EXHIBIT 10.1
EXECUTION COPY
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 27, 2005
among
GIANT INDUSTRIES, INC.,
as the Borrower
BANK OF AMERICA, N.A.,
as Administrative Agent,
Swing Line Lender and as
Issuing Bank
and
THE LENDERS PARTIES HERETO
BNP PARIBAS,
UBS SECURITIES LLC,
and
WELLS FARGO BANK, N.A.,
Co-Syndication Agents
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and
Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1.01 Certain Defined Terms
1.02 Other Interpretive Provisions
1.03 Accounting Principles
1.04 Letter of Credit Amounts
ARTICLE II THE CREDITS
2.01 Amounts and Terms of Commitments
2.02 Loan Accounts
2.03 Procedure for Borrowing
2.04 Conversion and Continuation Elections
2.05 Termination or Reduction of Commitments
(a) Voluntary Termination or Reduction
(b) Additional Provisions
2.06 Optional Prepayments
2.07 Borrowing Base Determinations; Mandatory Prepayments of Loans
2.08 Repayment
(a) Principal
(b) Interest
2.09 Fees
(a) Arrangement, Agency Fees
(b) Commitment Fees
2.10 Computation of Fees and Interest
2.11 Payments by the Company
2.12 Funding by Lenders; Presumption by Administrative Agent
2.13 Sharing of Payments, Etc.
2.14 Security and Guaranty
2.15 Concentration Account; Control over Accounts After Event of
Default
2.16 Increase in Commitments
ARTICLE III THE LETTERS OF CREDIT AND SWING LINE LOANS
3.01 Letters of Credit
3.02 Existing Letters of Credit
3.03 Swing Line Loans
(a) The Swing Line
(b) Borrowing Procedures
(c) Refinancing of Swing Line Loans
(d) Repayment of Participations
(e) Interest for Account of Swing Line Lender
(f) Payments Directly to Swing Line Lender
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes
4.02 Illegality
4.03 Inability to Determine Rates
4.04 Increased Costs
4.05 Compensation for Losses
4.06 Mitigation Obligations; Replacement of Lenders
4.07 Survival
ARTICLE V CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extension
(a) Loan Documents
(b) Resolutions; Incumbency; Organization Documents
(c) Certificate (Organization, Qualification and Good Standing
(d) Legal Opinions
(e) Payment of Fees
(f) Certificate (Representations and Warranties, Etc.)
(g) Borrowing Base Report
(h) Financial Statements
(i) Collateral Documents
(j) Other Documents
5.02 Conditions to All Credit Extensions
(a) Notice, Application
(b) Continuation of Representations and Warranties
(c) No Existing Default
(d) No Material Adverse Effect
(e) No Future Advance Notice
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.01 Corporate Existence and Power
6.02 Corporate Authorization; No Contravention
6.03 Governmental Authorization
6.04 Binding Effect
6.05 Litigation; Governmental Proceedings
6.06 No Default
6.07 ERISA Compliance
6.08 Use of Proceeds; Margin Regulations
6.09 Title to Properties
6.10 Taxes
6.11 Financial Condition
6.12 Environmental Matters
6.13 Regulated Entities
6.14 No Burdensome Restrictions
6.15 Copyrights, Patents, Trademarks and Licenses, etc.
6.16 Subsidiaries
6.17 Insurance
6.18 Full Disclosure
6.19 Solvency
6.20 Labor Relations
6.21 Collateral Documents
ARTICLE VII AFFIRMATIVE COVENANTS
7.01 Financial Statements
7.02 Certificates; Field Audits; Other Information
7.03 Notices
7.04 Preservation of Corporate Existence, Etc.
7.05 Maintenance of Property
7.06 Insurance; Insurance and Condemnation Proceeds
7.07 Payment of Obligations
7.08 Compliance with Laws and Contractual Obligations
7.09 compliance with ERISA
7.10 Inspection of Property and Books and Records; Field Audit
7.11 Environmental Laws
7.12 New Subsidiary Guarantors; New Subsidiary Security Agreements
7.13 Use of Proceeds
7.14 Subordinated Indebtedness
7.15 Further Assurances
7.16 Segregation of Statoil Supplied Crude Oil
ARTICLE VIII NEGATIVE COVENANTS
8.01 Limitation on Liens
8.02 Disposition of Assets
8.03 Consolidations and Mergers
8.04 Loans and Investments
8.05 Limitation on Indebtedness
8.06 Transactions with Affiliates
8.07 Use of Proceeds
8.08 [Intentionally Blank]
8.09 Restricted Payments
8.10 Subsidiary Dividends
8.11 Subordinated Notes
8.12 Minimum Consolidated Net Work
8.13 Minimum Consolidated Interest Coverage Ratio
8.14 Consolidated Funded Indebtedness to Total Capitalization
8.15 ERISA
8.16 Change in Business
8.17 Accounting Changes
8.18 Amendments to the Statoil Purchase Agreement; No Prepayments
ARTICLE IX EVENTS OF DEFAULT
9.01 Event of Default
(a) Non-Payment
(b) Representation or Warranty
(c) Specific Defaults
(d) Other Defaults
(e) Cross-Default
(f) Insolvency; Voluntary Proceedings
(g) Involuntary Proceedings
(h) ERISA
(i) Monetary Judgments
(j) Change of Control
(k) Loss of Permit
(l) Adverse Change
(m) Guaranty Default
(n) Invalidity of Subordination Provisions
(o) Prepayment of Subordinated Notes
(p) Collateral
9.02 Remedies
9.03 Application of Funds
9.04 Rights Not Exclusive
ARTICLE X ADMINISTRATIVE AGENT
10.01 Appointment and Authorization
10.02 Rights as a Lender
10.03 Exculpatory Provisions
10.04 Reliance by Administrative Agent
10.05 Delegation of Duties
10.06 Resignation of Administrative Agent
10.07 Non-Reliance on Administrative Agent and Other Lenders
10.08 No Other Duties, Etc.
10.09 Administrative Agent May File Proofs of Claim
10.10 Collateral and Guaranty Matters
10.11 Lender Hedging Agreements
ARTICLE XI MISCELLANEOUS
11.01 Amendments and Waivers
11.02 Notices; Effectiveness; Electronic Communication
11.03 No Waiver; Cumulative Remedies
11.04 Reserved
11.05 Expenses; Indemnity; Damage Waiver
11.06 Payments Set Aside
11.07 Successors and Assigns
11.08 Treatment of Certain Information; Confidentiality
11.09 Set-off
11.10 Interest
11.11 Indemnity and Subrogation
11.12 Automatic Debits of Fees
11.13 Replacement of Lenders
11.14 Notification of Addresses, Lending Offices, Etc.
11.15 Counterparts
11.16 Severability
11.17 No Third Parties Benefited
11.18 GOVERNING LAW
11.19 WAIVER OF JURY TRIAL
11.20 Assignment of Existing Loans
11.21 Restatement of Existing Credit Agreement
11.22 Designation of Senior Debt
11.23 Survival of Representations and Warranties
11.24 USA PATRIOT Act Notice
11.25 Existing Loans and Letters of Credit
11.26 Entire Agreement
SCHEDULES
Schedule 1.01A Operating Leases Excluded from Definition of "Indebtedness"
Schedule 1.01B Preferred Eligible Account Obligors
Schedule 1.01C Existing Guaranties and Existing Security Agreements
Schedule 1.01D Certain Requirements of Eligible In-Transit Crude Oil
Schedule 2.01 Commitments
Schedule 3.01 Existing Letters of Credit
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 8.01 Permitted Liens
Schedule 8.04 Permitted Loans and Investments
Schedule 11.02 Addresses for Notices
Schedule 11.07 Processing and Recordation Fees
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit A-1 Form of Swing Line Loan Notice
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D-1 Form of Legal Opinion of Company's Counsel
Exhibit D-2 Form of Legal Opinion of Company's Special Counsel
Exhibit D-3 Form of Legal Opinion of Company's Special New York Counsel
Exhibit E Form of Assignment and Assumption
Exhibit F Form of Note
Exhibit G Form of Guaranty Agreement
Exhibit H Form of Borrowing Base Report
Exhibit I-1 Form of Security Agreement (Parent)
Exhibit I-2 Form of Security Agreement (Subsidiary)
Exhibit J Form of Deposit Account Control Agreement
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is entered into as
of June 27, 2005, among GIANT INDUSTRIES, INC., a Delaware corporation (the
"Company"), the several financial institutions from time to time parties to
this Agreement (collectively, the "Lenders"; individually, a "Lender"), and
BANK OF AMERICA, N.A., as administrative agent for the Lenders, Issuing
Bank and Swing Line Lender.
WHEREAS, the Company, as borrower, Bank of America, N.A., as
administrative agent and as a lender, and certain other agents and lenders
entered into that certain Credit Agreement dated as of December 23, 1998,
as amended by that certain First Amendment to Credit Agreement dated as of
December 17, 1999 (the "Original Credit Agreement"), as amended and
restated by that certain First Amended and Restated Credit Agreement dated
as of December 19, 2001, and as further amended and restated by the Second
Amended and Restated Credit Agreement dated as of May 14, 2002, and by the
Third Amended and Restated Credit Agreement dated as of July 15, 2004 (the
"Existing Credit Agreement"); and
WHEREAS, the Company has requested, and the Administrative Agent and
the Lenders have agreed, to amend and restate the Existing Credit Agreement
and to refinance, rearrange, increase and extend the obligations and
indebtedness outstanding thereunder, all subject to the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following
meanings:
"Administrative Agent" means Bank of America, N.A. in its capacity
as agent for the Lenders hereunder, and any successor agent arising under
Section 10.06.
"Administrative Agent's Payment Office" means the address for
payments set forth on Schedule 11.02 hereto in relation to the
Administrative Agent, or such other address as the Administrative Agent may
from time to time specify.
"Administrative Questionnaire" means an Administrative
Questionnaire, an Administrative Details Reply Form or similar form
supplied by the Administrative Agent to each Lender.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified. "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract
or otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Agent-Related Persons" means Bank of America and any successor
Administrative Agent arising under Section 10.06 and any successor Issuing
Bank hereunder, together with their respective Affiliates (including, in
the case of Bank of America, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Fourth Amended and Restated Credit
Agreement, as renewed, extended, amended or restated from time to time.
"Albuquerque Terminal" means the terminal owned and operated by
Giant Mid-Continent, located in or near Albuquerque, New Mexico.
"Applicable Margin" means with respect to Base Rate Loans, Offshore
Rate Loans and Letters of Credit, respectively, the specified percent per
annum therefor set forth below:
Base
LIBOR Rate Letter of Commitment
Level Leverage Ratio Margin Margin Credit Fee Fee
- ----- -------------- ------ ------ ---------- ----------
I Greater than 3.0 2.25% 1.25% 2.25% 0.50%
II Greater than 2.5,
but less than or
equal to 3.0 2.00% 1.00% 2.00% 0.50%
III Greater than 2.0,
but less than or
equal to 2.5 1.875% 0.875% 1.875% 0.375%
IV Greater than 1.5,
but less than or
equal to 2.0 1.625% 0.625% 1.625% 0.30%
V Less than or equal
to 1.5 1.375% 0.375% 1.375% 0.25%
Each adjustment of the Applicable Margin, the Letter of Credit Fee, and the
Commitment Fee shall be made by the Administrative Agent and shall be
effective on the first business day immediately following the date upon
which the Company delivers a Compliance Certificate to the Administrative
Agent pursuant to Section 7.02(b) reflecting a changed pricing level
(accompanied and supported by the financial statements with respect to which
such Compliance Certificate is required to be delivered); provided however,
that if a Compliance Certificate is not delivered by such date, then,
commencing on the first business day immediately following the date such
Compliance Certificate was required until the date such Compliance
Certificate is delivered, the Applicable Margins, the Letter of Credit Fee,
and the Commitment Fee shall be those indicated for Level I, and from and
after the first business day immediately following the date such Compliance
Certificate is thereafter received, the Applicable Margins, the Letter of
Credit Fee, and the Commitment Fee shall be as determined from such
Compliance Certificate.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are
Affiliates of one another or two or more Approved Funds managed by the same
investment advisor.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 11.07), and accepted by the
Administrative Agent, in substantially the form of Exhibit E or any other
form approved by the Administrative Agent.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated cost
of internal legal services and all disbursements of internal counsel.
"Auto-Extension Letter of Credit" has the meaning set forth in
Section 3.01(b)(iii).
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.).
"Barrel" means a volume of forty-two (42) US gallons corrected for
temperature to sixty (60) degrees Fahrenheit.
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as
its "prime rate." (The "prime rate" is a rate set by Bank of America based
upon various factors, including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below such
announced rate.) Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Loan" means a Revolving Loan or a Swing Line Loan, as
the context may require, that bears interest based on the Base Rate.
"Bloomfield Refinery" means the refinery owned by San Juan Refining
Company, and operated by Giant Arizona, located in or near Farmington, New
Mexico.
"BNY 2002 Indenture" means that certain Indenture dated May 14,
2002, between the Company, as Issuer, The Bank of New York, as Trustee, and
others evidenced by the BNY 2002 Subordinated Notes.
"BNY 2002 Subordinated Notes" means the 11% Senior Subordinated
Notes due 2012 issued by the Company under the BNY 2002 Indenture.
"BNY 2004 Indenture" means that certain Indenture dated May 3,
2004, between the Company, as Issuer, The Bank of New York, as Trustee, and
others evidenced by the BNY 2004 Subordinated Notes.
"BNY 2004 Subordinated Notes" means the 8% Senior Subordinated
Notes due 2014 issued by the Company under the BNY 2004 Indenture.
"Borrower Materials" has the meaning specified in Section 7.03.
"Borrowing" means a borrowing hereunder consisting of Revolving
Loans of the same Interest Rate Type made to the Company on the same day by
the Lenders under Article II, and, other than in the case of Base Rate
Loans, having the same Interest Period.
"Borrowing Base" means the amount calculated monthly, weekly, or
biweekly, as applicable, pursuant to Section 2.07(a) based upon information
contained in the Borrowing Base Report.
"Borrowing Base Report" means a report substantially in the form of
Exhibit H hereto.
"Borrowing Date" means any date on which a Borrowing or a Swing
Line Borrowing occurs under Article II or Article III.
"Broker" means a broker or securities intermediary that has entered
into an Investment Account Control Agreement.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required by law to close
under the laws of, or are in fact closed in, Dallas, Texas or New York, New
York or such other state where the Administrative Agent's office for
payments may be located, and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in
the applicable offshore dollar interbank market.
"Capital Lease" means a capital lease as determined in accordance
with GAAP.
"Capital Lease Obligations" means, for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board), and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Cash Collateralize" means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Administrative Agent, the
Issuing Bank and the Lenders, as collateral for the L/C Obligations, cash
or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the Issuing Bank (which
documents are hereby consented to by the Lenders). Derivatives of such
term shall have corresponding meanings.
"Cash Equivalents" means: (a) securities issued or fully
guaranteed or insured by the United States Government or any agency thereof
and backed by the full faith and credit of the United States having
maturities of not more than twelve (12) months from the date of
acquisition; (b) certificates of deposit, time deposits, Eurodollar time
deposits, or bankers' acceptances having in each case a tenor of not more
than twelve (12) months from the date of acquisition issued by any U.S.
commercial bank or any branch or agency of a non-U.S. commercial bank
licensed to conduct business in the U.S. having combined capital and
surplus of not less than Five Hundred Million Dollars ($500,000,000) whose
long term securities are rated at least A (or then equivalent grade) by S&P
and A2 (or then equivalent grade) by Moody's at the time of acquisition;
(c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by
Moody's at the time of acquisition, and in either case having a tenor of
not more than twelve (12) months; (d) repurchase agreements with a term of
not more than seven days for underlying securities of the types described
in clauses (a) and (b) above; and (e) money market mutual or similar funds
having assets in excess of $100,000,000, at least 95% of the assets of
which are comprised of assets specified in clauses (a) through (c) above.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of
any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or
issuance of any request, guideline or directive (whether or not having the
force of law) by any Governmental Authority.
"Change of Control" means (a) a purchase or acquisition, directly
or indirectly, by any "person" or "group" within the meaning of Section
13(d)(3) and 14(d)(2) of the Securities and Exchange Act of 1934 (a
"Group"), of "beneficial ownership" (as such term is defined in Rule 13d-3
under the Exchange Act) of securities of the Company which, together with
any securities owned beneficially by any "affiliates" or "associates" of
such Group (as such terms are defined in Rule 12b-2 under the Exchange
Act), represent more than fifty percent (50%) of the combined voting power
of the Company's securities which are entitled to vote generally in the
election of directors and which are outstanding on the date immediately
prior to the date of such purchase or acquisition; (b) a sale of all or
substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any Person or Group; (c) the liquidation or dissolution of
the Company; or (d) the first day on which a majority of the Board of
Directors of the Company are not Continuing Directors (as herein defined).
As herein defined, "Continuing Director" means any member of the Board of
Directors of the Company who (x) is a member of such Board of Directors as
of the date of this Agreement or (y) was nominated for election or elected
to such Board of Directors with the affirmative vote of two-thirds of the
Continuing Directors who were members of such Board of Directors at the
time of such nomination or election.
"Ciniza Refinery" means the refinery owned and operated by Giant
Arizona, located in or near Gallup, New Mexico.
"Closing Date" means the date on which all conditions precedent set
forth in Section 5.01 and 5.02 are satisfied or waived by all Lenders (or,
in the case of Subsection 5.01(e), waived by the Person entitled to receive
such payment).
"Code" means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Company or any
Guarantor and their respective Subsidiaries in or upon which a Lien now or
hereafter exists in favor of the Lenders, or the Administrative Agent on
behalf of the Lenders, whether under this Agreement or under any other
document executed by any such Person and delivered to the Administrative
Agent or the Lenders.
"Collateral Documents" means, collectively, (a) the Security
Agreements, the Guaranties and all other security agreements, mortgages,
deeds of trust, patent and trademark assignments, lease assignments,
guaranties and other similar agreements executed by the Company or any
Subsidiary or any Guarantor for the benefit of the Lenders now or hereafter
delivered to the Lenders or the Administrative Agent pursuant to or in
connection with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in accordance
with the UCC or comparable law) against the Company or any Subsidiary or
any Guarantor as debtor in favor of the Lenders or the Administrative Agent
for the benefit of the Lenders as secured party, and (b) any amendments,
supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment" as to each Lender has the meaning specified in Section
2.01, as the same may be increased pursuant to Section 2.16.
"Commitment Fee" has the meaning set forth in Subsection 2.09(b).
"Commodity Swap" means any commodity swap, commodity option or
commodity forward contract (including any option to enter into any of the
foregoing).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit C.
"Concentration Account" has the meaning set forth in Section 2.15.
"Consolidated EBITDA" means, for the relevant period, (a) the sum
of (i) the Consolidated Net Income for such period, (ii) Consolidated
Interest Expense, (iii) all taxes measured by income to the extent included
in the determination of such Consolidated Net Income, (iv) all amounts
treated as expenses for depreciation and the amortization of intangibles of
any kind for such period to the extent deducted in the determination of
such Consolidated Net Income for the relevant period, (v) non-cash losses
associated with asset dispositions to the extent deducted in the
determination of Consolidated Net Income for the relevant period, and (vi)
financing charges, fees, and prepayment premiums paid by the Company in
connection with the Company's issuance or redemption of debt or issuance of
equity to the extent deducted in the determination of Consolidated Net
Income for the relevant period, minus (b) non-cash gains associated with
asset dispositions to the extent included in the determination of
Consolidated Net Income for the relevant period.
"Consolidated Funded Indebtedness" means, for the Company and its
Consolidated Subsidiaries, at any time, without duplication, the sum of:
(a) all Indebtedness (other than undrawn or unfunded amounts under
outstanding Surety Instruments and Indebtedness of the type described in
clause (h)(ii) of the definition of Indebtedness and, provided that the
Company is in compliance with Section 8.18 of this Credit Agreement, other
than Indebtedness owed to Statoil pursuant to the Statoil Purchase
Agreement), (b) obligations to redeem or purchase any stock or other equity
security of the Company or a Subsidiary, and (c) any guaranty obligations
in respect of any of the foregoing.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the
four prior fiscal quarters ending on such date to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means for the relevant period, for
the Company and its Consolidated Subsidiaries, without duplication, (a) the
sum of (i) all interest in respect of Indebtedness and all imputed interest
with respect to Capital Leases accrued or capitalized during such period
(whether or not actually paid during such period and including fees payable
in respect of letters of credit and bankers' acceptances), (ii) the net
amount payable (or minus the net amount receivable) under all Swap
Contracts (other than Commodity Swaps) during such period (whether or not
actually paid or received during such period), and (iii) all dividends
paid, declared or otherwise accrued in respect of preferred stock, minus
(b) all fees and financing costs amortized during such period related to
the incurrence of Indebtedness, to the extent such non-cash costs are
included in the calculation of interest expense.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Company and its Consolidated Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Net Worth" means, at any date, an amount equal to the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries determined in accordance with GAAP as of such date.
"Consolidated Subsidiaries" means, at any date, any Subsidiary the
accounts of which, in accordance with GAAP, would be consolidated with
those of the Company in its consolidated financial statements if such
statements were prepared as of such date.
"Contingent Obligation" means, as to any Person without
duplication, any direct or indirect liability of that Person with or
without recourse, (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other similar obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that
Person (i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or provide funds for
the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof (each, a "Guaranty Obligation"); or (b) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or
obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether
delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered. The amount of
any Contingent Obligation shall, in the case of Guaranty Obligations, be
deemed equal to the maximum stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated liability
in respect thereof, and in the case of other Contingent Obligations, shall
be equal to the maximum reasonably anticipated liability in respect
thereof.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
property is bound.
"Control Notice" has the same meaning set forth in Section 2.15(f).
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Loans of one Interest Rate Type to
another Interest Rate Type, or (b) continues as Loans of the same Interest
Rate Type, but with a new Interest Period, Loans having Interest Periods
expiring on such date.
"Credit Extension" means and includes (a) the making of any
Revolving Loans hereunder, (b) the making of any Swing Line Loans
hereunder, and (c) the issuance of any Letters of Credit hereunder
(including the Existing Letters of Credit).
"Debtor Relief Laws" means the Bankruptcy Code and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Default Rate" means (a) when used with respect to Obligations
other than Letter of Credit Fees, an interest rate equal to (i) the Base
Rate plus (ii) the Applicable Margin, if any, applicable to Base Rate Loans
plus (iii) 2% per annum; provided, however, that with respect to a Offshore
Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Margin) otherwise applicable to such Loan
plus 2% per annum, and (b) when used with respect to Letter of Credit Fees,
a rate equal to the Applicable Margin plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund
any portion of the Revolving Loans or participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder
within one Business Day of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Deposit Account Control Agreement" means collectively (a) each
deposit account control agreement previously delivered by the Company or a
Guarantor to the Administrative Agent as described on Schedule 1.01C, (b)
each deposit account control agreement as may be hereafter delivered
substantially in the form of Exhibit J hereto, and (c) any other agreement
in form and substance satisfactory to the Administrative Agent serving a
similar purpose, among the Company, the Administrative Agent, and a
Depository Bank.
"Depository Bank" means a bank, savings bank, savings and loan
association, credit union, trust company, or other depository institution
that has entered into a Deposit Account Control Agreement.
"Disposition" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property
(including stock, partnership and other equity interests) by any Person,
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollars," "dollars" and "$" each mean lawful money of the United
States.
"Domestic" means organized under the laws of a state of the United
States.
"Effective Amount" means (i) with respect to any Revolving Loans on
any date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Revolving Loans
occurring on such date under such facility; (ii) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any Swing Line Borrowings and prepayments or repayments of
such Swing Line Loans occurring on such date; and (iii) with respect to any
outstanding L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any issuances of Letters of Credit
occurring on such date and any other changes in the aggregate amount of the
L/C Obligations as of such date, including as a result of any
reimbursements of drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit taking
effect on such date.
"Eligible Account Obligor" means, on any date, any Person obligated
to pay a Receivable (i) that is not the Company, a Subsidiary or Affiliate
of the Company; (ii) that has not filed for, and is not currently the
object of, a proceeding relating to its bankruptcy, insolvency,
reorganization, winding-up or composition or reorganization of debts; (iii)
that is in good standing with the Company and its Subsidiaries and
satisfies all applicable credit standards of the Company and its
Subsidiaries; and (iv) for which not more than 50% of the aggregate value
of the Receivables of such account obligor have not been paid by the date
30 days after the respective due dates therefor.
"Eligible Accounts Receivable" means, on any date, all Receivables
denominated in Dollars payable by Eligible Account Obligors, except: (i)
billed Receivables that have not been paid by the date 30 days after the
respective due dates therefor; (ii) any Receivable subject to any asserted
defense, dispute, claim, offset or counterclaim, provided that, if any such
defense, dispute, claim, offset or counterclaim is asserted with respect to
such Receivable in an amount equal to a sum certain, then such Receivable
shall be an Eligible Account Receivable to the extent the face amount
thereof exceeds such sum certain; (iii) all such Receivables subject to any
repurchase or return arrangement; (iv) Receivables of each Eligible Account
Obligor to the extent that the Receivables of such Eligible Account Obligor
exceed 10% of all Receivables; (v) all Receivables that are payable by
their terms more than 30 days from the respective invoice dates therefor;
(vi) any Receivable in which the Lenders do not have a valid and perfected
first priority security interest, except that such security interest may be
subject to statutory Liens in respect of First Purchase Crude Payables that
are not delinquent; (vii) any Receivable of a Subsidiary with respect to
which any event described in Subsection 9.01(f) or (g) shall have occurred
and be continuing; (viii) Receivables with respect to which the account
debtor is not a Person resident in the United States; (ix) Receivables with
respect to which goods have been placed on consignment, guaranteed sale or
other terms by reason of which the payment by the account debtor may be
conditional; (x) Receivables with respect to which an invoice has not been
sent prior to the date of any Borrowing Base Report in which such
Receivable is included for purposes of calculation of the Borrowing Base;
(xi) Receivables which represent obligations of local, state or federal
Governmental Authorities, unless such Governmental Authority is a
Governmental Authority of the United States of America and such
Governmental Authority has properly acknowledged the receipt of the
assignment of Eligible Accounts Receivables in compliance with the Federal
Assignment of Claims Act with respect thereto; (xii) Receivables which
arise out of any contract or order which, by its terms, forbids or makes
void or unenforceable any assignment by the Company to the Administrative
Agent, for the benefit of Lenders, of the Receivable arising with respect
thereto; (xiii) Receivables evidenced by any instrument, unless such
instrument has been delivered to the Administrative Agent for the benefit
of the Lenders, and (xiv) Receivables that are otherwise identified as
unsatisfactory to the Administrative Agent or the Majority Lenders using
reasonable business judgment.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by (i) the Administrative Agent, the Issuing Bank
and the Swing Line Lender, and (ii) unless a Default or Event of Default
has occurred and is continuing, the Company (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Company or any of the
Company's Affiliates or Subsidiaries.
"Eligible Cash" means cash held in a segregated restricted deposit
account maintained with and pledged to the Administrative Agent as security
for the Obligations.
"Eligible In-Transit Crude Oil" means In-Transit Crude Oil (a) that
meets the requirements set forth in the definition of Eligible Hydrocarbon
Inventory (other than the requirement as to location of such inventory),
(b) as to which the Administrative Agent on behalf of the Lenders has a
valid and perfected first priority security interest in the related
contract or other rights of the Company or applicable Guarantor, and (c)
that meets the requirements set forth in Schedule 1.01D; in each case
valued at the contract price on a FIFO basis, determined after, if required
by the Administrative Agent, taking into account transportation and
handling charges that affect the value thereof as determined by the
Administrative Agent.
"Eligible Lubricants Inventory" means, at any date, the aggregate
value therefor on a FIFO basis calculated in accordance with GAAP of all
readily marketable, saleable and useful Lubricants (excluding (a) any and
all Lubricants in which the Lenders do not have a valid and perfected first
priority security interest, except that such security interest may be
subject to statutory Liens in respect of First Purchase Crude Payables that
are not delinquent; (b) any and all Lubricants located on leased premises
or held by a bailee or otherwise subject to any third party interest, with
respect to which any landlord's waiver or other third party agreement
requested by the Administrative Agent or the Majority Lenders shall not
have been furnished, and (c) Lubricants of any Subsidiary with respect to
which any event described in Subsection 9.01(f) or (g) shall have occurred
and be continuing), owned by the Company and its Subsidiaries (other than
"inactive" Subsidiaries) in field production tanks, storage tanks and lines
(including line fills but excluding basic sediment and water and slop oil),
stored at the Bloomfield Refinery, the Ciniza Refinery, the Yorktown
Refinery, the Company's or its Subsidiaries' bulk plants, service stations
and cardlocks, the Albuquerque Terminal, the Flagstaff Terminal and other
Lubricants terminals owned or leased by the Company or its Subsidiaries, or
at such other locations as may be approved from time to time by the
Majority Lenders, provided, however, that such Lubricants are not obsolete,
unsalable, damaged or otherwise unfit for sale or further processing in the
ordinary course of business or otherwise unsatisfactory to the
Administrative Agent or the Majority Lenders using reasonable business
judgment.
"Eligible Hydrocarbon Inventory" means, at any date, the aggregate
value therefor on a FIFO basis calculated in accordance with GAAP of all
readily marketable, saleable and useful Feedstocks, Intermediate Products
and Refined Products (excluding (a) any and all Feedstocks, Intermediate
Products and Refined Products in which the Lenders do not have a valid and
perfected first priority security interest, except that such security
interest may be subject to statutory Liens in respect of First Purchase
Crude Payables that are not delinquent; (b) any and all Feedstocks,
Intermediate Products and Refined Products located on leased premises
(other than Refined Product at leased service stations and cardlocks
operated by the Company or one of its Subsidiaries), or held by a bailee or
otherwise subject to any third party interest, with respect to which any
landlord's waiver or other third party agreement requested by Secured Party
or the Majority Lenders shall not have been furnished, and (c) Feedstocks,
Intermediate Products and Refined Products of any Subsidiary with respect
to which any event described in Subsection 9.01(f) or (g) shall have
occurred and be continuing), owned by the Company and its Subsidiaries
(other than "inactive" Subsidiaries) in field production tanks, storage
tanks and lines (including line fills but excluding basic sediment and
water and slop oil), stored at the Bloomfield Refinery, the Ciniza
Refinery, the Yorktown Refinery, the Company's or its Subsidiaries' bulk
plants, service stations and cardlocks, the Albuquerque Terminal, the
Flagstaff Terminal and other Refined Products terminals owned or leased by
the Company or its Subsidiaries, or at such other locations as may be
approved from time to time by the Majority Lenders, provided, however, that
such Feedstocks, Intermediate Products and Refined Products are not
obsolete, unsalable, damaged or otherwise unfit for sale or further
processing in the ordinary course of business or otherwise unsatisfactory
to the Administrative Agent or the Majority Lenders using reasonable
business judgment.
"Environmental Claims" means any and all actions, suits, demands,
demand letters, claims, complaints, notices of non-compliance or violation,
enforcement actions, investigations, or proceedings, relating in any way to
(a) the presence, alleged presence, or use of any Hazardous Substance on,
under, or about any property or assets of the Company or any of its
Subsidiaries or the migration or alleged migration of Hazardous Substances
to or from such property regardless of the source of such migration or when
such migration occurred or when such presence is discovered; (b) the
Release or threatened Release of any Hazardous Substance on, under, to or
from any property or assets of the Company or any of its Subsidiaries
regardless of the source of such Release or when such Release occurred; or
(c) the violation of any Environmental Law, regardless of whether the
existence or alleged existence of such Hazardous Substance or the violation
of Environmental Law arose prior to the Company's or its Subsidiary's
ownership or operation of the subject property. "Environmental Claims"
includes, without limitation, any and all claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief or any other form of recovery arising in connection with
any Hazardous Substance or arising from alleged injury or threat of injury
to property, human health or the environment or from any nuisance
condition.
"Environmental Damages" means (a) all costs and expenses of
investigation and defense of any Environmental Claim, regardless of whether
such Environmental Claim is ultimately defeated, and of any good faith
settlement or agreed judgment, including, without limitation, Attorney
Costs, the allocated cost of internal environmental audit or review, and
consultants' fees; (b) damages for personal injury or injury to or
interference with property or natural resources occurring on, under, or off
of property of the Company or any Subsidiary; (c) all costs, including
without limitation Attorney Costs, the allocated cost of internal
environmental audit or review, consultants, contractors, experts, and
laboratories, incurred in connection with the investigation of the presence
or alleged presence of Hazardous Substances on, about, under, or from
property of the Company or any Subsidiary, or the removal or remediation
(including monitoring) of any Hazardous Substances; (d) diminution in the
value of property; and (e) all fines and penalties or other liabilities
arising from the violation of any Environmental Law.
"Environmental Law" means all applicable federal, state, and local
Laws of any Governmental Authority having jurisdiction over the Company or
any of its Subsidiaries, any of their respective properties, or any user or
occupant of property of the Company or any Subsidiary, relating to the
protection of human health, safety, public welfare, or the environment, now
existing or hereafter adopted, including without limitation, any such Laws
relating to the generation, processing, treatment, investigation,
remediation, storage, transport, disposal, management, handling, and use of
Hazardous Substances, and those relating to the protection of
environmentally sensitive areas.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code
for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation of operations which is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice
of intent to terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate."
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and regulations promulgated thereunder.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Company hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or,
in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which the Company is
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Company under Section 11.13), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party hereto (or designates a new Lending
Office) or is attributable to such Foreign Lender's failure or inability
(other than as a result of a Change in Law) to comply with Section 4.01(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or
assignment), to receive additional amounts from the Company with respect to
such withholding tax pursuant to Section 4.01(a).
"Execution Date" means the date specified on the cover page hereof.
"Existing Credit Agreement" is defined in the recitals hereof.
"Existing Lenders" means the Lenders party to the Existing Credit
Agreement.
"Existing Letters of Credit" means each of the letters of credit
issued under the Existing Credit Agreement and outstanding on the Closing
Date, including those described on Schedule 3.01.
"Federal Funds Rate" means, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate (rounded upward, if necessary, to a
whole multiple of 1/100 of 1%) charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning specified in Subsection 2.09(a).
"Feedstocks" means all crude oil, natural gas liquids, other
hydrocarbons valued at the lower of cost or market crude oil prices and
ethanol in so far as such Feedstocks are used or useful as fuel or in the
manufacture, processing, refining, or blending of Intermediate Products and
Refined Products at the Bloomfield Refinery, the Ciniza Refinery, or the
Yorktown Refinery.
"First Amended and Restated Credit Agreement" is defined in the
recitals hereof.
"First Purchase Crude Payables" means the unpaid amount of any
payable obligation of the Company or any of its Subsidiaries related to the
purchase of Feedstocks by the Company or any of its Subsidiaries which are
(in the reasonable judgment of the Administrative Agent) secured by a
statutory Lien, which shall include but not be limited to the statutory
Liens created under the Laws of Texas, New Mexico, Wyoming, Kansas, and
Oklahoma, to the extent such payable obligation is not at the time of
determination covered by a Letter of Credit issued hereunder.
"Flagstaff Terminal" means the terminal in or near Flagstaff,
Arizona, owned and operated by Giant Mid-Continent.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Company is resident for tax
purposes. For purposes of this definition, the United States, each state
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
"Fronting Fee" has the meaning set forth in Section 3.01(j).
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to
the circumstances as of the date of determination.
"Giant Arizona" means Giant Industries Arizona, Inc., an Arizona
corporation.
"Giant Mid-Continent" means Giant Mid-Continent, Inc., an Arizona
corporation and a Wholly-Owned Subsidiary of Giant Arizona.
"Giant Yorktown" means Giant Yorktown, Inc., a Delaware corporation
and a Wholly-Owned Subsidiary of Giant Arizona.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guarantor" means (a) as of the Closing Date, each of Giant
Arizona, Giant Four Corners, Inc., an Arizona corporation, San Juan, Giant
Mid-Continent, Giant Stop-N-Go of New Mexico, Inc., a New Mexico
corporation, Phoenix Fuel and Giant Yorktown, and (b) any other Subsidiary
of the Company which is required to execute a Guaranty under Section 7.12.
"Guaranty" means collectively (i) each of the guaranty agreements
delivered in connection with the Existing Credit Agreement as described on
Schedule 1.01C, substantially in the form of Exhibit G hereto, executed by
each of the Guarantors party thereto in favor of the Administrative Agent
and the Lenders, and (ii) any other guaranty agreements delivered pursuant
to this Agreement.
"Guaranty Obligation" has the meaning specified in the definition
of "Contingent Obligation."
"Hazardous Substance" means any substance that poses a threat to,
or is regulated to protect, human health, safety, public welfare, or the
environment, including without limitation: (a) any "hazardous substance,"
"pollutant" or "contaminant," and any "petroleum" or "natural gas liquids"
as those terms are defined or used under Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
( 42 U.S.C. Section 9601 et seq.), (b) "solid waste" as defined by the
federal Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.), (c)
asbestos or a material containing asbestos, (d) any material that contains
lead or lead-based paint, (e) any item or equipment that contains or is
contaminated by polychlorinated biphenyls, (f) any radioactive material,
(g) urea formaldehyde, (h) putrescible materials, (i) infectious materials,
(j) toxic microorganisms, including mold, or (k) any substance the presence
or Release of which requires reporting, investigation or remediation under
any Environmental Law.
"Highest Lawful Rate" means, as of a particular date, the maximum
nonusurious interest rate that may under applicable federal and state law
then be contracted for, charged or received by the Lenders in connection
with the Loans.
"Honor Date" has the meaning set forth in Section 3.01(c)(i).
"Increase Effective Date" has the meaning set forth in Section
2.16.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (c) all direct or contingent reimbursement or payment obligations
with respect to Surety Instruments; (d) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets
or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all obligations with respect to Capital Leases; (g) all
obligations with respect to "off-balance sheet" obligations, including
operating leases (provided, however, that the following shall be excluded
from "Indebtedness": (x) the operating leases described on Schedule 1.01A
and (y) operating leases under which aggregate rentals during any twelve
(12)-month period are less than $2,500,000); (h) all net obligations under
any Swap Contract in an amount equal to (i) if such Swap Contract has been
closed out the termination value thereof, or (ii) if such Swap Contract has
not been closed out, the mark-to-market value thereof determined on the
basis of readily available quotations provided by any recognized dealer in
such Swap Contract; (i) all indebtedness referred to in clauses (a) through
(h) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; and (j) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses
(a) through (h) above.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 11.05.
"Indentures" means the BNY 2002 Indenture and the BNY 2004
Indenture, and any other Indentures pursuant to which other Subordinated
Notes are issued.
"Information" has the meaning specified in Section 11.08.
"Insolvency Proceeding" means (a) any case, action or proceeding
relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any
general assignment for the benefit of creditors, composition, marshalling
of assets for creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; undertaken
under U.S. federal, state or foreign law, including the Bankruptcy Code.
"Insurance Subsidiary" has the meaning assigned to in Section
8.04(e) hereof.
"Interest Payment Date" means, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan (including a Swing Line Loan), the last
Business Day of each calendar quarter and each date such Loan is converted
into another Interest Rate Type of Loan, provided, however, that if any
Interest Period for an Offshore Rate Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period, and
the date that falls three months after each Interest Payment Date
thereafter for such Interest Period, is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two, three
or six months thereafter as selected by the Company in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that: (i) if any
Interest Period would otherwise end on a day that is not a Business Day,
that Interest Period shall be extended to the following Business Day
unless, in the case of an Offshore Rate Loan, the result of such extension
would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month
at the end of such Interest Period; and (iii) no Interest Period for any
Revolving Loan shall extend beyond the Termination Date.
"Interest Rate Swap Contract" means a Specified Swap Contract or
other Swap Contract entered into for the purposes of mitigating risks
associated with fluctuations in interest rates.
"Interest Rate Type" means either the Base Rate of interest or the
Offshore Rate of interest charged against any Loan or Loans hereunder.
"Intermediate Products" means all Feedstocks that have been
partially processed or refined as isomerate, cat feed, gasoline components
or naphtha.
"Internal Control Event" means a material weakness in, or fraud
that involves management or other employees who have a significant role in,
the Company's internal controls over financial reporting, in each case as
described in the Securities Laws.
"In-Transit Crude Oil" means, with respect to any period, the crude
oil ordered for such period by the Company or by a Guarantor, for delivery
to the Company or a Guarantor via pipeline from a vendor or supplier.
"Inventory Component of the Borrowing Base" has the meaning set
forth in Section 2.07(b).
"Investment Account Control Agreement" means, collectively, (a) the
investment account control agreement delivered in connection with the
Existing Credit Agreement as described on Schedule 1.01C, substantially
similar to a Deposit Account Control Agreement, and (b) any other agreement
in form and substance satisfactory to the Administrative Agent serving a
similar purpose, among the Company, the Administrative Agent, and a Broker.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance).
"Issuance Date" means the date of Issuance of a Letter of Credit.
"Issuing Bank" means Bank of America, in its capacity as issuer of
one or more Letters of Credit hereunder and as the issuer of Existing
Letters of Credit, together with any successor replacement letter of credit
issuer pursuant to Section 10.06.
"L/C Advance" means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C Application" and "L/C Amendment Application" means an
application form for issuance of, or for amendment of, Letters of Credit as
shall at any time be in use at the Issuing Bank.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed on
the date when made nor converted into a Borrowing of Revolving Loans under
Subsection 3.01(c)(i).
"L/C Commitment" means the commitment of the Issuing Bank to issue,
and the commitment of the Lenders severally to participate in, Letters of
Credit (including the Existing Letters of Credit) from time to time issued
or outstanding under Article III, in an aggregate amount not to exceed on
any date the lesser of (a) the amount of $100,000,000 and (b) the combined
Commitments, as the same may be reduced as a result of a reduction in the
Commitments pursuant to Section 2.05; provided, that the L/C Commitment may
be increased in accordance with Section 2.16(g); and provided further, that
the L/C Commitment is a part of the combined Commitments, rather than a
separate, independent commitment.
"L/C Obligations" means as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.04. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to
be "outstanding" in the amount so remaining available to be drawn.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Bank's
standard form documents for letter of credit issuances.
"Laws" means, collectively, all international, foreign, Federal,
state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority.
"Lender" has the meaning specified in the introductory clause
hereto. References to the "Lenders" shall include Bank of America,
including in its capacity as Issuing Bank or Swing Line Lender; for
purposes of clarification only, to the extent that Bank of America may have
any rights or obligations in addition to those of the Lenders due to its
status as Issuing Bank or Swing Line Lender, its status as such will be
specifically referenced.
"Lending Office" means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending Office"
or "Offshore Lending Office," or similar designation, as the case may be,
in its Administrative Questionnaire, or such other office or offices as
such Lender may from time to time notify the Company and the Administrative
Agent.
"Letter of Credit Fee" has the meaning specified in Section
3.01(i).
"Letters of Credit" means the Existing Letters of Credit and any
standby letters of credit issued by the Issuing Bank pursuant to Article
III.
"Leverage Ratio" means, as of any date, the ratio of (a)
Consolidated Funded Indebtedness as of the determination date to (b)
Consolidated EBITDA for the four fiscal quarters ending on such date.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of any
kind or nature whatsoever in respect of any property (including those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease,
any financing lease having substantially the same economic effect as any of
the foregoing, or the filing of any financing statement naming the owner of
the asset to which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or other
agreement to provide any of the foregoing, but not including the interest
of a lessor under an Operating Lease.
"Loan" means an extension of credit by a Lender to the Company
under Article II in the form of a Revolving Loan or Article III in the form
of an L/C Advance or a Swing Line Loan.
"Loan Documents" means this Agreement, the Notes, the Collateral
Documents, the Fee Letter, the L/C-Related Documents, the Deposit Control
Agreements, the Investment Account Control Agreements, the Statoil
Intercreditor Agreement and all other documents executed in connection
herewith in favor of the Administrative Agent or any Lender.
"Loan Party" means the Company, each Guarantor, and each of the
Company's Subsidiaries that executes a Collateral Document.
"Lubricants" means motor oil, hydraulic oil, gear oil, cutting oil,
grease, and various chemicals and solvents of a similar nature valued at
the lower of cost or market prices. For avoidance of doubt, Lubricants are
not Feedstocks, Intermediate Products or Refined Products.
"Majority Lenders" means at any time Lenders then holding greater
than 50% of the then aggregate unpaid principal amount of the Loans, or, if
no such principal amount is then outstanding, Lenders then having greater
than 50% of the Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), capitalization, or condition (financial
or otherwise) of the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company or any Significant
Subsidiary to perform under any Loan Document and to avoid any Event of
Default; or (c) a material adverse effect upon (i) the legality, validity,
binding effect or enforceability against the Company or any Significant
Subsidiary of any Loan Document or (ii) the perfection or priority of any
Lien granted under any of the Collateral Documents.
"Material Subsidiary" means, at any time, a Subsidiary with total
assets with a book value of $2,000,000 or more.
"Moody's" means Moody's Investor Service, Inc. and any successor
thereto.
"Multiemployer Plan" means a "multiemployer plan," within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes, is making, or is obligated to make contributions or,
during the preceding three calendar years, has made, or been obligated to
make, contributions.
"Net Cash Proceeds" means, with respect to any Disposition, cash
(including any cash received by way of deferred payment pursuant to a
promissory note or otherwise, as and when received) received by the Company
or any of its Subsidiaries in connection with and as consideration
therefor, on or after the date of consummation of such transaction, after
(i) deduction of Taxes payable in connection with or as a result of such
transaction, and (ii) payment of all usual and customary brokerage
commissions and all other reasonable fees and expenses related to such
transaction (including, without limitation, reasonable attorneys' fees and
closing costs incurred in connection with such transaction); provided,
however, in the case of Taxes that are deductible under clause (i) above,
but which Taxes have not actually been paid or are not yet payable, the
Company or any of its Subsidiaries selling such assets may deduct from the
cash proceeds an amount (the "Reserved Amount") equal to the amount
reserved in accordance with GAAP as a reasonable estimate for such Taxes so
long as, at the time such Taxes are actually paid, the amount, if any, by
which the Reserved Amount exceeds the Taxes actually paid shall constitute
additional Net Cash Proceeds of such Disposition.
"New Lenders" means the Lenders that are not Existing Lenders.
"Non-Extension Notice Date" has the meaning set forth in Section
3.01(b)(iii).
"Note" means a promissory note executed by the Company in favor of
a Lender pursuant to Section 2.02 (b) or Section 11.07, in substantially
the form of Exhibit F hereto.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A hereto.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B hereto.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the Company
or any Guarantor to any Lender, any Affiliate of a Lender, the
Administrative Agent, or any Indemnitee, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising, provided that all references
to the "Obligations" in the Loan Documents shall, in addition to the
foregoing, also include all present and future indebtedness, liabilities
and obligations of the Company or any Guarantor pursuant to any Specified
Swap Contract with any Lender or any Affiliate of a Lender arising while
such Person or its Affiliate is a Lender party to this Agreement; in each
case including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any procedure under any
Debtor Relief Law naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such
proceeding.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum determined by the Administrative Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where
"Eurodollar Reserve Percentage" means for any day for any Interest
Period the reserve percentage (expressed as a decimal, carried over
to five decimal places) in effect on such day (whether or not
applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"); and
"LIBOR" means, for such Interest Period, the rate per annum equal
to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for
any reason, then "LIBOR" for such Interest Period shall be the rate
per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the
Offshore Rate Loan being made, continued, or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch (or other Bank of
America branch or Affiliate) to major banks in the London or other
offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Operating Lease" means an operating lease determined in accordance
with GAAP.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any committee thereof)
of such corporation.
"Original Credit Agreement" is defined in the recitals hereof.
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery, performance, enforcement or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in Subsection 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than
a Multiemployer Plan, which the Company or any of its Subsidiaries or any
of their respective ERISA Affiliates sponsors, maintains, or to which it
makes, is making, or is obligated to make contributions, or in the case of
a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding five (5)
plan years.
"Permitted Liens" has the meaning set forth in Section 8.01.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
"Phoenix Fuel" means Phoenix Fuel Co., Inc., an Arizona
corporation.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) established by the Company or any ERISA Affiliate.
"Platform" has the meaning specified in Section 7.03.
"Preferred Eligible Account Obligor" means any Person (a) from
which the Eligible Accounts Receivables are fully supported by a standby
letter of credit issued by a commercial bank organized under the laws of
the United States having an "A2/A" rating or better by Moody's and S&P,
respectively, or (b) that is major international oil or other company rated
"A2/A" or better by Moody's and S&P, respectively, or a Wholly-Owned
Subsidiary of such company whose obligations are guaranteed by such
company, and is identified by the Company on Schedule 1.01B hereof, as may
be amended from time to time with the approval of the Majority Lenders.
"Principal Business" means (i) the business of the exploration for,
and development, acquisition, production, processing, marketing, refining,
storage and transportation of, hydrocarbons, (ii) any related energy and
natural resource business, (iii) any business currently engaged in by the
Company or its Subsidiaries, (iv) convenience stores, retail service
stations, truck stops and other public accommodations in connection
therewith and (v) any activity or business that is a reasonable extension,
development or expansion of any of the foregoing.
"Pro Rata Share" means, as to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of (a) such Lender's Commitment, divided by (b) the
combined Commitments of all Lenders.
"Receivables" shall mean, as to the Company or any of its
Subsidiaries (other than "inactive" Subsidiaries), all accounts receivable,
whether billed or unbilled, arising out of the sale of inventory in the
ordinary course of business.
"Refined Products" means all gasoline, diesel, aviation fuel, fuel
oil, propane, ethanol, transmix and other products processed, refined or
blended from Feedstocks and Intermediate Products.
"Registered Public Accounting Firm" has the meaning specified in
the Securities Laws and shall be independent of the Company as prescribed
by the Securities Laws.
"Regulation T," "Regulation U" and "Regulation X" mean Regulation
T, Regulation U and Regulation X, respectively, of the Board of Governors
of the Federal Reserve System from time to time in effect and shall include
any successor or other regulations or official interpretations of said
Board of Governors relating to the subject matter addressed therein.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the partners, directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any depositing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, migration, or disposing.
"Reportable Event" means, any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event
for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject, including without limitation Environmental Laws.
"Responsible Officer" means the chief executive officer, the
president, the chief financial officer, the chief accounting officer, the
controller, the treasurer, or any vice president or, with respect to
certification of resolutions or officer incumbency only, the secretary or
assistant secretary of the Company or its Subsidiaries, as the case may be.
As used herein, "Responsible Officer" means a Responsible Officer of the
Company unless otherwise indicated.
"Revolving Loan" has the meaning specified in Section 2.01.
"S&P" means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"San Juan" means San Juan Refining Company, a New Mexico
corporation.
"Sarbanes-Oxley" means the Sarbanes-Oxley Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Securities Laws" means the Securities Act of 1933, the Securities
Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and
auditing principles, rules, standards and practices promulgated, approved
or incorporated by the SEC or the Public Company Accounting Oversight
Board, as each of the foregoing may be amended and in effect on any
applicable date hereunder.
"Security Agreement" means collectively (i) each of the security
agreements delivered in connection with the Existing Credit Agreement as
described on Schedule 1.01C, substantially in the form of Exhibits I-1 and
I-2 hereto, executed by the Company and certain Subsidiaries in favor of
the Administrative Agent and the Lenders, and (ii) any other security
agreements now or hereafter delivered pursuant to this Agreement.
"Significant Subsidiary" means (a) Giant Arizona, (b) San Juan, (c)
Phoenix Fuel, (d) Giant Yorktown, and (e) any other Subsidiary of the
Company having total assets at or immediately prior to the time in question
with a book value of $10,000,000 or more.
"Solvent" means, as to any Person at any time, that (a) the fair
value of all of the property of such Person is greater than the amount of
such Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for
purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair
saleable value of all of the property of such Person is not less than the
amount that will be required to pay the probable liability of such Person
on its debts as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature;
and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
"Specified Swap Contracts" means all Swap Contracts made or entered
into at any time, or in effect at any time, whether directly or indirectly,
and whether as a result of assignment or transfer or otherwise, between the
Company or any Subsidiary and any Swap Provider, which Swap Contract is or
was intended by the Company or such Subsidiary to have been entered into
for purposes of mitigating interest rate risk relating to any liabilities
owed or credit facilities in effect and not for the purposes of financing,
speculation or taking a "market view" (which intent shall conclusively be
deemed to exist if the Company or such Subsidiary so represents to the Swap
Provider in writing).
"Statoil" means Statoil Marketing & Trading (US) Inc.
"Statoil Commingled Inventories" means the commingled product or
mass resulting from the commingling (whether by blending, mixing,
processing or otherwise) of Eligible Hydrocarbon Inventory with crude oil
supplied by Statoil and that constitutes "Commingled Inventories" within
the meaning of the Statoil Intercreditor Agreement. For purposes of
calculation of the Borrowing Base, the value of Statoil Commingled
Inventories shall be equal to the product obtained by multiplying (x) the
applicable quantities of Statoil Commingled Inventories (measured in
Barrels in accordance with the Statoil Purchase Agreement) by (y) the
lowest price per Barrel of the lowest priced crude oil (using the lower of
cost or market value) included in Statoil Commingled Inventories. For
purposes of clarity, the "lowest price" shall be the absolute lowest figure
and not the average of applicable prices during the applicable time period.
"Statoil Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of February 9, 2004 between Statoil and the
Administrative Agent.
"Statoil Purchase Agreement" means that certain Crude Oil
Purchase/Sale Agreement 2004/2008 between Statoil and Giant Yorktown, as
amended by amendment dated December 8, 2004 and as the same may be further
amended in compliance with the terms of this Agreement.
"Statoil Segregated Inventories" means crude oil supplied by
Statoil to Giant Yorktown pursuant to the Statoil Purchase Agreement that
constitutes segregated, identifiable Statoil Inventories within the meaning
of the Statoil Intercreditor Agreement. Statoil Segregated Inventories
shall at all times be excluded from Eligible Hydrocarbon Inventory for
purposes of calculation of the Borrowing Base, but may otherwise be
included within the Collateral (subject to the terms of the Statoil
Intercreditor Agreement).
"Subordinated Notes" shall mean (i) the BNY 2002 Subordinated
Notes, (ii) the BNY 2004 Subordinated Notes, and (iii) notes issued in
refinancing of the BNY 2002 Subordinated Notes and/or the BNY 2004
Subordinated Notes, in each case in whole or in part, whether with the same
or different noteholders and the same or different indenture trustees,
provided that such other notes and refinancing notes (or the indenture or
note purchase agreement, as applicable) (x) contain subordination terms at
least as favorable to the Lenders as the BNY 2002 Subordinated Notes and/or
the BNY 2004 Notes being refinanced, and (y) contain other terms no more
restrictive on the Company and its Subsidiaries than the BNY 2002
Subordinated Notes and/or the BNY 2004 Subordinated Notes being refinanced,
including refinancings thereof. Notes shall not be considered
"Subordinated Notes" unless and until the Administrative Agent shall have
received copies of the documentation evidencing or relating to such notes
evidencing the terms and conditions of subordination required hereunder.
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations) is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"Supplemental Guaranty" means an agreement, in substantially the
form attached to the form of Guaranty attached as Exhibit G hereto,
pursuant to which the Person executing the same elects to become a
Guarantor for purposes of this Agreement and agrees to perform all of the
obligations of a Guarantor under, and to be bound in all respects by the
terms of, the Guaranty, as if said Person were a signatory thereto.
"Surety Instruments" means all letters of credit (including
standby), banker's acceptances, bank guaranties, shipside bonds, surety
bonds and similar instruments.
"Swap Contract" means any agreement (including any master agreement
and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward
rate agreement, commodity swap, commodity option, commodity forward
contract, equity or equity index swap or option, bond option, interest rate
option, forward foreign exchange agreement, rate cap, collar or floor
agreement, currency swap agreement, cross-currency rate swap agreement,
swap option, currency option or any other, similar agreement (including any
option to enter into any of the foregoing).
"Swap Provider" means any Lender or any Affiliate of any Lender
that is at the time of determination party to a Swap Contract with the
Company or any Subsidiary.
"Swap Termination Values" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s)
determined as the mark-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may include any Lender).
"Swing Line Borrowing" means a borrowing of a Swing Line Loan
pursuant to Section 3.03.
"Swing Line Lender" means Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 3.03(a).
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 3.03(b), which, if in writing, shall be substantially
in the form of Exhibit A-1.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$25,000,000 and (b) the aggregate Commitments. The Swing Line Sublimit is
part of, and not in addition to, the aggregate Commitments.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or other
charges imposed by any Governmental Authority, including interest,
additions to tax and penalties applicable thereto.
"Termination Date" means the earlier of (a) June 25, 2010, or (b)
the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
"Total Capitalization" means, as of any date, the sum of (a)
Consolidated Funded Indebtedness as of the determination date, plus (b)
Consolidated Net Worth as of the determination date.
"UCC" means the Uniform Commercial Code as adopted in the State of
New York.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section
3.01(c)(i).
"Usage", as of any date, means the quotient (expressed as a
percentage) of (x) the Effective Amount of Revolving Loans and the
Effective Amount of L/C Obligations as of such date, divided by (y) the
lesser of (i) the aggregate Commitments on such date and (ii) the Borrowing
Base on such date.
"Wholly-Owned Subsidiary" means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power at the time as of which
any determination is being made, is owned, beneficially and of record, by
the Company, or by one or more of the other Wholly-Owned Subsidiaries, or
both.
"Yorktown Refinery" means the refinery located in or near Yorktown,
Virginia, and the land and other real estate appurtenant thereto, acquired
by Giant Yorktown pursuant to the Yorktown Asset Purchase Agreement.
1.02 Other Interpretive Provisions. The meanings of defined terms
are equally applicable to the singular and plural forms of the defined
terms. Unless otherwise specified or the context clearly requires
otherwise, the words "hereof," "herein," "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references
are to this Agreement. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and
other writings, however evidenced. The term "including" is not limiting
and means "including without limitation." In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including." Unless
otherwise expressly provided herein, (a) references to agreements
(including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (b) references to any
statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation. The captions and headings of this
Agreement are for convenience of reference only and shall not affect the
interpretation of this Agreement. This Agreement and other Loan Documents
may use several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their terms.
This Agreement and the other Loan Documents are the result of negotiations
among and have been reviewed by counsel to the Administrative Agent, the
Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or
Lenders' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied. References to "consolidated,"
when it precedes any accounting term, means such term as it would apply to
the Company and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP.
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Company or the Majority Lenders shall so request,
the Administrative Agent, the Lenders and the Company shall negotiate in
good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of
the Majority Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change in GAAP.
(c) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
1.04 Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the
stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or
the terms of any L/C-Related Document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Lender severally
agrees, on the terms and conditions set forth herein, to make Loans to the
Company (each such loan, a "Revolving Loan") from time to time on any
Business Day during the period from the Closing Date to the Termination
Date, in an aggregate amount not to exceed at any time outstanding the
lesser of the following: (i) the amount set forth on Schedule 2.01 (such
amount, as the same may be reduced under Section 2.05 or as a result of one
or more assignments under Section 11.07, the Lender's "Commitment") and
(ii) the Lender's Pro Rata Share of the current Borrowing Base; provided,
however, that, after giving effect to any Borrowing of Revolving Loans, the
Effective Amount of all outstanding Revolving Loans, together with the
Effective Amount of all L/C Obligations and the Effective Amount of all
Swing Line Loans, shall not at any time exceed the lesser of (x) the
combined Commitments of all of the Lenders and (y) the current Borrowing
Base. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions of this Agreement, the Company may borrow under
this Section 2.01, prepay under Section 2.06 and reborrow under this
Section 2.01.
2.02 Loan Accounts.
(a) The Loans made by each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender in the ordinary
course of business. The loan accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Loans made by the Lenders to the Company and the
interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of
the Company hereunder to pay any amount owing with respect to the Loans.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one
or more Notes, instead of or in addition to loan accounts. Each such
Lender may endorse on the schedules annexed to its Note(s) the date, amount
and maturity of each Loan made by it and the amount of each payment of
principal made by the Company with respect thereto. Each such Lender is
irrevocably authorized by the Company to endorse its Note(s) and each
Lender's record shall be conclusive absent manifest error; provided,
however, that the failure of a Lender to make, or an error in making, a
notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any such Note to
such Lender.
2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans shall be made upon the
Company's irrevocable written notice delivered to the Administrative Agent
in the form of a Notice of Borrowing, which notice must be received by the
Administrative Agent prior to 11:00 a.m. (Dallas, Texas time) (i) three
Business Days prior to the requested Borrowing Date, in the case of
Offshore Rate Loans and (ii) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans, specifying: (A) the amount
of the Borrowing, which shall be in an aggregate minimum amount of
$2,000,000 or any multiple of $1,000,000 in excess thereof; (B) the
requested Borrowing Date, which shall be a Business Day; (C) the Interest
Rate Type of Loans comprising the Borrowing; and (D) the duration of the
Interest Period applicable to such Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the Interest Period
for any Borrowing comprised of Offshore Rate Loans, such Interest Period
shall be three months.
(b) The Administrative Agent will promptly notify each Lender
of its receipt of any Notice of Borrowing and of the amount of such
Lender's Pro Rata Share of that Borrowing.
(c) Each Lender will make the amount of its Pro Rata Share of
each Borrowing available to the Administrative Agent for the account of the
Company at the Administrative Agent's Payment Office by 12:00 noon (Dallas,
Texas time) on the Borrowing Date requested by the Company in funds
immediately available to the Administrative Agent. The proceeds of all
such Loans will then be made available to the Company by the Administrative
Agent by wire transfer in accordance with written instructions provided to
the Administrative Agent by the Company of like funds as received by the
Administrative Agent.
(d) After giving effect to any Borrowing, there may not be
more than seven (7) different Interest Periods in effect.
2.04 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice to the
Administrative Agent in accordance with Subsection 2.04(b): (i) elect, as
of any Business Day, in the case of Base Rate Loans, or as of the last day
of the applicable Interest Period, in the case of Offshore Rate Loans, to
convert any such Loans (or any part thereof in an amount not less than
$2,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Loans of any other Interest Rate Type; or (ii) elect as of
the last day of the applicable Interest Period, to continue any Revolving
Loans having Interest Periods expiring on such day (or any part thereof in
an amount not less than $2,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof); provided, that if at any time the aggregate
amount of Offshore Rate Loans in respect of any Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less than
$2,000,000, such Offshore Rate Loans shall automatically convert into Base
Rate Loans, and on and after such date the right of the Company to continue
such Loans as, and convert such Loans into, Offshore Rate Loans shall
terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not
later than 10:00 a.m. (Dallas, Texas time) at least (i) three Business Days
in advance of the Conversion/Continuation Date, if the Loans are to be
converted into or continued as Offshore Rate Loans; and (ii) one Business
Day in advance of the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying: (A) the proposed
Conversion/Continuation Date; (B) the aggregate amount of Loans to be
converted or continued; (C) the Interest Rate Type of Loans resulting from
the proposed conversion or continuation; and (D) other than in the case of
conversions into Base Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new
Interest Period to be applicable to Offshore Rate Loans, or if any Default
or Event of Default then exists, the Company shall be deemed to have
elected to convert such Offshore Rate Loans into Base Rate Loans effective
as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company, the Administrative Agent will promptly
notify each Lender of the details of any automatic conversion. All
conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
(e) Unless the Majority Lenders otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to
have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than seven (7) different Interest Periods in
effect.
2.05 Termination or Reduction of Commitments.
(a) Voluntary Termination or Reduction. The Company may, upon
not less than five Business Days' prior notice to the Administrative Agent,
terminate the Commitments, or permanently reduce the Commitments (and,
correspondingly, as applicable, the L/C Commitment) by an aggregate minimum
amount of $2,000,000.00 or any multiple of $1,000,000.00 in excess thereof,
unless, after giving effect thereto and to any prepayments of Loans made on
the effective date thereof, (i) the Effective Amount of all Revolving Loans
and L/C Obligations together would exceed the amount of the combined
Commitments then in effect, or (ii) the Effective Amount of all L/C
Obligations then outstanding would exceed the amount of the L/C Commitment
then in effect. Once reduced in accordance with this subsection, the
Commitments may not be increased.
(b) Additional Provisions. Each reduction in aggregate
Commitments pursuant to paragraph (a) above shall be applied to each Lender
according to its Pro Rata Share. All accrued Commitment Fees on the amount
of the Commitments so terminated or reduced, Letter of Credit Fees, and
Fronting Fees to, but not including, the effective date of any reduction or
termination of Commitments, shall be paid by the Company on the effective
date of such reduction or termination.
2.06 Optional Prepayments.
(a) Subject to Section 4.05, the Company may, at any time or
from time to time, upon irrevocable notice to the Administrative Agent, not
less than three (3) Business Days for Offshore Rate Loans and one (1)
Business Day for Base Rate Loans, ratably as to each Lender, prepay
Revolving Loans in whole or in part, in minimum amounts of $2,000,000 or
any multiple of $1,000,000 in excess thereof. Such notice of prepayment
shall specify the date and amount of such prepayment and the Interest Rate
Type(s) of Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of any such notice, and of such Lender's
Pro Rata Share of such prepayment. If such notice is given by the Company,
the Company shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein,
together with accrued interest to each such date on the amount prepaid and
any amounts required pursuant to Section 4.05.
(b) The Company may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to
time, voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 12:00 noon
(Dallas, Texas time) on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such
notice shall specify the date and amount of such prepayment. If such
notice is given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the
date specified therein.
2.07 Borrowing Base Determinations; Mandatory Prepayments of Loans.
(a) The Borrowing Base shall be determined monthly, provided,
however, that (x) if Usage is more than 50% (but equal to or less than 75%)
the Borrowing Base shall be determined biweekly and (y) if Usage is more
than 75% the Borrowing Base shall be determined weekly, in each case by
reference to the Borrowing Base Report delivered by the Company to the
Administrative Agent pursuant to Section 7.02(a). The Borrowing Base shall
be subject to adjustment based upon the results of a field audit pursuant
to Section 7.10(c), and shall be equal to the sum of (i) eighty percent
(80%) of Eligible Hydrocarbon Inventory (except for (A) Eligible
Hydrocarbon Inventory at the Company's and its Subsidiaries' service
stations and cardlocks, and (B) Statoil Commingled Inventories), plus (ii)
eighty percent (80%) of Eligible In-Transit Crude Oil, plus (iii) fifty
percent (50%) of Eligible Hydrocarbon Inventory at the Company's and its
Subsidiaries' service stations and cardlocks, plus (iv) sixty percent (60%)
of the Lenders' Pro Rata Share of Statoil Commingled Inventories
(determined in accordance with the Statoil Intercreditor Agreement),
provided, however, that if the Company shall fail to be in compliance with
Section 7.03(k) or Section 8.18 of this Credit Agreement, or if Statoil
fails to comply with its obligations under the Statoil Intercreditor
Agreement in any material respect, then in any such case, 0% of the Statoil
Commingled Inventories, plus (v) fifty percent (50%) of Eligible Lubricants
Inventory, plus (vi) ninety percent (90%) of Eligible Accounts Receivable
from Preferred Eligible Account Obligors, plus (vii) eighty-five percent
(85%) of Eligible Accounts Receivable from Eligible Account Obligors other
than Preferred Eligible Account Obligors, plus (viii) at the option of the
Company, 100% of Eligible Cash, minus 100% of First Purchase Crude
Payables.
(b) Notwithstanding the foregoing, the Inventory Component of
the Borrowing Base shall not exceed an amount equal to 60% of the Borrowing
Base. For purposes of clarity, it is understood that the term "Borrowing
Base" as used in the preceding sentence means the Borrowing Base as
calculated pursuant to Section 2.07(a), even if the Borrowing Base as so
calculated is greater than the aggregate Commitments (provided, that, it is
hereby noted that nothing in this Section 7.02(b) is intended to alter
Section 2.01, which provides that the Effective Amount of outstanding Loans
plus the Effective Amount of L/C Obligations may never exceed the current
Borrowing Base). As used herein, "Inventory Component of the Borrowing
Base" means the sum of the dollar amounts calculated pursuant to clauses
(i), (ii), (iii) and (iv) of Section 7.02(a).
(c) If on any date the Effective Amount of all Loans and the
Effective Amount of all L/C Obligations together exceed the Borrowing Base,
the Company shall, without notice or demand, prepay the outstanding
principal amount of the Revolving Loans by an amount equal to the
applicable excess ("Mandatory Prepayment") and the provisions of Section
4.05 shall be applicable. If on any date after giving effect to any
Mandatory Prepayment made on such date pursuant to the preceding sentence
the Effective Amount of all L/C Obligations together exceed the Borrowing
Base, the Company shall immediately Cash Collateralize on such date the
outstanding Letters of Credit in an amount equal to the amount by which the
Effective Amount of the L/C Obligations exceeds the Borrowing Base.
(d) The Company shall prepay the Loans as required by
Sections 7.06(d) and (e) governing proceeds of insurance and condemnation.
2.08 Repayment.
(a) Principal. The Company shall repay to the Lenders the
aggregate principal amount of Revolving Loans outstanding on the
Termination Date. The Company shall repay each Swing Line Loan on the
earlier to occur of (i) the date ten Business Days after such Loan is made
and (ii) the Termination Date.
(b) Interest.
(i) Subject to clause (iii) of this subsection 2.08(b),
(A) each Revolving Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate
per annum equal to the lesser of (1) the Offshore Rate or the Base
Rate, as the case may be, as selected by the Company or otherwise
applicable to such Revolving Loan in accordance with the terms and
provisions hereof (subject to the Company's right to convert to other
Interest Rate Types of Loans under Section 2.04), plus the Applicable
Margin, or (2) the Highest Lawful Rate, and (B) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from
the applicable Borrowing Date at a rate per annum equal to the lesser
of (1) the Base Rate plus the Applicable Margin, or (2) the Highest
Lawful Rate.
(ii) Interest on each Revolving Loan and each Swing
Line Loan shall be paid in arrears on each Interest Payment Date.
Interest shall also be paid on the date of any prepayment of Loans
under Section 2.06 or 2.07 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the
existence of any Event of Default, interest shall be paid on demand of
the Administrative Agent at the request or with the consent of the
Majority Lenders.
(iii) Notwithstanding clause (i) of this subsection
2.08(b), while any Event of Default exists or after acceleration, the
Company shall pay interest (after as well as before entry of judgment
thereon to the extent permitted by law) at the Default Rate.
2.09 Fees. In addition to certain fees described in Section 3.08:
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall
pay an agency fee to the Administrative Agent for the Administrative
Agent's own account, as required by the letter agreement ("Fee Letter")
between the Company and the Arranger and Administrative Agent dated May 13,
2005.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") on the average daily unused portion of such Lender's
Commitment, computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Administrative Agent, equal to the percent per
annum set forth in the definition of Applicable Margin corresponding to the
applicable pricing level determined in accordance therewith. For purposes
of calculating utilization under this subsection, the Commitments shall be
deemed used to the extent of the Effective Amount of Revolving Loans then
outstanding, plus the Effective Amount of L/C Obligations then outstanding.
Such Commitment Fee shall accrue from the Execution Date to the Termination
Date and shall be due and payable quarterly in arrears on the last Business
Day of each quarter commencing on September 30, 2005 through the
Termination Date, with the final payment to be made on the Termination
Date; provided that, in connection with any reduction or termination of
Commitments under Section 2.05, the accrued Commitment Fee calculated for
the period ending on such date shall also be paid on the date of such
reduction or termination, with the following quarterly payment being
calculated on the basis of the period from such reduction or termination
date to such quarterly payment date. The Commitment Fee provided in this
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article
V are not met.
2.10 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by Bank of America's "prime rate" shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more
interest being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and the
Lenders in the absence of manifest error.
2.11 Payments by the Company.
(a) All payments to be made by the Company shall be made
without condition or deduction for any defense, set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all payments
by the Company shall be made to the Administrative Agent for the account of
the Lenders at the Administrative Agent's Payment Office, and shall be made
in dollars and in immediately available funds, no later than 11:00 a.m.
(Dallas, Texas time) on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Administrative Agent later
than 11:00 a.m. (Dallas, Texas time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall
continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and
such extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that
the Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in
full to the Administrative Agent on such date in immediately available
funds and the Administrative Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Lender on such due date
an amount equal to the amount then due such Lender. If and to the extent
the Company has not made such payment in full to the Administrative Agent,
each Lender shall repay to the Administrative Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such
Lender until the date repaid.
2.12 Funding by Lenders; Presumption by Administrative Agent.
(a) (i) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing of
Offshore Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made
such share available on such date in accordance with Section 2.02 (or, in
the case of a Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section
2.02) and may, in reliance upon such assumption, make available to the
Company a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Company severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Company to but
excluding the date of payment to the Administrative Agent, at (a) in the
case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation and (b) in the case
of a payment to be made by the Company, the interest rate applicable to
Base Rate Loans. If the Company and such Lender shall pay such interest to
the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Company the amount of such
interest paid by the Company for such period. If such Lender pays its
share of the applicable Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender's Loan included in such
Borrowing. Any payment by the Company shall be without prejudice to any
claim the Company may have against a Lender that shall have failed to make
such payment to the Administrative Agent.
(ii) Unless the Administrative Agent shall have received
notice from the Company prior to the date on which any payment is due to
the Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Company will not make such payment, the Administrative
Agent may assume that the Company has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Company has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the Issuing Bank, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(b) The obligations of the Lenders hereunder to make Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 11.05(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or
to make any payment under Section 11.05(c) on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so
on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan, to purchase its participation or to make
its payment under Section 11.05(c).
2.13 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by
it any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share, such
Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans
made by them as shall be necessary to cause such purchasing Lender to share
the excess payment pro rata with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable
share (according to the proportion of (i) the amount of such paying
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 11.09) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Lenders following any such
purchases or repayments.
2.14 Security and Guaranty.
(a) All Obligations of the Company and the Guarantors under
this Agreement, the Notes, the Guaranty and all other Loan Documents shall
be secured in accordance with the Collateral Documents. The Liens created
by the Collateral Documents shall also secure Obligations under Specified
Swap Contracts.
(b) All Obligations of the Company under this Agreement, each
of the Notes and all other Loan Documents shall be unconditionally
guaranteed by the Guarantors pursuant to the Guaranty.
2.15 Concentration Account; Control over Accounts After Event of
Default.
(a) The Administrative Agent shall maintain an account styled
"Giant Industries Concentration Account" (the "Concentration Account").
The Concentration Account shall be a blocked account from which only
authorized officers of the Administrative Agent may withdraw or authorize
withdrawal of funds. Pursuant to the terms of the Deposit Account Control
Agreements and the Investment Account Control Agreements, Depository Banks
and, to the extent applicable, the Brokers must transfer funds on deposit
in the Deposit Accounts (as defined in the Deposit Account Control
Agreements) and the Investment Accounts (as defined in the Investment
Account Control Agreements) to the Concentration Account upon receipt of
notice from the Administrative Agent. The Administrative Agent is
authorized to give such notice as provided in clause (f) below.
(b) All amounts on deposit in the Concentration Account shall
be held by the Administrative Agent as collateral for the payment and
performance of the Obligations. The Administrative Agent shall have
exclusive dominion and control, including without limitation the exclusive
right of withdrawal, over the Concentration Account. The Administrative
Agent shall permit the disbursal of funds from the Concentration Account,
upon the Company's request, to the Company or to an account designated by
the Company, in its sole discretion.
(c) The Concentration Account shall be a blocked, interest-
bearing account held by the Administrative Agent or any Affiliate of the
Administrative Agent upon such terms and in such type of account as
customary at that depository institution. The Company shall pay any fees
charged by such depository institution which fees are of the type
customarily charged by such institution with respect to such accounts, and
if such fees are not paid by the Company, the institution holding the
Concentration Account may deduct them from such account.
(d) The Company hereby irrevocably authorizes the
Administrative Agent to apply funds in the Concentration Account as
follows, in such order as may be designated by the Administrative Agent:
(i) to payment of costs and expenses required to be paid to the
Administrative Agent pursuant to Section 11.04, and (ii) to payment or
prepayment of principal of and interest on the Loans, and (iii) to payment
of any other Obligations; provided that if the maturity of the Loans has
been accelerated, amounts on deposit in the Concentration Account shall be
applied in accordance with Section 9.03 of this Agreement. The provisions
of Section 4.05 shall apply to prepayments made pursuant to this
Section 2.15.
(e) As security for the payment of all Obligations, the
Company hereby grants, conveys, assigns, pledges, sets over and transfers
to the Administrative Agent, and creates in the Administrative Agent's
favor a Lien on, and security interest, in (i) the Concentration Account,
(ii) all contract rights, claims and privileges in respect of the
Concentration Account, and (iii) all money, cash, checks, instruments,
securities, security entitlements, and other items of value now or
hereafter paid, deposited in, credited to, held in (whether for collection,
provisionally or otherwise) or otherwise in the possession or under the
control of, or in transit to, the depository institution holding the
Concentration Account, together with all proceeds thereof. At any time and
from time to time, upon the Administrative Agent's request, the Company
promptly shall execute and deliver any and all such further instruments and
documents as may be necessary, appropriate or desirable in the
Administrative Agent's judgment to obtain the full benefits (including
perfection and priority) of the security interest created or intended to be
created by this Subsection 2.15 and of the rights and powers herein
granted.
(f) At any time after the occurrence of an Event of Default,
(i) the Administrative Agent may, or upon the direction of the Majority
Lenders shall, give a Control Notice to each Depository Bank and each
Broker, (ii) the Administrative Agent may take such other action as it
deems necessary or desirable in order to establish the sole dominion and
control of the Administrative Agent over all deposit accounts and all
investment accounts of the Company and its Subsidiaries, and (iii) the
Company shall execute all documents and take such actions as shall be
requested by the Administrative Agent in order to establish the sole
dominion and control of the Administrative Agent over all deposit accounts
and investment accounts of the Company and its Subsidiaries. A "Control
Notice" means notice by the Administrative Agent to a Depository Bank or
Broker instructing such Depository Bank or Broker to do one or both of the
following: (x) cease permitting the Company and its Subsidiaries from
having access to the deposit accounts or investment accounts held by such
Depository Bank or Broker, and (y) sweep balances in such deposit accounts
or investment accounts daily into the Concentration Account.
2.16 Increase in Commitments
(a) Request for Increase. Provided there exists no Default
or Event of Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), the Company may from time to time request an
increase in the aggregate Commitments by an aggregate amount not exceeding
$75,000,000; provided, that any such request for an increase shall be in a
minimum amount of $25,000,000 and the aggregate Commitments as so increased
may not exceed $250,000,000. At the time of sending such notice, the
Company (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall
in no event be less than ten (10) Business Days from the date of delivery
of such notice to the Lenders).
(b) Lender Elections to Increase. Each Lender shall notify
the Administrative Agent within such time period whether or not it agrees
to increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Pro Rata Share of such requested increase.
Any Lender not responding within such time period shall be deemed to have
declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional
Lenders. The Administrative Agent shall notify the Company and each Lender
of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase and subject to the approval of the
Administrative Agent and the Issuing Bank (which approvals shall not be
unreasonably withheld), the Company may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations. If the aggregate
Commitments are increased in accordance with this Section, the
Administrative Agent and the Company shall determine the effective date
(the "Increase Effective Date") and the final allocation of such increase.
The Administrative Agent shall promptly notify the Company and the Lenders
of the final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Company shall deliver to the Administrative
Agent a certificate of each Loan Party dated as of the Increase Effective
Date signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Company,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article VI and the other Loan
Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of
such earlier date, and except that for purposes of this Section 2.16, the
representations and warranties contained in Section 6.11 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01, and (B) no Default or Event of Default
exists. To the extent necessary to keep the outstanding Revolving Loans
ratable with any revised Pro Rata Shares arising from any nonratable
increase in the Commitments under this Section, the Company shall prepay
Revolving Loans outstanding on the Increase Effective Date and/or
assignments shall be made among the Lenders, pursuant to arrangements
satisfactory to the Administrative Agent, and the Company shall pay any
additional amounts required pursuant to Section 4.05.
(f) Conflicting Provisions. This Section shall supersede
any provisions in Sections 2.13 or 11.01 to the contrary.
(g) Increase in L/C Commitment. Upon the prior written
request of the Company, and with the prior written consent of the
Administrative Agent and the Issuing Bank, the L/C Commitment may be
increased from time to time; provided, that each such increase shall be in
a minimum amount of $5,000,000, or any multiple of $1,000,000 in excess
thereof; and provided further, that the L/C Commitment may not be increased
to an amount in excess of the aggregate Commitments. The Administrative
Agent shall provide Lenders written notice at least five (5) days in
advance of any such increase in the L/C Commitment.
ARTICLE III
THE LETTERS OF CREDIT AND SWING LINE LOANS
3.01 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth
herein, (A) the Issuing Bank agrees, in reliance upon the
agreements of the Lenders set forth in this Section 3.01, (1)
from time to time on any Business Day during the period from
the Closing Date until the Termination Date, to issue Letters
of Credit for the account of the Company, and to amend or
extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for
the account of the Company and any drawings thereunder;
provided, that after giving effect to the issuance of any
Letter of Credit, (x) the Effective Amount of all L/C
Obligations plus the Effective Amount of all Revolving Loans
plus the Effective Amount of all Swing Line Loans shall not
exceed the lesser of (I) the combined Commitments and (II) the
Borrowing Base, (y) the aggregate Effective Amount of the
Revolving Loans of any Lender, plus such Lender's Pro Rata
Share of the Effective Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Effective Amount of all
Swing Line Loans shall not exceed such Lender's Commitment,
and (z) the Effective Amount of the L/C Obligations shall not
exceed the L/C Commitment. Each request by the Company for
the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Company that such
issuance or amendment so requested complies with the
conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and
conditions hereof, the Company's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Company
may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been
drawn upon and reimbursed. All Existing Letters of Credit
shall be deemed to have been issued pursuant hereto, and from
and after the Closing Date shall be subject to and governed by
the terms and conditions hereof.
(ii) The Issuing Bank shall not issue any Letter of
Credit if:
(A) subject to Section 3.01(b)(iii), the expiry
date of such requested Letter of Credit would occur more
than twelve months after the date of issuance or last
extension, unless the Majority Lenders have approved
such expiry date; or
(B) the expiry date of such requested Letter of
Credit would occur after the Termination Date, unless
the Company has agreed to Cash Collateralize such Letter
of Credit in accordance with Section 3.01(g). In no
event will the expiry date of any Letter of Credit occur
more than twelve months after the Termination Date.
(iii) The Issuing Bank shall not be under any
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from
issuing such Letter of Credit, or any law applicable to
the Issuing Bank or any request or directive (whether or
not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from,
the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which
the Issuing Bank is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon
the Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which
the Issuing Bank in good faith deems material to it;
(B) the issuance of such Letter of Credit
would violate one or more policies of the Issuing Bank;
(C) such Letter of Credit is issued to support
workman's compensation liabilities and the stated amount
is more than $5,000,000;
(D) such Letter of Credit is to be denominated
in a currency other than Dollars;
(E) such Letter of Credit contains any
provisions for automatic reinstatement of the stated
amount after any drawing thereunder; or
(F) a default of any Lender's obligations to
fund under Section 3.01(c) exists or any Lender is at
such time a Defaulting Lender hereunder, unless the
Issuing Bank has entered into satisfactory arrangements
with the Company or such Lender to eliminate the Issuing
Bank's risk with respect to such Lender.
(iv) The Issuing Bank shall not amend any Letter of
Credit if the Issuing Bank would not be permitted at such time
to issue such Letter of Credit in its amended form under the
terms hereof.
(v) The Issuing Bank shall be under no obligation to
amend any Letter of Credit if (A) the Issuing Bank would have
no obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the
beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(vi) The Issuing Bank shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and the Issuing Bank shall
have all of the benefits and immunities (A) provided to the
Administrative Agent in Article X with respect to any acts
taken or omissions suffered by the Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued
by it and L/C-Related Documents pertaining to such Letters of
Credit as fully as if the term "Administrative Agent" as used
in Article X included the Issuing Bank with respect to such
acts or omissions, and (B) as additionally provided herein
with respect to the Issuing Bank.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended,
as the case may be, upon the request of the Company delivered
to the Issuing Bank (with a copy to the Administrative Agent)
in the form of a L/C Application, appropriately completed and
signed by a Responsible Officer of the Company. Such L/C
Application must be received by the Issuing Bank and the
Administrative Agent not later than 10:00 a.m. (Dallas, Texas
time) at least two Business Days (or such later date and time
as the Administrative Agent and the Issuing Bank may agree in
a particular instance in their sole discretion) prior to the
proposed Issuance Date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a
Letter of Credit, such L/C Application shall specify in form
and detail satisfactory to the Issuing Bank: (A) the proposed
Issuance Date of the requested Letter of Credit (which shall
be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the Issuing
Bank may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such L/C
Application shall specify in form and detail satisfactory to
the Issuing Bank (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the Issuing Bank may reasonably
require. Additionally, the Company shall furnish to the
Issuing Bank and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit
issuance or amendment, including any L/C-Related Documents, as
the Issuing Bank or the Administrative Agent may reasonably
require.
(ii) Promptly after receipt of any L/C Application, the
Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has
received a copy of such L/C Application from the Company and,
if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received
written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions
contained in Article V shall not then be satisfied, then,
subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue a Letter of Credit for the
account of the Company or enter into the applicable amendment,
as the case may be, in each case in accordance with the
Issuing Bank's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a
risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Pro Rata Share times the
amount of such Letter of Credit.
(iii) If the Company so requests in any applicable L/C
Application, the Issuing Bank may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has
automatic extension provisions (each, an "Auto-Extension
Letter of Credit"); provided, that any such Auto-Extension
Letter of Credit must permit the Issuing Bank to prevent any
such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each
such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the
Issuing Bank, the Company shall not be required to make a
specific request to the Issuing Bank for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not
require) the Issuing Bank to permit the extension of such
Letter of Credit at any time to an expiry date not later than
the Termination Date; provided, however, that the Issuing Bank
shall not permit any such extension if (A) the Issuing Bank
has determined that it would not be permitted, or would have
no obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section
3.01(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that
is five (5) Business Days before the Non-Extension Notice Date
(1) from the Administrative Agent that the Majority Lenders
have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Company that one or
more of the applicable conditions specified in Section 5.02 is
not then satisfied, and in each such case directing the
Issuing Bank not to permit such extension.
(iv) Promptly after its delivery of any Letter of
Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the
Issuing Bank will also deliver to the Company and the
Administrative Agent a true and complete copy of such Letter
of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit,
the Issuing Bank shall notify the Company and the
Administrative Agent thereof. Not later than 10:00 a.m.
(Dallas, Texas time) on the date of any payment by the Issuing
Bank under a Letter of Credit (each such date, an "Honor
Date"), the Company shall reimburse the Issuing Bank through
the Administrative Agent in an amount equal to the amount of
such drawing. If the Company fails to so reimburse the
Issuing Bank by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (the "Unreimbursed Amount"), and the
amount of such Lender's Pro Rata Share thereof. In such
event, the Company shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard
to the minimum and multiples specified in Section 2.03 for the
principal amount of Base Rate Loans, but subject to the amount
of the unutilized portion of the aggregate Commitments and the
conditions set forth in Section 5.02 (other than the delivery
of a Notice of Borrowing). Any notice given by the Issuing
Bank or the Administrative Agent pursuant to this Section
3.01(c)(i) may be given by telephone if immediately confirmed
in writing; provided, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender shall upon any notice pursuant to
Section 3.01(c)(i) make funds available to the Administrative
Agent for the account of the Issuing Bank at the
Administrative Agent's Office in an amount equal to its Pro
Rata Share of the Unreimbursed Amount not later than 12:00
noon (Dallas, Texas time) on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 3.01(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate
Loan to the Company in such amount. The Administrative Agent
shall remit the funds so received to the Issuing Bank.
(iii) With respect to any Unreimbursed Amount that is
not fully refinanced by a Borrowing of Base Rate Loans because
the conditions set forth in Section 5.02 cannot be satisfied
or for any other reason, the Company shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the amount
of the Unreimbursed Amount that is not so refinanced, which
L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate.
In such event, each Lender's payment to the Administrative
Agent for the account of the Issuing Bank pursuant to Section
3.01(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 3.01.
(iv) Until each Lender funds its Revolving Loan or L/C
Advance pursuant to this Section 3.01(c) to reimburse the
Issuing Bank for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Pro Rata Share of such
amount shall be solely for the account of the Issuing Bank.
(v) Each Lender's obligation to make Revolving Loans
or L/C Advances to reimburse the Issuing Bank for amounts
drawn under Letters of Credit, as contemplated by this Section
3.01(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such
Lender may have against the Issuing Bank, the Company or any
other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any
of the foregoing; provided, however, that each Lender's
obligation to make Revolving Loans pursuant to this Section
3.01(c) is subject to the conditions set forth in Section 5.02
(other than delivery by the Company of a Notice of Borrowing).
No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Company to reimburse the Issuing
Bank for the amount of any payment made by the Issuing Bank
under any Letter of Credit, together with interest as provided
herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the Issuing Bank any
amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 3.01(c) by the time
specified in Section 3.01(c)(ii), the Issuing Bank shall be
entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required
to the date on which such payment is immediately available to
the Issuing Bank at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Issuing
Bank in accordance with banking industry rules on interbank
compensation. A certificate of the Issuing Bank submitted to
any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (vi) shall be conclusive
absent manifest error.
(d) Repayment of Participations.
(i) At any time after the Issuing Bank has made a
payment under any Letter of Credit and has received from any
Lender such Lender's L/C Advance in respect of such payment in
accordance with Section 3.01(c), if the Administrative Agent
receives for the account of the Issuing Bank any payment in
respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including
proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will
distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C
Advance was outstanding) in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent
for the account of the Issuing Bank pursuant to Section
3.01(c)(i) is required to be returned under any of the
circumstances described in Section 11.06 (including pursuant
to any settlement entered into by the Issuing Bank in its
discretion), each Lender shall pay to the Administrative Agent
for the account of the Issuing Bank its Pro Rata Share thereof
on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Company to
reimburse the Issuing Bank for each drawing under each Letter of Credit and
to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff,
defense or other right that the Company or any Subsidiary may
have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter
of Credit;
(iv) any payment by the Issuing Bank under such Letter
of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit; or any payment made by the Issuing Bank under such
Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter
of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or any
Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the
Company will promptly notify the Issuing Bank. The Company shall be
conclusively deemed to have waived any such claim against the Issuing Bank
and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Bank. Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the Issuing Bank
shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or delivering any
such document. None of the Issuing Bank, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or
assignee of the Issuing Bank shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Majority Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of
Credit or L/C-Related Document. The Company hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Company's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the Issuing Bank, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the Issuing Bank shall be liable or responsible
for any of the matters described in clauses (i) through (v) of Section
3.01(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Company may have a claim against the Issuing Bank, and
the Issuing Bank may be liable to the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Company which the Company proves were caused by the
Issuing Bank's willful misconduct or gross negligence or the Issuing Bank's
willful failure to pay under any Letter of Credit after the presentation to
it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
(g) Cash Collateral. (i) Upon the request of the Administrative
Agent, if the Issuing Bank has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C
Borrowing, the Company shall immediately Cash Collateralize the then
Effective Amount of all L/C Obligations; (ii) the Company shall Cash
Collateralize Letters of Credit in accordance with the provisions of
Section 2.07(c) if, after giving effect to any Mandatory Prepayment, the
Effective Amount of all L/C Obligations exceeds the Borrowing Base; and
(iii) if, as of the Termination Date, any one or more of the Letters of
Credit for any reason shall remain outstanding and partially or wholly
undrawn, then the Company shall on such date Cash Collateralize the L/C
Obligations in an amount equal to 110% of the L/C Obligations. Section
3.01(a)(ii)(B) and Section 9.02(b) each set forth certain additional
requirements to deliver Cash Collateral hereunder. The Company hereby
grants to the Administrative Agent, for the benefit of the Issuing Bank and
the Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing. Cash Collateral shall
be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the Issuing Bank and the Company when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), the rules of the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a Letter of Credit fee (the "Letter of Credit Fee") for each
Letter of Credit equal to (i) the percent per annum therefor specified in
the definition of Applicable Margin corresponding to the applicable pricing
level determined in accordance therewith, times (ii) the daily amount
available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.04. Letter of Credit Fees shall be (x) computed
on a quarterly basis in arrears and (y) due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such
Letter of Credit, on the Termination Date (or such later date upon which
the outstanding Letters of Credit shall expire) and thereafter on demand.
If there is any change in the applicable rate referenced in clause (i)
above during any quarter, the daily amount available to be drawn under each
Letter of Credit shall be computed and multiplied by the applicable rate
referenced in clause (i) above separately for each period during such
quarter that such rate was in effect. Notwithstanding anything to the
contrary contained herein, upon the request of the Majority Lenders, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable
to Issuing Bank. The Company shall pay directly to the Issuing Bank for
its own account a fronting fee (the "Fronting Fee") with respect to each
Letter of Credit, at the rate per annum specified in the Fee Letter,
computed on the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears. Such fronting fee shall be due and
payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly
period (or portion thereof, in the case of the first payment), commencing
with the first such date to occur after the issuance of such Letter of
Credit, on the Termination Date (or such later date upon which the
outstanding Letters of Credit shall expire) and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.04. In addition, the Company shall pay
directly to the Issuing Bank for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs
and charges, of the Issuing Bank relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.
(k) Conflict with L/C-Related Documents. In the event of any
conflict between the terms hereof and the terms of any L/C-Related
Document, the terms hereof shall control.
3.02 Existing Letters of Credit . All Existing Letters of Credit
shall be deemed for all purposes to have been issued pursuant hereto. From
and after the Closing Date, each such Existing Letter of Credit shall be
entitled to the benefits of this Agreement and the other Loan Documents,
and shall be subject to and governed by the terms and conditions of this
Agreement.
3.03 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set
forth herein, the Swing Line Lender agrees, in reliance upon the agreements
of the other Lenders set forth in this Section 3.03, to make loans (each
such loan, a "Swing Line Loan") to the Company from time to time on any
Business Day during the period from the Closing Date to the Termination
Date in an aggregate amount not to exceed at any time outstanding the
amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Effective Amount
of Revolving Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender's Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Effective
Amount of all Swing Line Loans, together with the Effective Amount of all
L/C Obligations and the Effective Amount of all outstanding Revolving
Loans, shall not exceed the lesser of the aggregate Commitments and the
Borrowing Base, and (ii) the aggregate Effective Amount of the Revolving
Loans of any Lender, plus such Lender's Pro Rata Share of the Effective
Amount of all L/C Obligations, plus such Lender's Pro Rata Share of the
Effective Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, and provided, further, that the Company shall not use the
proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 3.03, prepay
under Section 2.06, and reborrow under this Section 3.03. Each Swing Line
Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of
such Lender's Pro Rata Share of the aggregate Commitment times the amount
of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall
be made upon the Company's irrevocable notice to the Swing Line Lender and
the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 12:00 noon (Dallas, Texas time) on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum
of $100,000, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Promptly after receipt by the Swing Line Lender of
any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if
not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 1:00
p.m. (Dallas, Texas time) on the date of the proposed Swing Line Borrowing
(A) directing the Swing Line Lender not to make such Swing Line Loan as a
result of the limitations set forth in the proviso to the first sentence of
Section 3.03(a), or (B) that one or more of the applicable conditions
specified in Article V is not then satisfied, then, subject to the terms
and conditions hereof, the Swing Line Lender will, not later than 2:00 p.m.
(Dallas, Texas time) on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the
Company.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute discretion may request, and if the Swing Line Lender has not
done so within 10 days after the making of a Swing Line Loan, the
Administrative Agent shall request, on behalf of the Company (which
hereby irrevocably authorizes the Swing Line Lender and the
Administrative Agent to so request on its behalf), that each Lender
make a Base Rate Loan in an amount equal to such Lender's Pro Rata
Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be
deemed to be a Notice of Borrowing for purposes hereof) and in
accordance with the requirements of Section 2.03, without regard to
the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the
aggregate Commitments and the conditions set forth in Section 5.02.
The Swing Line Lender or the Administrative Agent, as applicable,
shall furnish the Company with a copy of the applicable Notice of
Borrowing promptly after delivering such notice to the Administrative
Agent. Each Lender shall make an amount equal to its Pro Rata Share
of the amount specified in such Notice of Borrowing available to the
Administrative Agent in same day funds for the account of the Swing
Line Lender at the Administrative Agent's Office for payments not
later than 12:00 noon (Dallas, Texas time) on the day specified in
such Notice of Borrowing, whereupon, subject to Section 3.03(c)(ii),
each Lender that so makes funds available shall be deemed to have
made a Base Rate Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to the Swing
Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a Borrowing in accordance with Section 3.03(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender or
the Administrative Agent as set forth herein shall be deemed to be a
request by the Swing Line Lender that each of the Lenders fund its
risk participation in the relevant Swing Line Loan and each Lender's
payment to the Administrative Agent for the account of the Swing Line
Lender pursuant to Section 3.03(c)(i) shall be deemed payment in
respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 3.03(c) by the time specified in Section
3.03(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the Swing Line Lender at a rate per annum equal to the
applicable Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to
this Section 3.03(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, the Company or any other
Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however,
that each Lender's obligation to make Revolving Loans pursuant to
this Section 3.03(c) is subject to the conditions set forth in
Section 5.02. No such funding of risk participations shall relieve
or otherwise impair the obligation of the Company to repay Swing Line
Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the
circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion),
each Lender shall pay to the Swing Line Lender its Pro Rata Share
thereof on demand of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at
a rate per annum equal to the applicable Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the
Swing Line Lender. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the
termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line
Lender shall be responsible for invoicing the Company for interest on the
Swing Line Loans. Until each Lender funds its Base Rate Loan or risk
participation pursuant to this Section 3.03 to refinance such Lender's Pro
Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Company shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account
of any obligation of the Company hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for
any Indemnified Taxes or Other Taxes, provided, that if the Company shall
be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section) the Administrative Agent, Lender or Issuing Bank, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii)
the Company shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Company. Without limiting the
provisions of subsection (a) above, the Company shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Indemnification by the Company. The Company shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within 10 days
after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Company by a Lender or the Issuing Bank (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Bank, shall be conclusive absent
manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by the Company to a Governmental
Authority, the Company shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Company is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law or reasonably requested by the Company or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any
Lender, if requested by the Company or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law or reasonably
requested by the Company or the Administrative Agent as will enable the
Company or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Company is resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Company and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Company or the
Administrative Agent, but only if such Foreign Lender is legally entitled
to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form
W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly completed copies of Internal Revenue Service Form
W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits
of the exemption for portfolio interest under section 881(c) of the
Code, (x) a certificate to the effect that such Foreign Lender is not
(A) a "bank" within the meaning of section 881(c)(3)(A) of the Code,
(B) a "10 percent shareholder" of the Company within the meaning of
section 881(c)(3)(B) of the Code, or (C) a "controlled foreign
corporation" described in section 881(c)(3)(C) of the Code and (y)
duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in United States Federal
withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the
Company to determine the withholding or deduction required to be
made.
(f) Treatment of Certain Refunds. If the Administrative Agent, any
Lender or the Issuing Bank determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Company or with respect to which the Company has paid
additional amounts pursuant to this Section, it shall pay to the Company an
amount equal to such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Company under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund), provided, that the Company, upon the request of the Administrative
Agent, such Lender or the Issuing Bank, agrees to repay the amount paid
over to the Company (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent, such
Lender or the Issuing Bank in the event the Administrative Agent, such
Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require
the Administrative Agent, any Lender or the Issuing Bank to make available
its tax returns (or any other information relating to its taxes that it
deems confidential) to the Company or any other Person.
4.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Offshore Rate Loans, or to determine or charge interest rates based
upon the Offshore Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Company through the Administrative Agent, any
obligation of such Lender to make or continue Offshore Rate Loans or to
convert Base Rate Loans to Offshore Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Company shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable,
convert all Offshore Rate Loans of such Lender to Base Rate Loans, either
on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Offshore Rate Loans. Upon any such prepayment or conversion, the Company
shall also pay accrued interest on the amount so prepaid or converted.
4.03 Inability to Determine Rates. If the Majority Lenders
determine that for any reason in connection with any request for an
Offshore Rate Loan or a conversion to or continuation thereof that
(a) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such
Offshore Rate Loan, (b) adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with
respect to a proposed Offshore Rate Loan, or (c) the Offshore Rate for any
requested Interest Period with respect to a proposed Offshore Rate Loan
does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Company and
each Lender. Thereafter, the obligation of the Lenders to make or maintain
Offshore Rate Loans shall be suspended until the Administrative Agent (upon
the instruction of the Majority Lenders) revokes such notice. Upon receipt
of such notice, the Company may revoke any pending request for a Borrowing
of, conversion to or continuation of Offshore Rate Loans or, failing that,
will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
4.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve
requirement reflected in the Offshore Rate) or the Issuing Bank;
(ii) subject any Lender or the Issuing Bank to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit,
any participation in a Letter of Credit or any Offshore Rate Loan
made by it, or change the basis of taxation of payments to such
Lender or the Issuing Bank in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 4.01 and the imposition of,
or any change in the rate of, any Excluded Taxes payable by such
Lender or the Issuing Bank); or
(iii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition, cost or expense affecting this
Agreement or Offshore Rate Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Offshore Rate Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost
to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount
of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the Issuing Bank, the Company will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may
be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Bank
determines that any Change in Law affecting such Lender or the Issuing Bank
or any Lending Office of such Lender or such Lender's or the Issuing Bank's
holding company, if any, regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender's or the Issuing
Bank's capital or on the capital of such Lender's or the Issuing Bank's
holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by
the Issuing Bank, to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's
or the Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Company will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or
the Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or the Issuing Bank or its holding company, as the
case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error. The
Company shall pay such Lender or the Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or the Issuing Bank to demand compensation pursuant to the foregoing
provisions of this Section shall not constitute a waiver of such Lender's
or the Issuing Bank's right to demand such compensation, provided that the
Company shall not be required to compensate a Lender or the Issuing Bank
pursuant to the foregoing provisions of this Section for any increased
costs incurred or reductions suffered more than nine months prior to the
date that such Lender or the Issuing Bank, as the case may be, notifies the
Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor (except that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of
retroactive effect thereof).
4.05 Compensation for Losses. Upon demand of any Lender (with a
copy to the Administrative Agent) from time to time, the Company shall
promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of
any Loan other than a Base Rate Loan on a day other than the last day of
the Interest Period for such Loan (whether voluntary, mandatory, automatic,
by reason of acceleration, or otherwise);
(b) any failure by the Company (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the Company; or
(c) any assignment of a Offshore Rate Loan on a day other
than the last day of the Interest Period therefor as a result of a request
by the Company pursuant to Section 11.13;
including any loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such
funds were obtained. The Company shall also pay any customary
administrative fees charged by such Lender in connection with the
foregoing.
For purposes of calculating amounts payable by the Company to the Lenders
under this Section 4.05, each Lender shall be deemed to have funded each
Offshore Rate Loan made by it at LIBOR used in determining the Offshore
Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Offshore Rate Loan was in fact so funded.
4.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 4.04, or the Company is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 4.01, or if any Lender gives a
notice pursuant to Section 4.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 4.01 or 4.04, as the case may be, in
the future, or eliminate the need for the notice pursuant to Section 4.02,
as applicable, and (ii) in each case, would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 4.04, or if the Company is required to pay any
additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 4.01, the Company may replace
such Lender in accordance with Section 11.13.
4.07 Survival. All of the Company's obligations under this Article
IV shall survive termination of the aggregate Commitments and repayment of
all other Obligations hereunder.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The obligation of
each Lender to make its initial Credit Extension and the obligation of the
Issuing Bank to issue the first Letter of Credit hereunder is subject to
the condition that the Administrative Agent shall have received on or
before the Closing Date all of the following in form and substance
satisfactory to the Administrative Agent and each Lender, and in sufficient
copies for each Lender and, unless otherwise specified below, in each case
dated as of the Closing Date:
(a) Loan Documents. This Agreement; the Notes;
confirmations of the existing Guaranties and the Security Agreements
described on Schedule 1.01C hereto; and such Deposit Account Control
Agreements and the Investment Account Control Agreements as may be deemed
necessary by the Administrative Agent, in each case executed by each party
thereto;
(b) Resolutions; Incumbency; Organization Documents. (i)
Resolutions of the board of directors of the Company and each Loan Party
authorizing the transactions contemplated hereby, certified by the
Secretary or an Assistant Secretary of such Person; (ii) Certificates of
the Secretary or Assistant Secretary of the Company and each Loan Party
certifying the names and true signatures of the officers or such Person
authorized to execute, deliver and perform, as applicable, this Agreement,
the Notes, the Guaranties and all other Loan Documents to be delivered by
it hereunder; and (iii) articles or certificates of incorporation and the
bylaws of the Company and each Loan Party as in effect on the Closing Date,
certified by the Secretary or Assistant Secretary of such Person as of the
Closing Date, or a certificate of the Secretary or Assistant Secretary
certifying that such articles or certificates of incorporation and bylaws
have not been amended since copies thereof were delivered to the
Administrative Agent pursuant to the Existing Credit Agreement;
(c) Certificate (Organization, Qualification and Good
Standing). A certificate signed by a Responsible Officer, identifying
those states in which the ownership, lease or operation of property or the
conduct of its business requires the Company and each other Loan Party, to
be qualified or licensed to do business as a foreign corporation, and
attaching thereto, with respect to the Company and each of the Guarantors,
respectively, certificates of the Secretary of State (and/or similar
applicable Governmental Authority) of its state of incorporation and each
such state where it is so required to be qualified or licensed to do
business as a foreign corporation, certifying as of a recent date each such
Person's existence or qualification, as applicable, and good standing in
each such jurisdictions;
(d) Legal Opinions. Copies of (i) a favorable opinion of
Kim Bullerdick, counsel to the Company, addressed to the Administrative
Agent and the Lenders, substantially in the form of Exhibit D-1; (ii) a
favorable opinion of Fennemore Craig, P.C., special counsel to the Company,
addressed to the Administrative Agent and the Lenders, substantially in the
form of Exhibit D-2; and (iii) a favorable opinion of McGuire Woods, LLP,
special counsel to the Company, addressed to the Administrative Agent and
the Lenders, substantially in the form of Exhibit D-3;
(e) Payment of Fees. Evidence of payment by the Company of
all accrued and unpaid fees, costs and expenses owed pursuant to this
Agreement and the Fee Letter to the extent then due and payable on the
Closing Date, together with Attorney Costs of the Administrative Agent to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute the Administrative Agent's
estimate of Attorney Costs 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 the
Administrative Agent), including any such costs, fees and expenses arising
under or referenced in Sections 2.09 and 11.04;
(f) Certificate (Representations and Warranties, Etc.). A
certificate signed by a Responsible Officer, stating that (i) the
representations and warranties contained in Article VI are true and correct
on and as of such date, as though made on and as of such date; (ii) no
Default or Event of Default exists under the Existing Credit Agreement or
hereunder or would result from the Credit Extension being made on the
Closing Date; (iii) there has occurred since December 31, 2004 (A) no
material adverse change in, or material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent),
capitalization, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, (B) no material impairment
of the ability of the Company or any Significant Subsidiary to perform
under any Loan Document and to avoid any Event of Default; or (C) no
material adverse effect upon (1) the legality, validity, binding effect or
enforceability against the Company or any Significant Subsidiary of any
Loan Document or (2) the perfection or priority of any Lien granted under
any of the Collateral Documents; and (iv) there have been no amendments to
the Statoil Purchase Agreement since December 8, 2004;
(g) Borrowing Base Report. A copy of the Borrowing Base
Report most recently delivered under the Existing Credit Agreement;
(h) Financial Statements. (i) Consolidated financial
statements for the Company and its Subsidiaries as of March 31, 2005, and
(ii) audited consolidated financial statements of the Company and its
Subsidiaries for the fiscal year ended December 31, 2004;
(i) Collateral Documents. The Collateral Documents,
executed by the Company and by each Subsidiary to the extent required by
Section 7.12 that has assets or conducts business, in appropriate form for
recording, where necessary, together with:
(i) such Lien searches as the Administrative Agent
shall have requested, and such termination statements or other
documents as may be necessary to confirm that the Collateral is
subject to no other Liens (other than the Liens securing the
Obligations and Permitted Liens) in favor of any Persons;
(ii) such consents, estoppels, subordination
agreements and other documents and instruments executed by landlords
and other Persons party to material contracts relating to any
Collateral as to which the Administrative Agent shall be granted a
Lien for the benefit of the Lenders, as requested by the
Administrative Agent or any Lender; and
(iii) evidence that all other actions necessary or, in
the opinion of the Administrative Agent or the Lenders, desirable to
perfect and protect the first priority Lien created by the Collateral
Documents, and to enhance the Administrative Agent's ability to
preserve and protect its interests in and access to the Collateral,
have been taken; and
(j) Other Documents. Such other approvals, opinions,
documents or materials as the Administrative Agent or the Majority Lenders
may reasonably request.
Without limiting the generality of the provisions of Section 10.04, for
purposes of determining compliance with the conditions specified in this
Section 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto
5.02 Conditions to All Credit Extensions. The obligation of each
Lender to make any Revolving Loan to be made by it (including its initial
Revolving Loan) or to continue or convert any Revolving Loan under Section
2.04 and the obligation of the Issuing Bank to issue any Letter of Credit
(including the initial Letter of Credit) is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date,
Conversion/Continuation Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall
have received a timely Notice of Borrowing or a timely Notice of
Conversion/Continuation, as applicable, the Swing Line Lender shall have
received a timely Swing Line Loan Notice, or, in the case of any issuance
of any Letter of Credit, the Issuing Bank and the Administrative Agent
shall have received an L/C Application or L/C Amendment Application, as
required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct on
and as of such Borrowing Date, Issuance Date or Conversion/Continuation
Date with the same effect as if made on and as of such Borrowing Date,
Issuance Date or Conversion/Continuation 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);
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Credit Extension or continuation or
conversion;
(d) No Material Adverse Effect. No event or circumstance
shall have occurred that has resulted or would reasonably be expected to
result in a Material Adverse Effect; and
(e) No Future Advance Notice. Neither the Administrative
Agent nor any Lender shall have received any notice that any Collateral
Document will no longer secure on a first priority basis future advances or
future Loans to be made or extended under this Agreement.
Each Notice of Borrowing, Notice of Conversion/Continuation and L/C
Application or L/C Amendment Application submitted by the Company hereunder
shall constitute a representation and warranty by the Company hereunder, as
of the date of each such notice and as of each Borrowing Date,
Conversion/Continuation Date, or Issuance Date, as applicable, that the
conditions in Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.01 Corporate Existence and Power. The Company and each of its
Material Subsidiaries: (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has the power and authority and all material
governmental licenses, authorizations, consents and approvals to own or
lease its assets, carry on its business and to execute, deliver, and
perform its obligations under the Loan Documents; (c) is duly qualified as
a foreign corporation and is licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification or license; and (d)
is in compliance in all material respects with all Requirements of Law;
except, in each case referred to in clause (b), (c) and (d), to the extent
that the failure to do so would not reasonably be expected to have a
Material Adverse Effect.
6.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company and its Subsidiaries of this
Agreement and each other Loan Document to which such Person is a party,
have been duly authorized by all necessary corporate action, and do not and
will 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 document evidencing any material
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such
Person or its property is subject; or (c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company
or any of its Subsidiaries of this Agreement or any other Loan Document to
which it is a party.
6.04 Binding Effect. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party constitute the
legal, valid and binding obligations of the Company and any of its
Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.05 Litigation; Governmental Proceedings . There are no actions,
suits, proceedings, claims or disputes pending, or to the best knowledge of
the Company, threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties which: (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of
the transactions contemplated hereby or thereby; or (b) if determined
adversely to the Company or its Subsidiaries, would reasonably be expected
to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court
or other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists or would be
reasonably expected to result from the incurring of any Obligations by the
Company or from the grant or perfection of the Liens of the Administrative
Agent and the Lenders on the Collateral. Neither the Company nor any
Material Subsidiary is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, would reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing Date, create
an Event of Default under Subsection 9.01(e).
6.07 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received, or has made timely application for, a favorable
determination letter from the IRS and, to the best knowledge of the
Company, nothing has occurred that would cause the loss of such
qualification or that would prevent such qualification, as the case may be.
The Company and each ERISA Affiliate have made all required contributions
to each Plan subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Company, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Company nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither the Company nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans
shall be used solely for the purposes set forth in and permitted by Section
7.13 and Section 8.07. Neither the Company nor any Subsidiary is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock. Margin
Stock does not constitute more than 25% of the value of the consolidated
assets of the Company and its Subsidiaries, and the Company does not have
any present intention that Margin Stock will constitute more than 25% of
the value of such assets.
6.09 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests
in, or other sufficient title to all real property necessary or used in the
ordinary conduct of their respective businesses, except for such defects in
title as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The property of the Company
and its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all federal
tax returns and reports required to be filed, and have paid all federal
taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and payable,
except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in
accordance with GAAP. The Company and its Subsidiaries have filed all
material state and other material non-federal tax returns and reports
required to be filed, and have paid all material state and other material
non-federal taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided
in accordance with GAAP, except where failure to do so would not reasonably
be expected to have a Material Adverse Effect. To the Company's knowledge,
there is no proposed tax assessment against the Company or any Subsidiary
that would, if made, reasonably be expected to have a Material Adverse
Effect.
6.11 Financial Condition. The consolidated financial statements of
the Company and its Subsidiaries dated December 31, 2004, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for the fiscal quarter ended on that date: (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present
in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and results of operations for the
period covered thereby (subject to ordinary, good faith year-end
adjustments); and (iii) show all material Indebtedness and other
liabilities, direct or contingent, of the Company and its consolidated
Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations. Since December 31, 2004,
there has been no Material Adverse Effect.
6.12 Environmental Matters. The Company conducts in the ordinary
course of business a review of the effect of existing Environmental Laws
and existing Environmental Claims on its business, operations and
properties, and as a result thereof the Company has reasonably concluded
that such Environmental Laws and Environmental Claims would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment Company"
within the meaning of the Investment Company Act of 1940. The Company is
not subject to any provision of the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or any state
public utilities code, or of any other federal or state statute or
regulation, limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject
to any restriction in any Organization Document, or any Requirement of Law,
which would reasonably be expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company
or its Subsidiaries own or are licensed or otherwise have the right to use
all of the material patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations and other rights that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best
knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes
upon any rights held by any other Person. No claim or litigation regarding
any of the foregoing is pending or threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the Company, proposed,
which, in either case, would reasonably be expected to have a Material
Adverse Effect.
6.16 Subsidiaries.. As of the Execution Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of
Schedule 6.16 hereto and has no material equity investments in any other
corporation or entity other than those specifically disclosed in part (b)
of Schedule 6.16.
6.17 Insurance.
(a) The properties and business of the Company and its
Subsidiaries are insured under insurance policies (the "Policies") with
insurance companies ("Insurer" or "Insurers"), in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities
where the Company or such Subsidiary operates.
(b) Either (i) the Insurers are financially sound and
reputable insurance companies that are not Affiliates of the Company, or
(ii) the Insurer is a Subsidiary of the Company ("Subsidiary Insurer"), the
Subsidiary Insurer has all governmental approvals necessary to operate its
business and to comply with this Section 6.17 and Section 7.06(a), the
Subsidiary Insurer has in place agreement(s) with financially sound and
reputable insurance companies that are not Affiliates of the Company
("Unaffiliated Insurers") providing insurance coverage with such
deductibles and covering such risks as required by clause (a) of this
Section 6.17, and such agreements provide to the Administrative Agent and
the Lenders substantially the same rights as the Administrative Agent and
the Lenders would have if the Policies were issued directly by the
Unaffiliated Insurers, including without limitation (w) the right to
receive notice of cancellation from the Unaffiliated Insurers, (x) clauses
or endorsements stating that the interest of and the rights of the
Administrative Agent and the Lenders vis-a-vis the Unaffiliated Insurers
shall not be impaired or invalidated by any act or neglect of, or any
bankruptcy, insolvency, dissolution or other event with respect to, the
Company, the Subsidiary Insurer, or any other Subsidiary of the Company,
and (y) the right to enforce insurance coverage directly against the
Unaffiliated Insurer. The Company has delivered to the Administrative
Agent evidence of compliance with the foregoing requirements.
6.18 Full Disclosure. None of the representations or warranties
made by the Company or any Subsidiary in the Loan Documents as of the date
such representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, report, written statement or
certificate furnished by or on behalf of the Company or any Subsidiary in
connection with the Loan Documents (including the offering and disclosure
materials delivered by or on behalf of the Company to the Lenders prior to
the Execution Date), taken as whole, contains any untrue statement of a
material fact known to the Company or omits any material fact known to the
Company required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
6.19 Solvency. The Company and its Subsidiaries, taken as a whole,
and the Company, individually, and each of the Guarantors, individually, is
Solvent.
6.20 Labor Relations. There is (a) no significant unfair labor
practice complaint pending against the Company or any of its Subsidiaries
or, to the knowledge of the Company, threatened against any of them, and no
significant grievance or significant arbitration proceeding arising out of
or under any collective bargaining agreement is so pending against the
Company or any of its Subsidiaries or, to the knowledge of the Company,
threatened against any of them, (b) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its Subsidiaries
or, to the knowledge of the Company, threatened against the Company or any
of its Subsidiaries and (c) to the knowledge of the Company, no union
representation question existing with respect to the employees of the
Company or any of its Subsidiaries and, to the knowledge of the Company, no
union organizing activities are taking place, except (with respect to any
matter specified in clause (a), (b) or (c) above, either individually or in
the aggregate) such as could not reasonably be expected to have a Material
Adverse Effect.
6.21 Collateral Documents.
(a) The provisions of each of the Collateral Documents are
effective to create in favor of the Administrative Agent for the benefit of
the Lenders and Swap Providers, a legal, valid and enforceable first
priority security interest in all right, title and interest of the Company
and its Subsidiaries in the collateral described therein (provided, that in
the case of Statoil Commingled Inventories, such Liens are shared with
Statoil pursuant to the Statoil Intercreditor Agreement), and financing
statements have been filed in the offices in all of the jurisdictions
listed in the schedules to the Security Agreement.
(b) All representations and warranties of the Company and
any of its Subsidiaries party thereto contained in the Collateral Documents
are true and correct in all material respects.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Majority Lenders waive
compliance in writing:
7.01 Financial Statements. The Company shall maintain for itself
and each Subsidiary, a system of accounting established and administered in
accordance with GAAP and deliver to the Administrative Agent and each
Lender:
(a) As soon as available, but not later than 90 days after
the end of each fiscal year a copy of the annual audited consolidated
financial statement of the Company as at the end of such year and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and such
financial statements shall be accompanied by (i) the opinion of a
nationally recognized Registered Public Accounting Firm, which opinion
shall state that such consolidated financial statements present fairly in
all material respects the financial position and results of operations of
the Company and its Consolidated Subsidiaries for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years, shall
be prepared in accordance with generally accepted auditing standards and
applicable Securities Laws, and shall not be qualified or limited because
of a restricted or limited examination by the Registered Public Accounting
Firm of any material portion of the Company's or any Subsidiary's records;
and (ii) an attestation report of such Registered Public Accounting Firm
as to the Company's internal controls pursuant to Section 404 of Sarbanes-
Oxley; and
(b) As soon as available, but not later than 45 days after
the close of each of the first three quarterly periods each fiscal year, a
copy of the unaudited consolidated balance sheet of the Company as of the
end of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first
day and ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with GAAP (subject
to ordinary, good faith year-end audit adjustments), the financial position
and the results of operations of the Company and its Consolidated
Subsidiaries.
7.02 Certificates; Field Audits; Other Information. The Company
shall furnish, at the Company's expense, to the Administrative Agent and
each Lender:
(a) A Borrowing Base Report certified by a Responsible
Officer as fairly presenting the Eligible Hydrocarbon Inventory, Eligible
In-Transit Crude Oil, Eligible Lubricants Inventory, and Eligible Accounts
Receivable (and, if applicable, Eligible Cash), Statoil Commingled
Inventories, and, if requested by the Administrative Agent or any Lender,
a listing and aging of Eligible Accounts Receivable by counterparty, and a
schedule of inventory volumes and market rates (with sources). The Company
shall deliver such Borrowing Base Report and such other information to the
Administrative Agent monthly, provided, however, that if Usage equals or
exceeds 50% (but is less than 75%), the Company shall deliver such report
and information biweekly, and if Usage equals or exceeds 75%, the Company
shall deliver such report and information weekly, in each case as set forth
in clause (1), (2) or (3) below, as applicable:
(1) Monthly Reporting. The Company shall deliver a
Borrowing Base Report monthly, unless clauses (2) or (3) below apply. Each
monthly Borrowing Base Report shall be prepared as of the last day of a
calendar month and shall be delivered not later than 15 days after the end
of the month.
(2) Biweekly Reporting (Usage equal to or greater than
50% but less than 75%). If during any month Usage is equal to or greater
than 50% (but less than 75%) for a period of three consecutive Business
Days (the third such Business Days being herein referred to as the "Third
Consecutive 50% Day"), then the Company shall be required to deliver
Borrowing Base Reports biweekly. The first such Borrowing Base Report
shall be prepared as of Friday of the week next following the week in which
the Third Consecutive 50% Day occurs, and such Borrowing Base Report shall
be delivered on Friday of the following week. The Company shall continue
to deliver biweekly Borrowing Base Reports thereafter (each such Borrowing
Base Report shall cover a two-week period ending on a Friday and shall be
delivered on the following Friday), until either (x) Usage is equal to or
greater than 75% for three consecutive Business Days, in which case clause
(3) below shall apply, or (y) Usage is less than 50% every day of an entire
calendar month, in which case clause (1) above shall apply.
(3) Weekly Reporting (Usage equal to or greater than
75%). If during any month Usage is equal to or greater than 75% for a
period of three consecutive Business Days (the third such Business Day
being herein referred to as the "Third Consecutive 75% Day"), then the
Company shall be required to deliver Borrowing Base Reports weekly. The
first such Borrowing Base Report shall be prepared as of Friday of the week
in which the Third Consecutive 50% Day occurs, and shall be delivered on
Friday of the following week. The Company shall continue to deliver weekly
Borrowing Base Reports thereafter (each such Borrowing Base Report shall
cover a one-week period ending on a Friday and shall be delivered on the
following Friday), until either (i) Usage is less than 75% but equal to or
greater than 50% for three consecutive Business Days, in which case clause
(2) above shall apply, or (ii) Usage is less than 50% every day of an
entire calendar month, in which case clause (1) above shall apply,
provided, that if any day on which a Borrowing Base Report is required to
be delivered is not a Business Day, then the Borrowing Base Report
otherwise required to be delivered on such day shall instead be delivered
on the preceding Business Day, unless the Administrative Agent agrees to
permit delivery on the next succeeding Business Day;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), a Compliance
Certificate executed by a Responsible Officer;
(c) on or before July 31 of each year, commencing July 31,
2005 and at any time at the request of the Administrative Agent following
an Event of Default, a field audit and inventory valuation report prepared
by Bank of America Business Credit, Inc., in form and substance
satisfactory to the Administrative Agent;
(d) promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and, promptly after the
filing thereof, copies of all financial statements and regular, periodical
or special reports (including Forms 10-K, 10-Q and 8-K) that the Company or
any Subsidiary may make to, or file with, the SEC; and
(e) promptly such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary
as the Administrative Agent, at the request of any Lender, may from time to
time reasonably request.
7.03 Notices. The Company shall promptly notify the Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default,
and of the occurrence or existence of any event or circumstance that would
reasonably be expected to become a Default or Event of Default;
(b) of the receipt by the Company or any of its
Subsidiaries of any notice of default given or received pursuant to the
Indentures or any other agreement or instrument pertaining to the
Subordinated Notes;
(c) of any matter that has resulted or may reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Company or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Company or any
Subsidiary; including pursuant to any applicable Environmental Laws;
(d) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event more than 10
days after such event), and deliver to the Administrative Agent and each
Lender a copy of any notice with respect to such event that is filed with a
Governmental Authority and any notice delivered by a Governmental Authority
to the Company or any ERISA Affiliate with respect to such event: (i) an
ERISA Event; (ii) a material increase in the Unfunded Pension Liability of
any Pension Plan; (iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by the
Company or any ERISA Affiliate; or (iv) the adoption of any amendment to a
Plan subject to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension Liability;
(e) of any material change in accounting policies or
financial reporting practices by the Company or any of its consolidated
Subsidiaries;
(f) of the entry by the Company or any of its Subsidiaries
into any Specified Swap Contract, specifying the identity of the Swap
Provider, the notional amount, the nature of the Specified Swap Contract
and such other information as the Administrative Agent reasonably may
request;
(g) of the occurrence of any default, event of default,
termination event or other event under any Specified Swap Contract that
after the giving of notice, passage of time or both, would permit either
counterparty to such Specified Swap Contract to terminate early any or all
trades relating to such contract, and the liability, if any, of the Company
or Subsidiary, as applicable, in the event thereof;
(h) upon the request from time to time of the
Administrative Agent, the Swap Termination Values, together with a
description of the method by which such values were determined, relating to
any then outstanding Swap Contracts to which the Company or any of its
Subsidiaries is party;
(i) of the formation or acquisition of any Subsidiary;
(j) of any amendment to the Statoil Purchase Agreement,
such notice to be given not less than 10 days prior to effective date of
such amendment, and to be accompanied by a copy of such amendment; and
(k) of the occurrence of any Internal Control Event.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time.
Each notice under subsection 7.03(a) shall describe with particularity any
and all clauses or provisions of this Agreement or other Loan Document that
have been (or foreseeably will be) breached or violated.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which
the Company posts such documents, or provides a link thereto on the
Company's website on the Internet at the website address listed on Schedule
11.02; or (ii) on which such documents are posted on the Company's behalf
on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website
or whether sponsored by the Administrative Agent); provided, that: (i) the
Company shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Company to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender, and (ii) the Company shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of
the posting of any such documents and provide to the Administrative Agent
by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance
the Company shall be required to provide paper copies of the Compliance
Certificates required by Section 7.02(b) to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Company with any such request for delivery,
and each Lender shall be solely responsible for requesting delivery to it
or maintaining its copies of such documents.
The Company hereby acknowledges that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the Issuing Bank
materials and/or information provided by or on behalf of the Company
hereunder (collectively, "Borrower Materials") by posting the Borrower
Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders may be "public-side" Lenders
(i.e., Lenders that do not wish to receive material non-public information
with respect to the Company or its securities) (each, a "Public Lender").
The Company hereby agrees that (w) all Borrower Materials that are to be
made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall
appear prominently on the first page thereof; (x) by marking Borrower
Materials "PUBLIC," the Company shall be deemed to have authorized the
Administrative Agent, the Arranger, the Issuing Bank, and the Lenders to
treat such Borrower Materials as not containing any material non-public
information with respect to the Company or its securities for purposes of
United States Federal and state securities laws (provided, however, that to
the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor;" and (z) the Administrative Agent and
the Arranger shall be entitled to treat any Borrower Materials that are not
marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor."
7.04 Preservation of Corporate Existence, Etc. The Company shall,
and shall cause each of its Material Subsidiaries to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation except in a transaction permitted by Sections
8.02 or 8.03;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business
except where the failure to do so would not reasonably be expected to have
a Material Adverse Effect;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill except where
the failure to do so would not reasonably be expected to have a Material
Adverse Effect; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which
could reasonably be expected to have a Material Adverse Effect.
7.05 Maintenance of Property. The Company shall, and shall cause
each of its Material Subsidiaries to, maintain and preserve all its
property that is used or useful in its business in good working order and
condition, ordinary wear and tear excepted, and to use the standard of care
typical in the industry in the operation and maintenance of its facilities
except where the failure to do so would not reasonably be expected to have
a Material Adverse Effect.
7.06 Insurance; Insurance and Condemnation Proceeds.
(a) The Company shall maintain insurance with respect to
its properties and business in accordance with the requirements set forth
in Section 6.17. Upon request by the Administrative Agent, the Company
shall deliver to the Administrative Agent a copy of all policies and all
agreements between any Subsidiary Insurer and any Unaffiliated Insurer(s)
(as such terms are defined in Section 6.17), together with such evidence as
the Administrative Agent may require demonstrating that the Policies and
agreements with Unaffiliated Insurers satisfy the requirements of Section
6.17 and this Section 7.06.
(b) The Company shall cause the Administrative Agent, for
the ratable benefit of the Administrative Agent and the Lenders, to be
named as secured party or mortgagee and additional loss payee with respect
to insurance policies covering the Collateral, and as additional insured
with respect to the Company's general liability, auto liability, and excess
liability insurance, in a manner acceptable to the Administrative Agent.
Each such policy of insurance shall contain a clause or endorsement
requiring the insurer to give not less than 30 days prior written notice to
the Administrative Agent in the event of cancellation of the policy for any
reason whatsoever (other than non-payment of premium for which not less
than ten (10) days' prior written notice shall be given to the
Administrative Agent), a clause or endorsement stating that the interest of
the Administrative Agent shall not be impaired or invalidated by any act or
neglect of the Company or its Subsidiaries for purposes more hazardous than
are permitted by such policy or similar language to that effect. All
premiums for such insurance shall be paid or caused to be paid by the
Company when due, and certificates of insurance and, if requested by the
Administrative Agent or any Lender, photocopies of the policies, shall be
delivered to the Administrative Agent, in each case in sufficient quantity
for distribution by the Administrative Agent to each of the Lenders. If
the Company or any Subsidiary fails to procure such insurance or to pay the
premiums therefor when due, the Administrative Agent may, and at the
direction of the Majority Lenders shall, do so from the proceeds of the
Revolving Loans.
(c) The Company shall promptly notify the Administrative
Agent and the Lenders of (i) any material loss, damage, or destruction to
the Collateral, and (ii) any material loss, damage or destruction to any
assets of the Company or its Subsidiaries not constituting Collateral, in
each case, whether or not covered by insurance. The Company shall
negotiate all claims for loss, damage or destruction consistent with
prudent business practice; provided, that from and after the occurrence of
an Event of Default, the Administrative Agent shall have the authority to
negotiate all claims for loss, damage or destruction of Collateral in the
name of the Company.
(d) The Administrative Agent is hereby authorized to
collect all insurance and condemnation proceeds in respect of Collateral
directly and to apply or remit them as follows: after deducting from such
proceeds the reasonable expenses, if any, incurred by the Administrative
Agent in the collection or handling thereof, the Administrative Agent shall
apply such proceeds, first, to the payment or prepayment of the Obligations
constituting unpaid principal of Loans and L/C Borrowings ratably among the
Lenders and the Issuing Bank; and secondly, to the payment of Obligations
then due under Specified Swap Contracts, ratably among the Swap Providers
in proportion to the respective amounts described in this clause (d) owed
to them. After the occurrence of an Event of Default and acceleration of
the maturity of the Loans, proceeds of insurance and condemnation shall be
applied in accordance with Section 9.03.
(e) With respect to insurance and condemnation proceeds
relating to the Company's or its Subsidiaries' assets not constituting
Collateral, the Administrative Agent shall permit the Company or its
Subsidiaries, as applicable, to use such proceeds, or any part thereof, to
replace, repair, restore or rebuild the relevant assets in a diligent and
expeditious manner with materials and workmanship of substantially the same
quality as existed before the loss, damage, destruction or taking by
condemnation, so long as (i) no Default or Event of Default has occurred
and is continuing, and (ii) the aggregate proceeds from any single loss,
damage, destruction or taking by condemnation do not exceed $10,000,000.
In all other circumstances, if required by the Majority Lenders, insurance
and condemnation proceeds shall be paid to the Administrative Agent and
applied first, to the payment or prepayment of the Obligations constituting
unpaid principal of Loans and L/C Borrowings ratably among the Lenders and
the Issuing Bank; and secondly, to the payment of Obligations then due
under Specified Swap Contracts ratably among the Swap Providers in
proportion to the respective amounts described in this clause (e) owed to
them. After the occurrence of an Event of Default and acceleration of the
maturity of the Loans, if required by the Majority Lenders, proceeds of
insurance and condemnation shall be paid to the Administrative Agent and
applied in the manner that funds are applied pursuant to Section 9.03.
7.07 Payment of Obligations. The Company shall, and shall cause
each of its Material Subsidiaries to, pay and discharge as the same shall
become due and payable, all their respective obligations and liabilities,
including: (a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company, such Guarantor or
such Subsidiary; (b) all lawful claims which, if unpaid, would by law
become a Lien upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness; except where the
failure to do so would not reasonably be expected to have a Material
Adverse Effect.
7.08 Compliance with Laws and Contractual Obligations. The Company
shall, and shall cause each of its Subsidiaries to, comply in all material
respects with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor
Standards Act) and all Contractual Obligations, except (x) such as may be
contested in good faith or as to which a bona fide dispute may exist, or
(y) where the failure to do so would not reasonably be expected to have a
Material Adverse Effect.
7.09 Compliance with ERISA. The Company shall, and shall cause each
of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and
other federal or state law; (b) cause each Plan which is qualified under
Section 401(a) of the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records; Field Audit.
(a) The Company shall, and shall cause each of its
Subsidiaries to, maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiaries.
(b) The Company and each Guarantor shall, and shall cause
each of their Subsidiaries to, permit representatives and independent
contractors of the Administrative Agent or any Lender to visit and inspect
any of their respective properties, to examine their respective corporate,
financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts
with their respective directors, officers, and independent public
accountants, all at the expense of the Company and at such reasonable times
during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however, when an
Event of Default exists the Administrative Agent or any Lender may do any
of the foregoing at the expense of the Company at any time during normal
business hours and without advance notice. Inspections and visitations
conducted by the Administrative Agent and the Lenders pursuant hereto shall
comply with the Company's or applicable Guarantor's health and safety
regulations and procedures.
(c) Pursuant to Section 7.02(c), the Company has agreed to
obtain and deliver field audit and inventory valuations at the expense of
the Company, as therein provided. In addition, when an Event of Default
exists hereunder, the Administrative Agent or any authorized representative
or agent thereof may conduct such field audit and inventory valuation at
the expense of the Company at any time during normal business hours and
without advance notice.
7.11 Environmental Laws. The Company shall, and shall cause each of
its Subsidiaries to, conduct its operations and keep and maintain its
property in compliance with all Environmental Laws except where the failure
to do so would not reasonably be expected to have a Material Adverse
Effect.
7.12 New Subsidiary Guarantors; New Subsidiary Security Agreements.
(a) If, at any time after the date of this Agreement, there
exists any Subsidiary organized under the laws of any state in the United
States of America that (i) has total assets with a book value of $2,000,000
or more or (ii) executes a guaranty agreement with respect to the Company's
obligations under the Indentures or the Company's obligations under any
other indebtedness for borrowed money, then the Company shall cause each
such Subsidiary to do the following: (x) execute and deliver to the
Administrative Agent a Supplemental Guaranty and (y) furnish the
Administrative Agent with a written opinion of counsel for each such
Subsidiary Guarantor in substantially the form set forth in Exhibits D-1
and D-2; in each case with such revisions as may be reasonably requested by
the Administrative Agent or the Majority Lenders.
(b) The Company also shall cause each Person that becomes a
Subsidiary after the date of this Agreement (excluding any Subsidiary that
has no assets and conducts no business, but including any "inactive"
Subsidiary that resumes active business at any time after the date of this
Agreement) to (i) execute and deliver to the Administrative Agent a
Security Agreement in substantially the form of Exhibit I-2 in favor of the
Administrative Agent, the Lenders and the other Swap Providers, together
with such financing statements and other documents and instruments related
thereto as the Administrative Agent or the Majority Lenders may require;
(ii) take all other actions necessary or, in the opinion of the
Administrative Agent or the Majority Lenders, desirable to perfect and
protect the first priority Lien created by the Collateral Documents, and to
enhance the Administrative Agent's ability to preserve and protect its
interests in and access to the Collateral; and (iii) furnish the
Administrative Agent with a written opinion of counsel for each such Person
in substantially the form set forth in Exhibits D-1 and D-2; in each case
with such revisions as may be reasonably requested by the Administrative
Agent or the Majority Lenders.
(c) Notwithstanding subsections (a) and (b) of this Section
7.12, as long as (i) Navajo Convenient Stores Co., LLC has total assets
with a book value of less than $5,000,000 and has not guaranteed any
Indebtedness, Navajo Convenient Stores Co., LLC shall not be required to
execute a Supplemental Guaranty or a Security Agreement; (ii) Giant
Yorktown Holding Company has no assets and has not guaranteed any
Indebtedness other than the Subordinated Notes, Giant Yorktown Holding
Company shall not be required to execute a Supplemental Guaranty or a
Security Agreement; and (iii) Insurance Subsidiary has total assets with a
book value of less than $250,000 and has not guaranteed any Indebtedness,
Insurance Subsidiary shall not be required to execute a Supplemental
Guaranty or a Security Agreement.
7.13 Use of Proceeds. The Company shall use the proceeds of the
Revolving Loans (a) to refinance outstanding loans under the Existing
Credit Agreement and (b) for working capital, acquisitions, capital
expenditures, and other general corporate purposes.
7.14 Subordinated Indebtedness. The Company shall maintain not less
than $150,000,000 principal amount of Subordinated Notes outstanding at all
times throughout the term hereof.
7.15 Further Assurances. Promptly upon request by the
Administrative Agent or the Majority Lenders, the Company shall (and shall
cause any of its Subsidiaries to) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register, any and all
such further acts, deeds, conveyances, security agreements, mortgages,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments the Administrative Agent or
such Lenders, as the case may be, may reasonably require from time to time
in order (i) to carry out more effectively the purposes of this Agreement
or any other Loan Document, (ii) to subject to the Liens created by any of
the Collateral Documents any of the properties, rights or interests covered
by any of the Collateral Documents, (iii) to perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and
the Liens intended to be created thereby, and (iv) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent and Lenders the rights granted or now or hereafter
intended to be granted to the Lenders under any Loan Document or under any
other document executed in connection therewith.
7.16 Segregation of Statoil Supplied Crude Oil. To the extent
feasible and consistent with prudent and safe refinery practices, Giant
Yorktown shall exercise all commercially reasonable efforts to physically
segregate Statoil Inventories (as defined in the Statoil Intercreditor
Agreement) from Eligible Hydrocarbon Inventory, and to physically segregate
Eligible Hydrocarbon Inventory from Statoil Inventories, located at the
Yorktown Refinery. In the event of any commingling of Statoil Inventories
and Eligible Hydrocarbon Inventory, then only the Lenders' pro rata share
of such Statoil Commingled Inventories (as determined in accordance with
the Statoil Intercreditor Agreement) shall be considered Eligible
Hydrocarbon Inventory for purposes of calculation of the Borrowing Base
(provided that such Statoil Commingled Inventories otherwise meet the
definition of Eligible Hydrocarbon Inventory).
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Majority Lenders waive
compliance in writing:
8.01 Limitation on Liens. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make, create,
incur, assume or suffer to exist any Lien upon or with respect to any part
of its property, whether now owned or hereafter acquired, other than the
following (collectively, "Permitted Liens"):
(a) any Lien (other than a Lien on property constituting
Collateral) existing on the property of the Company or any Subsidiary on
the Closing Date and set forth in Schedule 8.01 securing Indebtedness
outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by Section
7.07;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar non-consensual statutory Liens
(including statutory liens in favor of mineral interest owners, securing
only amounts due for the purchase price, state royalty and taxes in respect
of product severed from a production unit in New Mexico in which such
interest owner owns an interest) arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are
being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;
(e) Liens (other than any Lien imposed by ERISA and other
than Liens on the Collateral) consisting of pledges or deposits required in
the ordinary course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) easements, rights-of-way, restrictions, defects or
other exceptions to title and other similar encumbrances with respect to
real property incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and
its Subsidiaries;
(g) Subject to the provisions of the Deposit Account
Control Agreements, Liens (other than Liens on the Collateral) arising
solely by virtue of any statutory or common law provision relating to
banker's liens, rights of set-off or similar rights and remedies as to
deposit accounts or other funds maintained with a creditor depository
institution; provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Company, (ii) the Company (or applicable Subsidiary) maintains (subject to
such right of set off) dominion and control over such account(s), and (iii)
such deposit account is not intended by the Company, any Guarantor or any
Subsidiary to provide cash collateral to the depository institution;
(h) Liens (other than Liens on Collateral) securing
Indebtedness incurred or assumed for the purpose of financing all or any
part of the cost of acquiring property after the date hereof; provided that
(i) such Lien has attached prior to acquisition of such property or
attaches to such property concurrently with or within 20 days after the
acquisition thereof, (ii) such Lien attaches solely to the property
financed by such Indebtedness, (iii) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such
property, and (iv) the principal amount of the Indebtedness secured by any
and all such purchase money security interests shall not exceed $20,000,000
in the aggregate at any time outstanding; and
(i) Liens (including Liens on Collateral to the extent
provided herein) on crude oil supplied by Statoil pursuant to the Statoil
Purchase Agreement, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such crude
oil; provided, that (i) any such Lien has attached prior to acquisition of
such crude oil or attaches to such crude oil concurrently with or within 20
days after the acquisition thereof, (ii) such Lien attaches solely to the
crude oil financed by such Indebtedness, (iii) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such crude
oil, (iv) the principal amount of the Indebtedness secured by any and all
such purchase money security interests in favor of Statoil shall not be
increased in excess of the amount contemplated by the Statoil Purchase
Agreement as in effect on the Closing Date, and (v) such Liens in favor of
Statoil shall be subject to the terms of the Statoil Intercreditor
Agreement;
(j) Liens on cash and cash equivalents not exceeding at any
time in the aggregate an amount equal to $5,000,000, securing obligations
of the Company or its Subsidiaries pursuant to Commodity Swaps; and
(k) Any Liens (other than Liens on Collateral) not
otherwise described in Subsection 8.01(a) through (j) above, provided that
the Indebtedness and other obligations secured by such Liens shall not at
any time exceed $5,000,000 in the aggregate at any time outstanding.
8.02 Disposition of Assets. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, sell, assign,
lease, convey, transfer or otherwise dispose of (whether in one or a series
of transactions) (collectively, "Dispositions") any property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:
(a) Dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment
is exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement equipment;
(c) Dispositions of assets by the Company or any Subsidiary
to the Company or any Wholly-Owned Subsidiary, provided, that if required
by Section 7.12, such Wholly-Owned Subsidiary has complied with such
Section; and
(d) Dispositions of assets not otherwise permitted
hereunder which are made for fair market value, provided, that (i) at the
time of any such Disposition, no Event of Default shall exist or shall
result from such Disposition, and (ii) the aggregate book value of assets
disposed of by the Company and its Subsidiaries in any fiscal year pursuant
to this clause (d), beginning with fiscal year 2005, shall not exceed
$10,000,000.
8.03 Consolidations and Mergers. The Company shall not, and shall
not permit any of its Material Subsidiaries to, merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any
Person, except:
(a) the Company may merge with any Person, provided that
the Company is the surviving Person;
(b) any Subsidiary may merge with any one or more
Subsidiaries, provided that if any transaction shall be between a
Subsidiary that is not a Wholly-Owned Subsidiary and a Wholly-Owned
Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or
surviving corporation; and
(c) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company or to a
Wholly-Owned Subsidiary, provided, that if required by Section 7.12, such
Wholly-Owned Subsidiary has complied with such Section.
8.04 Loans and Investments. The Company shall not purchase or
acquire, or permit any of its Subsidiaries to purchase or acquire, or make
any commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any Person, or make
or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in, any Person including any
Affiliate of the Company, except for:
(a) investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business;
(c) investments by the Company or any of its Subsidiaries
in any Subsidiary that is a Domestic Wholly-Owned Subsidiary;
(d) extensions of credit described in Schedule 8.04 through
and including the maturity date thereof, but not any increases or renewals;
(e) loans and investments by the Company and its Wholly-
Owned Subsidiaries not to exceed $250,000 in the aggregate from and after
the Closing Date in the capital stock, equity interests, and other
obligations or securities of a Wholly-Owned Subsidiary (the "Insurance
Subsidiary") formed de novo by the Company for the purpose of acquiring
property insurance solely for the Company and its Subsidiaries; the
Insurance Subsidiary shall take such action as necessary to qualify as a
Subsidiary Insurer; and
(f) investments by the Company and its Subsidiaries not
otherwise permitted in Subsections 8.04(a) through (e), which do not exceed
$5,000,000 in the aggregate at any time outstanding.
8.05 Limitation on Indebtedness and Contingent Obligations. The
Company shall not, and shall not permit any of its Subsidiaries to, create,
incur, assume, suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness or Contingent
Obligations, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness of the Company under Subordinated Notes;
(c) Obligations (contingent or otherwise) of the Company
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into in the ordinary course of business
for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably
anticipated, and not for purposes of speculation or taking a "market view";
(ii) such Swap Contract does not contain any provision exonerating the non-
defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party, and (iii) the notional amount of all
Interest Rate Swap Contracts may not at any time exceed $100,000,000;
(d) Contingent Obligations consisting of endorsements for
collections or deposit in the ordinary course of business, and Surety
Instruments consisting of surety bonds issued for the account of the
Company or any of its Subsidiaries in the ordinary course of business not
to exceed $15,000,000 in the aggregate at any time outstanding;
(e) Indebtedness in respect of purchase money obligations
within the limitations set forth in Sections 8.01(h) and (i);
(f) Indebtedness of the Company in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding, provided, that
the maturity of such Indebtedness shall not be earlier than six (6) months
after the Termination Date and the terms of the agreements governing such
Indebtedness shall not be more restrictive than those set forth in this
Agreement; and
(g) other Indebtedness and Contingent Obligations in an
aggregate principal amount not to exceed $5,000,000 at any time
outstanding.
8.06 Transactions with Affiliates. The Company shall not, and shall
not permit any of its Subsidiaries to, enter into any transaction with or
make any payment or transfer to any Affiliate of the Company, except in the
ordinary course of business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary.
8.07 Use of Proceeds. The Company shall not, and shall not suffer
or permit any Subsidiary to, use any portion of the Loan proceeds or any
Letter of Credit, directly or indirectly, (i) to purchase or carry Margin
Stock, (ii) to repay or otherwise refinance indebtedness of the Company or
others incurred to purchase or carry Margin Stock, (iii) to extend credit
for the purpose of purchasing or carrying any Margin Stock, or (iv) to
acquire any security in any transaction that is subject to Section 13 or 14
of the Exchange Act.
8.08 [Intentionally Blank]
8.09 Restricted Payments. The Company shall not, and shall not
permit any of its Subsidiaries to, purchase, redeem or otherwise acquire
for value any shares of its capital stock, or any warrants, rights or
options to acquire such shares, now or hereafter outstanding; except that
so long as no Default or Event of Default exists at the time of any action
described below or would result therefrom,
(a) any Subsidiary may purchase, redeem or otherwise
acquire shares of its capital stock from the Company or any Wholly-Owned
Subsidiary, and
(b) the Company may purchase, redeem or otherwise acquire
shares of its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent issue
of new shares of its common stock.
8.10 Subsidiary Dividends. The Company will not, and it will not
permit any of its Subsidiaries to, be a party to or enter into any
agreement, instrument or other document which prohibits or restricts in any
way, or to otherwise, directly or indirectly, create or cause or suffer to
exist or become effective any encumbrance or restriction on the ability of
any Subsidiary of the Company to (a) pay dividends or make any other
distributions in respect of its capital stock or any other equity interest
or participation in any Subsidiary or pay or repay any Indebtedness owed to
the Company or any Subsidiary, (b) make loans or advances to the Company or
(c) transfer any of its properties or assets to the Company or any
Subsidiary (subject to the rights of any holder of a Lien on any such
properties or assets which Lien is a Permitted Lien).
8.11 Subordinated Notes. The Company shall not, and shall not
permit any Subsidiary to: (a) amend, modify or change, or consent or agree
to any amendment, modification or change to, any of the terms of the
Indentures, the Subordinated Notes or the guaranties executed in connection
therewith, other than (i) any such amendment or modification which would
extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date of payment of
interest thereon, (ii) ministerial amendments that do not affect the
Lenders, (iii) amendments of any representation or warranty, covenant,
obligation or default of the Company to any holder of Subordinate Notes or
to any trustee acting under the Indentures (including, without limitation,
financial ratios) in a manner which either eliminates such representations
and warranties, covenants, obligations or defaults or renders them less
restrictive or onerous than those contained in the Subordinated Notes
and/or the Indentures as in effect on the Closing Date, and (iv) such other
amendments and modifications acceptable to the Majority Lenders; or (b)
make any payments to the holders of the Subordinated Notes or to any
trustee acting under the Indentures which is prohibited by the Indentures;
or (c) make any prepayment of or redeem in whole or in part the
Subordinated Notes at any time that a Default or Event of Default has
occurred and is continuing.
8.12 Minimum Consolidated Net Worth. The Company will maintain at
all times Consolidated Net Worth in an amount not less than the sum of (i)
$210,000,000, plus (ii) 50% of Consolidated Net Income computed on a
cumulative basis for the period beginning April 1, 2005 and ending on the
date of determination (provided that no negative adjustment will be made in
the event that Consolidated Net Income is a deficit figure for such
period), plus (iii) 75% of the aggregate amount of the net assets (cash or
otherwise) received by the Company from the issuance of any class of
capital stock after March 31, 2005.
8.13 Minimum Consolidated Interest Coverage Ratio. The Company
shall not permit the Consolidated Interest Coverage Ratio as of the end of
any fiscal quarter to be less than the ratio set forth below opposite such
fiscal quarter:
Minimum Consolidated
Four Fiscal Quarters Ending Interest Coverage Ratio
--------------------------- -----------------------
June 30, 2005 through March 31, 2007: 2.75 to 1.00
June 30, 2007 and thereafter: 3.00 to 1.00
8.14 Consolidated Funded Indebtedness to Total Capitalization. The
Company shall not permit Consolidated Funded Indebtedness to exceed the
percentage of Total Capitalization set forth below at any time during the
periods set forth below:
Closing Date through June 29, 2007 65%
June 30, 2007 and thereafter 60%
8.15 ERISA. The Company shall not, and shall not suffer or permit
any of its ERISA Affiliates to: (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably expected to result in liability of
the Company in an aggregate amount which could have a Material Adverse
Effect; (b) engage in a transaction that could be subject to Section 4069
or 4212(c) of ERISA, or permit any Plan to engage in any non-exempt
"prohibited transaction" (as defined in Section 4975 of the Code); (c) fail
to comply with ERISA or any other applicable Laws; or (d) incur any
material "accumulated funding deficiency" (as defined in Section 302 or
ERISA), which, with respect to each event listed above, could be reasonably
expected to have a Material Adverse Effect.
8.16 Change in Business. The Company shall not, and shall not
permit any Subsidiary to, engage in any business or activity other than the
Principal Business.
8.17 Accounting Changes. The Company shall not, and shall not
suffer or permit any Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Company or of any Subsidiary.
8.18 Amendments to the Statoil Purchase Agreement; No Prepayments.
The Company agrees that it shall not amend, and shall not permit Giant
Yorktown to amend, the Statoil Purchase Agreement in any manner that could,
in the reasonable opinion of the Administrative Agent or the Majority
Lenders, adversely affect the Lenders. The Company agrees that, so long as
no "Collateral Event" (as defined in the Statoil Purchase Agreement) under
the Statoil Purchase Agreement has occurred and is continuing, it shall not
pay, prepay or secure by letter of credit, and shall not permit Giant
Yorktown to pay for, prepay or secure by letter of credit, any crude oil
supplied under the Statoil Purchase Agreement prior to the time such crude
oil is deemed to have been Delivered (as defined in the Statoil Purchase
Agreement as in effect on the Closing Date) to Giant Yorktown and
obligations in respect of such crude oil delivered are due and payable in
accordance with the terms of the Statoil Purchase Agreement as in effect on
the Closing Date. After the occurrence and during the continuance of a
Collateral Event, the Company and/or Giant Yorktown may prepay or secure by
letter of credit crude oil supplied under the Statoil Purchase Agreement to
the extent same is required by the terms of the Statoil Purchase Agreement
as in effect on the Closing Date, but the Company shall, and shall cause
Giant Yorktown to, use commercially reasonably efforts to obtain the
release by Statoil of all claims to, liens on and security interests in all
crude oil so prepaid or secured, by written release in form and substance
reasonably satisfactory to the Administrative Agent.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan, or (ii)
within two (2) Business Days after the same becomes due, any L/C Obligation
or any interest, fee or other amount payable hereunder or under any other
Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company or any Subsidiary made or deemed made herein, in
any other Loan Document, or which is contained in any certificate, document
or financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or
under any other Loan Document, is incorrect in any material respect on or
as of the date made or deemed made; or
(c) Specific Defaults. The Company (i) fails to perform or
observe any term, covenant or agreement contained in Section 7.02(a),
7.02(f), 7.03(a), 7.06, 7.14, 8.12, 8.13, or 8.14 or (ii) fails to perform
or observe any term, covenant or agreement contained in Article VIII (which
is not specified in the foregoing clause (c)(i)), and such default shall
continue unremedied for a period of 15 days after the occurrence thereof;
or
(d) Other Defaults. The Company or any Subsidiary fails to
perform or observe any other term or covenant contained in this Agreement
or any other Loan Document, and such default shall continue unremedied for
a period of 30 days after the earlier of (i) the date upon which a
Responsible Officer knew or reasonably should have known of such default or
(ii) the date upon which written notice thereof is given to the Company by
the Administrative Agent or any Lender; or
(e) Cross-Default.
(i) The Company or any Subsidiary (A) fails to make
any payment in respect of any Indebtedness or Contingent Obligation having
an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $10,000,000, or any Specified
Swap Contract (whatever the amount), when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or (B)
fails to perform or observe any other condition or covenant, or any other
event shall occur or condition exist, under any agreement or instrument
relating to any such Indebtedness or Contingent Obligation having an
aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $10,000,000, or any Specified
Swap Contract (whatever the amount), if the effect of such failure, event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness, Specified Swap Contract or Contingent Obligation to be
declared to be due and payable or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise), or an offer to repurchase, prepay,
defease or redeem to be made, prior to its stated maturity, or cash
collateral in respect thereof to be demanded; or (C) any Indebtedness or
Contingent Obligation of the Company or any Subsidiary in excess of
$10,000,000, or any Specified Swap Contract (whatever the amount), shall be
declared due and payable prior to its stated maturity or cash collateral is
demanded in respect of such Contingent Obligations or Specified Swap
Contracts; or
(ii) A "Default" or an "Event of Default" shall
occur under and as defined in the Statoil Purchase Agreement; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary (i) generally fails to pay, or admits in writing its inability
to pay, its debts as they become due, subject to applicable grace periods,
if any, whether at stated maturity or otherwise; (ii) commences any
Insolvency Proceeding with respect to itself; or (iii) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company or any
Material Subsidiary, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against all or a
substantial part of the Company's or any Material Subsidiary's properties,
and any such proceeding or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing
or levy; (ii) the Company or any Material Subsidiary admits the material
allegations of a petition against it in any Insolvency Proceeding, or an
order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company or any Material Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or
other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to
a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company or a Subsidiary under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an
aggregate amount in excess of $3,000,000 and such amount is not paid when
due; or (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans is in an aggregate amount and could reasonably be expected to
cause a Material Adverse Effect; or (iii) the Company or any ERISA
Affiliate fails to pay when due any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan
in an aggregate amount in excess of $3,000,000; or
(i) Monetary Judgments. One or more final judgments, final
orders, decrees or arbitration awards is entered against the Company or any
Subsidiary involving in the aggregate a liability (to the extent not
covered by independent third-party insurance as to which the insurer does
not dispute coverage) as to any single or related series of transactions,
incidents or conditions, of $10,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof; or
(j) Change of Control. There occurs any Change of Control;
or
(k) Loss of Permit. Any Governmental Authority revokes or
fails to renew any material license, permit or franchise of the Company or
any Material Subsidiary, or the Company or any Material Subsidiary for any
reason loses any material license, permit or franchise, or the Company or
any Material Subsidiary suffers the imposition of any restraining order,
escrow, suspension or impound of funds in connection with any proceeding
(judicial or administrative) with respect to any material license, permit
or franchise; or
(l) Adverse Change. There occurs a Material Adverse
Effect; or
(m) Guaranty Default. A Guaranty is for any reason
partially (including with respect to future advances) or wholly revoked or
invalidated, or otherwise ceases to be in full force and effect, or such
Guarantor or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at subsections (f) or (g) of
this Section occurs with respect to such Guarantor; or
(n) Invalidity of Subordination Provisions. The
subordination provisions of any of the Indentures or Subordinated Notes are
for any reason revoked or invalidated, the Trustee under either of the
Indentures, any successor trustee thereto or any other Person contests in
any material respect the validity or enforceability thereof, or the
Indebtedness hereunder does not have the priority contemplated by this
Agreement or the Indenture or such subordination provisions; or
(o) Prepayment of Subordinated Notes. If the Company or
any Subsidiary is required for any reason to prepay, redeem or purchase in
whole or in part any of the Subordinated Notes prior to the scheduled
maturity thereof; or
(p) Collateral.
(i) any provision of any Collateral Document shall for
any reason cease to be valid and binding on or enforceable against the
Company or any Subsidiary party thereto or the Company or any Subsidiary
shall so state in writing or bring an action to limit its obligations or
liabilities thereunder; or
(ii) any Collateral Document shall for any reason
(other than pursuant to the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby or such security
interest shall for any reason cease to be a perfected and first priority
security interest.
9.02 Remedies. If any Event of Default occurs and is continuing,
the Administrative Agent shall, at the request of, or may, with the consent
of, the Majority Lenders, do any or all of the following:
(a) declare the commitment of each Lender to make Loans and
any obligation of the Issuing Bank to issue Letters of Credit to be
terminated, whereupon such Commitments shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under
any outstanding Letters of Credit (whether or not any beneficiary shall
have presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of Credit) to be
immediately due and payable, and require that the Company deliver such
payments to the Administrative Agent to Cash Collateralize the L/C
Obligations;
(c) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing
or payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest, notice of intention to
accelerate, notice of acceleration or any other notice of any kind, all of
which are hereby expressly waived by the Company; and
(d) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of
an order for relief with respect to the Company under any Debtor Relief
Law, the obligation of each Lender to make Loans and any obligation of the
Issuing Bank to issue Letters of Credit shall automatically terminate and
without further act of the Administrative Agent, the Issuing Bank or any
Lender and without presentment, demand, protest, notice of intention to
accelerate, notice of acceleration or any other notice of any kind, all of
which are hereby expressly waived by the Company, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable and an amount equal to
the maximum aggregate amount that is or at any time thereafter may become
available for drawing under any outstanding Letters of Credit (whether or
not any beneficiary shall have presented, or shall be entitled at such time
to present, the drafts or other documents required to draw under such
Letters of Credit) shall automatically be due and payable and shall be
delivered to the Administrative Agent to be held as cash collateral for the
L/C Obligations and shall not be subject to or affected by any right of
setoff, counterclaim or recoupment which the Company may now or hereafter
have against any beneficiary, the Issuing Bank, or any other Person for any
reason whatsoever.
9.03 Application of Funds. After the exercise of remedies provided
for in Section 9.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section
9.02), any amounts received on account of the Obligations shall be applied
by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable
under Article IV payable to the Administrative Agent in its capacity as
such);
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal, interest, and
Letter of Credit Fees) payable to the Lenders and the Issuing Bank
(including fees, charges and disbursements of counsel to the respective
Lenders and the Issuing Bank and amounts payable under Article IV), ratably
among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting
accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C
Borrowings and other Obligations under the Loan Documents, ratably among
the Lenders and the Issuing Bank in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders
and the Issuing Bank in proportion to the respective amounts described in
this clause Fourth owed to them;
Fifth, to the Administrative Agent for the account of the Issuing
Bank, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit;
Sixth, to payment of unpaid Obligations then due under Specified Swap
Contracts, ratably among the Swap Providers in proportion to the respective
amounts described in this clause Sixth owed to them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
Subject to Section 3.01(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set
forth above.
9.04 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing
or hereafter arising.
ARTICLE X
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization.
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the Issuing Bank, and
neither the Company nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions.
10.02 Rights as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not
the Administrative Agent and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Company
or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to
the Lenders.
10.03 Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the
foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred
and is continuing;
(b) shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights
and powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in
writing by the Majority Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided, that the Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any
Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in
the other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company
or any of its Affiliates that is communicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Majority Lenders
(or such other number or percentage of the Lenders as shall be necessary,
or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02)
or (ii) in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any
Default or Event of Default unless and until notice describing such Default
or Event of Default is given to the Administrative Agent by the Company, a
Lender or the Issuing Bank.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occurrence of any
Default or Event of Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
10.04 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it
to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to
such Lender or the Issuing Bank unless the Administrative Agent shall have
received notice to the contrary from such Lender or the Issuing Bank prior
to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for
the Company), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts.
10.05 Delegation of Duties. The Administrative Agent may perform
any and all of its duties and exercise its rights and powers hereunder or
under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.
10.06 Resignation of Administrative Agent. The Administrative Agent
may at any time give notice of its resignation to the Lenders, the Issuing
Bank and the Company. Upon receipt of any such notice of resignation, the
Majority Lenders shall have the right, in consultation with the Company, to
appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent meeting the qualifications
set forth above; provided, that if the Administrative Agent shall notify
the Company and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents (except that in the case of any collateral security held by
the Administrative Agent on behalf of the Lenders or the Issuing Bank under
any of the Loan Documents, the retiring Administrative Agent shall continue
to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender and the Issuing Bank
directly, until such time as the Majority Lenders appoint a successor
Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section).
The fees payable by the Company to a successor Administrative Agent shall
be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 11.05 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as Issuing Bank and Swing
Line Lender. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring Issuing Bank and Swing Line Lender, (b) the retiring Issuing Bank
and Swing Line Lender shall be discharged from all of their respective
duties and obligations hereunder or under the other Loan Documents, and (c)
the successor Issuing Bank shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring Issuing
Bank to effectively assume the obligations of the retiring Issuing Bank
with respect to such Letters of Credit.
10.07 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender and the Issuing Bank acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender and the Issuing Bank also acknowledges
that it will, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.
10.08 No Other Duties, Etc.. Anything herein to the contrary
notwithstanding, none of "co-syndication agents," "documentation agent,"
"co-agents," "book managers," "lead managers," "arrangers," "lead
arrangers" or "co-arrangers" listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the Issuing Bank hereunder.
10.09 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Revolving Loan or L/C
Obligations shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Company) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Revolving Loans,
L/C Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Bank and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the Issuing Bank and the Administrative Agent
under Sections 2.09, 3.08, and 11.05) allowed in such judicial proceeding;
and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Lender and the Issuing Bank to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the
Issuing Bank, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 2.09 and 11.05.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender
or the Issuing Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
10.10 Collateral and Guaranty Matters. The Lenders and the Issuing
Bank irrevocably authorize and direct the Administrative Agent:
(a) to release any Lien on any property granted to or held
by the Administrative Agent under any Loan Document (i) upon termination of
the Commitments, payment in full of all Obligations (other than contingent
indemnification obligations), the expiration or termination of all Letters
of Credit, and, if any Specified Swap Contracts remain outstanding,
confirmation from each Swap Provider known to the Administrative Agent to
be party to such Swap Contracts that such Swap Provider consents to such
release, (ii) that is sold or to be sold as part of or in connection with
any sale permitted hereunder or under any other Loan Document, or (iii)
subject to Section 11.01, if approved, authorized or ratified in writing by
the Majority Lenders;
(b) to subordinate any Lien on any property granted to or
held by the Administrative Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 8.01(h); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Majority
Lenders will confirm in writing the Administrative Agent's authority to
release or subordinate its interest in particular types or items of
property, or to release any Guarantor from its obligations under the
Guaranty pursuant to this Sections 10.10.
10.11 Lender Hedging Agreements. To the extent any Lender or any
Affiliate of a Lender is a party to a Specified Swap Contract in accordance
with the requirements of the Loan Documents and accepts the benefits of the
Liens in the Collateral arising pursuant to the Collateral Documents, such
Lender (for itself and on behalf of any such Affiliates) shall be deemed
(a) to appoint Bank of America, as its nominee and agent, to act for and on
behalf of such Lender or Affiliate thereof in connection with the
Collateral Documents, and (b) to be bound by the terms of this Article X.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by the Company or any applicable Subsidiary
therefrom, shall be effective unless the same shall be in writing and
signed by the Majority Lenders (or by the Administrative Agent at the
written request of the Majority Lenders) and the Company and acknowledged
by the Administrative Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given; provided, however, that no such waiver, amendment, or consent
shall:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment of such Lender terminated pursuant to Section
9.02) without the written consent of such Lender;
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below) any fees or
other amounts payable hereunder or under any other Loan Document, without
the consent of each Lender directly affected thereby; provided, however,
that only the consent of the Majority Lenders shall be necessary (i) to
amend the definition of "Default Rate" or to waive any obligation of the
Company to pay interest or Letter of Credit Fees at the Default Rate or
(ii) to amend any financial covenant hereunder (or any defined term used
therein), even if the effect of such amendment would be to reduce the rate
of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the
Lenders or any of them to take any action hereunder without the written
consent of each Lender;
(e) amend this Section, or amend Section 9.03 in a manner
that would alter the pro rata sharing of payments required thereby without
the written consent of each Lender; or
(f) discharge any Guarantor, or, except as otherwise
provided in Section 10.10, release any material portion of the Collateral,
except as otherwise may be provided in the Collateral Documents or except
where the consent of the Majority Lenders only is specifically provided
for;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Bank in addition to the
Majority Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Issuing Bank under this Agreement or any L/C-Related
Document relating to any Letter of Credit issued or to be issued by it,
(ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Majority Lenders or all the
Lenders, as the case may be, affect the rights or duties of the Swing Line
Lender under this Agreement, (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Majority Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other
Loan Document, and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, only in a writing executed by the parties
thereto.
11.02 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and
except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and other
communications expressly permitted hereunder to be given by telephone shall
be made to the applicable telephone number, as follows:
(i) if to the Company, the Administrative Agent,
the Issuing Bank or the Swing Line Lender, to the address, telecopier
number, electronic mail address or telephone number specified for such
Person on Schedule 11.02; and
(ii) if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number specified in
its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
business day for the recipient). Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).
(b) Electronic Communications. Notices, reports not
requiring original signatures, and other communications to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant
to procedures approved by the Administrative Agent, provided that the
foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article II if such Lender or the Issuing Bank, as applicable,
has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative
Agent or the Company, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received
upon the sender's receipt of an acknowledgement from the intended recipient
(such as by the "return receipt requested" function, as available, return
e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the website address therefor.
(c) Change of Address, Etc. Each of the Company, the
Administrative Agent, the Issuing Bank and the Swing Line Lender may change
its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other
Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the Company, the
Administrative Agent, the Issuing Bank and the Swing Line Lender.
(d) Reliance by Administrative Agent, Issuing Bank and
Lenders. The Administrative Agent, the Issuing Bank and the Lenders shall
be entitled to rely and act upon any notices (including telephonic Notices
of Borrowing and Swing Line Loan Notices) purportedly given by or on behalf
of the Company even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Company shall
indemnify the Administrative Agent, the Issuing Bank, each Lender and the
Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the good faith reliance by such Person on each
notice purportedly given by or on behalf of the Company. All telephonic
notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording. In addition, each Lender agrees
to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(e) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM
THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION
WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the
"Agent Parties") have any liability to the Company, any Lender, the Issuing
Bank, or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out
of the Company's or the Administrative Agent's transmission of Borrower
Materials through the Internet, except to the extent that such losses,
claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent
Party; provided, however, that in no event shall any Agent Party have any
liability to the Company, any Lender, the Issuing Bank, or any other Person
for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).
11.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
11.04 [Reserved].
11.05 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the Issuing Bank (including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Bank), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder,
including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) Indemnification by the Company. The Company shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender
and the Issuing Bank, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold
each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Company or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder
or thereunder, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Administrative Agent (and any sub-agent
thereof) and its Related Parties, the administration of this Agreement and
the other Loan Documents, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Substances on or from any property owned
or operated by the Company or any of its Subsidiaries, or any Environmental
Claim or Environmental Damages related in any way to the Company or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory, whether brought by a third party or
by the Company or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, in all cases, whether or not caused by or
arising, in whole or in part, out of the comparative, contributory or sole
negligence of the Indemnitee; provided, that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Company or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Company or
such Loan Party has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the
Company for any reason fails to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), the Issuing Bank or any
Related Party of any of the foregoing, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), the Issuing Bank or
such Related Party, as the case may be, such Lender's Pro Rata Share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided, that the
unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against
the Administrative Agent (or any such sub-agent) or the Issuing Bank in its
capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Bank
in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(b).
(d) Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable law, the Company shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) No Indemnitee referred to in subsection (b) above shall
be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it, in a manner
consistent with its usual and customary practices, through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.
(f) Payments. All amounts due under this Section shall be
payable not later than ten (10) Business Days after demand therefor.
(g) Survival. The agreements in this Section shall survive
the resignation of the Administrative Agent and the Issuing Bank, the
replacement of any Lender, the termination of the aggregate Commitments and
the repayment, satisfaction or discharge of all the other Obligations.
11.06 Payments Set Aside. To the extent that the Company makes a
payment to the Administrative Agent or the Lenders, or the Administrative
Agent or the Lenders exercise their right of set-off, and such payment or
the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Administrative Agent.
11.07 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of
this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that the Company may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by
way of participation in accordance with the provisions of paragraph (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this paragraph (b),
participations in L/C Obligations and in Swing Line Loans) at the time
owing to it); provided that (i) except in the case of an assignment of the
entire remaining amount of the assigning Lender's Commitment, the Loans at
the time owing to it and the L/C Obligations, or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the
Loan of the assigning Lender subject to each such assignment, and L/C
Obligations (in each case determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or, if "Trade Date" is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000, unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company, otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such
minimum amount has been met); (ii) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loans, the
Commitment or the L/C Obligations assigned, except that this clause (ii)
shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Lender's Commitment must be approved by the Administrative
Agent, the Issuing Bank and the Swing Line Lender unless the Person that is
the proposed assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount, if any, required as set forth in Schedule
11.07, and if the Eligible Assignee is not a Lender, such Eligible Assignee
shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and,
in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 4.01, 4.04, 4.05, and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment).
Upon request, the Company (at its expense) shall execute and deliver a Note
to the assignee Lender. Upon request by the Company, the assigning Lender
shall return the Note, if any, executed by the Company in favor of such
assigning Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of
a participation in such rights and obligations in accordance with paragraph
(d) of this Section.
(c) Register. The Administrative Agent, acting solely for
this purpose as an agent of the Company, shall maintain at one of its
offices listed on Schedule 11.02 hereto a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amounts
of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Company, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Company at any reasonable time and from
time to time upon reasonable prior notice. In addition, at any time that a
request for a consent for a material or other substantive change to the
Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without
the consent of, or notice to, the Company or the Administrative Agent, sell
participations to any Person (other than a natural person or the Company or
any of the Company's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under this
Agreement, including all or a portion of its Commitment and/or the Loans
(including such Lender's participations in L/C Obligations and/or Swing
Line Loans) owing to it; provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (iii) the Company, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.01 that directly affects such
Participant; subject the benefits of Sections 4.01, 4.04 and 4.05 to the
same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits
of Section 11.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
(e) Limitation on Participant Rights. A Participant shall
not be entitled to receive any greater payment under Sections 4.01 or 4.04
than the applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Company's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 4.01 unless the Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 4.01(e) as
though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall
release such Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words
"execution," "signed," "signature," and words of like import in any
Assignment and Assumption shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may
be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.
(h) Resignation as Issuing Bank or Swing Line Lender after
Assignment. Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Commitment and Loans
pursuant to paragraph (b) above, Bank of America may, (i) upon 30 days'
notice to the Company and the Lenders, resign as Issuing Bank and/or (ii)
upon 30 days' notice to the Company, resign as Swing Line Lender. In the
event of any such resignation as Issuing Bank or Swing Line Lender, the
Company shall be entitled to appoint from among the Lenders a successor
Issuing Bank or Swing Line Lender hereunder; provided, however, that no
failure by the Company to appoint any such successor shall affect the
resignation of Bank of America as Issuing Bank or Swing Line Lender, as the
case may be. If Bank of America resigns as Issuing Bank, it shall retain
all the rights and obligations of the Issuing Bank hereunder with respect
to all Letters of Credit outstanding as of the effective date of its
resignation as Issuing Bank and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts under Letters of Credit
pursuant to Section 3.01(c) hereof). If Bank of America resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 3.03(c).
Upon the appointment of a successor Issuing Bank and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Issuing Bank or Swing
Line Lender, as the case may be, and (b) the successor Issuing Bank shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of
Bank of America with respect to such Letters of Credit.
11.08 Treatment of Certain Information; Confidentiality. Each of
the Administrative Agent, the Lenders, and the Issuing Bank agrees to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all Information (as hereinafter defined), and neither it
nor any of its Affiliates shall use any such information other than in
connection with or in enforcement of this Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than
as a result of disclosure by such Person, or (ii) was or becomes available
on a non-confidential basis from a source other than the Company, provided
that such source is not bound by a confidentiality agreement with the
Company known to such Person; provided, however, that such Person may
disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which such Person is subject or in
connection with an examination of such Person by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to
the extent reasonably required in connection with any litigation or
proceeding to which such Person may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under
any other Loan Document; (F) to such Person's independent auditors and
other professional advisors; (G) to any Affiliate of such Person, or to any
Participant or Eligible Assignee, actual or potential, or to any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Company or its Obligations, provided that such
Affiliate, Participant, Eligible Assignee or counterparty (or its advisors)
agrees to keep such information confidential to the same extent required
hereunder; (H) as to any such Person, as expressly permitted under the
terms of any other document or agreement regarding confidentiality to which
the Company is party or is deemed party with such Person; and (I) to any
nationally recognized rating agency or similar organization that requires
access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or
its Affiliates.
For purposes of this Section, "Information" means all information received
from the Company or any Subsidiary relating to the Company or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender, or
the Issuing Bank on a nonconfidential basis prior to disclosure by the
Company or any Subsidiary, provided that, in the case of information
received from the Company or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Each of the Administrative Agent, the Lenders, and the Issuing Bank
acknowledges that (a) the Information may include material non-public
information concerning the Company or a Subsidiary, as the case may be, (b)
it has developed compliance procedures regarding the use of material non-
public information and (c) it will handle such material non-public
information in accordance with applicable Law, including Federal and state
securities Laws.
11.09 Set-off. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have
been accelerated, each Lender is authorized at any time and from time to
time, without prior notice to the Company, any such notice being waived by
the Company to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of the Company against any
and all Obligations now or hereafter existing, irrespective of whether or
not the Administrative Agent or such Lender shall have made demand under
this Agreement or any Loan Document and although such Obligations may be
Contingent Obligations or unmatured. Each Lender agrees promptly to notify
the Company and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application.
11.10 Interest. It is the intention of the parties hereto to comply
with applicable usury laws; accordingly, notwithstanding any provision to
the contrary in this Agreement, the Notes or in any of the other Loan
Documents securing the payment hereof or otherwise relating hereto, in no
event shall this Agreement, the Notes or such other Loan Documents require
the payment or permit the payment, taking, reserving, receiving,
collection, or charging of any sums constituting interest under applicable
laws, if any, which exceed the maximum amount permitted by such laws. If
any such excess interest is called for, contracted for, charged, taken,
reserved, or received in connection with the Loans evidenced by the Notes
or in any of the Loan Documents securing the payment thereof or otherwise
relating thereto, or in any communication by the Administrative Agent or
the Lenders or any other person to the Company or any other person, or in
the event all or part of the principal or interest thereof shall be prepaid
or accelerated, so that under any of such circumstances or under any other
circumstance whatsoever the amount of interest contracted for, charged,
taken, reserved, or received on the amount of principal actually
outstanding from time to time under the Notes shall exceed the maximum
amount of interest permitted by applicable usury laws, then in any such
event it is agreed as follows: (i) the provisions of this paragraph shall
govern and control, (ii) neither the Company nor any other person or entity
now or hereafter liable for the payment of the Notes shall be obligated to
pay the amount of such interest to the extent such interest is in excess of
the maximum amount of interest permitted by applicable usury laws, (iii)
any such excess which is or has been received notwithstanding this
paragraph shall be credited against the then unpaid principal balance of
the Notes or, if the Notes have been or would be paid in full, refunded to
the Company, and (iv) the provisions of this Agreement, the Notes and the
other Loan Documents securing the payment hereof and otherwise relating
hereto, and any communication to the Company, shall immediately be deemed
reformed and such excess interest reduced, without the necessity of
executing any other document, to the maximum lawful rate allowed under
applicable laws as now or hereafter construed by courts having jurisdiction
hereof or thereof. Without limiting the foregoing, all calculations of the
rate of the interest contracted for, charged, taken, reserved, or received
in connection with the Notes or this Agreement which are made for the
purpose of determining whether such rate exceeds the maximum lawful rate
shall be made to the extent permitted by applicable laws by amortizing,
prorating, allocating and spreading during the period of the full term of
the Loans, including all prior and subsequent renewals and extensions, all
interest at any time contracted for, charged, taken, reserved, or received.
The terms of this paragraph shall be deemed to be incorporated in every
document and communication relating to the Notes, the Loans or any other
Loan Document.
11.11 Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law,
the Company agrees that in the event a payment shall be made by any
Guarantor under a Guaranty in respect of a Loan to the Company, the Company
shall indemnify such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been made to the extent of such payment subject to the
provisions of the Guaranty executed by such Guarantor. Notwithstanding any
provision of this Agreement to the contrary, all rights of the Guarantors
under this Section 11.11 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated
to the indefeasible payment in full of the Obligations, and no payments may
be made in respect of such rights of indemnity, contribution or subrogation
until all the Obligations have been paid in full, all Commitments have
expired and all Letters of Credit have expired. No failure on the part of
the Company to make the payments required by this Section (or any other
payments required under applicable law or otherwise) shall in any respect
limit the obligations and liabilities of any Guarantor with respect to any
Guaranty, and each Guarantor shall remain liable for the full amount of the
obligation of such Guarantor under each such Guaranty in accordance
therewith.
11.12 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, letter of credit fee or other fee, or any other cost or
expense (including Attorney Costs) due and payable to the Administrative
Agent, the Issuing Bank, Bank of America or the Arranger under the Loan
Documents, the Company hereby irrevocably authorizes Bank of America, after
giving reasonable prior notice to the Company, to debit any deposit account
of the Company with Bank of America in an amount such that the aggregate
amount debited from all such deposit accounts does not exceed such fee or
other cost or expense. If there are insufficient funds in such deposit
accounts to cover the amount of the fee or other cost or expense then due,
such debits will be reversed (in whole or in part, in Bank of America's
sole discretion) and such amount not debited shall be deemed to be unpaid.
No such debit under this Section shall be deemed a set-off.
11.13 Replacement of Lenders. If any Lender requests compensation
under Section 4.04, or if the Company is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 4.01, or if any Lender is a Defaulting Lender,
then the Company may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in, and consents required by, Section 11.07), all of
its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment),
provided, that:
(a) the Company shall have paid to the Administrative Agent
the assignment fee specified in Section 11.07(b);
(b) such Lender shall have received payment of an amount
equal to the outstanding principal of its Revolving Loans and L/C Advances,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder and under the other Loan Documents (including any amounts under
Section 4.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts);
(c) in the case of any such assignment resulting from a
claim for compensation under Section 4.04 or payments required to be made
pursuant to Section 4.01, such assignment will result in a reduction in
such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and
delegation cease to apply.
11.14 Notification of Addresses, Lending Offices, Etc. Each Lender
shall notify the Administrative Agent in writing of any changes in the
address to which notices to the Lender should be directed, of addresses of
any Lending Office, of payment instructions in respect of all payments to
be made to it hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
11.15 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.16 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
11.17 No Third Parties Benefited. This Agreement and the other Loan
Documents are made and entered into for the sole protection and legal
benefit of the Company, the Lenders, the Administrative Agent and the
Agent-Related Persons, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
11.18 GOVERNING LAW.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ITS CONFLICTS OF LAW RULES OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATION LAW) AND APPLICABLE FEDERAL LAW; AND THE
AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE LENDERS CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE
LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. THE COMPANY, THE AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, AND CONSENT TO THE SERVICE OF
PROCESS IN ANY SUCH LEGAL ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS
ADDRESS SET FORTH IN SCHEDULE 11.02, SUCH SERVICE TO BECOME EFFECTIVE TEN
DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
EACH OF THE COMPANY AND EACH GUARANTOR, BY ITS EXECUTION OF A GUARANTY,
HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM, WITH AN ADDRESS AT 111
EIGHTH AVENUE, 13TH FLOOR, NEW YORK, NEW YORK 10011 (THE "NEW YORK PROCESS
AGENT") AS PROCESS AGENT IN ITS NAME, PLACE AND STEAD TO RECEIVE AND
FORWARD SERVICE OF ANY AND ALL WRITS, SUMMONSES AND OTHER LEGAL PROCESS IN
ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF NEW YORK, AGREES
THAT SUCH SERVICE IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE UPON
THE NEW YORK PROCESS AGENT, AND AGREES TO TAKE ALL SUCH ACTION AS MAY BE
NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT.
11.19 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.20 Assignment of Existing Loans. Those Lenders who are parties
to the Existing Credit Agreement hereby assign to the Lenders who are
signatories hereto the indebtedness owed to them under the Existing Credit
Agreement in such amounts so that on the effective date of this Agreement
all Lenders who are signatories hereto have Commitments and rights and
obligations in respect of Loans and L/C Obligations equal to the Pro Rata
Shares that are set forth on Schedule 2.01. On the Closing Date, the
Lenders shall make cash settlement with each either directly or through the
Administrative Agent, as the Administrative Agent may direct or approve,
with respect to all assignments and reallocations as reflected in this
Section. The Company agrees to pay any loss, cost or expense incurred by
the Lenders who are parties to the Existing Credit Agreement as a result of
payments received pursuant to the reallocations and assignments herein
referenced, in accordance with Section 4.05 of the Agreement.
11.21 Restatement of Existing Credit Agreement. The parties hereto
agree that, on the Closing Date: (a) the Obligations (as defined in this
Agreement) represent, among other things, the restatement, renewal,
amendment, extension, and modification of the "Obligations" (as defined in
the Existing Credit Agreement); (b) this Agreement is intended to, and does
hereby, restate, renew, extend, amend, modify, supersede, and replace the
Existing Credit Agreement in its entirety; (c) the Notes, if any, executed
pursuant to this Agreement amend, renew, extend, modify, replace, restate,
substitute for, and supersede in their entirety (but do not extinguish the
Indebtedness arising under) the promissory notes issued pursuant to the
Existing Credit Agreement, which existing promissory notes shall be
returned to Administrative Agent promptly after the Closing Date, marked
"renewed and replaced"; (d) the confirmation of Security Agreements
executed pursuant to this Agreement ratifies and confirms (but does not
extinguish or impair the collateral security created or evidenced by) the
Security Agreements executed and delivered by the Debtors named therein
pursuant to the Existing Credit Agreement; (e) the confirmation of
Guaranties executed pursuant to this Agreement ratifies and confirms (but
does not extinguish or impair) guaranteed by any Guaranty executed and
delivered pursuant to the Existing Credit Agreement; and (f) the entering
into and performance of their respective obligations under the Loan
Documents and the transactions evidenced hereby do not constitute a
novation nor shall they be deemed to have terminated, extinguished, or
discharged the "Indebtedness" under the Existing Credit Agreement, the
Collateral Documents, the Guaranties, or the other Loan Documents (or the
collateral security therefor), all of which Indebtedness and Collateral
shall continue under and be governed by this Agreement and the other Loan
Documents, except as expressly provided otherwise herein.
11.22 Designation of Senior Debt. All Obligations shall be
"Designated Senior Indebtedness" for purposes of and as defined in the
Indentures and all supplemental indentures thereto.
11.23 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will
be relied upon by the Administrative Agent, the Issuing Bank and each
Lender, regardless of any investigation made by the Administrative Agent,
the Issuing Bank or any Lender or on their behalf and notwithstanding that
the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default at the time of the making of any Loan or
issuance of Letter of Credit, and shall continue in full force and effect
as long as any Loan or any other Obligation hereunder shall remain unpaid
or unsatisfied or any Letter of Credit shall remain outstanding.
11.24 USA PATRIOT Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Company that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Company, which
information includes the name and address of the Company and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Company in accordance with the Act.
11.25 Existing Loans and Letters of Credit. As of the Closing Date,
each Existing Lender shall be deemed to have assigned, without recourse, to
the New Lenders such portion of such Existing Lender's Loans and L/C
Obligations such that the Pro Rata Share of each Lender (including each
Existing Lender and each New Lender) shall be as set forth on Schedule
2.01. The parties hereto consent to all reallocations and assignments of
Commitments and Effective Amounts effected pursuant to this Agreement, and
agree that such reallocations and assignments shall be deemed effective as
if such reallocations and assignments were evidenced by an Assignment and
Assumption in the form attached as Exhibit E. On the Closing Date, the New
Lenders and Existing Lenders shall make full cash settlement with each
other either directly or through the Administrative Agent, as the
Administrative Agent may direct or approve, with respect to all assignments
and reallocations as reflected in this Section such that after giving
effect to such settlement each Lender's (including each Existing Lender's
and each New Lender's) Pro Rata Share of the Commitments equals (with
customary rounding) its Pro Rata Share as reflected on Schedule 2.01 of (a)
the Effective Amount of all Loans, and (b) the Effective Amount of all L/C
Obligations.
11.26 Entire Agreement. This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among the
Company, the Lenders and the Administrative Agent, and supersedes all prior
or contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER WRITTEN LOAN
DOCUMENTS EXECUTED IN CONNECTION HEREWITH, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
GIANT INDUSTRIES, INC.
By: /s/ MARK B. COX
------------------------------
Name: Mark B. Cox
Title: Executive Vice President and CFO
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ CLAIRE LIU
------------------------------
Clair Liu
Senior Vice President
BANK OF AMERICA, N.A.,
as a Lender, Issuing Bank and
Swing Line Lender
By: /s/ CLAIRE LIU
------------------------------
Clair Liu
Senior Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
BNP PARIBAS, as a Lender
By: /s/ MARK A. COX
------------------------------
Name: Mark A. Cox
Title: Director
By: /s/ GREG SMOTHERS
------------------------------
Name: Greg Smothers
Title: Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
UBS LOAN FINANCE LLC, as a Lender
By: /s/ WINRED V. SAINT
------------------------------
Name: Winred V. Saint
Title: Director
Banking Products
Services, US
By: /s/ DORIS MESA
------------------------------
Name: Doris Mesa
Title: Associate Director
Banking Products
Services, US
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
WELLS FARGO BANK, N.A., as a Lender
By: /s/ ART KRASNY
------------------------------
Name: Art Krasny
Title: Relationship Manager
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
BANK OF SCOTLAND, as a Lender
By: /s/ AMENA NABI
------------------------------
Name: Amena Nabi
Title: Assistant Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
COMERICA BANK, as a Lender
By: /s/ T. CARTER WADDELL
------------------------------
Name: T. Carter Waddell
Title: Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
FORTIS CAPITAL CORP, as a Lender
By: /s/ CASEY LOWARY
------------------------------
Name: Casey Lowary
Title: Senior Vice President
By: /s/ DARRELL HOLLEY
------------------------------
Name: Darrell Holley
Title: Managing Director
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ MARC MUEHLEMANN
------------------------------
Name: Marc Muehlemann
Title: V.P.
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
RZB FINANCE LLC, as a Lender
By: /s/ JOHN A. VALISKA
------------------------------
Name: John A. Valiska
Title: First Vice President
By: /s/ JUAN M. CSILLAG
------------------------------
Name: Juan M. Csillag
Title: Group Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ NANCY G. MORAGAS
------------------------------
Name: Nancy G. Moragas
Title: Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
NATEXIS BANQUES POPULAIRES,
as a Lender
By: /s/ DANIEL PAYER
------------------------------
Name: Daniel Payer
Title: Vice President
By: /s/ LOUIS P. LAVILLE, III
------------------------------
Name: Louis P. Laville, III
Title: Vice President and
Group Manager
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ KATHRYN A. GAITER
------------------------------
Name: Kathryn A. Gaiter
Title: Vice President
Signature Page to Giant Industries, Inc.
Fourth Amended and Restated Credit Agreement