EXHIBIT 10.22
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of August 8, 2002 (this AMENDMENT NO. 6) 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, MONTANA REFINING COMPANY, A
PARTNERSHIP as Borrowers and Guarantors, NAVAJO PIPELINE LP, L.L.C, NAVAJO
PIPELINE GP, L.L.C., NAVAJO REFINING LP, L.L.C., NAVAJO REFINING GP, L.L.C.,
HOLLYCORP AVIATION, L.L.C. and MONTANA RETAIL CORPORATION as 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 BANK, 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, Amendment
No. 4 dated as of September 26, 2001 and Amendment No. 5 dated as of
May 6, 2002 (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 to extend the maturity date of the credit facility established
under the Credit Agreement.
(C) The Bank of Nova Scotia wishes to terminate its Commitments and is
executing this Amendment No. 6 solely for purposes of obtaining the
acknowledgement of the Borrowers of such termination and to evidence
such termination.
(D) 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. 6, terms defined in the
Credit Agreement are used herein as defined therein.
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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. The definition of "Termination Date" in Section 1.1 of the Credit
Agreement is deleted in its entirety and replaced with the following:
"TERMINATION DATE means (i) if there is a Satisfactory Resolution in
respect of the Longhorn Partners Pipeline Litigation prior to October
10, 2003, October 10, 2004 and (ii) if there is not a Satisfactory
Resolution in respect of the Longhorn Partners Pipeline Litigation
prior to October 10, 2003, October 10, 2003 or, if such Termination
Date is not a Euro-Dollar Business Day, the next preceding Euro-Dollar
Business Day."
B. Section 5.8 of the Credit Agreement amended by (i) deleting the
reference to "$115,000,000" and replacing such reference with
"$190,000,000", (ii) deleting the phrase "ended after January 31, 2000"
in clause (ii) thereof and replacing such phrase with the phrase
"beginning with the quarter ending July 31, 2002" and (iii) deleting
the reference to "January 31, 2000" in clause (iii) thereof and
replacing such reference with "July 31, 2002".
C. Section 5.15 of the Credit Agreement is amended by deleting the
reference to "$7,000,000" in clause (i) of the second sentence thereof
and replacing such reference with "$10,000,000".
D. 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. 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 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 Bank 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 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. 6.
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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:
(a) the receipt of the Administrative Agent of this Amendment No.
6, executed by each Borrower and Guarantor, each Agent and the
Required Banks;
(b) the receipt by each Bank of an amendment fee equal to 0.50% of
each Bank's Commitment as of the date hereof;
(c) the receipt by the Administrative Agent of a certificate of
the Secretary or Assistant Secretary of each Obligor (i)
certifying that since April 14, 2001 there have been no
changes to the charter and by-laws (or equivalent documents)
of such Obligor and (ii) as to all corporate authority (or
equivalent 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. 6 and the
Credit Agreement as amended hereby and the extensions of
credit as amended hereby; and
(d) (i) An opinion, dated the date hereof, of Xxxxxx & Xxxxxx
L.L.P., special counsel to the Obligors, restating opinions 1,
5 and 7 of the opinion delivered by Xxxxxx & Xxxx, L.L.P. in
connection with the original closing of the Credit Agreement
(in each case modified to include this Amendment No. 6) 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. 6) 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).
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. 6 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. 6.
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APPOINTMENT OF COLLATERAL MONITOR
6. Pursuant to Section 7.8 of the Credit Agreement, each Bank hereby appoints
Guaranty Bank as Collateral Monitor, and Guaranty Bank hereby accepts such
appointment. Guaranty Business Credit Corporation (the RETIRING AGENT) is hereby
discharged from all its duties and obligations under the Credit Agreement, and
the newly appointed Collateral Monitor shall succeed to and become vested with
all the rights and duties of the Retiring Agent.
MISCELLANEOUS
7. Except as herein provided, the Credit Agreement shall remain unchanged and in
full force and effect This Amendment No. 6 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. 6 by signing any such counterpart. This Amendment No. 6 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. 6 to be
duly executed and delivered as of the day and year first above written.
XXXXX CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------
Name: 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
NAVAJO PIPELINE GP, L.L.C.
NAVAJO REFINING GP, L.L.C.
HOLLYCORP AVIATION, L.L.C.
MONTANA RETAIL CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------
Name: 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
-----------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and Chief Financial Officer
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NAVAJO REFINING LP, L.L.C.
NAVAJO PIPELINE LP, L.L.C.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent
By: /s/ XXXXXXXX XXXX
-----------------------------
Name: XXXXXXXX XXXX
Title: AUTHORIZED SIGNATORY
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CIBC INC., as Collateral Agent,
By: /s/ XXXXXXXX XXXX
-----------------------------
Name: XXXXXXXX XXXX
Title: AUTHORIZED SIGNATORY
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FLEET NATIONAL BANK, as Documentation Agent
By: /s/ XXXXXXXXXXX X. XXXXXXXX
-----------------------------
Name: XXXXXXXXXXX X. XXXXXXXX
Title: MANANGING DIRECTOR
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GUARANTY BANK, as Collateral Monitor
By: /s/ XXX X. XXXXXXXX
-----------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
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CIBC WORLD MARKETS CORP., as Sole Lead Arranger and Bookrunner
By: /s/ XXXXXXXX XXXX
-----------------------------
Name: XXXXXXXX XXXX
Title: AUTHORIZED SIGNATORY
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BANKS
CANADIAN IMPERIAL BANK OP COMMERCE
By: /s/ XXXXXXXX XXXX
-----------------------------
Name: XXXXXXXX XXXX
Title: AUTHORIZED SIGNATORY
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FLEET NATIONAL BANK
By: /s/ XXXXXXXXXXX X. XXXXXXXX
-----------------------------
Name: XXXXXXXXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
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GUARANTY BANK
By: /s/ XXX X. XXXXXXXX
-----------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXX XXXXX
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
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HIBERNIA NATIONAL BANK
By: /s/ XXXXXX XXXXXX
-----------------------------
Title: Assistant Vice President
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XXXXXXX XXXX
XXX XXXX XX XXXX XXXXXX
By: /s/ XXXXXX XXXX
------------------------------
Title: Xxxxxx Xxxx, Senior Manager
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