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EXHIBIT 4
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of April 4, 2001 (this AMENDMENT NO. 2) between: XXXXX
CORPORATION, NAVAJO REFINING COMPANY, BLACK EAGLE, INC., NAVAJO CORP., NAVAJO
SOUTHERN, INC., NAVAJO NORTHERN, INC., LOREFCO, INC., NAVAJO CRUDE OIL
PURCHASING, INC., NAVAJO HOLDINGS, INC., XXXXX PETROLEUM, INC., NAVAJO PIPELINE
CO., 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 (including, without limitation, the New Bank referred to
below), 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 (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) Hibernia National Bank (the NEW BANK) wishes to become a party to the
Credit Agreement, as amended hereby, as a Bank thereunder with a
Commitment equal to the amount set forth opposite its name on the
signature pages hereof.
(C) X.X. Xxxxxx Xxxxx & Co. wishes to terminate its Commitments and is
executing this Amendment No. 2 solely for purposes of obtaining the
acknowledgement of the Borrowers of such termination and to evidence
such termination.
(D) The parties hereto wish to amend the Credit Agreement, and accordingly,
the parties hereto hereby agree as follows:
DEFINITIONS
1. Except as otherwise defined in this Amendment No. 2, 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.
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A. All references in the Credit Agreement to Fleet National Bank as
"Collateral Monitor" are deleted and replaced with a reference to
Guaranty Business Credit Corporation as "Collateral Monitor".
B. The definition of "Borrowing Base" in Section 1.1 of the Credit
Agreement is amended by: (i) deleting reference to "80% of Eligible
Inventory" and replacing it with "60% of Eligible Inventory" and (ii)
deleting reference to "60% of the Borrowing Base" and replacing it with
"50% of the Borrowing Base".
C. The reference to "FLEET NATIONAL BANK" in the definition of "Collateral
Monitor" in Section 1.1 of the Credit Agreement is deleted and replaced
with "GUARANTY BUSINESS CREDIT CORPORATION".
D. The reference to "120 days" in the definition of "Eligible Inventory"
in Section 1.1 of the Credit Agreement is deleted and replaced with
"55 days" and ", Montana" is added to such definition after the phrase
"States of Texas, Kansas" and before "and Wyoming or any other
applicable jurisdiction".
E. The definition of "Eligible Product in Transit" is amended by adding
", Montana" to such definition after the phrase "States of Texas,
Kansas" and before the phrase "and Wyoming or any other applicable
jurisdiction".
F. The definition of "Termination Date" in Section 1.1 of the Credit
Agreement is deleted in its entirety and replaced with:
"TERMINATION DATE means (i) if there is a Satisfactory Resolution in
respect of the Longhorn Partners Pipeline Litigation prior to October
10, 2002, October 10, 2003 and (ii) if there is not a Satisfactory
Resolution in respect of the Longhorn Partners Pipeline Litigation
prior to October 10, 2002, October 10, 2002 or, if such Termination
Date is not a Euro-Dollar Business Day, the next preceding Euro-Dollar
Business Day."
G. The following new definitions are added in alphabetical order in
Section 1.1 of the Credit Agreement as follows:
"BASE RATE MARGIN means a rate per annum determined daily in accordance
with the Pricing Schedule."
"STATUTORY LIENS has the meaning specified in Section 5.11(g)".
H. Section 2.6(a) of the Credit Agreement is amended by adding "plus the
Base Rate Margin" at the end of the first sentence thereof.
I. The last sentence of sentence 5.13 of the Credit Agreement is deleted
in its entirety and replaced as follows:
"The Company and its Subsidiaries shall not use the proceeds of the
Loans made or Letters of Credit issued under this Agreement for the
purchase of the Company's common stock".
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J. Section 5.1(e) of the Credit Agreement is amended by: (i) changing the
number "46" to "35" and (ii) changing the number "60" to "49".
K. Section 5.11(g) of the Credit Agreement is amended by inserting, "(the
Liens described in this clause 5.11(g) are hereinafter referred to as
STATUTORY LIENS)" before the semicolon at the end of the Section.
L. Section 6.1 of the Credit Agreement is amended by: (i) deleting the
word "or" at the end of Section 6.1(m), (ii) adding the word "or" at
the end of Section 6.1(n) and (iii) adding the following after Section
6.1(n):
"(o) any Person seeks to enforce a Statutory Lien for amounts owed in
excess of $2,500,000 and such enforcement is not stayed within 10 days
of the commencement thereof".
M. Section 7.3 of the Credit Agreement is amended by adding the following
at the end thereof:
"Notwithstanding any provision in this Agreement or any of the other
Financing Documents to the contrary, any Agent may delegate any of its
obligations hereunder to any of its affiliates."
N. Each of the lenders that is a signatory hereto identified under the
caption "BANKS" on the signature pages hereto shall be deemed to be, as
of the date hereof, a Bank under and for all purposes of the Credit
Agreement, as amended hereby, and each reference therein to "Bank"
shall be deemed to include the New Bank. The lender which is identified
under the caption "EXITING BANK" on the signature pages hereto shall,
as of the date hereof, cease to be a Bank (an EXITING BANK) under and
for all purposes of the Credit Agreement, as amended hereby, upon the
payment in full by the Borrowers of all Loans, Letters of Credit, and
all other fees, expenses and indemnities owing, by the Borrowers to
such Banks and each Exiting Bank shall have its Commitment reduced to
zero and cease to have any liabilities or obligations hereunder or
under the Credit Agreement.
REPRESENTATIONS AND WARRANTIES
3. Each of the Borrowers 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. 2.
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 the
satisfaction of the following conditions precedent:
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A. DOCUMENTS. The Administrative Agent shall have received the following
documents, each of which shall be satisfactory to the Administrative
Agent in form and substance:
(1) Amendment No. 2. This Amendment No. 2 executed by each of the
parties hereto.
(2) Obligor Corporate Documents. A certificate of the Secretary or
Assistant Secretary of each Obligor (A) that since April 14, 2000,
there have been no changes to the charter and by-laws (or equivalent
documents) of such Obligor and (B) as to all corporate authority for
such Obligor (including, without limitation, board of director
resolutions and evidence of the incumbency of officers) with respect to
the execution, delivery and performance of this Amendment No. 2 and the
Credit Agreement as amended hereby and the extensions of credit under
the Credit Agreement as amended hereby.
(3) Opinions of Counsel to the Obligors. (i) An opinion, dated the date
hereof, of Xxxxxx & Xxxx, L.L.P., special counsel to each of the
Obligors, restating opinions 1, 2, 3, 5 and 7 of their opinion
delivered in connection with the original closing of the Credit
Agreement (in each case modified to include this Amendment No. 2) and
covering such other matters as any Agent or any Bank may reasonably
request (and the Company hereby instructs such counsel to deliver such
opinion to the Banks and the Agents), and (ii) an opinion, dated the
date hereof, of the General Counsel of Xxxxx Corporation restating the
opinion delivered in connection with the original closing of the Credit
Agreement (modified to include this Amendment No. 2) and covering such
other matters as any Agent or any Bank may reasonably request (and the
Company hereby instructs such General Counsel to deliver such opinion
to the Banks and the Agents).
(4) Other Documents. Such other documents as (i) any Agent or Bank or
(ii) Freshfields Bruckhaus Xxxxxxxx L.L.P., special New York counsel to
the Administrative Agent, may reasonably request.
B. PAYMENT OF FEES. Evidence that the arrangement fee and participation fee
described in the letter dated February 21, 2001 from CIBC World Markets, Inc. to
Xxxxx Corporation have been paid.
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. 2 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. 2.
MISCELLANEOUS
6. Except as herein provided, the Credit Agreement shall remain unchanged and in
full force and effect. This Amendment No. 2 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
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hereto may execute this Amendment No. 2 by signing any such counterpart. This
Amendment No. 2 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. 2 to be
duly executed and delivered as of the day and year first above written.
XXXXX CORPORATION
By
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Title:
NAVAJO REFINING COMPANY
BLACK EAGLE, INC.
NAVAJO CORP.
NAVAJO SOUTHERN, INC.
NAVAJO NORTHERN, INC.
LOREFCO, INC.
NAVAJO CRUDE OIL PURCHASING, INC.
NAVAJO HOLDINGS, INC.
XXXXX PETROLEUM, INC.
NAVAJO PIPELINE CO.
LEA REFINING COMPANY
NAVAJO WESTERN ASPHALT COMPANY
By
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Title:
MONTANA REFINING COMPANY, A PARTNERSHIP
By Navajo Northern, Inc., its General Partner
By
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Title:
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CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent
By
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Title:
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CIBC INC., as Collateral Agent,
By
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Title:
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FLEET NATIONAL BANK, as Documentation Agent
By
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Title:
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GUARANTY BUSINESS CREDIT CORPORATION, as Collateral Monitor
By
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Title:
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CIBC WORLD MARKETS CORP., as Sole Lead Arranger and Bookrunner
By
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Title:
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BANKS
CANADIAN IMPERIAL BANK OF COMMERCE
By
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Title:
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FLEET NATIONAL BANK
By
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Title:
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GUARANTY BUSINESS CREDIT CORPORATION
By
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Title:
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00
XXX XXXX XX XXXX XXXXXX
By
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Title:
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NATIONAL BANK OF CANADA
By
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Title:
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HIBERNIA NATIONAL BANK
By
---------------------------- $10,000,000
Title:
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EXITING BANK
X.X. XXXXXX XXXXX & CO. (formerly XXXXXX GUARANTEE TRUST COMPANY OF NEW YORK)
By
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Title:
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