Amendment No. 1 to Credit Agreement among Constar International Inc., Lenders, and Citicorp North America, Inc.

Summary

This amendment updates the original Credit Agreement dated November 20, 2002, between Constar International Inc., its lenders, and Citicorp North America, Inc. as Administrative Agent. The amendment revises financial reporting requirements, adjusts leverage ratio covenants, and updates certain administrative provisions. It also sets conditions for effectiveness, including lender approvals and payment of amendment fees. The agreement is governed by New York law and requires Constar to reimburse certain expenses. All other terms of the original Credit Agreement remain in effect unless specifically amended.

EX-10.38 7 dex1038.txt AMENDMENT TO CREDIT AGREEMENT Exhibit 10.38 EXECUTION COPY AMENDMENT NO. 1, dated as of July 28, 2003 (this "Amendment No. 1"), to the Credit Agreement dated as of November 20, 2002 (as amended, supplemented, amended and restated or otherwise modified from time to time) (the "Credit Agreement") among Constar International Inc. (the "Borrower"), the Lenders party thereto, Citicorp North America, Inc., as Administrative Agent (the "Administrative Agent"), JPMorgan Chase Bank, as Documentation Agent, SunTrust Bank, as Co-Documentation Agent, Deutsche Bank Securities Inc. ("DBSI") as Syndication Agent and Citigroup Global Markets Inc. (f/k/a Salomon Smith Barney Inc.) and DBSI as Joint Lead Arrangers and Joint Bookrunners. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement. WHEREAS, pursuant to Section 9.08 of the Credit Agreement, the Borrower and the Required Lenders desire to amend certain provisions of the Credit Agreement; WHEREAS, the consent of the Requisite Lenders is necessary to effect this Amendment No. 1; NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: Section 1. Amendments. (a) Section 5.19. Article V of the Credit Agreement is hereby amended by adding a new Section 5.19 at the end of Article V as follows: Section 5.19 Updated Projected Financial Statements. As soon as available and in any event no later than September 2, 2003, the Borrower will furnish to each Lender and the Administrative Agent consolidated income statement, balance sheet and cash flow statement projections for the fiscal years ending 2003 through 2010, inclusive (such projections for 2003 being broken down quarterly), in form and substance reasonably satisfactory to the Administrative Agent. After delivery, these projected financial statements will be deemed to be the "Projected Financial Statements" referred to in Section 3.15(c); provided that the reference to the Effective Date in the second sentence of Section 3.15(c) shall be deemed a reference to the Effective Date of this Amendment No. 1. (b) Section 6.15: Total Leverage Ratio. Section 6.15 of the Credit Agreement is hereby amended by deleting the Test Period of June 30, 2003 and the corresponding ratio thereto and replacing them as follows: June 30, 2003 ..........................4.85 to 1.00 (c) Section 6.16: Senior Leverage Ratio. Section 6.16 of the Credit Agreement is hereby amended by deleting the Test Period of June 30, 2003 and the corresponding ratio thereto and replacing them as follows: June 30, 2003 ..........................2.60 to 1.00 (d) Section 9.17 of the Credit Agreement is hereby amended by replacing all references to "SSB Direct" in such Section with "Fixed Income Direct", replacing references to the web address ***@*** in such Section to ***@*** and deleting paragraph (b) of such Section and replacing it with the following: (b) Each Loan Party further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks, Fixed Income Direct or a substantially similar electronic transmission systems (the "Platform"). Each Loan Party acknowledges that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution. Section 2. Representations and Warranties. The Borrower represents and warrants to the Lenders, as of the date hereof and as of the Effective Date, that: (a) The execution and delivery of this Amendment No. 1 by the Borrower has been duly authorized. (b) Neither the execution or delivery by the Borrower of this Amendment No. 1, nor compliance by it with the terms and provisions hereof, (i) will contravene any applicable provision of any law, statute, rule or regulation, or any order, writ, injunction or decree of any court or Governmental Authority, (ii) will conflict or be inconsistent with, or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, the terms of any indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material agreement, contract or instrument to which the Borrower or any of its Subsidiaries is a party or by which its Subsidiaries' property or assets is bound or to which the Borrower or any of its Subsidiaries may be subject, including without limitation the Credit Agreement, or (iii) will violate any provision of the Borrower's certificate of incorporation or by-laws or the certificate of incorporation or bylaws (or equivalent organizational or other charter documents) of any of its respective Subsidiaries. (c) Before and after giving effect to this Amendment No. 1, the representations and warranties set forth in the Credit Agreement, are true and correct in all respects with the same effect as if made on the Effective Date, except to the extent such representations and warranties expressly relate to an earlier date. (d) At the time of and after giving effect to this Amendment No. 1, no Default or Event of Default has occurred and is continuing. Section 3. Conditions to Effectiveness. This Amendment No. 1 shall become effective on the date (the "Effective Date") on which each of the following conditions is satisfied (or waived in accordance with Section 9.08 of the Credit Agreement): (a) The Administrative Agent (or its counsel) shall have received from Lenders constituting the Required Lenders and each of the other parties hereto either (i) a counterpart of this Amendment No. 1 signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed -2- signature page of this Amendment No. 1) that such party has signed a counterpart of this Amendment No. 1; (b) The Administrative Agent shall have received reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower in connection with this Amendment No. 1 or any Loan Document; (c) The Borrower shall have paid to the Administrative Agent on behalf of each Lender executing this Amendment No. 1 an amendment fee in an amount equal to 0.125% of such Lender's outstanding Term Loans and Revolving Credit Commitments; and (d) All corporate and other proceedings taken or to be taken in connection with this Amendment No. 1 and all documents incidental thereto, whether or not referred to herein, shall be satisfactory in form and substance to the Administrative Agent and their counsel. Section 4. Expenses. The Borrower agrees to reimburse the Administrative Agent for its out-of-pocket expenses incurred by it in connection with this Amendment No. 1, including the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, counsel for the Administrative Agent. Section 5. Counterparts. This Amendment No. 1 may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment No. 1 by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. Section 6. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Section 7. Headings. The headings of this Amendment No. 1 are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. -3- IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed as of the date first above written. CONSTAR INTERNATIONAL INC. as Borrower By: /s/ James C. Cook ---------------------------------------- Name: James C. Cook Title: Executive Vice President and Chief Financial Officer CITICORP NORTH AMERICA, INC. as Administrative Agent and as Lender By: /s/ Suzanne Crymes ---------------------------------------- Name: Suzanne Crymes Title: Vice President -4- New York Life Insurance and Annuity Corporation, By: New York Life Investment Management, LLC, Its Investment Manager ------------------------------------------------ as a Lender By: /s/ F. David Melka ------------------------------------------- Name: F. David Melka Title: Vice President Deutsche Bank Trust Company Americas as a Lender By: /s/ M. A. Orlando ------------------------------------------- Name: Marco Orlando Title: Director ELF Funding Trust III, By: New York Life Investment Management, LLC, As Attorney-in-fact ------------------------------------------------ as a Lender By: /s/ F. David Melka ------------------------------------------- Name: F. David Melka Title: Vice President Export Development Canada as a Lender By: /s/ Robert Pelletier ------------------------------------------- Name: Robert Pelletier Title: Loan Asset Manager By: /s/ Rick Bernst ------------------------------------------- Name: Rick Bernst Title: Loan Portfolio Manager Franklin CLO II, Limited as a Lender By: /s/ Richard D'Addario ------------------------------------------- Name: Richard D'Addario Title: Senior Vice President -5- Franklin CLO III, Limited as a Lender By: /s/ Richard D'Addario ----------------------------------------- Name: Richard D'Addario Title: Senior Vice President Franklin Floating Rate Daily Access Fund as a Lender By: /s/ Richard D'Addario ----------------------------------------- Name: Richard D'Addario Title: Vice President Franklin Floating Rate Master Series as a Lender By: /s/ Richard D'Addario ----------------------------------------- Name: Richard D'Addario Title: Vice President Franklin Floating Rate Trust as a Lender By: /s/ Richard D'Addario ----------------------------------------- Name: Richard D'Addario Title: Vice President -6- General Electric Capital Corporation as a Lender By: /s/ Moira Duncan ----------------------------------------- Name: Moira Duncan Title: Sr. Risk Manager ING PRIME RATE TRUST By: ING Investments, LLC as Its Investment Manager By: /s/ Charles E. LeMieux ----------------------------------------- Name: Charles E. LeMieux Title: Vice President ING SENIOR INCOME FUND By: ING Investments, LLC as Its Investment Manager By: /s/ Charles E. LeMieux ----------------------------------------- Name: Charles E. LeMieux Title: Vice President ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. By: ING Investments, LLC as Its Investment Manager By: /s/ Charles E. LeMieux ----------------------------------------- Name: Charles E. LeMieux Title: Vice President JP Morgan Chase Bank --------------------------------------------- as a Lender By: /s/ Peter S. Predun ----------------------------------------- Name: Peter S. Predun Title: Vice President -7- SunTrust Bank --------------------------------------------- as a Lender By: /s/ William Christensen ----------------------------------------- Name: William Christensen Title: Vice President Katonah I, LTD. --------------------------------------------- as a Lender By: /s/ Ralph Della Rocca ----------------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager Katonah II, LTD. --------------------------------------------- as a Lender By: /s/ Ralph Della Rocca ----------------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager Katonah III, LTD. --------------------------------------------- as a Lender By: /s/ Ralph Della Rocca ----------------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager Katonah IV, LTD. --------------------------------------------- as a Lender By: /s/ Ralph Della Rocca ----------------------------------------- Name: Ralph Della Rocca Title: Authorized Officer Katonah Capital, L.L.C. As Manager -8- Black Diamond CLO 1998-1, Ltd. By: /s/ David Dyer ----------------------------------------- Name: David Dyer Title: Director Black Diamond CLO 2000-1, Ltd. By: /s/ David Dyer ----------------------------------------- Name: David Dyer Title: Director AMMC CDO I, LIMITED By: American Money Management Corp., as Collateral Manager By: /s/ David P. Meyer ----------------------------------------- Name: David P. Meyer Title: Vice President AMMC CDO II, LIMITED By: American Money Management Corp., as Collateral Manager By: /s/ David P. Meyer ----------------------------------------- Name: David P. Meyer Title: Vice President Canadian Imperial Bank of Commerce as a Lender By: /s/ John F. Burke ----------------------------------------- Name: John F. Burke Title: Authorized Signatory -9- Centurion CDO II, Ltd. By: American Express Asset Management Group, Inc. as Collateral Manager --------------------------------------------- as a Lender By: /s/ Leanne Stavrakis ----------------------------------------- Name: Leanne Stavrakis Title: Director - Operations Centurion CDO VI, Ltd. By: American Express Asset Management Group, Inc. as Collateral Manager --------------------------------------------- as a Lender By: /s/ Leanne Stavrakis ----------------------------------------- Name: Leanne Stavrakis Title: Director - Operations CSAM Funding I --------------------------------------------- as a Lender By: /s/ Andrew H. Marshak ----------------------------------------- Name: Andrew H. Marshak Title: Authorized Signatory Atrium CDO --------------------------------------------- as a Lender By: /s/ Andrew H. Marshak ----------------------------------------- Name: Andrew H. Marshak Title: Authorized Signatory First Dominion Funding I --------------------------------------------- as a Lender By: /s/ Andrew H. Marshak ----------------------------------------- Name: Andrew H. Marshak Title: Authorized Signatory -10- CSAM Funding II --------------------------------------------- as a Lender By: /s/ Andrew H. Marshak ----------------------------------------- Name: Andrew H. Marshak Title: Authorized Signatory APEX (IDM) CDO I, LTD. --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director ELC (CAYMAN) LTD. --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director ELC (CAYMAN) LTD. CDO SERIES 1999-I --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director ELC (CAYMAN) LTD. 1999-II --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director -11- ELC (CAYMAN) LTD. 1999-III --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director TRYON CLO LTD. 2000-I --------------------------------------------- as a Lender By: David L. Babson & Company Inc. as Collateral Manager By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director David L. Babson, & Co. Inc. As collateral Manager for: ELC (CAYMAN) LTD. 2000-I --------------------------------------------- as a Lender By: /s/ Glenn P. Duffy ----------------------------------------- Name: Glenn P. Duffy, CPA Title: Managing Director Golden Tree High Yield Opportunities II, L.P. By: Golden Tree Asset Management, LP as a Lender By: /s/ Thomas O'Shea ----------------------------------------- Name: Thomas O'Shea Title: Analyst Golden Tree Loan Opportunities I, Limited By: Golden Tree Asset Management, LP as a Lender By: /s/ Thomas O'Shea ----------------------------------------- Name: Thomas O'Shea Title: Analyst -12- Golden Tree High Yield Opportunities I, L.P. By: Golden Tree Asset Management, LP as a Lender By: /s/ Thomas O'Shea -------------------------------------------- Name: Thomas O'Shea Title: Analyst Natexis Banques Populaires --------------------------------------------- as a Lender By: /s/ Yosmery D. Ortega -------------------------------------------- Name: Yosmery D. Ortega Title: Associate By: /s/ William J. Burke -------------------------------------------- Name: William J. Burke Title: Vice President Harbourview CLO IV, LTD. ------------------------------------------------ as a Lender By: /s/ Bill Campbell -------------------------------------------- Name: Bill Campbell Title: Manager Oppenheimer Senior Floating Rate Fund ------------------------------------------------ as a Lender By: /s/ Bill Campbell -------------------------------------------- Name: Bill Campbell Title: Manager Sequils - Centurion V, Ltd. By: American Express Asset Management Group Inc. as Collateral Manager ------------------------------------------------ as a Lender By: /s/ Leanne Stavrakis -------------------------------------------- Name: Leanne Stavrakis Title: Director - Operations -13- Stanfield CLO Ltd. By: Stanfield Capital Partners LLC as its Collateral Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner Stanfield Carrera CLO, Ltd. By: Stanfield Capital Partners LLC as its Asset Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner Hamilton CDO, Ltd. By: Stanfield Capital Partners LLC As its Collateral Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner Stanfield Quattro CLO, Ltd. By: Stanfield Capital Partners LLC As its Collateral Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner -14- Stanfield/RMF Transatlantic CDO Ltd. By: Stanfield Capital Partners LLC as its Collateral Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner Stanfield Arbitrage CDO, Ltd. By: Stanfield Capital Partners LLC as its Collateral Manager --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner SunAmerica Senior Floating Rate Fund Inc. By: Stanfield Capital Partners LLC as subadvisor --------------------------------------------- as a Lender By: /s/ Christopher A. Bondy ----------------------------------------- Name: Christopher A. Bondy Title: Partner -15-