incurred under Section 8.05(k) hereof and provided, further, that
such liens existed at the time of such acquisition and were not created in
anticipation of such acquisition."
1.08 Amendment to Section 8.03. The following clause (c) shall be
inserted after clause (b) of Section 8.03 of the Credit Agreement:
"(c) any Restricted Subsidiary may merge with any Person to effectuate
an acquisition of such Person; provided, that such acquisition is permitted
pursuant to Section 8.04."
1.09 Amendment to Section 8.04.
(a) The first sentence of Section 8.04 of the Credit Agreement shall be
amended by inserting the words "unless such Restricted Subsidiary becomes a co-
borrower or a guarantor hereunder pursuant to an amendment to this Agreement and
the other Loan Documents (including if necessary, execution of a guarantee) in
form and substance satisfactory to the Administrative Agent to reflect such
Restricted Subsidiary becoming a co-borrower or guarantor hereunder (it being
understood that upon becoming such an obligor, exceptions to covenants which
apply to the Company shall apply to such Restricted Subsidiary and the assets of
such Restricted Subsidiary shall be included in the calculation of the Borrowing
Base on the same basis as are those of the Company and any amendments to this
Agreement or the other Loan Documents shall reflect the foregoing)" after the
words "consent of the Majority Banks," and the words "or any other Restricted
Subsidiary which may be formed or acquired after the date of this Agreement that
becomes a co-borrower or guarantor under this Agreement pursuant to an amendment
to this Agreement and the other Loan Documents (including if necessary,
execution of a guarantee) in form and substance satisfactory to the
Administrative Agent to reflect such Restricted Subsidiary becoming a borrower
hereunder (it being understood that upon becoming such an obligor, exceptions to
covenants which apply to the Company shall apply to such Restricted Subsidiary
and the assets of such Restricted Subsidiary shall be included in the
calculation of the Borrowing Base on the same basis as are those of the Company
and any amendments to this Agreement or the other Loan Documents shall reflect
the foregoing)" at the end thereto.
(b) Clause (i) of Section 8.04 of the Credit Agreement shall be amended by
deleting the amount "$60,000,000" therein and inserting the amount "$75,000,000"
in lieu thereof.
(c) The following clauses (i) and (j) shall be inserted after clause (h) of
Section 8.04 of the Credit Agreement and clause (i) shall be re-lettered as
clause (k):
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"(i) the Lima Acquisition;"
"(j) acquisitions made solely with one or more equity issuances of, or
capital contributions to, the Company (or the net cash proceeds therefrom)
and existing cash of the Company (provided that after giving effect to any
such acquisition, the Company and its Restricted Subsidiaries have not
incurred any additional indebtedness, other than acquired indebtedness
otherwise permitted under Section 8.05); provided that (a) the seller with
respect to such acquisition has provided an indemnity (including with
respect to costs and expenses) for substantially all liabilities with
respect to environmental matters (including costs and expenses with respect
to remediation), subject to reasonable minimum amounts acceptable to the
Administrative Agent, covering all periods prior to the date of closing for
any such acquisition and such seller has, in the good faith judgment of the
Company, a credit worthiness to support such indemnity and which indemnity
shall survive for a period of at least six years following the closing date
of such acquisition, (b) an independent consultant, acceptable to the
Agents, in their sole discretion, projects in writing that after giving
effect to any debt service requirements applicable to any acquired
indebtedness in respect of any such acquisition, the earnings before
interest, tax, depreciation and amortization less capital expenditures
required for maintenance purposes with respect to the assets being acquired
shall be greater than zero for the two years immediately succeeding such
acquisition and (c) after giving effect to any such acquisition, the
aggregate amount of the Borrower's Cash, Cash Equivalents and Qualifying
Investments is not less than $100,000,000; and".
1.10 Amendment to Section 8.05.
(a) Clause (g) of Section 8.05 of the Credit Agreement shall be deleted in
its entirety and the following clause (g) shall be inserted in lieu thereof:
"(g) Indebtedness incurred to refinance in whole or in part the 9-1/2%
Notes, the Floating and Fixed Rate Notes and/or the 1998 Floating and Fixed
Rate Notes and to pay any applicable premiums and expenses; provided, that
the terms of such Indebtedness are no less favorable, in the aggregate (as
determined by the Agents, in their sole discretion), to the Company or the
Banks than are contained in the 9-1/2% Note Indenture and/or the applicable
Floating and Fixed Rate Note Indenture and/or the applicable 1998 Floating
and Fixed Rate Note Indenture".
(b) Clause (h) of Section 8.05 of the Credit Agreement shall be amended by
inserting after the words "Floating and Fixed Rate Note Indentures" therein the
words "and the 1998 Floating and Fixed Rate Note Indentures".
(c) The following clause (j) shall be inserted after clause (i) of Section
8.05 of the Credit Agreement and clause (j) shall be re-lettered as clause (k):
"(j) Indebtedness of the Company, in an aggregate amount not to exceed
$250,000,000 (in the form of floating and fixed rate notes or loans),
incurred to finance the Lima Acquisition, the payment of related fees and
expenses, which
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Indebtedness shall be on terms substantially similar to the terms of the
Floating and Fixed Rate Notes; and".
(d) Clause (k) of Section 8.05 of the Credit Agreement shall be amended by
deleting the amount "$25,000,000" therein and inserting the amount "$75,000,000"
in lieu thereof, by deleting the word "unsecured" in the proviso thereto and by
inserting at the end thereof the words "and that at the time of incurrence of
any Indebtedness pursuant to this clause (k), not more than $25,000,000 of all
Indebtedness outstanding under this clause (k) matures concurrently with or
before the maturity of the Obligations owing hereunder; and provided, further
that Indebtedness incurred in accordance with this clause (k) may be secured if
the liens securing such Indebtedness are permitted under Section 8.01(s)
hereof".
1.11 Amendment to Section 8.06. Section 8.06 of the Credit Agreement
shall be amended by inserting the following proviso at the end thereof:
"provided, that this Section 8.06 shall not prohibit payments by the Borrower
which have been approved by a majority of the board of directors of the
Borrower, to the Fund Affiliates or any advisor thereof in connection with any
underwriting or placement services or in respect of other investment banking
activities, including without limitation, acquisitions or divestitures.
1.12 Amendments to Section 8.11.
(a) Clause (iii) and clause (b) of the first proviso in Section 8.11 of the
Credit Agreement shall be amended by inserting after the words "Floating and
Fixed Rate Notes" each place where such words appear therein, the words "or the
1998 Floating and Fixed Rate Notes".
(b) Section 8.11 of the Credit Agreement shall be amended by deleting the
words "which bear a fixed interest rate" from clause (c) of the first proviso
thereof and by inserting the following clause (d) at the end of the first
proviso thereof:
"(d) in addition to clauses (b) and (c) above, prepay or redeem
not more than 35% of the aggregate principal amount of the 1998 Floating
and Fixed Rate Notes originally issued, with the proceeds received from the
issuance of Capital Stock of the Company or Holdings in accordance with the
terms of such Notes as in effect on the dates of their respective
indentures or credit agreements".
1.13 Amendments to Section 8.16. Clause (b) of Section 8.16 of the
Credit Agreement shall be amended by deleting the last sentence thereof.
1.14 Amendments to Section 8.18. Section 8.18 of the Credit
Agreement shall be amended by inserting after the words "Floating and Fixed Rate
Notes," therein the words "any of the 1998 Floating and Fixed Rate Notes," and
inserting after the words "the Floating and Fixed Rate Note Indentures" therein
the words "the 1998 Floating and Fixed Rate Note Indentures,".
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1.15 Amendments to Section 9.01.
(a) Section 9.01(n) of the Credit Agreement shall be amended by inserting
the words "(it being understood that the amendment pursuant to and in accordance
with the Consent Solicitation Statement dated July 6, 1998 shall not be deemed
to increase the obligations of Holdings or the Company or to be otherwise
materially adverse to Holdings, the Company or the Banks" after the words "or
the Banks" therein.
(b) Section 9.01(o) of the Credit Agreement shall be amended by inserting
the following proviso at the end thereof "provided that the incurrence of
Indebtedness by Holdings to refinance in whole the Holdings Notes and to pay any
applicable premiums and expenses, which indebtedness shall be on terms no less
favorable, in the aggregate (as determined by the Agents in their sole
discretion), to the Banks, Holdings or the Company than the terms of the
Holdings Notes shall not be an Event of Default under clause (n) or (o) above".
1.16 Amendment to Section 11.01. Section 11.01 shall be amended by
inserting the words "Except as otherwise expressly provided," at the beginning
of the first sentence thereof.
1.17 Replacement of Schedule 1.01(a). Schedule 1.01(a) attached hereto
shall be attached to the Credit Agreement as Schedule 1.01(a) (Commitments) to
the Credit Agreement and shall replace the existing Schedule 1.01(a).
1.18 Adjustments of Commitments. Each Bank's participation in letters
of credit under the Credit Agreement shall be automatically adjusted such that
their participation shall be in accordance with their pro rata commitments as
reflected on Schedule 1.01(a) (as amended hereby) to the Credit Agreement.
1.19 Payment of Investment Banking Fees. The Company is hereby
permitted to pay investment banking fees to the Fund Affiliates and any advisor
thereof in connection with the Lima Acquisition.
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
Company and the Banks that the Administrative Agent has executed a counterpart
signature page of this Amendment, has received executed counterpart signature
pages of this Amendment from the Company and the Majority Banks, and upon the
satisfaction 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, in sufficient copies for the
Administrative Agent and each Bank) dated the Effective Date or such other date
satisfactory to the Administrative Agent in form and substance satisfactory to
the Administrative Agent:
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(a) Amendment and Notes. This Amendment and Notes drawn to the order of
each requesting Bank providing any portion of the increased available amounts
under the Credit Agreement, executed by each party thereto;
(b) Payment of Fees and Expenses. Evidence of payment by the Company of
all accrued and unpaid Fees and Expenses to the extent then due and payable on
the Effective Date and invoiced, together with any reasonable estimate of
reasonable fees and expenses of outside counsel incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and such
counsel); including, without limitation, any such costs, fees, commissions and
expenses arising under or referenced in the Fee Letter;
(c) Collateral. The Collateral Agent shall have received a first priority
security interest (subject to exceptions similar to those in the Credit
Agreement) in the assets (of the same type as the Collateral granted to the
secured parties under, and pursuant to, the Collateral Documents executed in
connection with the Credit Agreement) acquired by the Company in connection with
the Acquisition;
(d) Solvency Certificate. A certificate signed by a Responsible Officer,
dated as of the Effective Date, stating that, after giving effect to the
transactions contemplated by the Amendment, the Acquisition and the related debt
financing (the "Debt Financing") thereof, the Company is Solvent;
(e) Acquisition and Debt Financing. The Acquisition and the Debt Financing
shall have been consummated and the terms thereof (including the purchase price
and the documentation relating thereto) shall be substantially as set forth in
the acquisition agreement and the offering memorandum previously delivered to
the Agents (in each case, with such other changes as are acceptable to the
Agents (such acceptance not be unreasonably withheld);
(f) Amendments of Other Documentation. The obtaining of any amendments or
waivers to any material debt or preferred stock of the Parent, the Company or
any of their respective subsidiaries necessary to permit the Amendment, the
Acquisition and the Debt Financing without violating the terms of such debt or
preferred stock or resulting in a requirement that such debt or preferred stock
be repurchased, redeemed, repaid, defeased or otherwise retired (collectively,
"Repaid") or in any holder thereof being entitled to require that the issuer
thereof cause such debt or preferred stock to be Repaid, including Parent's
10 7/8% Series B Senior Notes Due 2005 and 11 1/2% Senior Cumulative
Exchangeable Preferred Stock on substantially the same terms as set forth in the
Consent Solicitation Statement previously delivered to the Agents (with such
other changes as are acceptable to the Agents, (such acceptance not to be
unreasonably withheld).
(g) Consents, Approval, Etc.. All necessary orders, permits, licenses,
authorizations, approvals, consents and waivers by any Governmental Authority or
other Person (including, without limitation, the consent of certain customers,
if required, under any Material Contracts) in connection with this Amendment,
the Acquisition or the Debt Financing other than approvals, permits and filings
which are not material to the completion of the transactions or are not
otherwise material to the Parent and its
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subsidiaries, taken as a whole or the Company and its subsidiaries, taken as a
whole. Each of the aforementioned orders, permits, licenses, authorizations,
approvals, consents and waivers by Governmental Authorities or other Persons
shall be in full force and effect and shall be in form and substance
satisfactory to the Agents;
(h) Legal Opinions.
(i) an opinion of Simpson Thacher & Bartlett, counsel to the
Company, addressed to the Administrative Agent and the Banks, in form and
substance satisfactory to the Administrative Agent; and
(ii) such other opinions of counsel covering matters, and in form
and substance acceptable to the Agents;
(i) No Material Adverse Change. Since December 31, 1997, in the opinion of
the Agents, there shall not have occurred any material adverse change with
respect to the condition (financial or otherwise), operations, assets,
liabilities or prospects of Parent and its subsidiaries, taken as a whole and
the Company and its subsidiaries, taken as a whole; and
(j) Other Conditions and Documents. Such other customary approvals,
opinions, documents or materials relating to corporate matters as the Agents may
reasonably request.
Notwithstanding the foregoing, Sections 1.01(b) of this Amendment
shall not be effective until the opening of business in New York on the Business
Day on which the Administrative Agent has notified the Company and the Banks
that the Administrative Agent has received executed counterpart signature pages
of this Amendment from each Bank and upon satisfaction of all other conditions
set forth in this Section 2.
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.
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(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 Representations and Warranties; No Default or Event of Default.
On the date of effectiveness of any of the amendments herein (after giving
effect to the consummation of the transactions contemplated by this Amendment 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 contained
herein that become effective on such date all of the representations and
warranties contained in the Credit Agreement are true and correct on and as of
the date thereof 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).
3.03 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.
3.04 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.
3.05 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.
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Schedule 1.01
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Lender Commitment
Bankers Trust Company $162,500,000
ABN Amro Bank N.V. 22,500,000
Bank of Scotland 25,000,000
BankBoston, N.A. 102,500,000
Comerica Bank 25,000,000
Credit Lyonnais New York Branch 25,000,000
Den Norske Bank ASA 22,500,000
The First National Bank of Chicago 22,500,000
The Fuji Bank, Limited 15,000,000
Green Tree Financial Servicing Corporation 25,000,000
Hibernia National Bank 22,500,000
Mercantile Bank National Association 15,000,000
Mitsubishi Trust & Banking Corp. 15,000,000
The Sanwa Bank Limited 15,000,000
Standard Chartered Bank 22,500,000
Toronto-Dominion (Texas), Inc. 115,000,000
Union Bank California, N.A. 25,000,000
Wells Fargo Bank (Texas), Inc. 22,500,000
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Total $700,000,000
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