EXHIBIT 10.21
AMENDMENT NO. 5 AND CONSENT
AMENDMENT NO. 5 AND CONSENT dated as of May 6, 2002 (this AMENDMENT NO. 5)
between: XXXXX CORPORATION, NAVAJO REFINING COMPANY, L.P., BLACK EAGLE, INC.,
NAVAJO SOUTHERN, INC., NAVAJO NORTHERN, INC., LOREFCO, INC., NAVAJO CRUDE OIL
PURCHASING, INC., NAVAJO HOLDINGS, INC., XXXXX PETROLEUM, INC., NAVAJO PIPELINE
CO, L.P., LEA REFINING COMPANY, NAVAJO WESTERN ASPHALT COMPANY, and MONTANA
REFINING COMPANY, A PARTNERSHIP, as Borrowers and Guarantors, the BANKS listed
on the signature pages hereof, CANADIAN IMPERIAL BANK OF COMMERCE, as
Administrative Agent, CIBC INC. as Collateral Agent, FLEET NATIONAL BANK
(formerly known as Bank Boston Corp.), as Documentation Agent, GUARANTY BUSINESS
CREDIT CORPORATION, as Collateral Monitor, and CIBC WORLD MARKETS CORP, as Sole
Lead Arranger and Bookrunner.
WHEREAS
(A) The parties hereto are party to an Amended and Restated Credit and
Reimbursement Agreement dated as of April 14, 2000, as amended by
Amendment No. 1 dated as of July 7, 2000, Amendment No. 2 dated as of
April 4, 2001, Amendment No. 3 dated as of August 7, 2001 and Amendment
No. 4 dated as of September 26, 2001 (as in effect on the date hereof,
the CREDIT AGREEMENT), providing, subject to the terms and conditions
thereof, for extensions of credit to be made by the Banks to the
Borrowers in an aggregate principal or face amount not exceeding
$100,000,000.
(B) The Borrowers and the Guarantors wish to amend the Credit Agreement in
order for Xxxxx Corporation to be able to make certain additional
Investments.
(C) The Banks and Agents agree to amend the Credit Agreement in accordance
with the provisions contained herein, and accordingly, the parties
hereto hereby agree as follows:
DEFINITIONS
1. Except as otherwise defined in this Amendment No. 5, terms defined in the
Credit Agreement are used herein as defined therein.
AMENDMENTS
2. Subject to the satisfaction of the conditions precedent set forth in Section
4 below, the Credit Agreement shall be amended as follows effective on the date
hereof.
A. Section 5.7 of the Credit Agreement is amended by:
(i) adding the following at the end of clause (b) thereof
";provided (i) that such Unrestricted Subsidiary shall be
organized in a state of the United
States and all or substantially all of the assets of such
Unrestricted Subsidiary shall be located in the United States
(a DOMESTIC INVESTMENT) and (ii) that the aggregate of all
such Investments and the Investments specified in clause (f)
below shall not exceed $50,000,000";
(ii) adding "(i)" at the beginning of clause (c) thereof and adding
the following at the end of clause (c) thereof ";provided that
for the purposes of this Section 5.7 only, First Tier Cash
Equivalents, Second Tier Cash Equivalents and Third Tier Cash
Equivalents need not be included in the Borrowing Base (and
shall not be included in the Borrowing Base unless the Secured
Party has a perfected, first priority security interest
therein) or subject to a perfected first priority security
interest of the Secured Party in order to qualify as permitted
Investments hereunder and (ii) Investments in instruments
rated not less than "A-" or better by Standard & Poor's Rating
Services or "A3" or better by Xxxxx'x Investor Service, Inc.,
that mature within five years of the date of acquisition by or
on behalf of the Company or any Subsidiary; provided that the
Investments described in this clause (ii),
(a) together with the Investments described in clause (i)
above, shall have, taken as a whole, a maximum
average duration of not greater than 1 year;
(b) shall be denominated solely in U.S. Dollars;
(c) other than marketable direct or guaranteed
obligations of the United States of America or any
agency thereof, together with the Investments
described in clause (i) above, shall not in the
aggregate consist of more than 10% of such
Investments in any one obligor and not more than 7%
of such Investments in any single issuance from any
obligor;
(d) together with the Investments described in clause (i)
above, shall have, taken as a whole, no single
industry constituting greater than 25% of such
Investments; and
(e) together with the Investments described in clause (i)
above, shall have not more than 20% of the
Investments, taken as a whole, be "asset-backed" or
similar securities (and no more than 2% of such
Investments shall be in any single issue of such
asset-backed securities);"
(iii) deleting the reference to "$25,000,000" in clause (f) thereof
and replacing such reference with "$50,000,000"; and
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(iv) adding the following at the end of clause (f) thereof";
provided, further (x) such Refinery Investment shall be a
Domestic Investment and (y) that the aggregate of all such
Investments and the Investments specified in clause (b) above
shall not exceed $50,000,000".
B. Section 5.15 of the Credit Agreement is amended by deleting the phrase,
"and Restricted Investments made or acquired" in clause (ii) of the
first sentence thereof.
REPRESENTATIONS AND WARRANTIES
3. Each of the Borrowers and the Guarantors represents and warrants to the Banks
and the Agents that (unless specifically limited to an earlier date) the
representations and warranties set forth in Section 4 of the Credit Agreement
are true and complete on and as of the date hereof with the same force and
effect as if made on and as of such date, and as if each reference in said
Section 4 to "this Agreement" included reference to this Amendment No. 5.
CONDITIONS PRECEDENT
4. As provided in Section 2, the amendments to the Credit Agreement set forth in
said Section 2 shall become effective, as of the date hereof, upon (i) the
receipt of the Administrative Agent of this Amendment No. 5, executed by each
Borrower and Guarantor, each Agent and the Required Banks and (ii) the filing of
such financing statements in the State of Delaware (and any other jurisdictions
required to maintain the perfection and priority of the Secured Party's Lien on
the assets of such entities) to reflect the conversion of each of Navajo
Refining Company, L.P. and Navajo Pipeline Co., L.P. from a corporation to a
limited partnership.
ACKNOWLEDGEMENT OF OBLIGORS
5. Each Obligor hereby (a) agrees that each reference to the Credit Agreement
and words of similar import in each Financing Document to which such Obligor is
party shall be a reference to the Credit Agreement as amended by this Amendment
No. 5 and (b) confirms that its obligations under each Financing Document to
which it is party remain in full force and effect after giving effect to the
amendment of the Credit Agreement by this Amendment No. 5.
MISCELLANEOUS
6. Except as herein provided, the Credit Agreement shall remain unchanged and in
full force and effect. This Amendment No. 5 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 5 by signing any such counterpart. This Amendment No. 5 shall be governed
by, and construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to be
duly executed and delivered as of the day and year first above written.
XXXXX CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------------------
Title: Vice President and Chief Financial Officer
NAVAJO REFINING COMPANY, L.P.
BLACK EAGLE, INC.
NAVAJO SOUTHERN, INC.
NAVAJO NORTHERN, INC.
LOREFCO, INC.
NAVAJO CRUDE OIL PURCHASING, INC.
NAVAJO HOLDINGS, INC.
XXXXX PETROLEUM, INC.
NAVAJO PIPELINE CO., X.X.
XXX REFINING COMPANY
NAVAJO WESTERN ASPHALT COMPANY
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------------------
Title: Vice President and Chief Financial Officer
MONTANA REFINING COMPANY, A PARTNERSHIP
By Navajo Northern, Inc., its General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------------------
Title: Vice President and Chief Financial Officer
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CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent
By: /s/ Xxxxxx Xxxxxx
-------------------------
Title: Authorized Signatory
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CIBC INC., as Collateral Agent,
By: /s/ Xxxxxx Xxxxxx
-------------------------
Title: Authorized Signatory
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FLEET NATIONAL BANK, as Documentation Agent
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------------
Title: Managing Director
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GUARANTY BUSINESS CREDIT CORPORATION, as Collateral Monitor
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
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CIBC WORLD MARKETS CORP., as Sole Lead Arranger and Bookrunner
By: /s/ Xxxxxx Xxxxxx
-------------------------
Title: Authorized Signatory
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BANKS
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxx Xxxxxx
----------------------------
Title: Authorized Signatory
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FLEET NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
------------------------------
Title: Managing Director
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GUARANTY BUSINESS CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Senior Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ X. Xxxx
-------------------------
Title: Senior Manager
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PNC BUSINESS CREDIT
By: /s/ Xxxx Xxxxx
-------------------------
Title: Vice President
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HIBERNIA NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Title: Vice President
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