Among
Delek Marketing & Supply, LP,
as Borrower,
Various Lenders
From Time to Time Party Hereto
and
Fifth Third Bank, an Ohio banking corporation,
as Administrative Agent and L/C Issuer
Dated as of December 19, 2007
Fifth Third Bank, as Lead Arranger and Sole Book Runner
Table of Contents
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Section 1. Definitions; Interpretation |
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1 |
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Section 1.1. Definitions |
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1 |
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Section 1.2. Interpretation |
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18 |
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Section 1.3. Change in Accounting Principles |
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18 |
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Section 2. The Credit Facilities |
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18 |
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Section 2.1. Commitments |
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18 |
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Section 2.2. Letters of Credit |
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19 |
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Section 2.3. Applicable Interest Rates |
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22 |
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Section 2.4. Manner of Borrowing Loans and Designating Applicable Interest Rates |
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23 |
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Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans |
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25 |
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Section 2.6. Maturity of Loans |
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25 |
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Section 2.7. Voluntary Prepayments |
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25 |
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Section 2.8. Place and Application of Payments |
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27 |
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Section 2.9. Commitment Terminations |
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28 |
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Section 2.10. Swing Loans |
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28 |
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Section 2.11. Evidence of Indebtedness |
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30 |
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Section 2.12. Fees |
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31 |
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Section 2.13. Account Debit |
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32 |
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Section 3. Conditions Precedent |
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32 |
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Section 3.1. All Credit Events |
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32 |
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Section 3.2. Initial Credit Event |
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33 |
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Section 4. The Collateral and Guaranties |
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35 |
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Section 4.1. Collateral |
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35 |
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Section 4.2. Liens on Real Property |
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36 |
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Section 4.3. Guaranties |
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36 |
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Section 4.4. Further Assurances |
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36 |
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Section 5. Representations and Warranties |
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37 |
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Section 5.1. Organization and Qualification |
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37 |
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Section 5.2. Authority and Enforceability |
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37 |
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Section 5.3. Financial Reports |
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37 |
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Section 5.4. No Material Adverse Change |
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38 |
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Section 5.5. Litigation and other Controversies |
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38 |
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Section 5.6. True and Complete Disclosure |
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38 |
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Section 5.7. Use of Proceeds; Margin Stock |
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38 |
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Section 5.8. Taxes |
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00 |
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-x-
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Section 5.9. ERISA |
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39 |
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Section 5.10. Subsidiaries |
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39 |
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Section 5.11. Compliance with Laws |
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39 |
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Section 5.12. Environmental Matters |
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39 |
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Section 5.13. Investment Company |
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40 |
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Section 5.14. Intellectual Property |
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40 |
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Section 5.15. Good Title |
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40 |
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Section 5.16. Labor Relations |
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40 |
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Section 5.17. Capitalization |
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40 |
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Section 5.18. Other Agreements |
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41 |
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Section 5.19. Governmental Authority and Licensing |
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41 |
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Section 5.20. Approvals |
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41 |
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Section 5.21. Affiliate Transactions |
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41 |
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Section 5.22. Solvency |
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41 |
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Section 5.23. No Broker Fees |
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41 |
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Section 5.24. Foreign Assets Control Regulations and Anti-Money Laundering |
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42 |
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Section 5.25. No Default |
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42 |
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Section 6. Covenants |
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42 |
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Section 6.1. Information Covenants |
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42 |
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Section 6.2. Inspections |
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45 |
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Section 6.3. Maintenance of Property, Insurance, Environmental Matters, etc |
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45 |
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Section 6.4. Preservation of Existence |
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46 |
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Section 6.5. Compliance with Laws |
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46 |
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Section 6.6. ERISA |
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47 |
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Section 6.7. Payment of Taxes |
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47 |
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Section 6.8. Contracts With Affiliates |
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47 |
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Section 6.9. No Changes in Fiscal Year |
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47 |
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Section 6.10. Change in the Nature of Business |
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47 |
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Section 6.11. Indebtedness |
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48 |
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Section 6.12. Liens |
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48 |
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Section 6.13. Consolidation, Merger, Sale of Assets, etc |
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49 |
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Section 6.14. Advances, Investments and Loans |
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50 |
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Section 6.15. Dividends and Certain Other Restricted Payments; Amendments of
Material Contracts |
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50 |
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Section 6.16. Limitation on Restrictions |
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51 |
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Section 6.17. Limitation on the Creation of Subsidiaries |
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51 |
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Section 6.18. OFAC |
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51 |
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Section 6.19. Financial Covenants |
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52 |
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Section 6.20. Deposit Accounts |
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52 |
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Section 7. Events of Default and Remedies |
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52 |
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Section 7.1. Events of Default |
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52 |
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-ii-
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Section 7.2. Non-Bankruptcy Defaults |
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54 |
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Section 7.3. Bankruptcy Defaults |
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55 |
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Section 7.4. Collateral for Undrawn Letters of Credit |
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55 |
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Section 7.5. Notice of Default |
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56 |
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Section 7.6. Expenses |
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56 |
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Section 8. Change in Circumstances and Contingencies |
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56 |
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Section 8.1. Funding Indemnity |
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56 |
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Section 8.2. Illegality |
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57 |
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Section 8.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy
of, LIBOR |
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57 |
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Section 8.4. Yield Protection |
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58 |
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Section 8.5. Substitution of Lenders |
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59 |
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Section 8.6. Lending Offices |
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59 |
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Section 8.7. Discretion of Lender as to Manner of Funding |
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60 |
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Section 9. The Administrative Agent |
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60 |
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Section 9.1. Appointment and Authorization of Administrative Agent |
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60 |
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Section 9.2. Administrative Agent and its Affiliates |
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60 |
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Section 9.3. Action by Administrative Agent |
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60 |
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Section 9.4. Consultation with Experts |
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61 |
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Section 9.5. Liability of Administrative Agent; Credit Decision |
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61 |
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Section 9.6. Indemnity |
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62 |
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Section 9.7. Resignation of Administrative Agent and Successor Administrative
Agent |
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62 |
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Section 9.8. L/C Issuer |
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62 |
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Section 9.9. Hedging Liability and Funds Transfer and Deposit Account Liability
Arrangements |
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63 |
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Section 9.10. Designation of Additional Administrative Agents |
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63 |
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Section 9.11. Authorization to Enter into, and Enforcement of, the Collateral
Documents |
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63 |
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Section 10. Miscellaneous |
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63 |
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Section 10.1. Withholding Taxes |
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63 |
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Section 10.2. No Waiver, Cumulative Remedies |
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66 |
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Section 10.3. Non-Business Days |
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66 |
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Section 10.4. Documentary Taxes |
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66 |
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Section 10.5. Survival of Representations |
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66 |
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Section 10.6. Survival of Indemnities |
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66 |
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Section 10.7. Sharing of Set-Off |
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67 |
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Section 10.8. Notices |
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67 |
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Section 10.9. Counterparts |
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68 |
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Section 10.10. Successors and Assigns; Assignments and Participations |
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68 |
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Section 10.11. Amendments |
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71 |
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Section 10.12. Heading |
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71 |
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Section 10.13. Costs and Expenses; Indemnification |
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71 |
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Section 10.14. Set-off |
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72 |
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Section 10.15. Entire Agreement |
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73 |
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Section 10.16. Governing Law |
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73 |
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Section 10.17. Severability of Provisions |
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73 |
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Section 10.18. Excess Interest |
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73 |
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Section 10.19. Construction |
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74 |
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Section 10.20. Lender’s Obligations Several |
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74 |
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Section 10.21. USA Patriot Act |
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74 |
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Section 10.22. Submission to Jurisdiction; Waiver of Jury Trial |
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74 |
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Section 10.23. Treatment of Certain Information; Confidentiality |
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74 |
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Section 10.24. Amendment and Restatement |
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75 |
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Signature Page |
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S-1 |
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Exhibit A
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—
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Notice of Payment Request |
Exhibit B
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Notice of Borrowing |
Exhibit C
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—
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Notice of Continuation/Conversion |
Exhibit D-1
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Revolving Note |
Exhibit D-2
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Swing Note |
Exhibit E
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—
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Compliance Certificate |
Exhibit F
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Assignment and Assumption |
Schedule 1
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Commitments |
Schedule 1.1
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—
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Magellan Contracts |
Schedule 5.10
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Subsidiaries |
Schedule 5.12
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Environmental Matters |
-iv-
This Amended and Restated
Credit Agreement is entered into as of December 19, 2007, by and
among
Delek Marketing & Supply, LP, a Delaware limited partnership (the
“Borrower”), the
various institutions from time to time party to this Agreement, as Lenders, and
Fifth Third
Bank, an Ohio banking corporation, as Administrative Agent and L/C Issuer.
Whereas, the Borrower has requested that the Lenders amend the Existing Credit
Agreement in order to increase the Commitment from $50,000,000 to $75,000,000, extend the
Termination Date from January 31, 2008 to December 19, 2012, add First Tennessee Bank National
Association as Lenders and revise certain other terms of the Existing
Credit Agreement, and the
Lenders have agreed to do so on the terms and conditions set forth herein; and
Now, Therefore, in consideration of the mutual agreements set forth in this
Agreement, the parties hereto do hereby agree as follows:
“Acquired Business” means the entity or assets acquired by the Borrower or a Subsidiary in an
Acquisition, whether before or after the date hereof.
“Acquisition” means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets
of a Person, or of any business or division of a Person or of any business entity or unit by the
Borrower or a Subsidiary, (b) the acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person (other than a Person that is a Subsidiary),
or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a Subsidiary), provided that the
Borrower or the Subsidiary is the surviving entity.
“Additional Commitments” is defined in Section 2.1(b) hereof.
“Adjusted LIBOR” means, for any Borrowing of Eurodollar Loans, a rate per annum equal to the
quotient of (i) LIBOR, divided by (ii) one minus the Reserve Percentage.
“Administrative Agent” means Fifth Third Bank, an Ohio banking corporation, as contractual
representative for itself and the other Lenders and any successor pursuant to Section 9.7 hereof.
“Administrative Agent’s Quoted Rate” is defined in Section 2.10(c) hereof.
“Administrative Questionnaire” means, with respect to each Lender, an Administrative
Questionnaire in a form supplied by the Administrative Agent and duly completed by such Lender.
“Affiliate” means any Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, another Person. A Person shall be deemed to control
another Person for the purposes of this definition if such Person possesses, directly or
indirectly, the power to direct, or cause the direction of, the management and policies of the
other Person, whether through the ownership of voting securities, common directors, trustees or
officers, by contract or otherwise; provided that, in any event for purposes of this definition,
any Person that owns, directly or indirectly, 10% or more of the securities having the ordinary
voting power for the election of directors or governing body of a corporation or 10% or more of the
partnership or other ownership interest of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other Person.
“Agreement” means this Credit Agreement, as the same may be amended, modified, restated or
supplemented from time to time pursuant to the terms hereof.
“Applicable Margin” means, with respect to Loans, Reimbursement Obligations, and the
commitment fees and letter of credit fees payable under Section 2.12 hereof, (i) until the first
Pricing Date, the rates per annum shown opposite Level V below, and (ii) thereafter from one
Pricing Date to the next Pricing Date the Applicable Margin means the rates per annum determined in
accordance with the following schedule:
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Applicable Margin for |
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Applicable Margin for |
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Base Rate Loans and |
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Eurodollar Loans |
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Applicable Margin for |
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Leverage Ratio for |
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Reimbursement |
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and Letter of Credit Fee |
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Commitment Fee |
Level |
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such Pricing Date |
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Obligations shall be: |
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shall be: |
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shall be: |
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I |
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Greater than 3.5 to 1.0 |
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1.00 |
% |
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2.50 |
% |
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.50 |
% |
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II |
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Less than or equal to 3.5
to 1.0, but greater than
3.0 to 1.0 |
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.75 |
% |
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2.25 |
% |
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.45 |
% |
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III |
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Less than or equal to 3.0
to 1.0, but greater than
2.5 to 1.0 |
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.50 |
% |
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2.00 |
% |
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.40 |
% |
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IV |
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Less than or equal to 2.5
to 1.0, but greater than
2.0 to 1.0 |
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.25 |
% |
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1.75 |
% |
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.35 |
% |
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V |
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Less than or equal to 2.0 to 1.0 |
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0.00 |
% |
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1.50 |
% |
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.30 |
% |
-2-
For purposes hereof, the term “Pricing Date” means, for any fiscal quarter of the Borrower ending
on or after December 31, 2007, the date on which the Administrative Agent is in receipt of the
Borrower’s most recent financial statements (and, in the case of the year-end financial statements,
audit report) for the fiscal quarter then ended, pursuant to Section 6.1 hereof. The Applicable
Margin shall be established based on the Leverage Ratio for the most recently completed fiscal
quarter and the Applicable Margin established on a Pricing Date shall remain in effect until the
next Pricing Date. If the Borrower has not delivered its financial statements by the date such
financial statements (and, in the case of the year-end financial statements, audit report) are
required to be delivered under Section 6.1 hereof, until such financial statements and audit report
are delivered, the Applicable Margin shall be the highest Applicable Margin (i.e., the Leverage
Ratio shall be deemed to be greater than 3.5 to 1.0). If the Borrower subsequently delivers such
financial statements before the next Pricing Date, the Applicable Margin established by such late
delivered financial statements shall take effect from the date of delivery until the next Pricing
Date. In all other circumstances, the Applicable Margin established by such financial statements
shall be in effect from the Pricing Date that occurs immediately after the end of the fiscal
quarter covered by such financial statements until the next Pricing Date. Each determination of
the Applicable Margin made by the Administrative Agent in accordance with the foregoing shall be
conclusive and binding on the Borrower and the Lenders absent manifest error.
“Application” is defined in Section 2.2(b) hereof.
“Approved 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 and 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.
“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 10.10), and
accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form
approved by the Administrative Agent.
“Authorized Representative” means those persons shown on the list of officers provided by the
Borrower pursuant to Section 3.2 hereof or on any update of any such list provided by the
-3-
Borrower to the Administrative Agent, or any further or different officers of the Borrower so
named by any Authorized Representative of the Borrower in a written notice to the Administrative
Agent.
“Base Rate” means for any day the greater of: (i) the rate of interest announced by the
Administrative Agent from time to time as its “prime rate” as in effect on such day, with any
change in the Base Rate resulting from a change in said prime rate to be effective as of the date
of the relevant change in said prime rate (it being acknowledged that such rate may not be the
Administrative Agent’s best or lowest rate) and (ii) the sum of (x) the Federal Funds Rate, plus
(y) 1/2 of 1%.
“Base Rate Loan” means a Loan bearing interest at a rate specified in Section 2.3(a) hereof.
“Borrower” is defined in the introductory paragraph of this Agreement.
“Borrowing” means the total of Loans of a single type advanced, continued for an additional
Interest Period, or converted from a different type into such type by the Lenders on a single date
and, in the case of Eurodollar Loans, for a single Interest Period. Borrowings of Loans are made
and maintained ratably from each of the Lenders according to their Percentages. A Borrowing is
“advanced” on the day Lenders advance funds comprising such Borrowing to the Borrower, is
“continued” on the date a new Interest Period for the same type of Loans commences for such
Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other,
all as requested by the Borrower pursuant to Section 2.4(a) hereof. Borrowings of Swing Loans are
made by the Administrative Agent in accordance with the procedures set forth in Section 2.10
hereof.
“Business Day” means any day (other than a Saturday or Sunday) on which banks are not
authorized or required to close in Cincinnati, Ohio and, if the applicable Business Day relates to
the advance or continuation of, or conversion into, or payment of a Eurodollar Loan, on which banks
are dealing in U.S. Dollar deposits in the interbank eurodollar market in London, England.
“Capital Expenditures” means, with respect to any Person for any period, the aggregate amount
of all expenditures (whether paid in cash or accrued as a liability) by such Person during that
period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or
additions to property, plant, or equipment (including replacements, capitalized repairs, and
improvements) which should be capitalized on the balance sheet of such Person in accordance with
GAAP.
“Capital Lease” means any lease of Property which in accordance with GAAP is required to be
capitalized on the balance sheet of the lessee.
“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the
balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.
-4-
“Cash Equivalents” shall mean, as to any Person: (a) investments in direct obligations of the
United States of America or of any agency or instrumentality thereof whose obligations constitute
full faith and credit obligations of the United States of America, provided that any such
obligations shall mature within one year of the date of issuance thereof; (b) investments in
commercial paper rated at least P-2 by Xxxxx’x and at least A-2 by S&P maturing within one year of
the date of issuance thereof; (c) investments in certificates of deposit issued by any Lender or by
any United States commercial bank having capital and surplus of not less than $100,000,000 which
have a maturity of one year or less; (d) investments in repurchase obligations with a term of not
more than 7 days for underlying securities of the types described in clause (a) above entered into
with any bank meeting the qualifications specified in clause (c) above, provided all such
agreements require physical delivery of the securities securing such repurchase agreement, except
those delivered through the Federal Reserve Book Entry System; (e) auction rate securities (in a
maximum $25,000,000 notional amount with respect to any single issue) with intermediate to
perpetual maturities that are structured with short term holding periods of 7-49 days and whose
long-term debt rating as of the date of purchase thereof is not less than any two of the following:
“A2” by Xxxxx’x, “A” by S&P or “A” by Fitch; (f) investments in money market funds that invest
solely, and which are restricted by their respective charters to invest solely, in investments of
the type described in the immediately preceding subsections (a), (b), (c), (d) and (e) above.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et
seq., and any future amendments.
“Change of Control” means any of (a) the acquisition by any “person” or “group” (as such terms
are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) at any
time of beneficial ownership of 40% or more of the outstanding equity interests of the Borrower on
a fully-diluted basis, other than acquisitions of such interests by Holdings or a Person or Persons
that is a Subsidiary of Holdings, (b) the failure of natural persons who are members of the board
of directors (or similar governing body) of the general partner of the Borrower on the Closing Date
(together with any new or replacement directors whose initial nomination for election was approved
by a majority of the directors who were either directors on the Closing Date or previously so
approved) to constitute a majority of the board of directors (or similar governing body) of the
Borrower, or (c) the failure of Holdings and any Persons that are Subsidiaries of Holdings to own,
on an aggregate basis, more than 50% of the outstanding equity interests of the Borrower on a
fully-diluted basis.
“Closing Date” means the date of this Agreement or such later Business Day upon which each
condition described in Section 3.2 shall be satisfied or waived in a manner acceptable to the
Administrative Agent in its discretion.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.
-5-
“Collateral” means all properties, rights, interests, and privileges from time to time subject
to the Liens granted to the Administrative Agent, or any security trustee therefor, by the
Collateral Documents.
“Collateral Account” is defined in Section 7.4 hereof.
“Collateral Documents” means the Deeds of Trust, the Security Agreement, the Pledge Agreement
and all other mortgages, deeds of trust, security agreements, pledge agreements, account control
agreements, assignments, financing statements and other documents as shall from time to time secure
or relate to the Obligations, the Hedging Liability, and the Funds Transfer and Deposit Account
Liability, or any part thereof, other than Hedge Agreements.
“Commitment” means, as to any Lender, the obligation of such Lender to make Revolving Loans
and to participate in Swing Loans and Letters of Credit issued for the account of the Borrower
hereunder in an aggregate principal or face amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule 1 attached hereto and made a part hereof,
as the same may be increased pursuant to the provisions of Section 2.1 hereof or reduced or
modified at any time or from time to time pursuant to (a) the provisions of 2.9 hereof or (b) other
applicable terms of this Agreement. The Borrower and the Lenders acknowledge and agree that the
Commitments of the Lenders aggregate $75,000,000 on the date hereof.
“Contingent Obligation” shall mean as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness(“primary obligations”) of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security therefor or (ii) to
advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to
maintain working capital or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor; provided, however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
“Controlled Group” means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together with the Borrower,
are treated as a single employer under Section 414 of the Code.
“Credit Event” means the advancing of any Loan, the continuation of or conversion into a
Eurodollar Loan, or the issuance of, or extension of the expiration date or increase in the amount
of, any Letter of Credit.
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“Damages” means all damages including, without limitation, punitive damages, liabilities,
costs, expenses, losses, judgments, diminutions in value, fines, penalties, demands, claims, cost
recovery actions, lawsuits, administrative proceedings, orders, response action, removal and
remedial costs, compliance costs, investigation expenses, consultant fees, attorneys’ fees and
litigation expenses.
“Deeds of Trust” means, collectively, each Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing dated as of July 31, 2006 between the Borrower and the Administrative
Agent relating to the Borrower’s real property, fixtures and interests in real property owned as of
the Closing Date and located in the state of Texas, each as supplemented by a First Supplement to
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of December 19,
2007, between the Administrative Agent and the Borrower and any other mortgages or deeds of trust
delivered to the Administrative Agent pursuant to Section 4.2 hereof, as the same may be further
amended, modified, supplemented or restated from time to time.
“Default” means any event or condition the occurrence of which would, with the passage of time
or the giving of notice, or both, constitute an Event of Default.
“Disposition” means the sale, lease, conveyance or other disposition of Property, other than
sales or other dispositions expressly permitted under Sections 6.13(a) or 6.13(b) hereof.
“Dollars” and “$” each means the lawful currency of the United States of America.
“EBITDA” means, with reference to any period, Net Income for such period plus (x) the sum of
all amounts deducted in arriving at such Net Income amount in respect of (a) Interest Expense for
such period, (b) federal, state, and local income taxes for such period, (c) depreciation of fixed
assets and amortization of intangible assets for such period, (d) share based compensation under
SFAS 123R, and (e) non-cash extraordinary charges for such period incurred by the Borrower to
comply with GAAP, provided, that any such non-cash extraordinary charge that exceeds $1,000,000
individually shall be subject to the consent of the Administrative Agent and Required Lenders and
minus (y) non-cash extraordinary credit for such period established by the Borrower to comply with
GAAP.
“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,
(ii) the L/C Issuer, and (iii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries.
“Environmental Claim” means any investigation, notice, violation, demand, allegation, action,
suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim
(whether administrative, judicial or private in nature) arising (a) pursuant to, or in connection
with an actual or alleged violation of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any abatement, removal, remedial, corrective or response action in
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connection with a Hazardous Material, Environmental Law or order of a Governmental Authority
or (d) from any actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
“Environmental Law” means any current or future Legal Requirement pertaining to (a) the
protection of health, safety and the indoor or outdoor environment, (b) the conservation,
management or use of natural resources and wildlife, (c) the protection or use of surface water or
groundwater, (d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material or (e) pollution (including any
Release to air, land, surface water or groundwater), and any amendment, rule, regulation, order or
directive issued thereunder.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute thereto.
“Eurodollar Loan” means a Loan bearing interest at the rate specified in Section 2.4(b)
hereof.
“Event of Default” means any event or condition identified as such in Section 7.1 hereof.
“Event of Loss” means, with respect to any Property, any of the following: (a) any loss,
destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of
the power of eminent domain or otherwise, of such Property, or confiscation of such Property or the
requisition of the use of such Property.
“Existing Credit Agreement” is defined in the first paragraph of the recitals on page one of
this Agreement.
“Federal Funds Rate” means for any day the rate determined by the Administrative Agent to be
the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates per annum
quoted to the Administrative Agent at approximately 10:00 a.m. (Cincinnati time) (or as soon
thereafter as is practicable) on such day (or, if such day is not a Business Day, on the
immediately preceding Business Day) by two or more Federal funds brokers selected by the
Administrative Agent for sale to the Administrative Agent at face value of Federal funds in the
secondary market in an amount equal or comparable to the principal amount owed to the
Administrative Agent for which such rate is being determined.
“Fixed Charges” means, with reference to any period, the sum of (a) all payments of principal
made or to be made during such period with respect to Indebtedness of the Borrower and its
Subsidiaries, plus (b) actual cash Interest Expense for such period, plus (c) Capital Expenditures
during such period of the Borrower and its Subsidiaries not financed with Indebtedness, plus
(d) federal, state, and local income taxes paid or payable by the Borrower and its Subsidiaries
during such period.
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“Foreign Subsidiary” means each Subsidiary which (a) is organized under the laws of a
jurisdiction other than the United States of America or any state thereof or the District of
Columbia, (b) conducts substantially all of its business outside of the United States of America,
and (c) has substantially all of its assets outside of the United States of America.
“Funding Date” is defined in Section 2.1(c) hereof.
“Funds Transfer and Deposit Account Liability” means the liability of the Borrower or any
Guarantor owing to any of the Lenders, or any Affiliates of such Lenders, arising out of (a) the
execution or processing of electronic transfers of funds by automatic clearing house transfer, wire
transfer or otherwise to or from the deposit accounts of the Borrower and/or any such Guarantor now
or hereafter maintained with any of the Lenders or their Affiliates, (b) the acceptance for deposit
or the honoring for payment of any check, draft or other item with respect to any such deposit
accounts, and (c) any other deposit, disbursement, and cash management services afforded to the
Borrower or any such Guarantor by any of such Lenders or their Affiliates.
“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.
“Governmental Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, count, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
“Guarantor” and “Guarantors” each is defined in Section 4.3 hereof.
“Guaranty” and “Guaranties” each is defined in Section 4.3 hereof.
“Hazardous Material” means any substance, chemical, compound, product, solid, gas, liquid,
waste, byproduct, pollutant, contaminant or material which is hazardous or toxic, and includes,
without limitation, (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or
any fraction thereof) and (b) any material classified or regulated as “hazardous” or “toxic” or
words of like import pursuant to an Environmental Law.
“Hedge Agreement” means any interest rate, currency or commodity swap agreements, cap
agreements, collar agreements, floor agreements, exchange agreements, forward contracts, option
contracts or similar interest rate or currency or commodity hedging arrangements.
“Hedging Liability” means the liability of the Borrower or any Guarantor to any of the
Lenders, or their Affiliates, in respect of any Hedge Agreement as the Borrower or such
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Guarantor, as the case may be, may from time to time enter into with any one or more of the
Lenders party to this Agreement or their Affiliates.
“Hostile Acquisition” means the acquisition of the capital stock or other equity interests of
a Person through a tender offer or similar solicitation of the owners of such capital stock or
other equity interests which has not been approved (prior to such acquisition) by resolutions of
the Board of Directors of such Person or by similar action if such Person is not a corporation, and
as to which such approval has not been withdrawn.
“Indebtedness” means for any Person (without duplication) (a) all indebtedness of such Person
for borrowed money, whether current or funded, or secured or unsecured, (b) all indebtedness for
the deferred purchase price of Property, (c) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to Property acquired by such
Person (even though the rights and remedies of the seller or lender under such agreement in the
event of a default are limited to repossession or sale of such Property), (d) all indebtedness
secured by a purchase money mortgage or other Lien to secure all or part of the purchase price of
Property subject to such mortgage or Lien, (e) all obligations under leases which shall have been
or must be, in accordance with GAAP, recorded as Capital Leases in respect of which such Person is
liable as lessee, (f) any liability in respect of banker’s acceptances or letters of credit,
(g) any indebtedness, whether or not assumed, secured by Liens on Property acquired by such Person
at the time of acquisition thereof, (h) all obligations under any so-called “synthetic lease”
transaction entered into by such Person, (i) all obligations under any so-called “asset
securitization” transaction entered into by such Person, and (j) all Contingent Obligations, it
being understood that the term “Indebtedness” shall not include trade payables arising in the
ordinary course of business.
“Interest Expense” means, with reference to any period, the sum of all interest charges
(including imputed interest charges with respect to Capitalized Lease Obligations and all
amortization of debt discount and expense) of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
“Interest Period” means, with respect to Eurodollar Loans and Swing Loans, the period
commencing on the date a Borrowing of Loans is advanced, continued or created by conversion and
ending: (a) in the case of a Eurodollar Loan, 1, 2 or 3 months thereafter, and (b) in the case of
a Swing Loan, on the date 1 to 5 days thereafter as mutually agreed to the applicable Borrower and
the Administrative Agent; provided, however, that:
(i) no Interest Period with respect to any Swing Loan shall extend beyond the
Termination Date;
(ii) whenever the last day of any Interest Period would otherwise be a day that is not
a Business Day, the last day of such Interest Period shall be extended to the next
succeeding Business Day, provided that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately preceding Business Day;
and
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(iii) for purposes of determining an Interest Period for a Borrowing of Eurodollar
Loans, a month means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month; provided, however, that if there
is no numerically corresponding day in the month in which such an Interest Period is to end
or if such an Interest Period begins on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the calendar month in which such
Interest Period is to end.
“L/C Issuer” means Fifth Third Bank, an Ohio banking corporation.
“L/C Obligations” means the aggregate undrawn face amounts of all outstanding Letters of
Credit and all unpaid Reimbursement Obligations.
“L/C Sublimit” means $25,000,000, as reduced pursuant to the terms hereof.
“Legal Requirement” means any treaty, convention, statute, law, regulation, ordinance,
license, permit, governmental approval, injunction, judgment, order, consent decree or other
requirement of any Governmental Authority.
“Lenders” means and includes Fifth Third Bank, an Ohio banking corporation, and the other
financial institutions from time to time party to this Agreement, including each assignee Lender
pursuant to Section 10.10 hereof.
“Lending Office” is defined in Section 8.6 hereof.
“Letter of Credit” is defined in Section 2.2(a) hereof.
“Leverage Ratio” means, as of the last day of any fiscal quarter of the Borrower, the ratio of
Total Funded Debt of the Borrower and its Subsidiaries as of the last day of such fiscal quarter to
EBITDA for the period of four fiscal quarters then ended.
“LIBOR” means, for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR Index
Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) at which deposits in Dollars in immediately available funds
are offered to the Administrative Agent at 11:00 a.m. (London, England time) 2 Business Days before
the beginning of such Interest Period by 3 or more major banks in the interbank eurodollar market
selected by the Administrative Agent for delivery on the first day of and for a period equal to
such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar
Loan scheduled to be made by the Administrative Agent as part of such Borrowing.
“LIBOR Index Rate” means, for any Interest Period, the rate per annum (rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in Dollars
for a period equal to such Interest Period, which appears on the LIBOR01
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Page as of 11:00 a.m. (London, England time) on the day 2 Business Days before the
commencement of such Interest Period.
“LIBOR01 Page” means the display designated as “Reuters Screen LIBOR01 Page” (or such other
page as may replace the LIBOR01 Page on that service or such other service as may be nominated by
the British Bankers’ Association and the information vendor for the purposes of displaying British
Bankers’ Association Interest Settlement Rates for U.S. Dollar deposits.
“Lien” means any deed of trust, mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a vendor or lessor
under any conditional sale, Capital Lease or other title retention arrangement.
“Loan” means any Revolving Loan or Swing Loan, whether outstanding as a Base Rate Loan or
Eurodollar Loan or otherwise as permitted hereunder, each of which is a “type” of Loan hereunder.
“Loan Documents” means this Agreement, the Notes, the Applications, the Collateral Documents,
the Guaranties, and each other agreement, instrument or document to be delivered hereunder or
thereunder or otherwise in connection therewith, other than Hedge Agreements.
“Magellan Contracts” means collectively the agreements listed on Schedule 1.1 of this
Agreement.
“Management Fees” means all fees, charges and other amounts (including without limitation
salaries and any other compensation such as bonuses, pensions and profit sharing payments) due and
to become due to Holdings or any of its Affiliates in consideration for, directly or indirectly,
management, consulting or similar services.
“MAPCO” means MAPCO Express, Inc., a Delaware corporation.
“MAPCO Services Agreement” means the Services Agreement dated July 31, 2006 between MAPCO and
the Borrower.
“Marketing GP” means Delek Marketing GP, LLC, a Delaware limited liability company.
“Marketing Inc.” means Delek Marketing and Supply, Inc., a Delaware corporation.
“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect
upon, the operations, business, Property, condition (financial or otherwise) of the Borrower or of
the Borrower and the Guarantors taken as a whole, (b) a material impairment of the ability of the
Borrower or any Guarantor to perform its material obligations under any Loan Document or (c) a
material adverse effect upon (i) the legality, validity, binding effect or enforceability against
the Borrower or any Guarantor of any Loan Document or the rights and remedies of the Administrative
Agent and the Lenders thereunder or (ii) the perfection or priority
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of any Lien granted under any Collateral Document other than with respect to a de minimus
portion of the Collateral.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means any employee pension benefit plan covered by Title IV of ERISA that
is a multiemployer plan as defined in Section 3(37) of ERISA or Section 4001(a)(3) of ERISA and
with respect to which a member of the Controlled Group has any liability, contingent or otherwise.
“Net Income” means, with reference to any period, the net income (or net loss) of the Borrower
and its Subsidiaries for such period computed on a consolidated basis in accordance with GAAP;
provided that there shall be excluded from Net Income (a) the net income (or net loss) of any
Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated
with, the Borrower or another Subsidiary, except to the extent that (i) the Borrower has delivered
the financial statements of the Acquired Business for such period, or (ii) the Administrative Agent
agrees to the inclusion of such net income (or net loss) of such Acquired Business, and (b) the net
income (or net loss) of any Person (other than a Subsidiary) in which the Borrower or any of its
Subsidiaries has a equity interest in, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of its Subsidiaries during such period.
“Net Cash Proceeds” means, as applicable, (a) with respect to any Disposition by a Person,
cash and cash equivalent proceeds received by or for such Person’s account, net of (i) reasonable
direct costs relating to such Disposition and (ii) sale, use or other transactional taxes paid or
payable by such Person as a direct result of such Disposition, (b) with respect to any Event of
Loss of a Person, cash and cash equivalent proceeds received by or for such Person’s account
(whether as a result of payments made under any applicable insurance policy therefor or in
connection with condemnation proceedings or otherwise), net of reasonable direct costs incurred in
connection with the collection of such proceeds, awards or other payments, and (c) with respect to
any offering of equity securities of a Person or the issuance of any Indebtedness by a Person,
cash and cash equivalent proceeds received by or for such Person’s account, net of reasonable
legal, underwriting, and other fees and expenses incurred as a direct result thereof.
“Net Worth” means, at any time the same is to be determined, the difference between total
assets and total liabilities of the Borrower and its Subsidiaries determined on a consolidated
basis, total assets and total liabilities each to be determined in accordance with GAAP.
“Notes” means and includes the Revolving Notes and the Swing Note.
“Obligations” means all obligations of the Borrower to pay principal and interest on the
Loans, all Reimbursement Obligations owing under the Applications, all fees and charges payable
hereunder, and all other payment obligations of the Borrower or any of its Subsidiaries arising
under or in relation to any Loan Document, in each case whether now existing or
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hereafter arising, due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired.
“Participant” is defined in Section 10.10(d) hereof.
“Participating Interest” is defined in Section 2.2(d) hereof.
“Participating Lender” is defined in Section 2.2(d) hereof.
“Patriot Act” is defined in Section 5.24(b) hereof.
“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all
of its functions under ERISA.
“Percentage” means, for each Lender, the percentage of the aggregate Commitments represented
by such Lender’s Commitment or, if the Commitments have been terminated, the percentage held by
such Lender (including through participation interests in Swing Loans and Reimbursement
Obligations) of the aggregate principal amount of all Revolving Loans, Swing Loans and
L/C Obligations then outstanding.
“Permitted Acquisition” means any Acquisition with respect to which all of the following
conditions shall have been satisfied:
(a) the Acquired Business is in the same line of business engaged in as of the date of
this Agreement by the Borrower and any of its Subsidiaries and has its primary operations
within the United States of America;
(b) the Acquisition shall not be a Hostile Acquisition;
(c) the Unused Commitments after giving effect to any increase in the Commitments made
pursuant to Section 2.1(b) hereof and after giving effect to the Acquisition shall be not
less than $15,000,000;
(d) the Borrower shall have notified the Administrative Agent and Lenders not less than
30 days (or such shorter time period as may be agreed to by the Administrative Agent) prior
to any such Acquisition;
(e) if a new Subsidiary is formed or acquired as a result of or in connection with the
Acquisition, such Subsidiary shall be a U.S. Subsidiary and the Borrower shall have complied
with the requirements of Section 4 hereof in connection therewith;
(f) after giving effect to the Acquisition, no Default or Event of Default shall exist,
including with respect to the covenants contained in Section 6.19 on a pro forma basis, and
the Borrower shall have delivered to the Administrative Agent a compliance certificate in
the form of Exhibit E attached hereto evidencing such compliance with Section 6.19; and
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(g) financial due diligence on the Acquired Business at levels agreed to between the
Borrower and Administrative Agent shall have been completed.
“Permitted Lien” is defined in Section 6.12 hereof.
“Person” means any natural person, partnership, corporation, limited liability company,
association, trust, unincorporated organization or any other entity or organization, including a
government or agency or political subdivision thereof.
“Plan” means any employee pension benefit plan, other than a Multiemployer Plan, that is
covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code with respect to which a member of the Controlled Group has any liability, contingent or
otherwise.
“Pledge Agreement” means that certain Pledge Agreement dated the date of this Agreement made
by Marketing Inc., Marketing GP and Borrower in favor of the Administrative Agent, as the same may
be amended, modified, supplemented or restated from time to time.
“Premises” means the real property owned or leased by the Borrower or any Subsidiary,
including, without limitation, the real property and improvements thereon owned by the Borrower or
any Subsidiary subject to the Lien of the Deeds of Trust or any other Collateral Documents.
“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed
property owned by such Person whether or not included in the most recent balance sheet of such
Person and its Subsidiaries under GAAP.
“RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§6901 et seq.,
and any future amendments.
“Refining” means Delek Refining, Inc., a Delaware corporation.
“Refining Marketing Agreement” means the Marketing Agreement dated October 1, 2006 between
Refining and the Borrower.
“Refining Operating Agreement” means the Services Agreement dated July 31, 2006 between the
Borrower and Refining.
“Reimbursement Obligation” is defined in Section 2.2(c) hereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, financial advisors and consultants of such Person
and of such Person’s Affiliates.
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“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, disposing or migration into the environment.
“Required Lenders” means, as of the date of determination thereof, Lenders whose outstanding
Loans and interests in Letters of Credit and Unused Commitments constitute (i) at any time there
are two (2) or fewer Lenders, 85% or more of the sum of the total outstanding Loans, interests in
Letters of Credit and Unused Commitments; or (ii) at any time there are three (3) Lenders, 67% of
the sum of the total outstanding Loans, interests in Letters of Credit and Unused Commitments; or
(iii) at any time there are more than three (3) Lenders, 51% or more of the sum of the total
outstanding Loans, interests in Letters of Credit and Unused Commitments.
“Reserve Percentage” means, for any Borrowing of Eurodollar Loans, the daily average for the
applicable Interest Period of the maximum rate, expressed as a decimal, at which reserves
(including, without limitation, any supplemental, marginal, and emergency reserves) are imposed
during such Interest Period by the Board of Governors of the Federal Reserve System (or any
successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or in respect of
any other category of liabilities that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of extensions of credit or other assets that include
loans by non-United States offices of any Lender to United States residents), subject to any
amendments of such reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the Eurodollar Loans shall be
deemed to be “eurocurrency liabilities” as defined in Regulation D without benefit or credit for
any prorations, exemptions or offsets under Regulation D.
“Responsible Officer” means any officer of Delek Marketing GP, LLC with responsibility for the
transactions contemplated herein including, without limitation, its President, Chief Executive
Officer, Chief Financial Officer and Treasurer.
“Revolving Credit” means the credit facility for making Revolving Loans and Swing Loans and
issuing Letters of Credit described in Sections 2.1, 2.2 and 2.10 hereof.
“Revolving Loan” is defined in Section 2.1 hereof and, as so defined, includes a Base Rate
Loan or a Eurodollar Loan, each of which is a “type” of Revolving Loan hereunder.
“Revolving Note” is defined in Section 2.11 hereof.
“S&P” means Standard & Poor’s Ratings Services Group, a division of The XxXxxx-Xxxx Companies,
Inc.
“Security Agreement” means that certain Amended and Restated Security Agreement dated the date
of this Agreement by and between the Borrower and each of its Subsidiaries and the Administrative
Agent, as the same may be further amended, modified, supplemented or restated from time to time.
“Subsidiary” means, as to any particular parent corporation or organization, any other
corporation or organization more than 50% of the outstanding Voting Stock of which is at the
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time directly or indirectly owned by such parent corporation or organization or by any one or
more other entities which are themselves subsidiaries of such parent corporation or organization.
Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of the Borrower
or of any of its direct or indirect Subsidiaries.
“Swing Line” means the credit facility for making one or more Swing Loans described in
Section 2.10 hereof.
“Swing Line Sublimit” means $5,000,000, as reduced pursuant to the terms hereof.
“Swing Loan” and “Swing Loans” each is defined in Section 2.10 hereof.
“Swing Note” is defined in Section 2.11 hereof.
“Termination Date” means December 19, 2012 or such earlier date on which the Commitments are
terminated in whole pursuant to Section 2.9, 7.2 or 7.3 hereof.
“Total Funded Debt” means, at any time the same is to be determined, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries, (excluding all obligations of such
Persons, contingent or otherwise, as an account party or applicant under acceptance letter of
credit or similar facilities) at such time, determined on a consolidated basis in accordance with
GAAP.
“Total Leverage Ratio” means, as of the last day of any fiscal quarter of the Borrower, the
ratio of Total Funded Debt of the Borrower and its Subsidiaries as of the last day of such fiscal
quarter to EBITDA for the period of four fiscal quarters then ended.
“Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which
the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair
market value of all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
“Unused Commitments” means, at any time, the difference between the Commitments then in effect
and the aggregate outstanding principal amount of Revolving Loans and L/C Obligations; provided
that Swing Loans outstanding from time to time shall be deemed to reduce the Unused Commitment of
the Administrative Agent for purposes of computing the commitment fee under Section 2.12(a) hereof.
“U.S. Subsidiary” means each Subsidiary that is not a Foreign Subsidiary.
“Voting Stock” of any Person means capital stock or other equity interests of any class or
classes (however designated) having ordinary power for the election of directors or other similar
governing body of such Person (including, without limitation, general partners of a partnership),
other than stock or other equity interests having such power only by reason of the happening of a
contingency.
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“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.
“Wholly-owned Subsidiary” means, at any time, any Subsidiary of which all of the issued and
outstanding shares of capital stock (other than directors’ qualifying shares as required by law) or
other equity interests are owned by any one or more of the Borrower and the Borrower’s other
Wholly-owned Subsidiaries at such time.
Section 1.2. Interpretation. The foregoing definitions are equally applicable to both the
singular and plural forms of the terms defined. The words
“hereof”,
“herein”, and
“hereunder” and
words of like import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. All references to time of day herein are references
to Cincinnati, Ohio, time unless otherwise specifically provided. Where the character or amount of
any asset or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the purposes of this
Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent
with the specific provisions of this Agreement. All terms that are used in this Agreement which
are defined in the Uniform Commercial Code of the State of
New York as in effect from time to time
(
“UCC”) shall have the same meanings herein as such terms are defined in the UCC, unless this
Agreement shall otherwise specifically provide.
Section 1.3. Change in Accounting Principles. If, after the date of this Agreement, there
shall occur any change in GAAP from those used in the preparation of the financial statements
referred to in Section 5.3 hereof and such change shall result in a change in the method of
calculation of any financial covenant, standard or term found in this Agreement, either the
Borrower or the Required Lenders may by notice to the Lenders and the Borrower, respectively,
require that the Lenders and the Borrower negotiate in good faith to amend such covenants,
standards, and term so as equitably to reflect such change in accounting principles, with the
desired result being that the criteria for evaluating the financial condition of the Borrower and
its Subsidiaries shall be the same as if such change had not been made. No delay by the Borrower
or the Required Lenders in requiring such negotiation shall limit their right to so require such a
negotiation at any time after such a change in accounting principles. Until any such covenant,
standard, or term is amended in accordance with this Section 1.3, financial covenants shall be
computed and determined in accordance with GAAP in effect prior to such change in accounting
principles. Without limiting the generality of the foregoing, the Borrower shall neither be deemed
to be in compliance with any financial covenant hereunder nor out of compliance with any financial
covenant hereunder if such state of compliance or noncompliance, as the case may be, would not
exist but for the occurrence of a change in accounting principles after the date hereof.
Section 2.1. Commitments. (a) Prior to the Termination Date, each Lender severally and not
jointly agrees, subject to the terms and conditions hereof, to make revolving loans (each
individually a
“Revolving Loan” and, collectively, the
“Revolving Loans”) in Dollars to the
Borrower from time to time up to the amount of such Lender’s Commitment in effect at such time;
provided, however, the sum of the aggregate principal amount of Revolving Loans, Swing
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Loans and L/C Obligations at any time outstanding shall not exceed the sum of all Commitments in
effect at such time. Each Borrowing of Revolving Loans shall be made ratably by the Lenders in
proportion to their respective Percentages. As provided in Section 2.4(a), and subject to the
terms hereof, the Borrower may elect that each Borrowing of Revolving Loans be either Base Rate
Loans or Eurodollar Loans. Revolving Loans may be repaid and reborrowed before the Termination
Date, subject to the terms and conditions hereof.
(b) Commitment Increases. The Borrower shall be entitled to request, either on the Closing
Date or at any time prior to the Termination Date, that the Commitments be increased by an
aggregate amount not to exceed Fifty Million Dollars $50,000,000 (such additional Commitments are
referred to herein as the “Additional Commitments”); provided that (x) each request for a
Commitment increase shall be in a minimum amount of Ten Million Dollars ($10,000,000), (y) no more
than one request for a Commitment increase may be made during any consecutive twelve-month period
and (z) in no event shall the aggregate Commitments exceed at any time One Hundred Twenty-Five
Million Dollars ($125,000,000); and provided further that, to the extent that the request occurs
after the Closing Date, (i) no Default or Event of Default exists at the time of such request,
(ii) the Borrower gives the Administrative Agent thirty (30) days prior written notice of such
election, (iii) no Lender shall be obligated to increase such Lender’s Commitment without such
Lender’s prior written consent, which may be withheld in such Lender’s sole discretion, and
(iv) any Person providing any Additional Commitment amount that is not already a Lender must be
reasonably acceptable to the Administrative Agent, the L/C Issuer and the Borrower. In connection
with any such increase in the Commitments the parties shall execute any documents reasonably
requested in connection with or to evidence such increase, including without limitation an
amendment to this Agreement.
(c) Adjustments. On the date (“Funding Date”) of any future increase in the Commitments
permitted by this Agreement (which date shall be designated by the Administrative Agent, after
consultation with the Borrower), each Lender who has an Additional Commitment shall fund to the
Administrative Agent such amounts as may be required to cause each such Lender to hold its
Percentage of Loans based upon the Commitments as of such Funding Date, and the Administrative
Agent shall distribute the funds so received, if necessary, to the other Lenders in such amounts as
may be required to cause each of them to hold its Percentage of Loans as of such Funding Date. The
first payment of interest and Letter of Credit fees received by the Administrative Agent after such
Funding Date shall be paid to the Lenders in amounts adjusted to reflect the adjustments of their
respective Percentages as of the Funding Date. On the Funding Date each Lender shall be deemed to
have either sold or purchased, as applicable, Participating Interests so that upon consummation of
all such sales and purchases, each Lender, other than the Lender acting as the L/C Issuer, holds an
undivided participating interest in each Letter of Credit and each Reimbursement Obligation equal
to such Lender’s Percentage as of such Funding Date.
Section 2.2. Letters of Credit. (a)
General Terms. Subject to the terms and conditions
hereof, as part of the Revolving Credit, the L/C Issuer shall issue standby letters of credit (each
a
“Letter of Credit”) for the Borrower’s account in an aggregate undrawn face amount up to the
L/C Sublimit;
provided, however, the sum of the Revolving Loans, Swing Loans and L/C Obligations at
any time outstanding shall not exceed the sum of all Commitments in effect at
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such time. Each Lender shall be obligated to reimburse the L/C Issuer for such Lender’s Percentage
of the amount of each drawing under a Letter of Credit and, accordingly, each Letter of Credit
shall constitute usage of the Commitment of each Lender pro rata in an amount equal to its
Percentage of the L/C Obligations then outstanding.
(b) Applications. At any time before the Termination Date, the L/C Issuer shall, at the
request of the Borrower, issue one or more Letters of Credit in Dollars, in customary form and
substance acceptable to the L/C Issuer, with expiration dates no later than the earlier of
12 months from the date of issuance (or which are cancelable not later than 12 months from the date
of issuance and each renewal) or 30 days prior to the Termination Date, in an aggregate face amount
as set forth above, upon the receipt of a duly executed application for the relevant Letter of
Credit in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested
(each an “Application”). Notwithstanding anything contained in any Application to the contrary:
(i) the Borrower shall pay fees in connection with each Letter of Credit as set forth in
Section 2.12(b) hereof, and (ii) if the L/C Issuer is not timely reimbursed for the amount of any
drawing under a Letter of Credit on the date such drawing is paid, the Borrower’s obligation to
reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the Borrower
hereby promises to pay) from and after the date such drawing is paid at a rate per annum equal to
the sum of 2.0% plus the Applicable Margin plus the Base Rate from time to time in effect (computed
on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days
elapsed), provided that the Borrower’s obligation to reimburse the L/C Issuer for such drawing may
be satisfied pursuant to Section 2.4(c) hereof. Without limiting the foregoing, the L/C Issuer’s
obligation to issue, amend or extend the expiration date of a Letter of Credit is subject to the
terms or conditions of this Agreement (including the conditions set forth in Section 3.1 and the
other terms of this Section 2.2).
(c) The Reimbursement Obligations. Subject to Section 2.2(b) hereof, the obligation of the
Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement
Obligation”) shall be governed by the Application related to such Letter of Credit and this
Agreement, except that reimbursement shall be made by no later than 12:00 Noon (Cincinnati time) on
the date when each drawing is to be paid if the Borrower has been informed of such drawing by the
L/C Issuer on or before 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid
or, if notice of such drawing is given to the Borrower after 11:30 a.m. (Cincinnati time) on the
date when such drawing is to be paid, by the end of such day, in immediately available funds at the
Administrative Agent’s principal office in Cincinnati, Ohio or such other office as the
Administrative Agent may designate in writing to the Borrower, and the Administrative Agent shall
thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds. If the Borrower
does not make any such reimbursement payment on the date due and the Participating Lenders fund
their participations in the manner set forth in Section 2.2(d) below, then all payments thereafter
received by the Administrative Agent in discharge of any of the relevant Reimbursement Obligations
shall be distributed in accordance with Section 2.2(d) below. In addition, for the benefit of the
Administrative Agent, the L/C Issuer and each Lender, the Borrower agrees that, notwithstanding any
provision of any Application, its obligations under this Section 2.2(c) and each Application shall
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement and the Applications, under all circumstances whatsoever, including without
limitation (i) any lack of validity or
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enforceability of any Loan Document; (ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Loan Document; (iii) the existence of any claim, set-off,
defense or other right the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom a beneficiary may be acting), the Administrative Agent, the L/C
Issuer, any Lender or any other Person, whether in connection with this Agreement, another Loan
Document, the transaction related to the Loan Document or any unrelated transaction; (iv) any
statement or any other document presented under a 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; (v) payment by the Administrative Agent or a L/C Issuer under a Letter
of Credit against presentation to the Administrative Agent or a L/C Issuer of a draft or
certificate that does not comply with the terms of the Letter of Credit, provided that the
Administrative Agent’s or L/C Issuer’s determination that documents presented under the Letter of
Credit comply with the terms thereof did not constitute gross negligence or willful misconduct of
the Administrative Agent or L/C Issuer; or (vi) any other act or omission to act or delay of any
kind by the Administrative Agent or a L/C Issuer, any Lender or any other Person or any other event
or circumstance whatsoever that might, but for the provisions of this Section 2.3(c), constitute a
legal or equitable discharge of the Borrower’s obligations hereunder or under an Application.
(d) The Participating Interests. Each Lender (other than the Lender acting as L/C Issuer)
severally and not jointly agrees to purchase from the L/C Issuer, and the L/C Issuer hereby agrees
to sell to each such Lender (a “Participating Lender”), an undivided participating interest (a
“Participating Interest”) to the extent of its Percentage in each Letter of Credit issued by, and
each Reimbursement Obligation owed to, the L/C Issuer. Upon Borrower’s failure to pay any
Reimbursement Obligation on the date and at the time required, or if the L/C Issuer is required at
any time to return to the Borrower or to a trustee, receiver, liquidator, custodian or other Person
any portion of any payment of any Reimbursement Obligation, each Participating Lender shall, not
later than the Business Day it receives a certificate in the form of Exhibit A hereto from the L/C
Issuer (with a copy to the Administrative Agent) to such effect, if such certificate is received
before 1:00 p.m. (Cincinnati time), or not later than 1:00 p.m. (Cincinnati time) the following
Business Day, if such certificate is received after such time, pay to the Administrative Agent for
the account of the L/C Issuer an amount equal to such Participating Lender’s Percentage of such
unpaid Reimbursement Obligation together with interest on such amount accrued from the date the L/C
Issuer made the related payment to the date of such payment by such Participating Lender at a rate
per annum equal to: (i) from the date the L/C Issuer made the related payment to the date
2 Business Days after payment by such Participating Lender is due hereunder, the Federal Funds Rate
for each such day and (ii) from the date 2 Business Days after the date such payment is due from
such Participating Lender to the date such payment is made by such Participating Lender, the Base
Rate in effect for each such day. Each such Participating Lender shall, after making its
appropriate payment, be entitled to receive its Percentage of each payment received in respect of
the relevant Reimbursement Obligation and of interest paid thereon, with the L/C Issuer retaining
its Percentage thereof as a Lender hereunder.
The several obligations of the Participating Lenders to the L/C Issuer under this Section 2.2
shall be absolute, irrevocable and unconditional under any and all circumstances and
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shall not be subject to any set-off, counterclaim or defense to payment which any
Participating Lender may have or has had against the Borrower, the L/C Issuer, the Administrative
Agent, any Lender or any other Person. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by any reduction or
termination of the Commitment of any Lender, and each payment by a Participating Lender under this
Section 2.2 shall be made without any offset, abatement, withholding or reduction whatsoever.
Section 2.3. Applicable Interest Rates. (a)
Base Rate Loans. Each Base Rate Loan made or
maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366 days, as
the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date
such Loan is advanced or created by conversion from a Eurodollar Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the
Base Rate from time to time in effect, payable in arrears on the last Business Day of each month
and at maturity (whether by acceleration or otherwise).
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(i) for any Base Rate Loan and any Swing Loan bearing interest at the Base Rate, the
sum of 2.0% per annum plus the Applicable Margin plus the Base Rate from time to time in
effect; and
(ii) for any Eurodollar Loan and any Swing Loan bearing interest at the Administrative
Agent’s Quoted Rate, the sum of 2.0% per annum plus the rate of interest in effect thereon
at the time of such default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for Base
Rate Loans plus the Base Rate from time to time in effect;
provided, however, that in the absence of acceleration, any increase in interest rates pursuant to
this Section shall be made at the election of the Administrative Agent, acting at the request or
with the consent of the Required Lenders, with written notice to the Borrower. While any Event of
Default exists or after acceleration, interest shall be paid on demand of the Administrative Agent
at the request or with the consent of the Required Lenders.
Section 2.4. Manner of Borrowing Loans and Designating Applicable Interest Rates. (a)
Notice
to the Administrative Agent. The Borrower shall give notice to the Administrative Agent by no
later than (i) noon (Cincinnati time) at least 3 Business Days before the date on which the
Borrower requests the Lenders to advance a Borrowing of Eurodollar Loans and (ii) noon (Cincinnati
time) on the date the Borrower requests the Lenders to advance a Borrowing of Base Rate Loans. The
Loans included in each Borrowing shall bear interest initially at the type of rate specified in
such notice. Thereafter, the Borrower may from time to time elect to change or continue the type
of interest rate borne by each Borrowing or, subject to Section 2.5 hereof, a portion thereof, as
follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of the Interest Period
applicable thereto, the Borrower may continue part or all of such Borrowing as Eurodollar Loans or
convert part or all of such Borrowing into Base Rate Loans or (ii) if such Borrowing is of Base
Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into
Eurodollar Loans for an Interest Period or Interest Periods specified by the Borrower. The
Borrower shall give all such notices requesting the advance, continuation or conversion of a
Borrowing to the Administrative Agent by telephone or telecopy (which notice shall be irrevocable
once given and, if by telephone, shall be promptly confirmed in writing), substantially in the form
attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C (Notice of
Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative
Agent. Notice of the continuation of a Borrowing of Eurodollar Loans for an additional Interest
Period or of the conversion of part or all of a Borrowing of Base Rate Loans into Eurodollar Loans
must be given by no later than noon (Cincinnati time) at least 3 Business Days before the date of
the requested continuation or
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conversion. All notices concerning the advance, continuation or conversion of a Borrowing shall
specify the date of the requested advance, continuation or conversion of a Borrowing (which shall
be a Business Day), the amount of the requested Borrowing to be advanced, continued or converted,
the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is
to be comprised of Eurodollar Loans, the Interest Period applicable thereto. The Borrower agrees
that the Administrative Agent may rely on any such telephonic or telecopy notice given by any
person the Administrative Agent in good faith believes is an Authorized Representative without the
necessity of independent investigation (the Borrower hereby indemnifies the Administrative Agent
from any liability or loss ensuing from such reliance) and, in the event any such notice by
telephone conflicts with any written confirmation, such telephonic notice shall govern if the
Administrative Agent has acted in reliance thereon.
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may assume that such Lender has made such payment when due and the Administrative Agent, in
reliance upon such assumption may (but shall not be required to) make available to the Borrower the
proceeds of the Loan to be made by such Lender and, if any Lender has not in fact made such payment
to the Administrative Agent, such Lender shall, on demand, pay to the Administrative Agent the
amount made available to the Borrower attributable to such Lender together with interest thereon in
respect of each day during the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Lender pays such amount to the Administrative
Agent at a rate per annum equal to: (i) from the date the related advance was made by the
Administrative Agent to the date 2 Business Days after payment by such Lender is due hereunder, the
Federal Funds Rate for each such day and (ii) from the date 2 Business Days after the date such
payment is due from such Lender to the date such payment is made by such Lender, the Base Rate in
effect for each such day. If such amount is not received from such Lender by the Administrative
Agent immediately upon demand, the Borrower will, (without limiting its claim against such Lender
for such breach) within two (2) Business Days of demand, repay to the Administrative Agent the
proceeds of the Loan attributable to such Lender with interest thereon at a rate per annum equal to
the interest rate applicable to the relevant Loan, but without such payment being considered a
payment or prepayment of a Loan under Section 8.1 hereof so that the Borrower will have no
liability under such Section with respect to such payment.
Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans. Each Borrowing of Base Rate
Loans advanced shall be in an amount not less than $300,000. Each Borrowing of Eurodollar Loans
advanced, continued or converted under a Credit shall be in an amount equal to $1,000,000 or such
greater amount which is an integral multiple of $100,000. Without the Administrative Agent’s
consent, there shall not be more than five Borrowings of Eurodollar Loans outstanding at any one
time.
Section 2.6. Maturity of Loans. Each Revolving Loan, both for principal and interest, shall
mature and become due and payable by the Borrower on the Termination Date.
Section 2.7. Prepayments. (a)
Voluntary Prepayments. The Borrower may prepay without premium
or penalty (except as set forth in Section 8.1 below) and in whole or in part any Borrowing of
Eurodollar Loans at any time upon 3 Business Days prior notice by the Borrower to the
Administrative Agent or, in the case of a Borrowing of Base Rate Loans, notice delivered by the
Borrower to the Administrative Agent no later than 10:00 a.m. (Cincinnati time) on the date of
prepayment, such prepayment to be made by the payment of the principal amount to be prepaid and, in
the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date fixed for
prepayment plus any amounts due the Lenders under Section 8.1;
provided, however, the Borrower may
not partially repay a Borrowing (i) if such Borrowing is of Base Rate Loans, in a principal amount
less than $500,000, (ii) if such Borrowing is of Eurodollar Loans, in a principal amount less than
$1,000,000, and (iii) in each case, unless it is in an amount such that the minimum amount required
for a Borrowing pursuant to Section 2.5 remains outstanding. The Administrative Agent shall
promptly advise each Lender of any notice of prepayment by the Borrower.
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(b) Mandatory Prepayments. (i) If the Borrower or any Subsidiary shall at any time or from
time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net
Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any fiscal year of
the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed
Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be
received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by
the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the
Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all
such Net Cash Proceeds; provided that in the case of each Disposition and Event of Loss, if the
Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends
to reinvest, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an
Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Event
of Default then exists, the Borrower shall not be required to make a mandatory prepayment under
this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually
reinvested in such similar assets with such 365-day period. Promptly after the end of such 365-day
period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary
has reinvested such Net Cash Proceeds in such similar assets, and to the extent such Net Cash
Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the
amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be
applied to the Revolving Loans until paid in full and then to the Swing Loans. If the
Administrative Agent or the Required Lenders so request following the occurrence and during the
continuation of an Event of Default and pending any such reinvestment, all proceeds of such
Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the
Collateral Account. So long as no Event of Default exists, the Administrative Agent is authorized
to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s
direction for application to or reimbursement for the costs of replacing, rebuilding or restoring
such Property.
(ii) If after the Closing Date, the Borrower or any Subsidiary shall issue any new equity
securities, other than equity securities issued in connection with the exercise of employee stock
options and equity securities issued to the seller of an Acquired Business in connection with an
Acquisition permitted by the terms hereof, if any, or incur or assume any Indebtedness other than
that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent
of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or
for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by
the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the
Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each
such prepayment shall be applied to the Revolving Loans until paid in full and then to the Swing
Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and
remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing
Loans and the L/C Obligations then outstanding shall be in excess of the Commitment, the Borrower
shall within one (1) Business Day and without notice or demand pay over the
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amount of the excess to the Administrative Agent for the account of the Lenders as and for a
mandatory prepayment on such Obligations, with each such prepayment first to be applied to the
Revolving Loans until payment in full and then to the Swing Loans until paid in full, with any
remaining balance to be held by the Administrative Agent in the Collateral Account as security for
the Obligations owing with respect to the Letters of Credit.
(iv) The Borrower shall, on each date the Commitments are reduced pursuant to Section 2.9,
prepay the Revolving Loans and Swing Loans and, if necessary, prefund the L/C Obligations by the
amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans,
Swing Loans and L/C Obligations then outstanding to the amount to which the Commitments have been
so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Revolving Loans under this
Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans until payment in full
thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their
Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the
payment of the principal amount to be prepaid and, in the case of any Swing Loans or Eurodollar
Loans, accrued interest thereon to the date of prepayment but shall not be subject to Section 8.1
hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
Section 2.8. Place and Application of Payments. All payments of principal of and interest on
the Loans and the Reimbursement Obligations, and of all other Obligations payable by the Borrower
under this Agreement and the other Loan Documents, shall be made by the Borrower to the
Administrative Agent by no later than 1:00 p.m. (Cincinnati time) on the due date thereof at the
office of the Administrative Agent in Cincinnati, Ohio (or such other location as the
Administrative Agent may designate to the Borrower) for the benefit of the Lender or Lenders
entitled thereto. Any payments received after such time shall be deemed to have been received by
the Administrative Agent on the next Business Day. All such payments shall be made in Dollars, in
immediately available funds at the place of payment, in each case without set-off or counterclaim.
The Administrative Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest on Loans and on Reimbursement Obligations in which the Lenders
have purchased Participating Interests ratably to the Lenders and like funds relating to the
payment of any other amount payable to any Lender to such Lender, in each case to be applied in
accordance with the terms of this Agreement.
Anything contained herein to the contrary notwithstanding, (x) pursuant to the exercise of
remedies under Sections 7.2 and 7.3 hereof or (y) after written instruction by the Required Lenders
after the occurrence and during the continuation of an Event of Default, all payments and
collections received in respect of the Obligations and all proceeds of the Collateral received, in
each instance, by the Administrative Agent or any of the Lenders shall be remitted to the
Administrative Agent and distributed as follows:
(a) first, to the payment of any outstanding costs and expenses incurred by the
Administrative Agent, and any security trustee therefor, in monitoring, verifying,
protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving
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or enforcing rights under the Loan Documents, and in any event all costs and expenses of a
character which the Borrower has agreed to pay the Administrative Agent under Section 10.13
hereof (such funds to be retained by the Administrative Agent for its own account unless it
has previously been reimbursed for such costs and expenses by the Lenders, in which event
such amounts shall be remitted to the Lenders to reimburse them for payments theretofore
made to the Administrative Agent);
(b) second, to the payment of principal and interest on the Swing Note until paid in
full;
(c) third, to the payment of any outstanding interest and fees due under the Loan
Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to
each holder thereof;
(d) fourth, to the payment of principal on the Loans, unpaid Reimbursement Obligations,
together with amounts to be held by the Administrative Agent as collateral security for any
outstanding L/C Obligations pursuant to Section 7.4 hereof (until the Administrative Agent
is holding an amount of cash equal to the then outstanding amount of all such
L/C Obligations), and Hedging Liability, the aggregate amount paid to, or held as collateral
security for, the Lenders and, in the case of Hedging Liability, their Affiliates to be
allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder
thereof;
(e) fifth, to the payment of all other unpaid Obligations and all other indebtedness,
obligations, and liabilities of the Borrower and its Subsidiaries secured by the Collateral
Documents (including, without limitation, Funds Transfer and Deposit Account Liability) to
be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder
thereof; and
(f) sixth, to the Borrower or whoever else may be lawfully entitled thereto.
Section 2.9. Commitment Terminations.
Voluntary. The Borrower shall have the right at any
time and from time to time, upon 3 Business Days prior written notice to the Administrative Agent,
to terminate the Commitments in whole or in part, any partial termination to be (i) in an amount
not less than $1,000,000 and (ii) allocated ratably among the Lenders in proportion to their
respective Percentages,
provided that the Commitments may not be reduced to an amount less than the
sum of the aggregate principal amount of Revolving Loans, Swing Loans and of L/C Obligations then
outstanding. Any termination of the Commitments below the L/C Sublimit then in effect shall reduce
the L/C Sublimit by a like amount. Any termination of the Commitments below the Swing Line
Sublimit then in effect shall reduce the Swing Line Sublimit by a like amount. The Administrative
Agent shall give prompt notice to each Lender of any such termination of the Commitments. Any
termination of the Commitments pursuant to this Section 2.9 may not be reinstated.
Section 2.10. Swing Loans. (a)
Generally. Subject to the terms and conditions hereof, as
part of the Revolving Credit, the Administrative Agent agrees to make loans in Dollars to the
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Borrower under the Swing Line (individually a “Swing Loan” and collectively the “Swing Loans”)
which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit; provided,
however, the sum of the Revolving Loans, Swing Loans and L/C Obligations at any time outstanding
shall not exceed the sum of all Commitments in effect at such time. The Swing Loans may be availed
of by the Borrower from time to time and borrowings thereunder may be repaid and used again during
the period ending on the Termination Date; provided that each Swing Loan must be repaid on the last
day of the Interest Period applicable thereto. Each Swing Loan shall be in a minimum amount of
$250,000 or such greater amount which is an integral multiple of $100,000.
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Agent, in immediately available funds, at the Administrative Agent’s principal office in
Cincinnati, Ohio, before 12:00 Noon (Cincinnati time) on the Business Day following the day such
notice is given. The proceeds of such Borrowing of Revolving Loans shall be immediately applied to
repay the outstanding Swing Loans.
(e) Participations. If any Lender refuses or otherwise fails to make a Revolving Loan when
requested by the Administrative Agent pursuant to Section 2.10(d) above (because an Event of
Default described in Section 7.1(j) or 7.1(k) exists with respect to the Borrower or otherwise),
such Lender will, by the time and in the manner such Revolving Loan was to have been funded to the
Administrative Agent, purchase from the Administrative Agent an undivided participating interest in
the outstanding Swing Loans in an amount equal to its Percentage of the aggregate principal amount
of Swing Loans that were to have been repaid with such Revolving Loans; provided that the foregoing
purchases shall be deemed made hereunder without any further action by such Lender or the
Administrative Agent. Each Lender that so purchases a participation in a Swing Loan shall
thereafter be entitled to receive its Percentage of each payment of principal received on the Swing
Loan and of interest received thereon accruing from the date such Lender funded to the
Administrative Agent its participation in such Loan. The several obligations of the Lenders under
this Section shall be absolute, irrevocable and unconditional under any and all circumstances
whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any
Lender may have or have had against the Borrower, any other Lender or any other Person whatever.
Without limiting the generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of the Commitments of any Lender,
and each payment made by a Lender under this Section shall be made without any offset, abatement,
withholding or reduction whatsoever.
Section 2.11. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the type thereof and, with respect to Eurodollar Loans and
Swing Loans, the Interest Period with respect thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and
each Lender’s share thereof.
(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above
shall be prima facie evidence of the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a promissory note or notes in the
forms of Exhibit D-1 (in the case of its Revolving Loans and referred to herein as a
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“Revolving Note”) or D-2 (in the case of its Swing Loans and referred to herein as a “Swing Note”),
as applicable (the Revolving Notes and Swing Note being hereinafter referred to collectively as the
“Notes” and individually as a “Note”). In such event, the Borrower shall prepare, execute and
deliver to such Lender a Note payable to the order of such Lender in the amount of the relevant
Commitment or Swing Line Sublimit, as applicable. Thereafter, the Loans evidenced by such Note or
Notes and interest thereon shall at all times (including after any assignment pursuant to
Section 10.10) be represented by one or more Notes payable to the order of the payee named therein
or any assignee pursuant to Section 13.12, except to the extent that any such Lender or assignee
subsequently returns any such Note for cancellation and requests that such Loans once again be
evidenced as described in subsections (a) and (b) above.
Section 2.12. Fees. (a)
Commitment Fee. The Borrower shall pay to the Administrative Agent
for the ratable account of the Lenders according to their Percentages a commitment fee at the rate
per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the
actual number of days elapsed) on the average daily Unused Commitments. Such commitment fee shall
be payable quarterly in arrears on the last day of each March, June, September, and December in
each year (commencing on the first such date occurring after the date hereof) and on the
Termination Date, unless the Commitments are terminated in whole on an earlier date, in which event
the commitment fee for the period to the date of such termination in whole shall be paid on the
date of such termination.
(b) Letter of Credit Fees. On the date of issuance or extension, or increase in the amount,
of any Letter of Credit pursuant to Section 2.2 hereof, the Borrower shall pay to the L/C Issuer
for its own account a fronting fee equal to .125% of the face amount of (or of the increase in the
face amount of) such Letter of Credit. Quarterly in arrears, on the last day of each March, June,
September, and December, commencing on the first such date occurring after the date hereof, the
Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders according to
their Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin
(computed on the basis of a year of 360 days and the actual number of days elapsed) in effect
during each day of such quarter applied to the daily average face amount of Letters of Credit
outstanding during such quarter; provided that, while any Event of Default exists or after
acceleration, such rate shall increase by 2% over the rate otherwise payable and such fee shall be
paid on demand of the Administrative Agent at the request or with the consent of the Required
Lenders; provided, however, that in the absence of acceleration, any rate increase pursuant to the
foregoing proviso shall be made at the direction of the Administrative Agent, acting at the request
or with the consent of the Required Lenders. In addition, the Borrower shall pay to the L/C Issuer
for its own account the L/C Issuer’s standard drawing, negotiation, amendment, transfer and other
administrative fees for each Letter of Credit. Such standard fees referred to in the preceding
sentence may be established by the L/C Issuer from time to time.
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Section 2.13. Account Debit. The Borrower hereby irrevocably authorizes the Administrative
Agent to charge any of the Borrower’s deposit accounts maintained with the Administrative Agent for
the amounts from time to time necessary to pay any then due Obligations;
provided that the Borrower
acknowledges and agrees that the Administrative Agent shall not be under an obligation to do so and
the Administrative Agent shall not incur any liability to the Borrower or any other Person for the
Administrative Agent’s failure to do so.
The obligation of each Lender to advance, continue or convert any Loan (other than the
continuation of, or conversion into, a Base Rate Loan) or of the L/C Issuer to issue, extend the
expiration date (including by not giving notice of non-renewal) of or increase the amount of any
Letter of Credit under this Agreement, shall be subject to the following conditions precedent:
(a) each of the representations and warranties set forth herein and in the other Loan
Documents shall be and remain true and correct in all material respects as of said time,
except to the extent the same expressly relate to an earlier date;
(b) no Default or Event of Default shall have occurred and be continuing or would occur
as a result of such Credit Event;
(c) after giving effect to any requested extension of credit, the aggregate principal
amount of all Revolving Loans, Swing Loans and L/C Obligations under this Agreement shall
not exceed the aggregate Commitments;
(d) in the case of a Borrowing the Administrative Agent shall have received the notice
required by Section 2.4 hereof, in the case of the issuance of any Letter of Credit the
L/C Issuer shall have received a duly completed Application together with any fees called
for by Section 2.12 hereof, and, in the case of an extension or increase in the amount of a
Letter of Credit, a written request therefor in a form acceptable to the L/C Issuer together
with fees called for by Section 2.12 hereof; and
(e) such Credit Event shall not violate any order, judgment or decree of any court or
other authority or any provision of law or regulation applicable to the
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Administrative Agent or any Lender (including, without limitation, Regulation U of the Board
of Governors of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder and each request for the issuance of, increase in the
amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date of such Credit Event as to the facts
specified in subsections (a) through (c), both inclusive, of this Section.
(a) the Administrative Agent shall have received (i) the First Supplements to the Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing duly executed by the
Borrower, (ii) the Security Agreement duly executed by the Borrower and each of its existing
Subsidiaries as of the Closing Date, (iii) the Guaranties duly executed by Marketing, Inc.
and Marketing GP and all existing Subsidiaries of the Borrower as of the Closing Date, if
any, (iv) the Pledge Agreement duly executed by Marketing Inc., Marketing GP and all
existing Subsidiaries of the Borrower as of the Closing Date, if any, together with
(x) original stock certificates or other similar instruments or securities representing all
of the issued and outstanding equity interests of Marketing Inc., Marketing GP and each
Subsidiary of the Borrower as of the Closing Date, if any, (y) stock powers for the
Collateral consisting of the stock or other equity interest in each of Marketing GP,
Marketing Inc., the Borrower and each Subsidiary of the Borrower as of the Closing Date, if
any, executed in blank and undated, (v) UCC financing statements to be filed against
Marketing GP, Marketing Inc., the Borrower and each Subsidiary of the Borrower as of the
Closing Date, if any, each as debtor, in favor of the Administrative Agent, as secured
party, (vi) patent, trademark, and copyright collateral agreements, to the extent requested
by the Administrative Agent, and (vii) deposit account, securities account, and commodity
account control agreements to the extent requested by the Administrative Agent;
(b) the Administrative Agent shall have received evidence of insurance required to be
maintained under the Loan Documents including, without limitation, environmental insurance,
naming the Administrative Agent as mortgagee and lender loss payee;
(c) the Administrative Agent shall have received for each Lender copies of the
Borrower’s, Marketing Inc.’s and Marketing GP’s certificate of limited partnership
agreement, certificate formation operating agreement, articles of incorporation and bylaws,
as applicable (or comparable organizational documents) and any amendments thereto, certified
in each instance by its Secretary or Assistant Secretary and, with respect to organizational
documents filed with a Governmental Authority, by the applicable Governmental Authority;
(d) the Administrative Agent shall have received for each Lender copies of resolutions
of the Borrower’s, Marketing Inc.’s and Marketing GP’s Board of Directors (or similar
governing body) authorizing the execution, delivery and performance of this
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Agreement and the other Loan Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, together with specimen signatures of the
persons authorized to execute such documents on the Borrower’s, Holdings’, Marketing Inc.’s
and Marketing GP’s behalf, all certified in each instance by its Secretary or Assistant
Secretary;
(e) the Administrative Agent shall have received for each Lender copies of the
certificates of good standing, or nearest equivalent in the relevant jurisdiction, for the
Borrower, Marketing Inc. and Marketing GP (dated no earlier than 30 days prior to the date
hereof) from the office of the secretary of state or other appropriate governmental
department or agency of the state of its formation, incorporation or organization, as
applicable, and of each state in which it is qualified to do business as a foreign
partnership corporation or organization;
(f) the Administrative Agent shall have received for each Lender a list of the
Borrower’s Authorized Representatives;
(g) the Administrative Agent shall have received for itself and for the Lenders the
initial fees called for by Section 2.12 hereof;
(h) the Administrative Agent shall have received unaudited monthly financial statements
of the Borrower and its Subsidiaries (including an income statement, a balance sheet, and a
cash flow statement) for each month through October 31, 2007;
(i) all legal, tax and regulatory matters relating to the Revolving Credit and any
transactions financed with the proceeds thereof shall be satisfactory to the Administrative
Agent and Lenders;
(j) the Administrative Agent and Lenders shall have satisfactorily completed their due
diligence with respect to the Borrower and the Guarantors;
(k) the Administrative Agent shall have received financing statement, tax, and judgment
lien search results against the Property of the Borrower and the Guarantors, evidencing the
absence of Liens on its Property except for Permitted Liens;
(l) as of the Closing Date, each of the operating deposit accounts of the Borrower
(other than local xxxxx cash deposit accounts, payroll accounts and broker accounts
described in clause (ii) of the proviso to Section 4.1 hereof) shall be maintained with the
Administrative Agent or at other financial institutions reasonably acceptable to the
Administrative Agent which have entered into account control agreements in form and
substance satisfactory to the Administrative Agent;
(m) the Administrative Agent shall have received a certified true, correct and complete
copy of (i) the Refining Marketing Agreement which has termination provisions acceptable to
the Administrative Agent and a maturity date of no earlier than December 31, 2012 and (ii)
each of the MAPCO Services Agreement and the Refining
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Operating Agreement which have maturity dates and termination provisions acceptable to the
Administrative Agent;
(n) no material adverse change in the business, condition (financial or otherwise),
operations, performance, Properties or prospects of the Borrower or any of its Subsidiaries
and any Guarantor from that reflected in the December 31, 2006 financial statements
previously delivered to the Administrative Agent shall have occurred;
(o) the Administrative Agent shall have received for each Lender the favorable written
opinions of counsel to the Borrower and each Guarantor in form and substance satisfactory to
the Administrative Agent; and
(p) the Administrative Agent shall have received for the account of the Lenders such
other agreements, instruments, documents, certificates, and opinions as the Administrative
Agent may reasonably request.
Section 4. The Collateral and Guaranties.
Section 4.1. Collateral. The Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability shall be secured by (a) valid, perfected, and enforceable Liens on all right,
title, and interest of the Borrower and each U.S. Subsidiary in all capital stock and other equity
interests held by such Person in each of its U.S. Subsidiaries, whether now owned or hereafter
formed or acquired, and all proceeds thereof, and (b) valid, perfected, and enforceable Liens on
all right, title, and interest of the Borrower and each Subsidiary in all personal property,
fixtures, and real estate, whether now owned or hereafter acquired or arising, and all proceeds
thereof; provided, however, that: (i) the Lien of the Administrative Agent on Property subject to
a Capital Lease or conditional sale agreement or subject to a purchase money lien, in each instance
to the extent permitted hereby, shall be subject to the rights of the lessor or lender thereunder,
(ii) until a Default or Event of Default has occurred and is continuing and thereafter until
otherwise required by the Administrative Agent or the Required Lenders, Liens on local xxxxx cash
deposit accounts maintained by the Borrower and its Subsidiaries in proximity to their operations
need not be perfected provided that the total amount on deposit at any one time not so perfected
shall not exceed $100,000 in the aggregate and Liens on payroll accounts maintained by the Borrower
and its Subsidiaries need not be perfected provided the total amount on deposit at any time does
not exceed the current amount of their payroll obligation and Liens on broker accounts associated
with Hedging Agreements need not be perfected, (iii) until a Default or Event of Default has
occurred and is continuing and thereafter until otherwise required by the Administrative Agent or
the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be
perfected provided that the total value of such property at any one time not so perfected shall not
exceed $500,000 in the aggregate, and (iv) Liens on the capital stock or other equity interests of
a Foreign Subsidiary shall be limited to 66% of the total outstanding Voting Stock and 100% of all
other equity interests of such Foreign Subsidiary. The Borrower acknowledges and agrees that the
Liens on the Collateral shall be granted to the Administrative Agent for the benefit of the holders
of the Obligations, the Hedging Liability, and the Funds Transfer and Deposit Account Liability and
shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the
end of the immediately preceding
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sentence, in each case pursuant to one or more Collateral Documents from such Persons, each in form
and substance satisfactory to the Administrative Agent.
Section 4.2. Liens on Real Property. In the event that the Borrower or any Subsidiary owns or
hereafter acquires any real property, the Borrower shall, or shall cause such Subsidiary to,
execute and deliver to the Administrative Agent (or a security trustee therefor) a mortgage or deed
of trust acceptable in form and substance to the Administrative Agent for the purpose of granting
to the Administrative Agent a Lien on such real property to secure the Obligations, Hedging
Liability, and Funds Transfer and Deposit Account Liability, shall pay all taxes, costs, and
expenses incurred by the Administrative Agent in recording such mortgage or deed of trust, and
shall supply to the Administrative Agent at the Borrower’s cost and expense a survey, environmental
report, hazard insurance policy, appraisal report, and a mortgagee’s policy of title insurance with
respect to any fee interest from a title insurer reasonably acceptable to the Administrative Agent
insuring the validity of such mortgage or deed of trust and its status as a first Lien (subject to
Permitted Liens) on the real property encumbered thereby and such other instrument, documents,
certificates, and opinions reasonably required by the Administrative Agent in connection therewith;
provided, however, that a Foreign Subsidiary shall not be required to xxxxx x Xxxx on its real
property (and the Borrower and such Foreign Subsidiary shall not be required to comply with the
other requirements of this Section 4.2 concerning such Lien).
Section 4.3. Guaranties. The payment and performance of the Obligations, Hedging Liability,
and Funds Transfer and Deposit Account Liability shall at all times be guaranteed by each direct
and indirect U.S. Subsidiary of the Borrower, Marketing Inc. and Marketing GP (each individually a
“Guarantor” and collectively the “Guarantors”) pursuant to one or more guaranty agreements in form
and substance acceptable to the Administrative Agent, as the same may be amended, modified or
supplemented from time to time (individually a “Guaranty” and collectively the “Guaranties”);
provided, however, a Foreign Subsidiary shall not be required to be a Guarantor hereunder.
Section 4.4. Further Assurances. The Borrower agrees that it shall, and shall cause each
Subsidiary to, from time to time at the request of the Administrative Agent or the Required
Lenders, execute and deliver such documents and do such acts and things as the Administrative Agent
or the Required Lenders may reasonably request in order to provide for or perfect or protect such
Liens on the Collateral as are required by this Section 4. In the event the Borrower or any
Subsidiary forms or acquires any other Subsidiary after the date hereof, the Borrower shall
promptly upon such formation or acquisition cause such newly formed or acquired Subsidiary to
execute a Guaranty and such Collateral Documents as the Administrative Agent may then require to
comply with the terms of this Section 4, and the Borrower shall also deliver to the Administrative
Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the Borrower’s cost and
expense, such other instruments, documents, certificates, and opinions reasonably required by the
Administrative Agent in connection therewith.
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The Borrower represents and warrants to each Lender and the Administrative Agent, and agrees
that:
Section 5.1. Organization and Qualification. The Borrower and each of its Subsidiaries (i) is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the power and authority to own its property and to transact the business in
which it is engaged and proposes to engage and (iii) is duly qualified and in good standing (if
applicable) in each jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except where the failure to be so qualified
and in good standing could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
Section 5.2. Authority and Enforceability. The Borrower has full right and authority to enter
into this Agreement and the other Loan Documents executed by it, to make the borrowings herein
provided for, to issue its Notes in evidence thereof, to grant to the Administrative Agent the
Liens described in the Collateral Documents executed by the Borrower, and to perform all of its
obligations hereunder and under the other Loan Documents executed by it. Each Subsidiary, if any,
has full right and authority to enter into the Loan Documents executed by it, to guarantee the
Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability, to grant to the
Administrative Agent the Liens described in the Collateral Documents executed by such Person, and
to perform all of its obligations under the Loan Documents executed by it. The Loan Documents
delivered by the Borrower and by each Subsidiary, if any, have been duly authorized, executed, and
delivered by such Person and constitute valid and binding obligations of such Person enforceable
against it in accordance with their terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general
principles of equity (regardless of whether the application of such principles is considered in a
proceeding in equity or at law); and this Agreement and the other Loan Documents do not, nor does
the performance or observance by the Borrower or any Subsidiary, if any, of any of the matters and
things herein or therein provided for, (a) contravene or constitute a default under any provision
of law or any judgment, injunction, order or decree binding upon the Borrower or any Subsidiary, if
any, or any provision of the organizational documents (
e.g., charter, articles of incorporation,
by-laws, articles of association, operating agreement, partnership agreement or other similar
document) of the Borrower or any Subsidiary, (b) contravene or constitute a default under any
covenant, indenture or agreement of or affecting the Borrower or any Subsidiary or any of its
Property, in each case where such contravention or default, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or (c) result in the creation or
imposition of any Lien on any Property of the Borrower or any Subsidiary other than the Liens
granted in favor of the Administrative Agent pursuant to the Collateral Documents.
Section 5.3. Financial Reports. The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2006, and the related consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and
accompanying notes thereto, which financial statements are accompanied by the audit
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report of Ernst & Young LLP, independent public accountants, and the unaudited interim consolidated
balance sheet of the Borrower and its Subsidiaries as at September 30, 2007, and the related
consolidated statements of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the 9 months then ended, heretofore furnished to the Administrative Agent and the
Lenders, fairly present the consolidated financial condition of the Borrower and its Subsidiaries
as at said dates and the consolidated results of their operations and cash flows for the periods
then ended in conformity with GAAP applied on a consistent basis. Neither the Borrower nor any
Subsidiary has contingent liabilities or judgments, orders or injunctions against it that are
material to it other than as disclosed in writing to the Administrative Agent by the Borrower or,
with respect to future periods, or indicated on the financial statements furnished pursuant to
Section 6.1 hereof.
Section 5.4. No Material Adverse Change. Since December 31, 2006, there has been no change in
the condition (financial or otherwise) or business prospects of the Borrower or any Guarantor
except those occurring in the ordinary course of business, none of which individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
Section 5.5. Litigation and other Controversies. There is no litigation, arbitration or
governmental proceeding pending or, to the knowledge of the Borrower or the Guarantors, threatened
against the Borrower or any of their Subsidiaries, Marketing GP or Marketing Inc. that could
reasonably be expected to have a Material Adverse Effect.
Section 5.6. True and Complete Disclosure. All information furnished by or on behalf of the
Borrower or any of the Subsidiaries of the Borrower in writing to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement, or any transaction contemplated
herein, is true and accurate in all material respects and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not misleading in light of the
circumstances under which such information was provided.
Section 5.7. Use of Proceeds; Margin Stock. (a) All proceeds of Loans may be used by the
Borrower only (i) to refinance certain existing indebtedness on the Closing Date, (ii) to fund a
one-time dividend by the Borrower to Holdings on or about the Closing Date in an aggregate amount
not to exceed $15,000,000, (iii) to fund fees and expenses incurred by the Borrower and its
Subsidiaries in connection with the closing of this Agreement and (iv) for working capital purposes
and other general corporate purposes (including to finance capital expenditures and Permitted
Acquisitions) of the Borrower and its Subsidiaries. No part of the proceeds of any Loan or other
extension of credit hereunder will be used by the Borrower or any Subsidiary thereof to purchase or
carry any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of purchasing or carrying any margin
stock. Neither the making of any Loan or other extension of credit hereunder nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X of
the Board of Governors of the Federal Reserve System and any successor to all or any portion of
such regulations. Margin Stock (as defined above) constitutes less than 25% of the value of those
assets of the Borrower and its Subsidiaries that are subject to any limitation on sale, pledge or
other restriction hereunder.
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Section 5.8. Taxes. The Borrower, Marketing GP and Marketing Inc. have timely filed or caused
to be timely filed all material tax returns required to be filed by such Person. The Borrower,
Marketing GP and Marketing Inc. have each paid all material taxes, assessments and other
governmental charges payable by them other than taxes, assessments and other governmental charges
which are not delinquent or which are being contested in good faith and by proper proceedings and
as to which appropriate reserves are provided therefor.
Section 5.9. ERISA. The Borrower and each other member of its Controlled Group has fulfilled
its obligations under the minimum funding standards of, and is in compliance in all material
respects with, ERISA and the Code to the extent applicable to it and, other than a liability for
premiums under Section 4007 of ERISA, has not incurred any liability to the PBGC or a Plan under
Title IV of ERISA which individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect. The Borrower, Marketing GP, Marketing Inc. and each of the Borrower’s
Subsidiaries have no contingent liabilities with respect to any post-retirement benefits under a
welfare plan, as defined in Section 3(1) of ERISA, other than liability for continuation coverage
described in article 6 of Title 1 of ERISA which individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect. The Borrower and its Controlled Group have not
incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under
Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
Section 5.10. Subsidiaries. Schedule 5.10 correctly sets forth, as of the Closing Date, each
Subsidiary of the Borrower, its respective jurisdiction of organization and the percentage
ownership (direct and indirect) of the Borrower in each class of capital stock or other equity
interests of each of its Subsidiaries and also identifies the direct owner thereof. No Subsidiary
of Borrower is a Foreign Subsidiary.
Section 5.11. Compliance with Laws. The Borrower, Marketing GP, Marketing Inc. and each of
the Borrower’s Subsidiaries are in compliance with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all Governmental Authority in respect of the
conduct of their businesses and the ownership of their property, except such noncompliances as
could not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect.
Section 5.12. Environmental Matters. The Borrower, Marketing GP, Marketing Inc. and each of
the Borrower’s Subsidiaries are in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws, except to the extent that the
aggregate effect of all non-compliances could not reasonably be expected to have a Material Adverse
Effect. Except as could not reasonably be expected to have a Material Adverse Effect, there are no
pending or, to the best knowledge of the Borrower and its Subsidiaries after due inquiry,
threatened Environmental Claims, including, without limitation, any such claims for liabilities
under CERCLA relating to the Release of Hazardous Materials, against the Borrower, Marketing GP,
Marketing Inc. or any of the Borrower’s Subsidiaries or any real property, including leaseholds,
owned or operated by the Borrower, Marketing GP, Marketing Inc. or any of the Borrower’s
Subsidiaries. Except as set forth on Schedule 5.12, there are no facts,
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circumstances, conditions or occurrences on any real property, including leaseholds, owned or
operated by the Borrower or any of its Subsidiaries that, to the best knowledge of the Borrower and
its Subsidiaries after due inquiry, could reasonably be expected (i) to form the basis of a
material Environmental Claim against the Borrower, Marketing GP, Marketing Inc. or any of the
Borrower’s Subsidiaries or any such real property, or (ii) to cause any such real property to be
subject to any restrictions on the ownership, occupancy, use or transferability of such real
property by the Borrower, Marketing GP, Marketing Inc. or any of the Borrower’s Subsidiaries under
any applicable Environmental Law. To the best knowledge of the Borrower or any of its
Subsidiaries, Hazardous Materials have not been Released on or from any real property, including
leaseholds, owned or operated by the Borrower, Marketing GP, Marketing Inc. or any of the
Borrower’s Subsidiaries, where such Release, individually, may reasonably be expected to require in
excess of $500,000 in response costs under any applicable Environmental Law.
Section 5.13. Investment Company. Neither the Borrower, Marketing GP, Marketing Inc. nor any
of the Borrower’s Subsidiaries is an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 5.14. Intellectual Property. The Borrower, Marketing GP, Marketing Inc. and each
Subsidiary of the Borrower own all the patents, trademarks, permits, service marks, trade names,
copyrights, franchises and formulas, or rights with respect to the foregoing, or each has obtained
licenses of all other rights of whatever nature necessary for the present conduct of its
businesses, in each case without any known conflict with the rights of others which, or the failure
to obtain which, as the case may be, could reasonably be expected to result in a Material Adverse
Effect.
Section 5.15. Good Title. The Borrower and its Subsidiaries have good and marketable title,
or valid leasehold interests, to their assets as reflected on the Borrower’s most recent
consolidated balance sheet provided to the Administrative Agent, except for sales of assets in the
ordinary course of business, subject to no Liens, other than Permitted Liens.
Section 5.16. Labor Relations. Neither the Borrower, Marketing GP, Marketing Inc., nor any
Subsidiary of the Borrower, are engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no strike, labor dispute, slowdown or
stoppage pending against the Borrower, Marketing GP, Marketing Inc. or any Subsidiary of the
Borrower or, to the best knowledge of the Borrower and its Subsidiaries, threatened against the
Borrower, Marketing GP, Marketing Inc. or any Subsidiary of the Borrower and (ii) to the best
knowledge of the Borrower and its Subsidiaries, no union representation proceeding is pending with
respect to the employees of the Borrower, Marketing GP, Marketing Inc. or any Subsidiary of the
Borrower and no union organizing activities are taking place, except (with respect to any matter
specified in clause (i) or (ii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
Section 5.17. Capitalization. All outstanding equity interests of the Borrower and each
Subsidiary have been duly authorized and validly issued, and are fully paid, and there are no
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outstanding commitments or other obligations of the Borrower or any Subsidiary to issue, and no
rights of any Person to acquire, any equity interests in the Borrower or any Subsidiary.
Section 5.18. Other Agreements. Neither the Borrower, Marketing GP, Marketing Inc., nor any
Subsidiary is in default under the terms of any covenant, indenture or agreement of or affecting
the Borrower, Marketing GP, Marketing Inc. or any Subsidiary of the Borrower or any of their
Properties, which default if uncured could reasonably be expected to have a Material Adverse
Effect.
Section 5.19. Governmental Authority and Licensing. The Borrower, Marketing GP, Marketing
Inc., and the Subsidiaries of the Borrower have received all licenses, permits, and approvals of
each Governmental Authority necessary to conduct their businesses, in each case where the failure
to obtain or maintain the same could reasonably be expected to have a Material Adverse Effect. No
investigation or proceeding that, if adversely determined, could reasonably be expected to result
in revocation or denial of any material license, permit or approval is pending or, to the knowledge
of the Borrower and its Subsidiaries, threatened.
Section 5.20. Approvals. No authorization, consent, license or exemption from, or filing or
registration with, any Governmental Authority, nor any approval or consent of any other Person, is
or will be necessary to the valid execution, delivery or performance by the Borrower, Marketing GP,
Marketing Inc. or any Subsidiary of the Borrower of any Loan Document, except for such approvals
which have been obtained prior to the date of this Agreement and remain in full force and effect.
Section 5.21. Affiliate Transactions. Neither the Borrower, Marketing GP, Marketing Inc. nor
any Subsidiary of Borrower are a party to any contracts or agreements with any of its Affiliates
(other than with Wholly-owned Subsidiaries) other than (x) the MAPCO Services Agreement, the
Refining Marketing Agreement and the Refining Operating Agreement, (y) arrangements obligating the
Borrower to reimburse an Affiliate for direct operating expenses paid by such Affiliate on behalf
of Borrower, other than expenses paid by such Affiliate after the occurrence and during the
continuance of a payment default hereunder or a Default or Event of Default under Section 6.19
hereof, and (z) other contracts or agreements on terms and conditions which are not less favorable
to the Borrower or such Guarantor than would be usual and customary in similar contracts or
agreements between Persons not affiliated with each other.
Section 5.22. Solvency. The Borrower and the Guarantors are collectively solvent, able to pay
their debts as they become due, and have sufficient capital to carry on their business and all
businesses in which they are about to engage.
Section 5.23. No Broker Fees. No broker’s or finder’s fee or commission will be payable with
respect hereto or any of the transactions contemplated thereby; and the Borrower hereby agrees to
indemnify the Administrative Agent and the Lenders against, and agree that they will hold the
Administrative Agent and the Lenders harmless from, any claim, demand, or liability for any such
broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable attorneys’ fees) arising in connection with any such claim, demand,
or liability.
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Section 5.24. Foreign Assets Control Regulations and Anti-Money Laundering. (a)
OFAC.
Neither Borrower nor any of the Guarantors is (i) a person whose property or interest in property
is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23,
2001 Blocking Party and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) a person who engages in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise associated with any
such person in any manner violative of Section 2, or (iii) a person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any
other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.
(b) Patriot Act. The Borrower and the Guarantors are in compliance, in all material respects,
with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Patriot Act”). No part of the proceeds of the Loans will be used, directly or indirectly, for any
payments to any governmental official or employee, political party, official of a political party,
candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as Amended.
The Borrower covenants and agrees that, so long as any Credit is available to the Borrower
hereunder and until all Obligations are paid in full:
(a)
Monthly Reports. Within 30 days after the end of each fiscal month of the
Borrower, the Borrower’s consolidated and consolidating statements of income and retained
earnings for such fiscal month and for the elapsed portion of the fiscal year-to-date period
then ended, in reasonable detail, prepared by the Borrower in accordance with GAAP, setting
forth comparative figures for the corresponding fiscal month in the prior fiscal year and
comparable budgeted figures for such fiscal month, all of which shall be certified by the
chief financial officer or other officer of the Borrower acceptable to the Administrative
Agent that they fairly present in all material respects in accordance with GAAP the
financial condition of the Borrower and its Subsidiaries as of the dates indicated and the
results of their operations and changes in their cash flows for the periods indicated,
subject to normal year-end audit adjustments and the absence of footnotes.
(b)
Quarterly Reports. Within 45 days after the end of each fiscal quarter of the
Borrower, the Borrower’s consolidated and consolidating balance sheet as at the end of such
fiscal quarter and the related consolidated and consolidating statements of income and
retained earnings and of cash flows for such fiscal month and for the elapsed portion
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of the fiscal year-to-date period then ended, each in reasonable detail, prepared by the
Borrower in accordance with GAAP, setting forth comparative figures for the corresponding
fiscal quarter in the prior fiscal year and comparable budgeted figures for such fiscal
quarter, all of which shall be certified by the chief financial officer or other officer of
the Borrower acceptable to the Administrative Agent that they fairly present in all material
respects in accordance with GAAP the financial condition of the Borrower and its
Subsidiaries as of the dates indicated and the results of their operations and changes in
their cash flows for the periods indicated, subject to normal year-end audit adjustments and
the absence of footnotes.
(c)
Annual Statements. Within 120 days after the close of each fiscal year of the
Borrower, a copy of the Borrower’s consolidated and consolidating balance sheet as of the
last day of the fiscal year then ended and the Borrower’s consolidated and consolidating
statements of income, retained earnings, and cash flows for the fiscal year then ended, and
accompanying notes thereto, each in reasonable detail showing in comparative form the
figures for the previous fiscal year, accompanied by an opinion of Ernst & Young or other
firm of independent public accountants of recognized national standing, selected by the
Borrower and reasonably acceptable to the Administrative Agent (without a “going concern” or
like qualification, exception or explanation and without any qualification or exception as
to the scope of such audit), to the effect that the consolidated financial statements have
been prepared in accordance with GAAP and present fairly in accordance with GAAP the
consolidated financial condition of the Borrower and its Subsidiaries as of the close of
such fiscal year and the results of their operations and cash flows for the fiscal year then
ended and that an examination of such accounts in connection with such financial statements
has been made in accordance with generally accepted auditing standards.
(d)
Officer’s Certificates. At the time of the delivery of the financial statements
provided for in Section 6.1(b) and (c), (i) a certificate of the chief financial officer or
other officer of the Borrower acceptable to Administrative Agent in the form of Exhibit E
(x) stating no Default or Event of Default has occurred during the period covered by such
statements of, if a Default or Event of Default exists, a detailed description of the
Default or Event of Default and all actions the Borrower is taking with respect to such
Default or Event of Default and (y) showing the Borrower’s compliance with the covenants set
forth in 6.19, and (ii) a comparison of the current year to date financial results (other
than in respect of the balance sheets included therein) against the budgets required to be
submitted pursuant to clause 6.1(e).
(e)
Budgets. As soon as available, but in any event at least 30 days after the first
day of each fiscal year of the Borrower, a budget in form satisfactory to the Administrative
Agent (including, without limitation, a breakdown of the projected results of each line of
business of the Borrower and its Subsidiaries, and budgeted consolidated and consolidating
statements of income, and sources and uses of cash and balance sheets for the Borrower and
its Subsidiaries) of the Borrower and its Subsidiaries in reasonable detail satisfactory to
the Administrative Agent for each fiscal month and the four fiscal
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quarters of the immediately succeeding fiscal year and, with appropriate discussion, the
principal assumptions upon which such budget is based.
(f)
Notice of Default or Litigation. Promptly, and in any event within three (3)
Business Days after any Responsible Officer of the Borrower obtains knowledge thereof,
notice of (i) the occurrence of any event which constitutes a Default or an Event of Default
or any other event which could reasonably be expected to have a Material Adverse Effect,
which notice shall specify the nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto, (ii) the commencement of, or any
significant development in, any litigation, labor controversy, arbitration or governmental
proceeding pending against the Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
(g)
Management Letters. Promptly after the Borrower’s receipt thereof, a copy of each
report or any “management letter” submitted to the Borrower or any of its Subsidiaries by
its certified public accountants and the management’s responses thereto.
(h)
Other Reports and Filings. Promptly, copies of all financial information, proxy
materials and other material information, certificates, reports, statements and completed
forms, if any, which the Borrower or any of its Subsidiaries (x) has filed with the Railroad
Commission of Texas or any governmental agencies substituted therefor or any comparable
agency or (y) has delivered to holders of, or to any agent or trustee with respect to,
Indebtedness of the Borrower or any of its Subsidiaries in their capacity as such a holder,
agent or trustee to the extent that the aggregate principal amount of such Indebtedness
exceeds (or upon the utilization of any unused commitments may exceed) $1,000,000.
(i)
Environmental Matters. Promptly upon, and in any event within five Business Days
after any officer of the Borrower obtains knowledge thereof, notice of one or more of the
following environmental matters which individually, or in the aggregate, may reasonably be
expected to have a Material Adverse Effect: (i) any notice of Environmental Claim against
the Borrower or any of its Subsidiaries or any real property owned or operated by the
Borrower or any of its Subsidiaries; (ii) any condition or occurrence on or arising from any
real property owned or operated by the Borrower or any of its Subsidiaries that (a) results
in noncompliance by the Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any such real property; (iii) any
condition or occurrence on any real property owned or operated by the Borrower or any of its
Subsidiaries that could reasonably be expected to cause such real property to be subject to
any restrictions on the ownership, occupancy, use or transferability by the Borrower or any
of its Subsidiaries of such real property under any Environmental Law; and (iv) any removal
or remedial actions to be taken in response to the actual or alleged presence of any
Hazardous Material on any real property owned or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any Governmental Authority. All such
notices shall describe in reasonable detail the nature of the claim, investigation,
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condition, occurrence or removal or remedial action and the Borrower’s or such Subsidiary’s
response thereto. In addition, the Borrower agrees to provide the Lenders with copies of
all material written communications by the Borrower or any of its Subsidiaries with any
Person or Governmental Authority relating to any of the matters set forth in
clauses (i)-(iv) above, and such detailed reports relating to any of the matters set forth
in clauses (i)-(iv) above as may reasonably be requested by the Administrative Agent or the
Required Lenders.
(j)
Defaults under Affiliate Contracts. Promptly after the Borrower’s receipt thereof,
any written notice of any material default under the MAPCO Services Agreement, the Refining
Operating Agreement, the Refining Marketing Agreement or any Magellan Contract which has
occurred and is continuing.
(k)
Other Information. From time to time, such other information or documents
(financial or otherwise) relating to the business of Borrower as the Administrative Agent or
any Lender may reasonably request.
Section 6.2. Inspections. The Borrower will, and will cause each Subsidiary to, permit
officers, representatives and agents of the Administrative Agent or any Lender, to visit and
inspect any Property of the Borrower or such Subsidiary, and to examine the books of account of the
Borrower or such Subsidiary and discuss the affairs, finances and accounts of the Borrower or such
Subsidiary with its and their officers and independent accountants, all at such reasonable times as
the Administrative Agent or any Lender may request.
Section 6.3. Maintenance of Property, Insurance, Environmental Matters, etc. (a) The Borrower
will, and will cause each of its Subsidiaries to, (i) keep its property, plant and equipment in
good repair, working order and condition, normal wear and tear excepted, and shall from time to
time make all needful and proper repairs, renewals, replacements, extensions, additions,
betterments and improvements thereto so that at all times such property, plant and equipment are
reasonably preserved and maintained and (ii) maintain in full force and effect with financially
sound and reputable insurance companies insurance which provides substantially the same (or
greater) coverage and against at least such risks as is in accordance with industry practice, and
shall furnish to the Administrative Agent upon request full information as to the insurance so
carried. In any event, the Borrower shall, and shall cause each of its Subsidiaries to, maintain
insurance on the Collateral to the extent required by the Collateral Documents. Without limitation
to the foregoing, Borrower will maintain during the term of this Credit Agreement, at its own cost,
environmental insurance coverage equivalent to or greater than those policies and policy limits in
effect on the Closing Date. Borrower shall require the insurer to add and maintain the
Administrative Agent as an additional insured on any such policies.
(b) Without limiting the generality of Section 6.3(a), the Borrower shall, and shall cause
each Subsidiary to, at all times, do the following to the extent the failure to do so, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect: (i) comply in
all material respects with, and maintain each of the Premises in compliance in all material
respects with, all applicable Environmental Laws; (ii) require that each tenant and subtenant, if
any, of any of the Premises or any part thereof to comply in all material respects
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with all applicable Environmental Laws; (iii) obtain and maintain in full force and effect all
material approvals of any Governmental Authority required by any applicable Environmental Law for
operations at each of the Premises; (iv) cure any material violation by it or at any of the
Premises of applicable Environmental Laws; (v) not allow the presence or operation at any of the
Premises of any hazardous waste management facility or solid waste disposal facility for which any
permit is required pursuant to RCRA or any comparable state law; (vi) not manufacture, use,
generate, transport, treat, store, release, dispose or handle any Hazardous Materials at any of the
Premises except in the ordinary course of its business; (vii) within 10 Business Days notify the
Administrative Agent in writing of and provide any reasonably requested documents upon learning of
any of the following in connection with the Borrower or any Subsidiary or any of the Premises:
(1) any material liability for response or corrective action, natural resource damage or other harm
pursuant to CERCLA, RCRA or any comparable state law; (2) any material Environmental Claim; (3) any
material violation of an Environmental Law or material Release, threatened Release or disposal of a
Hazardous Material; (4) any restriction on the ownership, occupancy, use or transferability arising
pursuant to any (x) Release, threatened Release or disposal of a Hazardous Material or
(y) Environmental Law; or (5) any environmental, natural resource, health or safety condition,
which could reasonably be expected to have a Material Adverse Effect; (viii) conduct at its expense
any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other
response action necessary to remove, remediate, clean up or xxxxx any material Release, threatened
Release or disposal of a Hazardous Material as required by any applicable Environmental Law or at
the reasonable request of the Administrative Agent, (ix) abide by and observe any restrictions on
the use of the Premises imposed by any Governmental Authority as set forth in a deed or other
instrument affecting the Borrower’s or any Subsidiary’s interest therein; (x) promptly provide or
otherwise make available to the Administrative Agent any reasonably requested environmental record
concerning the Premises which the Borrower or any Subsidiary possesses or can reasonably obtain;
and (xi) perform, satisfy, and implement any operation or maintenance actions required by any
Governmental Authority or Environmental Law, or included in any no further action letter or
covenant not to xxx issued by any Governmental Authority under any Environmental Law.
Section 6.4. Preservation of Existence. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force
and effect its existence and, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect, its franchises, authority to do business, licenses, patents,
trademarks, copyrights and other proprietary rights;
provided, however, that nothing in this
Section 6.4 shall prevent, to the extent permitted by Section 6.13, sales of assets by the Borrower
or any of its Subsidiaries, the dissolution or liquidation of any Subsidiary of the Borrower, or
the merger or consolidation between or among the Subsidiaries of the Borrower. No Subsidiary of
Borrower shall be a Foreign Subsidiary.
Section 6.5. Compliance with Laws. The Borrower shall, and shall cause each Subsidiary to,
comply in all respects with the requirements of all laws, rules, regulations, ordinances and orders
applicable to its property or business operations of any Governmental Authority, where any such
non-compliance, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
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Section 6.6. ERISA. The Borrower shall, and shall cause each Subsidiary to, promptly pay and
discharge all obligations and liabilities arising under ERISA of a character which if unpaid or
unperformed could reasonably be expected to have a Material Adverse Effect or result in a Lien upon
any of its Property. The Borrower shall, and shall cause each Subsidiary to, promptly notify the
Administrative Agent and each Lender of: (a) the occurrence of any reportable event set forth in
Section 4043(c) of ERISA with respect to a Plan (other than an event for which the 30-day notice
period has been waived, except for a violation of the minimum funding requirements under Section
412 of the Code and Section 302 of ERISA and any disqualification of a Plan) (b) receipt of any
notice from the PBGC of its intention to either seek termination of any Plan or the appointment of
a trustee therefor, (c) its intention to terminate any Plan in a distress termination under Section
4041(c) of ERISA, (d) the occurrence of any event with respect to any Plan which would result in
the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty, or any
material increase in the contingent liability of the Borrower or any Subsidiary with respect to any
post-retirement Welfare Plan benefit, and (e) the intention of any member of the Controlled Group
to completely or partially withdrawal from a Multiemployer Plan or the receipt of notification that
a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA) or in
reorganization (within the meaning of Section 4241 of ERISA).
Section 6.7. Payment of Taxes. The Borrower will, and will cause each of its Subsidiaries to,
pay and discharge, all material taxes, assessments, fees and other governmental charges imposed
upon it or any of its Property, before becoming delinquent and before any penalties accrue thereon,
unless and to the extent that the same are being contested in good faith and by proper proceedings
and as to which appropriate reserves are provided therefor, unless and until any Lien resulting
therefrom attaches to any of its Property.
Section 6.8. Contracts With Affiliates. The Borrower shall not, nor shall it permit any
Subsidiary to, enter into any contract, agreement or business arrangement with any of its
Affiliates on terms and conditions which are less favorable to the Borrower or such Subsidiary than
would be usual and customary in similar contracts, agreements or business arrangements between
Persons not affiliated with each other, other than the MAPCO Services Agreement, the Refining
Operating Agreement, the Refining Marketing Agreement and all arrangements referred to in clause
(y) of Section 5.21.
Section 6.10. Change in the Nature of Business. The Borrower shall not, nor shall it permit
any Subsidiary to, engage in any business or activity if as a result the general nature of the
business of the Borrower or any Subsidiary would be changed in any material respect from the
general nature of the business engaged in by it as of the Closing Date.
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Section 6.11. Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except that
this Section shall not prevent;
(a) the Obligations, Hedging Liability, and Funds Transfer and Deposit Account
Liability of the Borrower and its Subsidiaries owing to the Administrative Agent and the
Lenders (and their Affiliates);
(b) intercompany Indebtedness among the Borrower and its Subsidiaries to the extent
permitted by Section 6.14;
(c) purchase money Indebtedness and Capitalized Lease Obligations of the Borrower and
its Subsidiaries in an amount not to exceed $2,500,000 in the aggregate at any one time
outstanding;
(d) Hedging Agreements entered into in the ordinary course of business and not for
speculative purposes; and
(e) unsecured Indebtedness of the Borrower and its Subsidiaries not otherwise permitted
by this Section in an amount not to exceed $3,000,000 in the aggregate at any one time
outstanding.
Section 6.12. Liens. The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur or suffer to exist any Lien on any of its Property;
provided that this Section shall
not prevent (the Liens described below, the
“Permitted Liens”):
(a) inchoate Liens for the payment of taxes which are not yet due and payable or the
payment of which is not required by Section 6.7;
(b) Liens arising by statute in connection with worker’s compensation, unemployment
insurance, old age benefits, social security obligations, taxes, assessments, statutory
obligations or other similar charges (other than Liens arising under ERISA), good faith cash
deposits in connection with tenders, contracts or leases to which the Borrower or any
Subsidiary is a party or other cash deposits required to be made in the ordinary course of
business, provided in each case that the obligation is not for borrowed money and that the
obligation secured is not overdue or, if overdue, is being contested in good faith by
appropriate proceedings which prevent enforcement of the matter under contest and adequate
reserves have been established therefor;
(c) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens
arising in the ordinary course of business with respect to obligations which are not due or
which are being contested in good faith by appropriate proceedings which prevent enforcement
of the matter under contest;
(d) Liens created by or pursuant to this Agreement and the Collateral Documents;
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(e) Liens on property of the Borrower or any Subsidiary created solely for the purpose
of securing indebtedness permitted by Section 6.11(c) hereof, representing or incurred to
finance the purchase price of Property, provided that no such Lien shall extend to or cover
other Property of the Borrower or such Subsidiary other than the respective Property so
acquired, and the principal amount of indebtedness secured by any such Lien shall at no time
exceed the purchase price of such Property, as reduced by repayments of principal thereon;
(f) Liens appearing as exceptions listed on Schedule B to Xxxxxxx Title Guaranty
Company Policy Nos. 06331899, 06331900 and 06331898;
(g) easements, rights-of-way, restrictions, and other similar encumbrances against real
property incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not materially detract from the value of the Property
subject thereto or materially interfere with the ordinary conduct of the business of the
Borrower or any Subsidiary; and
(h) Liens on specified assets which Liens are not otherwise permitted by this Section
6.12 so long as the aggregate fair market value (determined, in the case of each such Lien,
as of the date such Lien is incurred) of such specified assets subject thereto does not
exceed (as to the Borrower and all their Subsidiaries) $3,000,000 at any one time.
Section 6.13. Consolidation, Merger, Sale of Assets, etc. The Borrower will not, and will not
permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or agree to any
merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its
property, including any disposition as part of any sale-leaseback transactions except that this
Section shall not prevent:
(a) the sale and lease of inventory in the ordinary course of business;
(b) the sale, transfer or other disposition of any tangible personal property that, in
the reasonable judgment of the Borrower or its Subsidiaries, has become uneconomic, obsolete
or worn out;
(c) the sale, transfer, lease, or other disposition of Property of the Borrower and its
Wholly-owned Subsidiaries to one another;
(d) the merger of any Wholly-owned Subsidiary with and into the Borrower or any other
Wholly-owned Subsidiary, provided that, in the case of any merger involving the Borrower,
the Borrower is the legal entity surviving the merger;
(e) the sale, transfer, lease, or other disposition of Property of the Borrower or any
Subsidiary (including any disposition of Property as part of a sale and leaseback
transaction) aggregating for the Borrower and its Subsidiaries not more than $1,500,000
during any fiscal year of the Borrower; and
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(f) the making of payments permitted by Section 6.15 hereof.
So long as no Default or Event of Default has occurred and is continuing or would arise as a result
thereof, upon the written request of the Borrower, the Administrative Agent shall release its Lien
on any Property sold pursuant to the foregoing provisions.
Section 6.14. Advances, Investments and Loans. The Borrower will not, and will not permit any
of its Subsidiaries to, directly or indirectly, make loans or advances to or make, retain or have
outstanding any investments (whether through purchase of equity interests or obligations or
otherwise) in, any Person or enter into any partnerships or joint ventures or otherwise become
liable for the purchase or sale of currency or other commodities at a future date in the nature of
a futures contract, except that this Section shall not prevent:
(a) receivables created in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms;
(b) investments in Cash Equivalents;
(c) investments (including debt obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary course of business;
(d) the Borrower’s investments from time to time in its Wholly-Owned Subsidiaries, and
investments made from time to time by a Wholly-Owned Subsidiary in or more of its
Wholly-Owned Subsidiaries;
(e) intercompany advances made from time to time from the Borrower to any one or more
Wholly-Owned Subsidiaries in the ordinary course of business;
(f) Permitted Acquisitions;
(g) Hedging Agreements entered into in the ordinary course of business and not for
speculative purposes;
(h) the making of any payments Permitted by Section 6.15 hereof; and
(i) other investments, loans and advances in addition to those otherwise permitted by
this Section in an amount not to exceed $2,500,000 in the aggregate at any one time
outstanding.
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provided, however, that the foregoing shall not operate to prevent (i) the making of distributions
by any Wholly-owned Subsidiary of the Borrower to its parent company, (ii) the making of
distributions by Borrower in order to permit the holders of its equity interests to pay any taxes
which are due any payable by such holders and attributable to Borrower and its Subsidiaries, (iii)
the payment of fees by the Borrower to MAPCO pursuant to that MAPCO Services Agreement, (iv) the
payment of fees by the Borrower to Refining pursuant to the Refining Operating Agreement, (v) the
making of a one-time distribution by the Borrower to Holdings in an amount not to exceed
$15,000,000 on or about the Closing Date or (vi) the payments of amounts referred to in clause (y)
of Section 5.21; provided that, the Borrower shall not (without limiting the operation of any
escalation clauses contained therein) amend or otherwise modify either of the MAPCO Services
Agreement or Refining Operating Agreement to increase the amount of fees payable by the Borrower
thereunder, accelerate any payment of fees payable by the Borrower thereunder or reduce the term
thereof; provided however, that the Borrower may amend the amount of fees payable under the MAPCO
Services Agreement so long as the aggregate fees payable by the Borrower thereunder do not exceed
$1,000,000 in the aggregate during any calendar year. Furthermore, without the prior written
consent of the Administrative Agent, the Borrower will not consent or agree to any amendment or
other modification of the terms of any of Sections 2.1, 3.2 or 6.1 of the Refining Marketing
Agreement which amendment or other modification is materially adverse to the Borrower or the
Lenders.
Section 6.16. Limitation on Restrictions. The Borrower will not, and it will not permit any
of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any restriction on the ability of any such Subsidiary to (a) pay dividends or make
any other distributions on its capital stock or other equity interests owned by the Borrower or any
other Subsidiary, (b) pay or repay any Indebtedness owed to the Borrower or any other Subsidiary,
(c) make loans or advances to the Borrower or any other Subsidiary, (d) transfer any of its
Property to the Borrower or any other Subsidiary, (e) encumber or pledge any of its assets to or
for the benefit of the Administrative Agent or (f) guaranty the Obligations, Hedging Liability and
Funds Transfer and Deposit Account Liability.
Section 6.17. Limitation on the Creation of Subsidiaries. Notwithstanding anything to the
contrary contained in this Agreement, the Borrower will not, and will not permit any of its
Subsidiaries to, establish, create or acquire after the Closing Date any Subsidiary;
provided that
the Borrower and its Wholly-owned Subsidiaries shall be permitted to establish or create
Wholly-owned Subsidiaries so long as at least 10 days prior written notice thereof is given to the
Administrative Agent, and the Borrower and its Subsidiaries timely comply with the requirements of
Section 4 (at which time Section 5.10 shall be deemed to include a reference to such Subsidiary).
Section 6.18. OFAC. The Borrower will not, and will not permit any of its Subsidiaries to,
(i) become a person whose property or interests in property are blocked or subject to blocking
pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg.
49079(2001), (ii) engage in any dealings or transactions prohibited by Section 2 of such executive
order, or be otherwise associated with any such person in any manner violative of Section 2, and
(iii) become a person on the list of Specially Designated Nationals and Blocked
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Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order.
Section 6.20. Deposit Accounts. Each of the operating deposit accounts of the Borrower (other
than local xxxxx cash deposit accounts, payroll accounts and broker accounts associated with
Hedging Agreements described in clause (ii) of the proviso to Section 4.1 hereof) shall at all
times be maintained with the Administrative Agent or at other financial institutions reasonably
acceptable to the Administrative Agent which have entered into account control agreements in form
and substance satisfactory to the Administrative Agent.
Section 6.21
Post Closing Covenant. On or before March 21, 2008, the Administrative Agent
shall have received all date-down endorsements (or prepaid binding commitments therefor) reasonably
required by it with respect to those Xxxxxxx Title Guaranty Company Title Insurance Policies
06331900 and 06331898, subject to no defects or objections that are unacceptable to the
Administrative Agent.
(a) default in the payment when due (whether at the stated maturity thereof or at any
other time provided for in this Agreement) of all or any part of the principal of or
interest on any Note or any other Obligation payable hereunder or under any other Loan
Document and such failure (other than in respect of principal) shall continue for three (3)
Business Days;
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(b) default in the observance or performance of any covenant set forth in Sections 6.4,
6.11, 6.12, 6.13, 6.14, 6.15, 6.17, 6.19 and 6.20 hereof or of any provision in any Loan
Document dealing with the use, disposition or remittance of the proceeds of Collateral;
(c) default in the observance or performance of (i) Section 6.1 which is not remedied
within five (5) Business Days after the occurrence of such default or (ii) any other
provision hereof or of any other Loan Document which is not remedied within 30 days after
the earlier of (A) the date on which such failure shall first become known to any officer of
the Borrower or (B) written notice thereof is given to the Borrower by the Administrative
Agent;
(d) any representation or warranty made herein or in any other Loan Document or in any
certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto
or in connection with any transaction contemplated hereby or thereby proves untrue in any
material respect as of the date of the issuance or making or deemed making thereof;
(e) any event occurs or condition exists (other than those described in subsections (a)
through (d) above) which is specified as an “Event of Default” under any of the other Loan
Documents, or any of the Loan Documents shall for any reason not be or shall cease to be in
full force and effect or is declared to be null and void, or any of the Collateral Documents
shall for any reason fail to create a valid and perfected first priority Lien in favor of
the Administrative Agent in any Collateral purported to be covered thereby except as
expressly permitted by the terms thereof, or any Subsidiary takes any action for the purpose
of terminating, repudiating or rescinding any Loan Document executed by it or any of its
obligations thereunder;
(f) default shall occur under any Indebtedness of the Borrower or any Guarantor
aggregating in excess of $1,000,000, or under any indenture, agreement or other instrument
under which the same may be issued, and such default shall continue for a period of time
sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or
not such maturity is in fact accelerated), or any such Indebtedness shall not be paid when
due following any applicable grace period (whether by demand, lapse of time, acceleration or
otherwise) or (ii) Hedge Agreement of the Borrower or any Guarantor with any Lender or any
Affiliate of a Lender following any applicable grace period in such Hedging Agreement;
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or
any similar process or processes, shall be entered or filed against the Borrower or any
Guarantor, or against any of its Property, in an aggregate amount in excess of $3,000,000
(except in any such case to the extent fully covered by insurance pursuant to which the
insurer has accepted liability therefor in writing), and which remains undischarged,
unvacated, unbonded or unstayed for a period of 30 days;
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(h) the Borrower or any Guarantor, or any member of its Controlled Group, shall fail to
pay when due an amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent
to terminate in a distress termination under Section 4041(c) of ERISA a Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of $1,000,000 (collectively, a “Material
Plan”) shall be filed under Title IV of ERISA by the Borrower or any of its Subsidiaries, or
any other member of its Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or
to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be
instituted by a fiduciary of any Material Plan against the Borrower or any of its
Subsidiaries, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or any Guarantor shall (i) have entered involuntarily against it an
order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit
in writing its inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in,
the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official
for it or any substantial part of its Property, (v) institute any proceeding seeking to have
entered against it an order for relief under the United States Bankruptcy Code, as amended,
to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or
other pleading denying the material allegations of any such proceeding filed against it,
(vi) take any action in furtherance of any matter described in parts (i) through (v) above,
or (vii) fail to contest in good faith any appointment or proceeding described in
Section 7.1(k) hereof;
(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any Guarantor, or any substantial part of any of its Property,
or a proceeding described in Section 7.1(j)(v) shall be instituted against the Borrower or
any Subsidiary, and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 days; or
(l) any Magellan Contract is terminated and within 60 days of such termination the
supply provided for under the terminated Magellan Contract is not replaced with a
substantially similar supply of petroleum and other products.
Section 7.2. Non-Bankruptcy Defaults. When any Event of Default other than those described in
subsection (j) or (k) of Section 7.1 hereof has occurred and is continuing, the Administrative
Agent shall, by written notice to the Borrower: (a) if so directed by the Required
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Lenders, terminate the remaining Commitments and all other obligations of the Lenders hereunder on
the date stated in such notice (which may be the date thereof); (b) if so directed by the Required
Lenders, declare the principal of and the accrued interest on all outstanding Loans to be forthwith
due and payable and thereupon all outstanding Loans, including both principal and interest thereon,
shall be and become immediately due and payable together with all other amounts payable under the
Loan Documents without further demand, presentment, protest or notice of any kind; and (c) if so
directed by the Required Lenders, demand that the Borrower immediately pay to the Administrative
Agent the full amount then available for drawing under each or any Letter of Credit, and the
Borrower agrees to immediately make such payment and acknowledges and agrees that the Lenders would
not have an adequate remedy at law for failure by the Borrower to honor any such demand and that
the Administrative Agent, for the benefit of the Lenders, shall have the right to the extent
permitted by applicable law to require the Borrower to specifically perform such undertaking
whether or not any drawings or other demands for payment have been made under any Letter of Credit.
The Administrative Agent, after giving notice to the Borrower pursuant to Section 7.1(c) or this
Section 7.2, shall also promptly send a copy of such notice to the other Lenders, but the failure
to do so shall not impair or annul the effect of such notice.
Section 7.3. Bankruptcy Defaults. When any Event of Default described in subsections (j) or
(k) of Section 7.1 hereof has occurred and is continuing, then all outstanding Loans shall
immediately become due and payable together with all other amounts payable under the Loan Documents
without presentment, demand, protest or notice of any kind, the Commitments and any and all other
obligations of the Lenders to extend further credit pursuant to any of the terms hereof shall
immediately terminate and the Borrower shall immediately pay to the Administrative Agent the full
amount then available for drawing under all outstanding Letters of Credit, the Borrower
acknowledging and agreeing that the Lenders would not have an adequate remedy at law for failure by
the Borrower to honor any such demand and that the Lenders, and the Administrative Agent on their
behalf, shall have the right to require the Borrower to specifically perform such undertaking
whether or not any draws or other demands for payment have been made under any of the Letters of
Credit.
Section 7.4. Collateral for Undrawn Letters of Credit. (a) If the prepayment of the amount
available for drawing under any or all outstanding Letters of Credit is required under
Section 2.7(b) or under Section 7.2 or 7.3 above, the Borrower shall forthwith pay the amount
required to be so prepaid, to be held by the Administrative Agent as provided in subsection (b)
below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by the Administrative
Agent in one or more separate collateral accounts (each such account, and the credit balances,
properties, and any investments from time to time held therein, and any substitutions for such
account, any certificate of deposit or other instrument evidencing any of the foregoing and all
proceeds of and earnings on any of the foregoing being collectively called the “Collateral
Account”) as security for, and for application by the Administrative Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit then or thereafter made
by the L/C Issuer, and to the payment of the unpaid balance of any other Obligations. The
Collateral Account shall be held in the name of and subject to the exclusive
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dominion and control of the Administrative Agent for the benefit of the Administrative Agent, the
Lenders, and the L/C Issuer. If and when requested by the Borrower, the Administrative Agent shall
invest funds held in the Collateral Account from time to time in direct obligations of, or
obligations the principal of and interest on which are unconditionally guaranteed by, the United
States of America with a remaining maturity of one year or less, provided that the Administrative
Agent is irrevocably authorized to sell investments held in the Collateral Account when and as
required to make payments out of the Collateral Account for application to amounts due and owing
from the Borrower to the L/C Issuer, the Administrative Agent or the Lenders; provided, however,
that if (i) the Borrower shall have made payment of all such obligations referred to in
subsection (a) above, (ii) all relevant preference or other disgorgement periods relating to the
receipt of such payments have passed, and (iii) no Letters of Credit, Commitments, Loans or other
Obligations remain outstanding hereunder, then the Administrative Agent shall release to the
Borrower any remaining amounts held in the Collateral Account.
Section 7.5. Notice of Default. The Administrative Agent shall give notice to the Borrower
under Section 7.1(c) hereof promptly upon being requested to do so by any Lender and shall
thereupon notify all the Lenders thereof.
Section 7.6. Expenses. The Borrower agrees to pay to the Administrative Agent and each
Lender, and any other holder of any Note outstanding hereunder, all costs and expenses reasonably
incurred or paid by the Administrative Agent and such Lender or any such holder, including
reasonable attorneys’ fees and court costs, in connection with any Default or Event of Default by
the Borrower hereunder or in connection with the enforcement of any of the Loan Documents
(including all such costs and expenses incurred in connection with any proceeding under the United
States Bankruptcy Code involving the Borrower or any of its Subsidiaries as a debtor thereunder).
Section 8.1. Funding Indemnity. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss of profit, and any loss, cost or expense incurred by
reason of the liquidation or re-employment of deposits or other funds acquired by such Lender to
fund or maintain any Eurodollar Loan or Swing Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender or by reason of breakage of interest rate swap agreements
or the liquidation of other hedging contracts or agreements) as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Loan or Swing Loan on a date
other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of Section 3 or otherwise)
by the Borrower to borrow or continue a Eurodollar Loan or Swing Loan, or to convert a Base
Rate Loan into a Eurodollar Loan or Swing Loan, on the date specified in a notice given
pursuant to Section 2.4(a) hereof,
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(c) any failure by the Borrower to make any payment of principal on any Eurodollar Loan
or Swing Loan when due (whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurodollar Loan or Swing Loan as a result of
the occurrence of any Event of Default hereunder,
then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will
reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a
certificate setting forth the amount of such loss, cost or expense in reasonable detail (including
an explanation of the basis for and the computation of such loss, cost or expense) and the amounts
shown on such certificate shall be conclusive absent manifest error.
Section 8.2. Illegality. Notwithstanding any other provisions of this Agreement or any Note,
if at any time any change in applicable law, rule or regulation or in the interpretation thereof
makes it unlawful for any Lender to make or continue to maintain any Eurodollar Loans or to perform
its obligations as contemplated hereby, such Lender shall promptly give notice thereof to the
Borrower and the Administrative Agent and such Lender’s obligations to make or maintain Eurodollar
Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to
make or maintain Eurodollar Loans. The Borrower shall prepay on demand the outstanding principal
amount of any such affected Eurodollar Loans, together with all interest accrued thereon and all
other amounts then due and payable to such Lender under this Agreement;
provided, however, subject
to all of the terms and conditions of this Agreement, the Borrower may then elect to borrow the
principal amount of the affected Eurodollar Loans from such Lender by means of Base Rate Loans from
such Lender, which Base Rate Loans shall not be made ratably by the Lenders but only from such
affected Lender.
(a) the Administrative Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered to it in the interbank eurodollar market for such Interest
Period, or that by reason of circumstances affecting the interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) the Required Lenders advise the Administrative Agent that (i) LIBOR as determined
by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders
of funding their Eurodollar Loans for such Interest Period or (ii) that the making or
funding of Eurodollar Loans become impracticable,
then the Administrative Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the circumstances giving rise
to such suspension no longer exist, the obligations of the Lenders to make Eurodollar Loans shall
be suspended.
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Section 8.4. Yield Protection. (a) If, on or after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender (or its Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental Authority:
(i) shall subject any Lender (or its Lending Office) to any tax, duty or other charge
with respect to its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligations owed to it or its obligation to
make Eurodollar Loans, issue a Letter of Credit, or to participate therein, or shall change
the basis of taxation of payments to any Lender (or its Lending Office) of the principal of
or interest on its Eurodollar Loans, Letter(s) of Credit, or participations therein or any
other amounts due under this Agreement or any other Loan Document in respect of its
Eurodollar Loans, Letter(s) of Credit, any participation therein, any Reimbursement
Obligations owed to it, or its obligation to make Eurodollar Loans, or issue a Letter of
Credit, or acquire participations therein (except for changes in the rate of tax on the
overall net income of such Lender or its Lending Office imposed by the jurisdiction in which
such Lender’s principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with respect to any Eurodollar Loans
any such requirement included in an applicable Reserve Percentage) against assets of,
deposits with or for the account of, or credit extended by, any Lender (or its Lending
Office) or shall impose on any Lender (or its Lending Office) or on the interbank market any
other condition affecting its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligation owed to it, or its obligation to
make Eurodollar Loans, or to issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Lender (or its Lending
Office) of making or maintaining any Eurodollar Loan, issuing or maintaining a Letter of Credit, or
participating therein, or to reduce the amount of any sum received or receivable by such Lender (or
its Lending Office) under this Agreement or under any other Loan Document with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender for such increased cost or
reduction (but not, in any event, in respect of any period prior to 180 days before the date of
such demand).
(b) If, after the date hereof, any Lender or the Administrative Agent shall have determined
that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof, or compliance by any Lender
(or its Lending Office) or any corporation controlling such Lender
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with any request or directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority has had the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for such adoption, change
or compliance (taking into consideration such Lender’s or such corporation’s policies with respect
to capital adequacy) by an amount deemed by such Lender to be material, then from time to time,
within 15 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate such Lender for such
reduction (but not, in any event, in respect of any period prior to 180 days before the date of
such demand).
(c) A certificate of a Lender claiming compensation under this Section 8.4 and setting forth
the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest
error. In determining such amount, such Lender shall act in a nondiscriminatory manner and may use
any reasonable averaging and attribution methods.
Section 8.5. Substitution of Lenders. Upon the receipt by the Borrower of (a) a claim from
any Lender for compensation under Section 8.4 or 10.1 hereof, (b) notice by any Lender to the
Borrower of any illegality pursuant to Section 8.2 hereof or (c) in the event any Lender is in
default in any material respect with respect to its obligations under the Loan Documents (any such
Lender referred to in clause (a), (b) or (c) above being hereinafter referred to as an
“Affected
Lender”), the Borrower may, in addition to any other rights the Borrower may have hereunder or
under applicable law, require, at its expense, any such Affected Lender to assign, at par plus
accrued interest and fees, without recourse, all of its interest, rights, and obligations hereunder
(including all of its Commitments and the Loans and participation interests in Letters of Credit
and other amounts at any time owing to it hereunder and the other Loan Documents) to a bank or
other institutional lender specified by the Borrower,
provided that (i) such assignment shall not
conflict with or violate any law, rule or regulation or order of any Governmental Authority,
(ii) if the assignment to a Person other than a Lender, the Borrower shall have received the
written consent of the Administrative Agent and the L/C Issuer, which consents shall not be
unreasonably withheld, to such assignment, (iii) the Borrower shall have paid to the Affected
Lender all monies (together with amounts due such Affected Lender under Section 8.1 hereof as if
the Loans owing to it were prepaid rather than assigned) other than principal owing to it
hereunder, and (iv) the assignment is entered into in accordance with the other requirements of
Section 10.10 hereof.
Section 8.6. Lending Offices. Each Lender may, at its option, elect to make its Loans
hereunder at the branch, office or affiliate specified on the appropriate signature page hereof
(each a
“Lending Office”) for each type of Loan available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and designate in a written notice
to the Borrower and the Administrative Agent. To the extent reasonably possible, a Lender shall
designate an alternative branch or funding office with respect to its Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Section 8.4 hereof or to avoid the
unavailability of Eurodollar Loans under Section 8.3 hereof, so long as such designation is not
disadvantageous to the Lender.
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Section 8.7. Discretion of Lender as to Manner of Funding. Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder with respect to Eurodollar Loans shall be
made as if each Lender had actually funded and maintained each Eurodollar Loan through the purchase
of deposits in the interbank eurodollar market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest Period.
Section 9.1. Appointment and Authorization of Administrative Agent. Each Lender hereby
appoints Fifth Third Bank, an Ohio banking corporation, as the Administrative Agent under the Loan
Documents and hereby authorizes the Administrative Agent to take such action as Administrative
Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are reasonably incidental
thereto. Notwithstanding the use of the word “Administrative Agent” as a defined term, the Lenders
expressly agree that the Administrative Agent is not acting as a fiduciary of any Lender in respect
of the Loan Documents, the Borrower or otherwise, and nothing herein or in any of the other Loan
Documents shall result in any duties or obligations on the Administrative Agent or any of the
Lenders except as expressly set forth herein.
Section 9.2. Administrative Agent and its Affiliates. The Administrative Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any other Lender and
may exercise or refrain from exercising such rights and power as though it were not the
Administrative Agent, and the Administrative Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of
the Borrower as if it were not the Administrative Agent under the Loan Documents. The term
“Lender” as used herein and in all other Loan Documents, unless the context otherwise clearly
requires, includes the Administrative Agent in its individual capacity as a Lender. References in
Section 2 hereof to the Administrative Agent’s Loans, or to the amount owing to the Administrative
Agent for which an interest rate is being determined, refer to the Administrative Agent in its
individual capacity as a Lender.
Section 9.3. Action by Administrative Agent. If the Administrative Agent receives from the
Borrower a written notice of an Event of Default pursuant to Section 6.1 hereof, the Administrative
Agent shall promptly give each of the Lenders written notice thereof. Without limiting the
generality of the foregoing, the Administrative Agent shall not be required to take any action
hereunder with respect to any Default or Event of Default, except as expressly provided in the Loan
Documents. Upon the occurrence of an Event of Default, the Administrative Agent shall take such
action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be
directed by the Required Lenders. Unless and until the Required Lenders give such direction, the
Administrative Agent may (but shall not be obligated to) take or refrain from taking such actions
as it deems appropriate and in the best interest of all the Lenders. In no event, however, shall
the Administrative Agent be required to take any action in violation of applicable law or of any
provision of any Loan Document, and the Administrative Agent shall in all cases be fully justified
in failing or refusing to act hereunder or under any other
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Loan Document unless it first receives any further assurances of its indemnification from the
Lenders that it may require, including prepayment of any related expenses and any other protection
it requires against any and all costs, expense, and liability which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall be entitled to
assume that no Default or Event of Default exists unless notified in writing to the contrary by a
Lender or the Borrower. In all cases in which the Loan Documents do not require the Administrative
Agent to take specific action, the Administrative Agent shall be fully justified in using its
discretion in failing to take or in taking any action thereunder. Any instructions of the Required
Lenders, or of any other group of Lenders called for under the specific provisions of the Loan
Documents, shall be binding upon all the Lenders and the holders of the Obligations.
Section 9.4. Consultation with Experts. The Administrative Agent may consult with legal
counsel, independent public accountants, and other experts selected by it and shall not be liable
for any action taken or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
Section 9.5. Liability of Administrative Agent; Credit Decision. Neither the Administrative
Agent nor any of its directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection with the Loan Documents: (i) with the consent or at the request
of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify: (i) any statement, warranty
or representation made in connection with this Agreement, any other Loan Document or any Credit
Event; (ii) the performance or observance of any of the covenants or agreements of the Borrower or
any Guarantor contained herein or in any other Loan Document; (iii) the satisfaction of any
condition specified in Section 3 hereof, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness, genuineness, enforceability, perfection,
value, worth or collectibility hereof or of any other Loan Document or of any other documents or
writing furnished in connection with any Loan Document or of any Collateral; and the Administrative
Agent makes no representation of any kind or character with respect to any such matter mentioned in
this sentence. The Administrative Agent may execute any of its duties under any of the Loan
Documents by or through employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, the Borrower, or any other Person for the default or misconduct of any such agents or
attorneys-in-fact selected with reasonable care. The Administrative Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate, other document or statement
(whether written or oral) believed by it to be genuine or to be sent by the proper party or
parties. In particular and without limiting any of the foregoing, the Administrative Agent shall
have no responsibility for confirming the accuracy of any compliance certificate or other document
or instrument received by it under the Loan Documents. The Administrative Agent may treat the
payee of any Note as the holder thereof until written notice of transfer shall have been filed with
the Administrative Agent signed by such payee in form satisfactory to the Administrative Agent.
Each Lender acknowledges that it has independently and without reliance on the Administrative Agent
or any other Lender, and based upon such information, investigations and inquiries as it deems
appropriate, made its own credit analysis and decision to extend credit to the Borrower in the
manner set forth in the Loan Documents. It shall be the responsibility of each Lender to keep
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itself informed as to the creditworthiness of the Borrower and the Guarantors, and the
Administrative Agent shall have no liability to any Lender with respect thereto.
Section 9.6. Indemnity. The Lenders shall ratably, in accordance with their respective
Percentages, indemnify and hold the Administrative Agent, and its directors, officers, employees,
agents, and representatives harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Loan Document or in connection with the transactions
contemplated thereby, regardless of when asserted or arising, except to the extent they are
promptly reimbursed for the same by the Borrower and except to the extent that any event giving
rise to a claim was caused by the gross negligence or willful misconduct of the party seeking to be
indemnified. The obligations of the Lenders under this Section shall survive termination of this
Agreement. The Administrative Agent shall be entitled to offset amounts received for the account
of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative
Agent hereunder (whether as fundings of participations, indemnities or otherwise), but shall not be
entitled to offset against amounts owed to the Administrative Agent by any Lender arising outside
of this Agreement and the other Loan Documents.
Section 9.7. Resignation of Administrative Agent and Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the
Borrower. Upon any such resignation of the Administrative Agent, the Required Lenders shall have
the right to appoint a successor Administrative Agent with the consent of the Borrower not to be
unreasonably withheld. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent’s giving of notice of resignation then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which may be any Lender
hereunder or any commercial bank organized under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring
Administrative Agent under the Loan Documents, and the retiring Administrative Agent shall be
discharged from its duties and obligations thereunder. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Section 9 and all protective
provisions of the other Loan Documents shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent, but no successor Administrative Agent
shall in any event be liable or responsible for any actions of its predecessor.
Section 9.8. L/C Issuer. The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith. The L/C Issuer shall
have all of the benefits and immunities (i) provided to the Administrative Agent in this Section 9
with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters
of Credit issued by it or proposed to be issued by it and the Applications pertaining to such
Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 9,
included the L/C Issuer with respect to such acts or omissions and (ii) as additionally provided in
this Agreement with respect to such L/C Issuer.
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Section 9.9. Hedging Liability and Funds Transfer and Deposit Account Liability Arrangements.
By virtue of a Lender’s execution of this Agreement or an assignment agreement pursuant to
Section 10.10 hereof, as the case may be, any Affiliate of such Lender with whom the Borrower or
any Guarantor has entered into an agreement creating Hedging Liability or Funds Transfer and
Deposit Account Liability shall be deemed a Lender party hereto for purposes of any reference in a
Loan Document to the parties for whom the Administrative Agent is acting, it being understood and
agreed that the rights and benefits of such Affiliate under the Loan Documents consist exclusively
of such Affiliate’s right to share in payments and collections out of the Collateral and the
Guaranties as more fully set forth in Section 2.9 and Section 4 hereof. In connection with any
such distribution of payments and collections, the Administrative Agent shall be entitled to assume
no amounts are due to any Lender or its Affiliate with respect to Hedging Liability or Funds
Transfer and Deposit Account Liability unless such Lender has notified the Administrative Agent in
writing of the amount of any such liability owed to it or its Affiliate prior to such distribution.
Section 9.10. Designation of Additional Administrative Agents. The Administrative Agent shall
have the continuing right, for purposes hereof, at any time and from time to time to designate one
or more of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation
agents,” “arrangers” or other designations for purposes hereto, but such designation shall have no
substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties
or responsibilities as a result thereof.
Section 9.11. Authorization to Enter into, and Enforcement of, the Collateral Documents. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to execute and deliver
the Collateral Documents on behalf of each of the Lenders and their Affiliates and to take such
action and exercise such powers under the Collateral Documents as the Administrative Agent
considers appropriate,
provided the Administrative Agent shall not amend the Collateral Documents
unless such amendment is agreed to in writing by the Required Lenders. Each Lender acknowledges
and agrees that it will be bound by the terms and conditions of the Collateral Documents upon the
execution and delivery thereof by the Administrative Agent. Except as otherwise specifically
provided for herein, no Lender (or its Affiliates) other than the Administrative Agent shall have
the right to institute any suit, action or proceeding in equity or at law for the foreclosure or
other realization upon any Collateral or for the execution of any trust or power in respect of the
Collateral or for the appointment of a receiver or for the enforcement of any other remedy under
the Collateral Documents; it being understood and intended that no one or more of the Lenders (or
their Affiliates) shall have any right in any manner whatsoever to affect, disturb or prejudice the
Lien of the Administrative Agent (or any security trustee therefor) under the Collateral Documents
by its or their action or to enforce any right thereunder, and that all proceedings at law or in
equity shall be instituted, had, and maintained by the Administrative Agent (or its security
trustee) in the manner provided for in the relevant Collateral Documents for the benefit of the
Lenders and their Affiliates.
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under this Agreement or the other Loan Documents shall be made without withholding or deduction for
or on account of any present or future taxes (other than overall net income taxes on the recipient
imposed by the jurisdiction in which it is organized or its principal executive office or Lending
Office is located) imposed by or within the jurisdiction in which the Borrower is domiciled, any
jurisdiction from which the Borrower or any other Person on behalf of the Borrower makes any
payment, or (in each case) any political subdivision or taxing authority thereof or therein. If
any such withholding is so required, the Borrower shall make the withholding or deduction, pay the
amount withheld to the appropriate Governmental Authority before penalties attach thereto or
interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure
that the net amount actually received by each Lender and the Administrative Agent free and clear of
such taxes (including such taxes on such additional amount) is equal to the amount which that
Lender or the Administrative Agent (as the case may be) would have received had such withholding
not been made. If the Borrower pays any such taxes, penalties or interest, it shall deliver
official tax receipts evidencing that payment or certified copies thereof to the Lender or
Administrative Agent on whose account such withholding was made (with a copy to the Administrative
Agent if not the recipient of the original) on or before the thirtieth day after payment. If the
Administrative Agent or any Lender pays any amount in respect of any such taxes, penalties or
interest, the Borrower with respect to whom such payments were made shall reimburse the
Administrative Agent or such Lender for that payment within 30 days of written demand therefor in
the currency in which such payment was made; provided, however, the written demand shall be
accompanied by a calculation in reasonable detail, of the amount demanded and evidence of such
payment made by the Administrative Agent or such Lender; and provided, further, the Borrower shall
not be required to reimburse the Administrative Agent or such Lender for any penalties, additions
to taxes, expenses, and interest accruing on such taxes from the date 90 days after the receipt by
the Administrative Agent or such Lender of written notice of the assertion of such taxes.
(b) U.S. Withholding Tax Exemptions. Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the
Administrative Agent on or before the date the initial Credit Event is made hereunder or, if later,
the date such financial institution becomes a Lender hereunder, two duly completed and signed
copies of (i) either Form W-8 BEN or W-8 IMY (in such case relating to such Lender and entitling it
to a complete exemption from withholding under the Code on all amounts to be received by such
Lender, including fees, pursuant to the Loan Documents and the Obligations as a result of such
Lender’s eligibility for benefits under an income tax treaty to which the United States is a party)
or Form W-8 ECI (relating to all amounts to be received by such Lender, including fees, pursuant to
the Loan Documents and the Obligations) of the United States Internal Revenue Service or (ii)
solely if such Lender is claiming exemption from United States withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8 BEN or W-8 IMY,
or any successor form prescribed by the Internal Revenue Service, and a certificate representing
that such Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code). Thereafter and from time to time, each such Lender shall submit to the Borrower and the
Administrative Agent such additional duly completed and signed copies of one or the other of such
Forms (or such
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successor forms as shall be adopted from time to time by the relevant United States taxing
authorities) and such other certificates as may be (i) requested by the Borrower in a written
notice, directly or through the Administrative Agent, to such Lender and (ii) required under
then-current United States law or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Lender, including fees, pursuant to the
Loan Documents or the Obligations. Upon the request of the Borrower or the Administrative Agent,
each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Administrative Agent a certificate to the effect that it
is such a United States person.
(d) Notwithstanding anything to the contrary contained herein, the Borrower shall not be obligated
to pay additional amounts to any Lender pursuant to subsection (a) of this Section 10.1 in the
respect of United States federal withholding taxes to the extent imposed as a result of (i) the
failure of such Lender to deliver to the Borrower and the Administrative Agent the appropriate IRS
Form or certificate pursuant to subsection (b) of this Section 10.1, (ii) such IRS Form or
certificate not establishing a complete exemption from United States federal withholding tax or the
information or certifications made therein by the Lender being untrue or inaccurate in any material
respect or (iii) the Lender designating a successor lending office at which it maintains its Loans
which has the effect immediately prior to such designation; provided, however, that the Borrower
shall be obligated to pay additional amounts pursuant to subsection (a) of this Section 10.1 in
respect of United States federal withholding taxes if any such failure to deliver an IRS form or
certificate or the failure of such from or certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein resulted from a change in any
applicable statute, treaty, regulation or other applicable law or any interpretation of any of the
foregoing occurring after the date such Lender becomes a Lender hereunder.
(e) In the event that the Administrative Agent or any Lender receives a refund in respect of
taxes as to which it has been paid additional amount by the Borrower pursuant to subsection (a) of
this Section 10.1 and the Administrative Agent or such Lender determines in its reasonable judgment
that such refund is attributable to such additional amounts, then the Administrative Agent or such
Lender shall promptly remit to the Borrower an amount as the Administrative Agent or such Lender
determines to be the proportion of the refunded amount as will leave it, after such remittance, in
no better or worse position if the taxes has not been imposed and the corresponding additional
amounts or indemnification not been made.
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(f) Notwithstanding anything in this Agreement to the contrary, if the Borrower is required to
pay additional amounts to the Administrative Agent or any Lender pursuant to subsection (a) of this
Section 10.1, the Borrower may, at its option, either (i) prepay the portion of the Loan giving
rise to the payments of the additional amount or (ii) continue to make payments to such Lender
under the terms of this Agreement, which payments shall be made in accordance with this Section
10.1. If the borrower exercises its option under clause (ii) in this paragraph (i), such Lender
agrees to use reasonable efforts (consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Borrower or to change the jurisdiction of its applicable
lending office if the making of such a filing change would avoid the need for or reduce the amount
of any such additional amounts which may thereafter accrue and would not otherwise be
disadvantageous to such Lender.
Section 10.2. No Waiver, Cumulative Remedies. No delay or failure on the part of the
Administrative Agent or any Lender or on the part of the holder or holders of any of the
Obligations in the exercise of any power or right under any Loan Document shall operate as a waiver
thereof or as an acquiescence in any default, nor shall any single or partial exercise of any power
or right preclude any other or further exercise thereof or the exercise of any other power or
right. The rights and remedies hereunder of the Administrative Agent, the Lenders and of the
holder or holders of any of the Obligations are cumulative to, and not exclusive of, any rights or
remedies which any of them would otherwise have.
Section 10.3. Non-Business Days. If any payment hereunder becomes due and payable on a day
which is not a Business Day, the due date of such payment shall be extended to the next succeeding
Business Day on which date such payment shall be due and payable. In the case of any payment of
principal falling due on a day which is not a Business Day, interest on such principal amount shall
continue to accrue during such extension at the rate per annum then in effect, which accrued amount
shall be due and payable on the next scheduled date for the payment of interest.
Section 10.4. Documentary Taxes. The Borrower agrees to pay on demand any documentary, stamp
or similar taxes payable in respect of this Agreement or any other Loan Document, including
interest and penalties, in the event any such taxes are assessed, irrespective of when such
assessment is made and whether or not any credit is then in use or available hereunder.
Section 10.5. Survival of Representations. All representations and warranties made herein or
in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the other Loan Documents, and shall continue in full
force and effect with respect to the date as of which they were made as long as any credit is in
use or available hereunder.
Section 10.6. Survival of Indemnities. All indemnities and other provisions relative to
reimbursement to the Lenders of amounts sufficient to protect the yield of the Lenders with respect
to the Loans and Letters of Credit, including, but not limited to, Sections 8.1, 8.4, 10.4 and
10.13 hereof, shall survive the termination of this Agreement and the other Loan Documents and the
payment of the Obligations.
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Section 10.7. Sharing of Set-Off. Each Lender agrees with each other Lender a party hereto
that if such Lender shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise, on any of the Loans or Reimbursement Obligations in excess of its
ratable share of payments on all such Obligations then outstanding to the Lenders, then such Lender
shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders
such amount of the Loans or Reimbursement Obligations, or participations therein, held by each such
other Lenders (or interest therein) as shall be necessary to cause such Lender to share such excess
payment ratably with all the other Lenders;
provided, however, that if any such purchase is made by
any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing
Lender, the related purchases from the other Lenders shall be rescinded ratably and the purchase
price restored as to the portion of such excess payment so recovered, but without interest. For
purposes of this Section, amounts owed to or recovered by the L/C Issuer in connection with
Reimbursement Obligations in which Lenders have been required to fund their participation shall be
treated as amounts owed to or recovered by the L/C Issuer as a Lender hereunder.
Section 10.8. Notices. Except as otherwise specified herein, all notices hereunder and under
the other Loan Documents shall be in writing (including, without limitation, notice by telecopy)
and shall be given to the relevant party at its address or telecopier number set forth below, or
such other address or telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower given by courier, by United States certified or registered
mail, by telecopy or by other telecommunication device capable of creating a written record of such
notice and its receipt. Notices under the Loan Documents to any Lender shall be addressed to its
address or telecopier number set forth on its Administrative Questionnaire; and notices under the
Loans Documents to the Borrower or the Administrative Agent shall be addressed to their respective
addresses or telecopier numbers set forth below:
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to the Borrower:
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to the Administrative Agent: |
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0000 Xxxxxxxx Xxx |
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Xxxxxxxxx, XX 00000
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Fifth Third Center |
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Attention: Xxxx Xxxxxxx
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00 Xxxxxxxx Xxxxxx Xxxxx |
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Telephone: (000) 000-0000
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Xxxxxxxxxx, XX 00000 |
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Telecopy: (000) 000-0000
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Attention: Loan Syndications/Xxxx Xxxx |
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Telephone: (000) 000-0000 |
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Telecopy: (000) 000-0000 |
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With a copy to: |
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Fulbright & Xxxxxxxx LLP |
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000 Xxxxx Xxxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attention: Xxxx Xxxxxxxx |
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Telephone: (000) 000-0000 |
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Telecopy: (000) 000-0000 |
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Each such notice, request or other communication shall be effective (i) if given by telecopier,
when such telecopy is transmitted to the telecopier number specified in this Section or in the
relevant Administrative Questionnaire and a confirmation of such telecopy has been received by the
sender, (ii) if given by mail, 5 days after such communication is deposited in the mail, certified
or registered with return receipt requested, addressed as aforesaid or (iii) if given by any other
means, when delivered at the addresses specified in this Section or in the relevant Administrative
Questionnaire; provided that any notice given pursuant to Section 2 hereof shall be effective only
upon receipt.
(b) Electronic mail and internet and intranet websites may be used only to distribute routine
communications, such as financial statements, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose.
Section 10.9. Counterparts. This Agreement may be executed in any number of counterparts, and
by the different parties hereto on separate counterpart signature pages, and all such counterparts
taken together shall be deemed to constitute one and the same instrument.
Section 10.10. Successors and Assigns; Assignments and Participations. (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
Borrower may not assign or otherwise transfer any of its rights or obligations under any Loan
Document without the prior written consent of the Administrative Agent and 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 Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it 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(s) (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment
(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
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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 Borrower otherwise consent (each such consent not to be unreasonably
withheld or delayed);
(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
Credit or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the Administrative Agent, the
L/C Issuer and (so long as no Event of Default has occurred and is continuing) the Borrower
(each such approval not to be unreasonably withheld or delayed) unless the Person that is
the proposed assignee is itself a Lender with a Commitment (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 of
$3,500, and the Eligible Assignee, if it shall not be a Lender, 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 8.4 and 10.11 with respect to facts and circumstances
occurring prior to the effective date of such assignment. 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.
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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 or waiver described in Section 10.11(i) and (ii) that affects such Participant.
Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 8.1 and 8.4(b) 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 10.14 as
though it were a Lender, provided such Participant agrees to be subject to Section 10.7 as though
it were a Lender.
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Act, the
New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.
Section 10.11. Amendments. Any provision of this Agreement or the other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a) the
Borrower, (b) the Required Lenders, and (c) if the rights or duties of the Administrative Agent are
affected thereby, the Administrative Agent;
provided that:
(i) no amendment or waiver pursuant to this Section 10.11 shall (A) increase any
Commitment of any Lender without the consent of such Lender, (B) reduce the amount of or
postpone the date for any scheduled payment of any principal of or interest on any Loan or
of any Reimbursement Obligation or of any fee payable hereunder without the consent of the
Lender to which such payment is owing or which has committed to make such Loan or Letter of
Credit (or participate therein) hereunder or (c) change the application of payments set
forth in Section 2.8 hereof without the consent of any Lender adversely affected thereby;
and
(ii) no amendment or waiver pursuant to this Section 10.11 shall, unless signed by each
Lender, increase the aggregate Commitments of the Lenders, change the definitions of
Termination Date or Required Lenders, change the provisions of this Section 10.11, release
any material guarantor or all or substantially all of the Collateral (except as otherwise
provided for in the Loan Documents), affect the number of Lenders required to take any
action hereunder or under any other Loan Document, or change or waive any provision of any
Loan Document that provides for the pro rata nature of disbursements or payments to Lenders.
Section 10.12. Heading. Section headings used in this Agreement are for reference only and
shall not affect the construction of this Agreement.
Section 10.13. Costs and Expenses; Indemnification. (a) The Borrower agrees to pay all costs
and expenses of the Administrative Agent in connection with the preparation, negotiation,
syndication, and administration of the Loan Documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, in connection with the
preparation and execution of the Loan Documents, and any amendment, waiver or consent related
thereto, whether or not the transactions contemplated herein are consummated, together with any
fees and charges suffered or incurred by the Administrative Agent in connection with periodic
environmental audits (limited, so long as no Event of Default exists, to one per annum), fixed
asset appraisals, title insurance policies, collateral filing fees and lien searches. The Borrower
agrees to pay to the Administrative Agent and each Lender, and any other holder of any Obligations
outstanding hereunder, all costs and expenses reasonably incurred or paid by the Administrative
Agent, such Lender, or any such holder, including reasonable attorneys’ fees and disbursements and
court costs, in connection with any Default or Event of Default hereunder or in connection with the
enforcement of any of the Loan Documents (including all such costs and expenses incurred in
connection with any proceeding under the United States Bankruptcy Code involving the Borrower or
any Guarantor as a debtor thereunder). The Borrower further agrees to indemnify the Administrative
Agent, each Lender, and their respective directors, officers,
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employees, agents, financial advisors, and consultants against all Damages (including, without
limitation, all expenses of litigation or preparation therefor, whether or not the indemnified
Person is a party thereto, or any settlement arrangement arising from or relating to any such
litigation) which any of them may pay or incur arising out of or relating to any Loan Document or
any of the transactions contemplated thereby or the direct or indirect application or proposed
application of the proceeds of any Loan or Letter of Credit, other than those which arise from the
gross negligence or willful misconduct of the party claiming indemnification. The Borrower, upon
demand by the Administrative Agent or a Lender at any time, shall reimburse the Administrative
Agent or such Lender for any reasonable legal or other expenses incurred in connection with
investigating or defending against any of the foregoing (including any settlement costs relating to
the foregoing) except if the same is directly due to the gross negligence or willful misconduct of
the party to be indemnified. The obligations of the Borrower under this Section shall survive the
termination of this Agreement.
(b) The Borrower unconditionally agrees to forever indemnify, defend and hold harmless, and
covenants not to xxx for any claim for contribution against, the Administrative Agent and the
Lenders for any Damages, costs, loss or expense, including without limitation, response, remedial
or removal costs, arising out of any of the following: (i) any presence, release, threatened
release or disposal of any hazardous or toxic substance or petroleum by the Borrower or any
Subsidiary or otherwise occurring on or with respect to its Property (whether owned or leased),
(ii) the operation or violation of any Environmental Law by the Borrower or any Subsidiary or
otherwise occurring on or with respect to its Property (whether owned or leased), (iii) any claim
for personal injury or property damage in connection with the Borrower or any Subsidiary or
otherwise occurring on or with respect to its Property (whether owned or leased), and (iv) the
inaccuracy or breach of any environmental representation, warranty or covenant by the Borrower or
any Subsidiary made herein or in any other Loan Document evidencing or securing any Obligations or
setting forth terms and conditions applicable thereto or otherwise relating thereto, except for
Damages arising from the willful misconduct or gross negligence of the party claiming
indemnification. This indemnification shall survive the payment and satisfaction of all
Obligations and the termination of this Agreement, and shall remain in force beyond the expiration
of any applicable statute of limitations and payment or satisfaction in full of any single claim
under this indemnification. This indemnification shall be binding upon the successors and assigns
of the Borrower and shall inure to the benefit of Administrative Agent and the Lenders directors,
officers, employees, agents, and collateral trustees, and their successors and assigns.
Section 10.14. Set-off. In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence and during the
continuation of any Event of Default, each Lender and each subsequent holder of any Obligation is
hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower
or to any other Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including
trust accounts, and in whatever currency denominated) and any other indebtedness at any time held
or owing by that Lender or that subsequent holder to or for the credit or the account of the
Borrower, whether or not matured, against and on account of the Obligations of
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the Borrower to that Lender or that subsequent holder under the Loan Documents, including, but not
limited to, all claims of any nature or description arising out of or connected with the Loan
Documents, irrespective of whether or not (a) that Lender or that subsequent holder shall have made
any demand hereunder or (b) the principal of or the interest on the Loans or Notes and other
amounts due hereunder shall have become due and payable pursuant to Section 7 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
Section 10.15. Entire Agreement. The Loan Documents constitute the entire understanding of
the parties thereto with respect to the subject matter thereof and any prior agreements, whether
written or oral, with respect thereto are superseded hereby.
Section 10.16. Governing Law. This Agreement and the other Loan Documents, and the rights and
duties of the parties hereto, shall be construed and determined in accordance with the internal
laws of the State of
New York.
Section 10.17.
Severability of Provisions. Any provision of any Loan Document which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other jurisdiction. All rights, remedies and
powers provided in this Agreement and the other Loan Documents may be exercised only to the extent
that the exercise thereof does not violate any applicable mandatory provisions of law, and all the
provisions of this Agreement and other Loan Documents are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the extent necessary so
that they will not render this Agreement or the other Loan Documents invalid or unenforceable.
Section 10.18. Excess Interest. Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance in the collection, of all
or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan
Document (
“Excess Interest”). If any Excess Interest is provided for, or is adjudicated to be
provided for, herein or in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither the Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied
as a credit against the then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by applicable law),
(ii) refunded to the Borrower, or (iii) any combination of the foregoing, (d) the interest rate
payable hereunder or under any other Loan Document shall be automatically subject to reduction to
the maximum lawful contract rate allowed under applicable usury laws (the
“Maximum Rate”), and this
Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and
modified to reflect such reduction in the relevant interest rate, and (e) neither the Borrower nor
any guarantor or endorser shall have any action against the Administrative Agent or any Lender for
any Damages whatsoever arising out of the payment or collection of any Excess Interest.
Notwithstanding the foregoing, if for any
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period of time interest on any of Borrower’s Obligations is calculated at the Maximum Rate rather
than the applicable rate under this Agreement, and thereafter such applicable rate becomes less
than the Maximum Rate, the rate of interest payable on the Borrower’s Obligations shall remain at
the Maximum Rate until the Lenders have received the amount of interest which such Lenders would
have received during such period on the Borrower’s Obligations had the rate of interest not been
limited to the Maximum Rate during such period.
Section 10.19. Construction. The parties acknowledge and agree that the Loan Documents shall
not be construed more favorably in favor of any party hereto based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to the negotiation of
the Loan Documents. The provisions of this Agreement relating to Subsidiaries shall apply only
during such times as the Borrower has one or more Subsidiaries. Nothing contained herein shall be
deemed or construed to permit any act or omission which is prohibited by the terms of any
Collateral Document, the covenants and agreements contained herein being in addition to and not in
substitution for the covenants and agreements contained in the Collateral Documents.
Section 10.20. Lender’s Obligations Several. The obligations of the Lenders hereunder are
several and not joint. Nothing contained in this Agreement and no action taken by the Lenders
pursuant hereto shall be deemed to constitute the Lenders a partnership, association, joint venture
or other entity.
Section 10.21. USA Patriot Act. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the Patriot Act it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance with the Patriot
Act.
Section 10.22. Submission to Jurisdiction; Waiver of Jury Trial. The Borrower hereby submits
to the nonexclusive jurisdiction of the United States District Court for the Southern District of
Ohio and of any Ohio State court sitting in the City of Cincinnati for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby. The Borrower irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
The Borrower, the Administrative
Agent, the L/C Issuer and the Lenders hereby irrevocably waive any and all right to trial by jury
in any legal proceeding arising out of or relating to any Loan Document or the transactions
contemplated thereby.
Section 10.23. Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and other
representatives (it being agreed that such Persons shall be obligated to keep such Information
confidential) but not to any such Persons who are analysts, traders or brokers, (b) to
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the extent requested by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or
under any other Loan Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
(for the benefit of the Borrower) containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement (g) with the consent of the Borrower or
(h) to the extent such Information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C
Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.
For purposes of this Section, “Information” means all information received from the Borrower
or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their
respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower
or any of its Subsidiaries, provided that, in the case of information received from the Borrower or
any of its Subsidiaries 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.
Section 10.24. Amendment and Restatement. This Agreement shall become effective on the
Closing Date and shall supersede all provisions of the Existing Credit Agreement as of such date.
From and after the Closing Date, all references made to the Existing Credit Agreement in any Loan
Document or in any other instrument or document shall, without more, be deemed to refer to this
Agreement. The Borrower hereby acknowledges and agrees that the Liens created and provided for by
the Collateral Documents continue to secure, among other things, the Obligations which shall remain
outstanding on the Closing Date as well as those hereafter arising under this Agreement and the
other Loan Documents; and the rights and remedies of the Administrative Agent under the Collateral
Documents and the Liens created and provided for thereunder remain in full force and effect and
shall not be affected, impaired or discharged hereby. Nothing herein contained shall in any manner
affect or impair the priority of the liens and security interests created and provided for by the
Collateral Documents as to the indebtedness which would be secured thereby prior to giving effect
to this Agreement.
[Signature Pages to Follow]
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This Agreement is entered into between us for the uses and purposes hereinabove set forth as
of the date first above written.
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Delek Marketing & Supply, LP
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By: |
Delek Marketing GP, LLC, its general partner
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By |
/s/ Xxxxxx Xxxxxx
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Name Xxxxxx Xxxxxx |
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Title VP & CFO |
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By |
/s/ Xxxx X. Xxxxxxx, Xx.
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Name Xxxx X. Xxxxxxx |
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Title VP & Treasurer |
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“Lenders”
Fifth Third Bank, an Ohio banking
corporation, as a Lender, as
L/C Issuer, and as Administrative Agent
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By |
/s/ Xxxx X. Xxxxx
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Name Xxxx X. Xxxxx |
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Title Vice President |
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First Tennessee Bank National Association,
as a Lender
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By |
/s/ Xxxxx X. Xxxxx, Xx.
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Name Xxxxx X. Xxxxx, Xx. |
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Title SVP |
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