EXHIBIT 10.8
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of May 2, 2005
among
DELEK REFINING, LTD.,
DELEK PIPELINE TEXAS, INC.,
as Borrowers
THE LENDERS FROM TIME TO TIME PARTY HERETO
THE CIT GROUP/BUSINESS CREDIT, INC.,
as the Collateral and Co-Documentation Agent
NATIONAL CITY BUSINESS CREDIT, INC.,
as Co-Documentation Agent
BANK OF AMERICA, N.A. and
PNC BUSINESS CREDIT, INC.,
as Co-Syndication Agents
and
SUNTRUST BANK,
as the Administrative Agent
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SUNTRUST CAPITAL MARKETS, INC.,
as Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I................................................................ 3
DEFINITIONS; CONSTRUCTION................................................ 3
Section 1.1 Definitions............................................. 3
Section 1.2 Classifications of Loans and Borrowings................. 32
Section 1.3 Accounting Terms and Determination...................... 33
Section 1.4 Terms Generally......................................... 33
ARTICLE II............................................................... 33
AMOUNT AND TERMS OF THE COMMITMENTS...................................... 33
Section 2.1 General Description of Facilities....................... 33
Section 2.2 Revolving Loans......................................... 34
Section 2.3 Procedure for Revolving Borrowings...................... 34
Section 2.4 Swingline Commitment.................................... 35
Section 2.5 Agent Advances.......................................... 37
Section 2.6 [Reserved].............................................. 38
Section 2.7 Funding of Borrowings................................... 38
Section 2.8 Interest Elections...................................... 39
Section 2.9 Optional Reduction and Termination of Commitments....... 40
Section 2.10 Repayment of Loans...................................... 41
Section 2.11 Evidence of Indebtedness................................ 41
Section 2.12 Optional Prepayments.................................... 41
Section 2.13 Mandatory Prepayments................................... 42
Section 2.14 Interest on Loans....................................... 43
Section 2.15 Fees.................................................... 44
Section 2.16 Computation of Interest and Fees........................ 45
Section 2.17 Inability to Determine Interest Rates................... 45
Section 2.18 Illegality.............................................. 46
Section 2.19 Increased Costs......................................... 46
Section 2.20 Funding Indemnity....................................... 48
Section 2.21 Taxes................................................... 48
Section 2.22 Payments Generally; Pro Rata Treatment; Sharing of Set-
offs.................................................... 50
Section 2.23 Letters of Credit....................................... 52
Section 2.24 Application of Payments................................. 56
Section 2.25 Mitigation of Obligations............................... 57
Section 2.26 Replacement of Lenders.................................. 58
Section 2.27 Agent Borrower.......................................... 58
Section 2.28 Nature and Extent of Each Borrower's Liability.......... 58
ARTICLE III.............................................................. 60
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT...................... 60
Section 3.1 Conditions To Effectiveness............................. 60
Section 3.2 Each Credit Event....................................... 64
Section 3.3 Delivery of Documents................................... 64
ARTICLE IV............................................................... 64
REPRESENTATIONS AND WARRANTIES........................................... 64
Section 4.1 Existence; Power........................................ 65
Section 4.2 Organizational Power; Authorization..................... 65
Section 4.3 Governmental Approvals; No Conflicts.................... 65
Section 4.4 [Reserved ]............................................. 65
Section 4.5 Litigation and Environmental Matters.................... 65
Section 4.6 Compliance with Laws and Agreements..................... 66
Section 4.7 Investment Company Act, Etc............................. 66
Section 4.8 Taxes................................................... 66
Section 4.9 Margin Regulations...................................... 66
Section 4.10 ERISA................................................... 66
Section 4.11 Ownership of Property................................... 67
Section 4.12 Disclosure.............................................. 67
Section 4.13 Labor Relations......................................... 67
Section 4.14 Subsidiaries............................................ 68
Section 4.15 Insolvency.............................................. 68
Section 4.16 Subordination of Subordinated Debt...................... 68
Section 4.17 Accounts................................................ 68
Section 4.18 OF AC................................................... 69
Section 4.19 Patriot Act............................................. 69
ARTICLE V................................................................ 70
AFFIRMATIVE COVENANTS.................................................... 70
Section 5.1 Financial Statements and Other Information.............. 70
Section 5.2 Lien Perfection......................................... 71
Section 5.3 Location of Collateral; Consignment of Inventory........ 71
Section 5.4 Protection of Collateral................................ 71
Section 5.5 Assignments and Records of Accounts..................... 72
Section 5.6 Administration of Accounts.............................. 72
Section 5.7 Administration of Inventory............................. 75
Section 5.8 [Reserved].............................................. 76
Section 5.9 Borrowing Base Certificates............................. 76
Section 5.10 Notices of Material Events.............................. 76
Section 5.11 Existence; Conduct of Business.......................... 77
Section 5.12 Compliance with Laws, Etc............................... 77
Section 5.13 Payment of Obligations.................................. 78
Section 5.14 Books and Records....................................... 78
Section 5.15 Visitation, Inspection, Etc............................. 78
Section 5.16 Maintenance of Properties; Insurance.................... 78
Section 5.17 Use of Proceeds and Letters of Credit................... 79
Section 5.18 Commodity Hedging....................................... 79
Section 5.19 Subordinated Working Capital Facility................... 79
Section 5.20 Collateral Access Agreements............................ 80
Section 5.21 BSI Report.............................................. 80
Section 5.22 Opening Balance Sheet................................... 80
ARTICLE VI............................................................... 80
FINANCIAL COVENANTS...................................................... 80
Section 6.1 Fixed Charge Coverage Ratio............................. 80
Section 6.2 Capital Expenditures.................................... 80
ARTICLE VII.............................................................. 81
NEGATIVE COVENANTS....................................................... 81
Section 7.1 Indebtedness and Preferred Equity....................... 81
Section 7.2 Negative Pledge......................................... 82
Section 7.3 Fundamental Changes..................................... 82
Section 7.4 Investments, Loans, Etc................................. 83
Section 7.5 Restricted Payments..................................... 84
Section 7.6 Sale of Assets.......................................... 84
Section 7.7 Transactions with Affiliates............................ 84
Section 7.8 Restrictive Agreements.................................. 85
Section 7.9 Sale and Leaseback Transactions......................... 85
Section 7.10 Hedging Transactions.................................... 85
Section 7.11 Amendment to Material Documents......................... 85
Section 7.12 Permitted Subordinated Indebtedness..................... 86
Section 7.13 Accounting Changes...................................... 86
Section 7.14 Lease Obligations....................................... 86
ARTICLE VIII............................................................. 86
EVENTS OF DEFAULT........................................................ 86
Section 8.1 Events of Default....................................... 86
ARTICLE IX............................................................... 89
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT........................ 89
Section 9.1 Appointment of Agents................................... 89
Section 9.2 Nature of Duties........................................ 90
Section 9.3 Lack of Reliance on the Agents.......................... 90
Section 9.4 Certain Rights of the Agents............................ 91
Section 9.5 Reliance by Agents...................................... 91
Section 9.6 The Agents in their Individual Capacity................. 91
Section 9.7 Successor Agents........................................ 91
Section 9.8 Authorization to Execute other Loan Documents........... 92
Section 9.9 Documentation Agent; Syndication Agent.................. 92
Section 9.10 BSI Report; Reconciliation to Borrowing Base............ 92
ARTICLE X................................................................ 92
MISCELLANEOUS............................................................ 92
Section 10.1 Notices................................................. 92
Section 10.2 Waiver; Amendments; Out-of-Formula Loans................ 94
Section 10.3 Expenses; Indemnification............................... 96
Section 10.4 Successors and Assigns.................................. 98
Section 10.5 Governing Law; Jurisdiction; Consent to Service of
Process................................................. 100
Section 10.6 WAIVER OF JURY TRIAL.................................... 101
Section 10.7 Right of Setoff......................................... 101
Section 10.8 Counterparts; Integration............................... 102
Section 10.9 Survival................................................ 102
Section 10.10 Severability............................................ 102
Section 10.11 Confidentiality......................................... 102
Section 10.12 Interest Rate Limitation................................ 103
Section 10.13 Waiver of Effect of Corporate Seal...................... 103
Section 10.14 Posting of Electronic Communications;
Viewing of Accounts..................................... 103
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Commitment Amounts
Schedule III - Eligible Carriers
Schedule IV - Continuing Borrowing Base Items
Schedule 1.1 (c) - Other Permitted Investments
Schedule 4.5 - Environmental Matters
Schedule 4.6 - Compliance with Laws
Schedule 4.14 - Subsidiaries
Schedule 5.3 - Collateral Locations
Schedule 5.6 - Deposit Accounts
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Security Agreement
Exhibit C - Form of Swingline Note
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Subsidiary/Delek Land Guaranty Agreement
Exhibit G - Form of Parent Guaranty Agreement
Exhibit H - Form of Borrowing Base Certificate
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.8 - Form of Continuation/Conversion
Exhibit 3.l(b)(v) - Form of Secretary's Certificate
Exhibit 5.l(d) - Form of Compliance Certificate
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of May 2, 2005, by and among, DELEK
REFINING, LTD. (individually and, in its capacity as the representative of the
other Borrowers pursuant to Section 2.27 hereof, "Delek Refining"), a Texas
limited partnership; and DELEK PIPELINE TEXAS, INC. ("Delek Pipeline"), a Texas
corporation; (Delek Refining and Delek Pipeline being referred to jointly as the
"Borrowers," and individually as a "Borrower"), the several banks and other
financial institutions and lenders from time to time party hereto (the
"Lenders"), SUNTRUST BANK, in its capacity as administrative agent for the
Lenders (the "Administrative Agent"), as issuing bank (the "Issuing Bank") and
as swingline lender (the "Swingline Lender"), THE CIT GROUP/BUSINESS CREDIT,
INC., in its capacity as collateral agent for the Lenders (the "Collateral
Agent"), THE CIT GROUP/BUSINESS CREDIT, INC. and NATIONAL CITY BUSINESS CREDIT,
INC., in their capacities as co-documentation agents (each in such capacity, the
"Co-Documentation Agents"), and BANK OF AMERICA, N.A. and PNC BUSINESS CREDIT,
INC., in their capacities as co-syndication agents (each in such capacity, the
"Co-Syndication Agents"). Capitalized terms used in this Agreement have the
meanings assigned to them in Article I hereof.
WITNESSETH:
WHEREAS, the Borrowers, the Agents, certain financial institutions
("Existing Lenders"), and the other parties named therein are parties to a
certain
Revolving Credit Agreement dated April 29, 2005 (as at any time amended,
modified, supplemented or restated, the "Existing Credit Agreement"), pursuant
to which Existing Lenders made certain revolving credit loans, letters of
credit, and other financial accommodations to the Borrowers in an amount not
exceeding $250,000,000;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated in its entirety to become effective and
binding on the Borrowers and the other Loan Parties pursuant to the terms
hereof, and the Lenders (including the Existing Lenders that are parties hereto)
have agreed, subject to the terms of this Agreement, to amend and restate the
Existing Credit Agreement in its entirety to read as set forth herein, and it
has been agreed by the parties hereto that (a) the commitments which the
Existing Lenders that are parties hereto extended to the Borrowers under the
Existing Credit Agreement and the commitments of new Lenders that become parties
hereto shall be extended or advanced upon the amended and restated terms and
conditions contained in this Agreement and (b) the Loans and other Obligations
outstanding under the Existing Credit Agreement shall be governed by and deemed
to be outstanding under the amended and restated terms and conditions contained
herein;
WHEREAS, all existing Obligations are and shall continue to be (and
all Obligations incurred pursuant hereto shall be) secured by, among other
things, the Security
Documents and the other Loan Documents and shall be guaranteed pursuant to the
Subsidiary/Delek Land Guaranty Agreement and the Parent Guaranty Agreement, and
NOW, THEREFORE, the parties hereto hereby agree to amend and restate
the Existing Credit Agreement and the Existing Credit Agreement is hereby
amended and restated, in its entirety as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Account Debtor" shall mean any Person who is obligated to make
payments under an Account.
"Accounts" shall mean all accounts, contract rights, chattel paper,
instruments, drafts, acceptances and documents of a Borrower arising from the
sale or lease of goods or the provision of services by a Borrower in the
ordinary course of its business, whether secured or unsecured, and whether now
existing or hereafter created or arising, and "Account" shall mean any one of
the foregoing.
"Accounts Formula Amount" shall mean, on any date of determination
thereof, an amount equal to the sum of (i) 85% of the net amount of Eligible
Accounts on such date, plus (ii) 100% of LC Backed Accounts. As used herein, the
phrase "net amount of Eligible Accounts" shall mean the face amount of such
Accounts on any date less any and all returns, rebates, discounts (which may, at
the Collateral Agent's option, be calculated on shortest terms), credits,
allowances or Taxes (including sales, excise or other taxes) at any time issued,
owing, claimed by Account Debtors, granted, outstanding or payable in connection
with, or any interest accrued on the amount of, such Accounts at such date.
"Acquisition" shall mean the acquisition of certain assets of Seller
as contemplated by the terms of the Acquisition Documents.
"Acquisition Documents" shall mean any and all agreements and other
documents relating to the Acquisition, including, without limitation, the Asset
Purchase Agreement.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
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"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition, "Control" shall mean the power, directly or indirectly, either
to (i) vote 10% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by control or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
the meanings correlative thereto.
"Agent Advances" has the meaning set forth in Section 2.5 hereof.
"Agent Banks" means the Administrative Agent, the Collateral Agent,
the Co-Documentation Agents and the Co-Syndication Agents.
"Agents" means the Administrative Agent and the Collateral Agent, and
"Agent" means any one of them.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $250,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrowers as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to
interest on all Revolving Loans outstanding on any date or the letter of credit
fee, as the case may be, a percentage per annum determined by reference to the
applicable Average Availability from time to time in effect as set forth on
Schedule I; provided, that a change in the Applicable Margin resulting from a
change in the Average Availability shall be effective on the second Business Day
after which the Agents shall have received all Borrowing Base Certificates
required by Section 5.9 for the applicable quarterly period; provided further,
that if the Agents have not received such Borrowing Base Certificates for any
applicable quarterly period by the dates such Borrowing Base Certificates are
required to be delivered under this Agreement, the Applicable Margin shall be at
Level IV as set forth on Schedule I until such time as such Borrowing Base
Certificates are delivered, at which time the Applicable Margin shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Margin from the Closing Date until all Borrowing Base Certificates for the
Fiscal Quarter ending December 31, 2005 are delivered shall be at Level II as
set forth on Schedule I.
"Applicable Percentage" shall mean, as of any date, with respect to
the commitment fee as of any date, the percentage per annum determined by
reference to the
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applicable Average Availability in effect on such date as set forth on Schedule
I; provided, that a change in the Applicable Percentage resulting from a change
in the Average Availability shall be effective on the second Business Day after
the Agents shall have received all Borrowing Base Certificates required by
Section 5.9 for the applicable quarterly period; provided further, that if the
Agents shall not have received such Borrowing Base Certificates for any
applicable quarterly period by the dates such Borrowing Base Certificates are
required to be delivered under this Agreement, the Applicable Percentage shall
be at Level IV as set forth on Schedule I until such time as such Borrowing Base
Certificates are delivered, at which time the Applicable Percentage shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Percentage for the commitment fee from the Closing Date until all Borrowing Base
Certificates for the Fiscal Quarter ending December 31, 2005 are delivered shall
be at Level II as set forth on Schedule I.
"Approved Electronic Communications" shall mean each notice, demand,
communication, information, document and other material that any Loan Party is
obligated to, or otherwise chooses to, provide to the Administrative Agent
pursuant to any Loan Document or the transactions contemplated therein,
including any financial statement or and other financial report, Borrowing Base
Certificate, notice, request, certificate and other information or material;
provided, however, that, "Approved Electronic Communication" shall exclude (i)
all Notices of Borrowing, any request for a Letter of Credit, any Notice of
Conversion/Continuation, and any other notice, demand, communication,
information, document and other material relating to a request for a new, or a
conversion of an existing, Borrowing, (ii) any notice pursuant to Sections 2.9,
2.12 or 2.13 and any other notice relating to the payment of any principal or
other amount due under any Loan Document prior to the scheduled date therefor,
(iii) all notices of any Default or Event of Default and (iv) any notice,
demand, communication, information, document and other material required to be
delivered to satisfy any of the conditions set forth in Article III or any other
condition to any Borrowing or other extension of credit hereunder or any
condition precedent to the effectiveness of this Agreement.
"Approved Fund" shall mean 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 (i) a Lender, (ii)
an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Asset Purchase Agreement" shall mean that certain Refinery Purchase
and Sale Agreement, dated as of March 14, 2005, as amended April 29, 2005, among
the Borrowers, and Delek Land, as purchasers, and the Seller, as seller.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit E attached hereto or any other form approved by
the Administrative Agent.
"Availability" shall mean on any determination date, the amount that
Borrowers are entitled to borrow as Revolving Loans on such date, such amount
being the difference derived when (a) the aggregate amount of the outstanding
Loans is subtracted from (b) the
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Borrowing Base on such date. If the sum of the amounts outstanding under clause
(a) is equal to or greater than the Borrowing Base, Availability is zero.
"Availability Block" shall mean the amount of $15,000,000.
"Availability Period" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"Availability Reserve" shall mean on any date of determination
thereof, an amount equal to the sum of the following (without duplication): (i)
from and after the 45th day after the Closing Date, three (3) months rental
payments, storage charges or throughput fees or other similar charges (net of
cash deposits securing such obligations, as evidenced to the reasonable
satisfaction of the Agents from time to time) owing at such time by a Borrower
in respect of Petroleum Inventory in pipelines, storage tanks or carriers, or
owned by any Person other than a Borrower, for which the Administrative Agent
has not received a Landlord Waiver or Bailee's Letter (as applicable) from the
landlord or owner of such property, provided that any of the foregoing amounts
shall be adjusted from time to time hereafter upon (x) delivery to the Agents
of any such acceptable waiver, (y) the opening or closing of a Collateral
location and/or (z) any change in the amount of rental, storage or processor
payments or similar charges; (ii) any amounts which any Loan Party is obligated
to pay pursuant to the provisions of any of the Loan Documents that
Administrative Agent or any Lender elects to pay for the account of such Loan
Party in accordance with authority contained in any of the Loan Documents; (iii)
the LC Exposure; (iv) all customer deposits or other prepayments held by
Borrowers; (v) any post-closing adjustments that may be owing by Borrowers to
Seller under an Acquisition Document; (vi) the aggregate amount of all
liabilities and obligations that are secured by Liens upon any of the Collateral
that are senior in priority to Administrative Agent's Liens if such Liens are
not Permitted Liens (provided that the imposition of a reserve hereunder on
account of such Liens shall not be deemed a waiver of the Event of Default that
arises from the existence of such Liens) or are Permitted Liens; (vii) the
Availability Block; (viii) for so long as the Mapco Reserve Conditions exist,
the Mapco Reserve; (ix) un-collateralized wellhead or first producer taxes or
charges or state excise tax liabilities that are or may be secured by a Lien or
claim (including a right of subrogation) that is prior to the Lien of the
Administrative Agent, as determined by the Administrative Agent from time to
time in its reasonable discretion; (x) the aggregate Net Xxxx-to-Market Exposure
as of any applicable date; (xi) the Eligibility Reserve; and (xii) for so long
as an Event of Default exists, such additional reserves, in such amounts and
with respect to such matters, as the Agents in their discretion may elect to
impose from time to time.
"Availability Support Trigger Date" shall mean a date occurring prior
to October 29, 2006, preceding which the Borrowers had Availability of less than
$2,000,000 for five (5) consecutive Business Days.
"Average Availability" shall mean for any quarterly period, an amount
equal to the sum of the actual amount of Availability on each day or week, as
applicable (and in the case of any week, pro-rated accordingly), during such
quarter, as determined by the Collateral Agent, divided by the number of days or
weeks (as so pro-rated), as applicable, in such quarter.
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"Backup LC Overage" shall mean the amount by which (i) the aggregate
face amount of Letters of Credit issued for the Borrowers' account under this
Agreement to support outstanding Letters of Credit issued by the Existing Lender
for the account of the Seller (the "Seller LC's") exceeds (ii) the aggregate
face amount of such Seller LC's.
"Bailee's Letter" means a letter in form and substance reasonably
acceptable to the Administrative Agent and executed by any Person (other than a
Borrower) that is in possession of Inventory on behalf of a Borrower pursuant to
which such Person acknowledges, among other things, the Administrative Agent's
Lien with respect thereto.
"Bank Products" shall mean any one or more of the following types of
products, services or facilities extended to any Borrower by an Agent Bank or
any Affiliate of an Agent Bank: (i) credit cards; (ii) merchant card services;
(iii) products or services under Cash Management Agreements; (iv) Hedging
Transactions; and (v) such other banking products or services provided by an
Agent Bank or any Affiliate of an Agent Bank as may be requested by any Borrower
(on behalf of itself or their Subsidiaries ) other than Letters of Credit.
"Banking Relationship Debt" shall mean Debt or other obligations of a
Borrower (i) to an Agent Bank (or any Affiliate of an Agent Bank) arising out of
or relating to Bank Products or (ii) to an Agent Bank in connection with its
having provided any guaranty or indemnity on behalf of a Borrower with respect
to any Bank Products.
"Bankruptcy Code" shall mean the United States Bankruptcy Code (11
U.S.C. Section 101 et seq.), as now or hereafter amended, and any successor
statute.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower Agent" shall have the meaning given to such term in Section
2.27 hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"Borrowing Base" shall mean on any date of determination thereof, an
amount equal to the lesser of: (a) the aggregate amount of the Revolving
Commitments on such date minus the LC Exposure on such date, or (b) an amount
equal to (i) the sum of the Accounts Formula Amount, plus the Inventory Formula
Amount on such date, plus 100% of Eligible Cash Collateral, plus 100% of Paid
but Unexpired Standby Letters of Credit, minus (ii) the Availability Reserve on
such date.
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"Borrowing Base Certificate" shall mean a certificate, substantially
in the form attached hereto as Exhibit H, by which the Borrowers shall certify
to each Agent and the Lenders, with such frequency as provided in Section 5.9
hereof, the amount of the Borrowing Base as of the date of the certificate
(which date shall be not more than two (2) Business Days earlier than the date
of submission of such certificate to Collateral Agent) and the calculation of
such amount.
"BSI Report" shall mean the field audit report commissioned by the
Seller from BSI Inspectorate or its affiliates prior to the Original Closing
Date covering the assets to be acquired by the Borrowers in connection with the
Acquisition.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta,
Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"Capital Expenditures" shall mean for any period, without duplication,
(i) the additions to property, plant and equipment and other capital
expenditures of the Borrowers and their Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrowers for such period
prepared in accordance with GAAP and (ii) Capital Lease Obligations incurred by
the Borrowers and their Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean any non-redeemable capital stock (or in the
case of a partnership or limited liability company, the partners' or members'
equivalent equity interest) of the Borrowers or any of their Subsidiaries (to
the extent issued to a Person other than the Borrower), whether common or
preferred.
"Cash Collateral" shall mean cash, and any interest or other income
earned thereon, that is deposited with Administrative Agent in accordance with
the Agreement for the ratable benefit of Lenders to cash collateralize any of
the Obligations.
"Cash Collateral Account" shall mean a demand deposit, money market or
other account established by the Administrative Agent at SunTrust, which account
shall be under the control of and in the Administrative Agent's name and subject
to the Administrative Agent's Liens for the benefit of the Lenders.
"Cash Management Agreements" shall mean any agreement entered into
from time to time between any Borrower or any of their Subsidiaries , on the one
hand, and SunTrust or any of its Affiliates or any other banking or financial
institution, on the other, in connection
-8-
with cash management services for operating, collections, payroll and trust
accounts of such Borrowers or their Subsidiaries provided by such banking or
financial institution, including automatic clearinghouse services, controlled
disbursement services, electronic funds transfer services, information reporting
services, lockbox services, stop payment services, investment account services
and wire transfer services.
"Change in Control" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of a Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (ii) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 30% or more of the outstanding shares of the voting stock of a
Borrower except to a Person or Persons that is an Affiliate of Holdings, or
(iii) occupation of a majority of the seats (other than vacant seats) on the
board of directors of a Borrower by Persons who were neither (a) nominated by
the current board of directors nor (b) appointed by directors so nominated, nor
(c) nominated by Holdings or an Affiliate of Holdings.
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.19(b), by such Lender's or the
Issuing Bank's parent corporation, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Chattel Paper" shall have the meaning given to the term in the
Security Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Collateral" shall mean all property pledged as collateral security
for the Obligations pursuant to the Security Documents (other than UCC-1
financing statements) or otherwise, of Holdings, the Parent, GP, Delek Land, the
Borrowers or their Subsidiaries that is now or hereafter in the possession or
control of an Agent, the Issuing Bank or any Lender or on which the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender has
been granted a Lien.
-9-
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Compliance Certificate" shall mean a certificate from a Responsible
Officer of the Borrowers in the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(d).
"Conditions to Dividends" shall mean (i) no Default or Event of
Default exists or would exist after giving effect to any proposed dividend or
distribution, (ii) trade payables of the Borrowers are current or are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves have been set aside on the Borrowers' books, (iii) immediately
after making any dividend or distribution the Borrowers shall have not less than
$10,000,000 of Availability, and (iv) the Borrowers' have or would have a Fixed
Charge Coverage Ratio of 1.20:1.00 or more for the period of four (4) Fiscal
Quarters ending on any proposed date for the payment of such dividend or
distribution as reflected in the Compliance Certificate issued by the Borrowers
to the Administrative Agent in respect of such period. Solely for purposes of
calculating such Fixed Charge Coverage Ratio under this definition, (A) the
amount of Capital Expenditures for each applicable measurement period shall be
deemed to be the greater of (y) the Borrowers' actual Capital Expenditures
during such measurement period or (z) the Borrowers' projected Capital
Expenditures for such measurement period as most recently submitted to
Administrative Agent prior to the Original Closing Date, and (B) any such
proposed payment of a dividend or distribution shall be included as an
additional Fixed Charge for purposes of satisfying the Fixed Charge Coverage
Ratio for any applicable measurement period.
"Consolidated EBITDA" shall mean, for the Borrowers and their
Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest Expense, (B)
income tax expense determined on a consolidated basis in accordance with GAAP,
(C) depreciation and amortization determined on a consolidated basis in
accordance with GAAP, and (D) all other non-cash charges acceptable to the
Administrative Agent, determined on a consolidated basis in accordance with
GAAP, in each case for such period.
"Consolidated Fixed Charges" shall mean, for the Borrowers and their
Subsidiaries for any period, the sum (without duplication) of (i) Consolidated
Interest Expense for such period, (ii) the principal payments made on
Consolidated Total Debt during such period, (iii) Restricted Payments paid
during such period and (iv) Consolidated Lease Expense for such period.
"Consolidated Interest Expense" shall mean, for the Borrowers and
their Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
-10-
"Consolidated Lease Expense" shall mean, for the Borrowers and their
Subsidiaries for any period, the aggregate amount of fixed and contingent
rentals payable with respect to leases of real and personal property (excluding
Capital Lease Obligations) determined on a consolidated basis in accordance with
GAAP for such period.
"Consolidated Net Income" shall mean, for the Borrowers and their
Subsidiaries for any period, the net income (or loss) of the Borrowers and their
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets, (iii) any equity interest of the Borrowers or any Subsidiary of the
Borrowers in the unremitted earnings of any Person that is not a Subsidiary and
(iv) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrowers or any
Subsidiary on the date that such Person's assets are acquired by the Borrowers
or any Subsidiary.
"Consolidated Total Debt" shall mean, as of any date, all Indebtedness
of the Borrowers and their Subsidiaries measured on a consolidated basis as of
such date, but excluding Indebtedness of the type described in subsection (xi)
of the definition thereto and the Obligations.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.14(c).
"Delek Finance" shall mean Delek Finance, Inc., a Delaware
corporation.
"Delek Group" shall mean Delek Group, Ltd, an Israeli corporation.
"Delek Land" shall mean Delek Land Texas, Inc., a Texas corporation.
"Delek Land Negative Pledge" shall mean the Negative Pledge Agreement,
dated the Original Closing Date, between Delek Land and the Administrative
Agent.
"Deposit Account Control Agreement" shall mean a Deposit Account
Control Agreement which is to be executed by each depository institution of a
Borrower in favor of the Administrative Agent for itself and the ratable benefit
of the Lenders, as security for the Obligations, in form and substance
reasonably acceptable to the Administrative Agent.
"Document" shall have the meaning given to the term in the Security
Agreement.
"Documentary Letter of Credit" shall mean any Letter of Credit that is
drawable upon presentation of documents evidencing the sale or shipment of goods
purchased by a Borrower in the Ordinary Course of Business.
-11-
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Dominion Account" shall mean a special account of the Administrative
Agent established by Borrowers at SunTrust, and over which the Administrative
Agent shall have sole and exclusive access and control for withdrawal purposes.
"Eligibility Reserves" means, effective as of two Business Days after
the date of written notice of any determination thereof to the Borrowers by the
Collateral Agent, such amounts as the Collateral Agent (in its sole discretion
exercised reasonably and in accordance with its customary business practices for
comparable asset based transactions), may from time to time establish against
the gross amounts of Eligible Accounts, Eligible Petroleum Inventory, Eligible
Petroleum Inventory-Not-Received, Paid but Unexpired Letters of Credit, Eligible
Cash Collateral and Eligible Positive Exchange Agreement Balances to reflect
risks or contingencies arising after the Closing Date that may affect any one or
more class of such items and that have not already been taken into account in
the calculation of the Borrowing Base set forth in the Borrowing Base
Certificate most recently provided by the Borrowers at such time pursuant to
this Agreement.
"Eligible Account" shall mean an Account which arises in the Ordinary
Course of Business of a Borrower from the sale of goods, is payable in Dollars,
is subject to the Administrative Agent's duly perfected Lien, and is deemed by
the Agents, in their reasonable credit judgment, to be an Eligible Account.
Without limiting the generality of the foregoing, no Account shall be an
Eligible Account if: (i) it arises out of a sale made by a Borrower to a
Subsidiary or an Affiliate of a Borrower, or a Person controlled by an Affiliate
of a Borrower; (ii) it is unpaid for more than 60 days after the original due
date shown on the invoice; (iii) it is due or unpaid more than 90 days after
the original invoice date; (iv) 50% or more of the Accounts from the Account
Debtor are not deemed Eligible Accounts hereunder; (v) the total unpaid Accounts
of the Account Debtor exceed 20% of the aggregate amount of all Eligible
Accounts, to the extent of such excess; (vi) any covenant, representation or
warranty contained Section 4.17 of this Agreement with respect to such Account
is inaccurate, untrue or has been breached; (vii) the Account Debtor is also
such Borrower's creditor or supplier, or the Account Debtor has disputed
liability with respect to such Account, or the Account Debtor has made any claim
with respect to any other Account due from such Account Debtor to such Borrower,
or the Account otherwise is or may become subject to any right of setoff,
counterclaim, recoupment, reserve, defense or chargeback, provided that, the
Accounts of such Account Debtor shall be ineligible only to the extent of such
dispute or right of offset, counterclaim, recoupment, reserve, defense or
chargeback; (viii) an Insolvency Proceeding has been commenced by or against the
Account Debtor or the Account Debtor has failed, suspended or ceased doing
business; (ix) the Account Debtor is not or has ceased to be Solvent; (x) it
arises from a sale to an Account Debtor that is organized under the laws of any
jurisdiction outside of the United States or that has its principal office,
assets or place of business outside the United States; (xi) it arises from a
sale to the Account Debtor on a xxxx-and-hold, guaranteed sale, sale-or-return,
sale-on-approval, consignment or any other repurchase or return basis; (xii) the
Account Debtor is the United States of America or any department, agency or
instrumentality thereof with respect to Accounts in an aggregate face amount
exceeding $2,250,000, unless the applicable Borrower is not prohibited from
assigning the Account and does assign its right to payment of such Account to
-12-
Administrative Agent, in a manner satisfactory to Administrative Agent, so as to
comply with the Assignment of Claims Act of 1940 (31 U.S.C. Section 3727 and 41
U.S.C. Section 15), or is a state, county or municipality, or a political
subdivision or agency thereof and applicable law disallows or restricts an
assignment of Accounts on which it is the Account Debtor; (xiii) the Account
Debtor is located in any state which imposes conditions on the right of a
creditor to collect accounts receivable unless the applicable Borrower has
either qualified to transact business in such state as a foreign entity or filed
a Notice of Business Activities Report or other required report with the
appropriate officials in those states for the then current year; (xiv) the
Account Debtor is located in a state in which such Borrower is deemed to be
doing business under the laws of such state and which denies creditors access to
its courts in the absence of qualification to transact business in such state or
of the filing of any reports with such state, unless such Borrower has qualified
as a foreign entity authorized to transact business in such state or has filed
all required reports; (xv) the Account is subject to a Lien other than a
Permitted Lien; (xvi) the goods giving rise to such Account have not been
delivered to and accepted by the Account Debtor or the Account otherwise, does
not represent a final sale; (xvii) the Account is evidenced by Chattel Paper or
an Instrument of any kind, or has been reduced to judgment; (xviii) the Account
represents a progress billing or a retainage or arises from a sale on a
cash-on-delivery basis; (xix) such Borrower has made any agreement with the
Account Debtor for any deduction therefrom, except for discounts or allowances
which are made in the Ordinary Course of Business for prompt payment and which
discounts or allowances are reflected in the calculation of the face value of
each invoice related to such Account; (xx) such Borrower has made an agreement
with the Account Debtor to extend the time of payment thereof beyond payment and
due dates provided in clauses (ii) and (iii) above; (xxi) the Account
represents, in whole or in part, a billing for interest, fees or late charges,
provided that such Account shall be ineligible only to the extent of the amount
of such billing; (xxii) the Account Debtor has made a partial payment with
respect to such Account; (xxiii) it arises from the sale of Inventory that is
not Eligible Petroleum Inventory pursuant to clause (ii) of the definition of
"Eligible Petroleum Inventory"; (xxiv) it arises from a retail sale of Inventory
to a Person who is purchasing the same primarily for personal, family or
household purposes; or (xxv) the Account is a LC Backed Account.
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other commercial bank, finance
company, insurance company or other financial institution approved by the
Administrative Agent, the Issuing Bank, and unless an Event of Default has
occurred and is continuing, the Borrower Agent (each such approval not to be
unreasonably withheld or delayed). If the consent of the Borrower Agent to an
assignment or to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment thresholds specified
in paragraph (b) of Section 10.4), the Borrower Agent shall be deemed to have
given its consent five Business Days after the date notice thereof has actually
been delivered by the assigning Lender (through the Administrative Agent) to the
Borrower Agent, unless such consent is expressly refused by the Borrower Agent
prior to such fifth Business Day.
"Eligible Carrier" shall mean any of the carriers and pipeline
companies listed on Schedule III (Eligible Carriers) or otherwise approved from
time to time by the Agents in their reasonable discretion.
-13-
"Eligible Cash Collateral" shall mean any and all cash and Permitted
Investments of the Borrowers which are held in a Cash Collateral Account and
under the control of the Administrative Agent pursuant to Section 5.6(g).
"Eligible Petroleum Inventory" shall mean Petroleum Inventory which is
owned by a Borrower (other than packaging or shipping materials, labels,
samples, display items, bags, replacement parts and manufacturing supplies) and
which the Agents, in their reasonable credit judgment, deem to be Eligible
Petroleum Inventory. Without limiting the generality of the foregoing, no
Petroleum Inventory shall be Eligible Petroleum Inventory unless:
(a) it is subject to a valid, first priority perfected Lien in favor
of the Administrative Agent as security for the Obligations and (i) is
located at a location owned or leased by a Borrower, or (ii) has been
delivered to an Eligible Carrier;
(b) is in good saleable condition, is not deteriorating in quality and
is not obsolete, and is of a quality which (in the locations where sold by
the Borrowers) is marketable at prevailing market prices for such products
and meets all applicable governmental regulations and standards at the
place of intended sale;
(c) is owned by a Borrower or, in the case of Inventory described in
clause (ii) of paragraph (a) above, a Borrower has the absolute and
unconditional right to obtain such Inventory (or Inventory equivalent to
such Inventory) from an Eligible Carrier, in each case, free and clear of
any and all Liens whatsoever, other than those in favor of the
Administrative Agent as security for the Obligations and Permitted Liens
(including Liens in favor of any applicable Eligible Carrier securing
solely transportation, storage and throughput costs or fees) securing
amounts which have been disclosed in writing by the Borrowers to the Agents
for the purposes of calculating any Eligibility Reserve with respect
thereto;
(d) is not commingled with Inventory of any Person other than the
other Borrower or has been delivered to an Eligible Carrier; and
(e) is not subject to delivery to a trading partner under an Exchange
Agreement having a Negative Exchange Agreement Balance.
"Eligible Petroleum Inventory-Not-Received" shall mean, at any date of
determination, the aggregate value (determined as provided below), of Petroleum
Inventory purchased or contracted for purchase by a Borrower from a seller for
whom such sale is in the Ordinary Course of Business that, as of any date of
determination:
(a) from the Closing Date through June 30, 2005, is Petroleum
Inventory (i) for which the purchase price was prepaid by the Seller, (ii)
which was acquired by the Borrowers in connection with the Acquisition, and
(iii) which has not otherwise been included as Eligible Petroleum Inventory
in the then current Borrowing Base Certificate but which will be eligible
for inclusion in the Borrowing Base as Eligible Petroleum Inventory upon
delivery of such Petroleum Inventory to a Borrower or to an Eligible
Carrier; or
-14-
(b) if it is Petroleum Inventory not owned by a Borrower, the unpaid
obligation of such Borrower for the purchase of such Petroleum Inventory is
supported by (i) a Documentary Letter of Credit issued under this Agreement
by the Issuing Bank, which Documentary Letter of Credit requires the
original xxxx of lading (or other original Document) relating to such
Petroleum Inventory to be delivered to the Issuing Bank or its designee in
connection with a drawing under such Documentary Letter of Credit, or (ii)
a Standby Letter of Credit issued under this Agreement by the Issuing Bank,
which Standby Letter of Credit provides that the beneficiary thereunder is
not permitted to make any drawing thereunder until the beneficiary has
delivered a certificate to the Issuing Bank certifying that delivery of
such Petroleum Inventory has been made by the beneficiary to a Borrower and
payment therefor is past due and owing, and in each case such Petroleum
Inventory, when owned by a Borrower, will be subject to no Liens other than
Permitted Liens securing amounts which have been disclosed in writing by
the Borrowers to the Agents for the purposes of calculating any Eligibility
Reserve with respect thereto;
provided, however, that for purposes of inclusion of such Petroleum Inventory in
the Borrowing Base, such Petroleum Inventory shall be valued at (i) if the
purchase price thereof has been prepaid, the amount so prepaid by a Borrower, or
(ii) the face amount of such Letter of Credit issued specifically to support the
purchase of such Petroleum Inventory from the applicable supplier thereof, less,
without duplicating other Eligibility Reserves, the aggregate amount of the
payables owing by a Borrower to such supplier for any such Petroleum Inventory
delivered to such Borrower or an Eligible Carrier.
"Eligible Positive Exchange Agreement Balance" shall mean, at any date
of determination, the amount of the positive balance, valued at a xxxx to market
basis, of the Petroleum Inventory that a Borrower has a right to receive from a
trading partner (other than a trading partner determined by the Administrative
Agent to be unacceptable in the Administrative Agent's reasonable discretion)
under an Exchange Agreement or money owing to a Borrower in connection with such
exchange of Petroleum Inventory under an Exchange Agreement, net of any offsets
or counterclaims, and only to the extent such Borrowers rights in Petroleum
Inventory are subject to a valid, first priority (subject only to Permitted
Liens), perfected Lien in favor of the Administrative Agent as security for the
Obligations, provided, that the value of the Eligible Positive Exchange
Agreement Balance shall be deemed to be $-0- for the first twenty (20) Business
Days after the Closing Date and, after such date such value shall be subject to
Eligibility Reserves as determined by the Agents.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrowers or any Subsidiary
directly or indirectly resulting from or based upon (i) any actual or
-15-
alleged violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii)
any actual or alleged exposure to any Hazardous Materials, (iv) the Release or
threatened Release of any Hazardous Materials or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrowers, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (i) the occurrence of any "reportable event",
as defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (ii) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (iii) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (iv) the incurrence by the Borrowers or any
of their ERISA Affiliates of any liability under Title IV of ERISA with respect
to the termination of any Plan; (v) the institution by PBGC of proceedings to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; or
(vi) the receipt by the Borrowers or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrowers or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is being terminated or in reorganization, within the
meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article VIII.
-16-
"Exchange Agreement" shall mean an agreement under which a Borrower
undertakes to deliver goods on behalf of an unaffiliated Person to a customer of
such Person in exchange for such Person's delivery of similar goods to a
customer of such Borrower.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
the Collateral Agent, any Lender, the Issuing Bank or any other recipient of any
payment to be made by or on account of any obligation of the Borrowers
hereunder, (a) income or franchise Taxes imposed on (or measured by) its net
income, net receipts or capital by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits Taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located, (c) in the case of a Lender that is
a "United States person" as defined in Section 7701(a)(30) of the Code, any
withholding Tax that is attributable to such Lender's failure to comply with
Section 2.21(f), (d) any withholding Tax imposed as a result of a Lender being
treated as a "conduit entity" within the meaning of U.S. Treasury Regulations
Section 1.881-3 or any successor provision, and (e) in the case of a Foreign
Lender, any withholding Tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than Taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.21 (e)
"Existing Lender" shall mean Wachovia Bank, National Association.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of April 5,
2005, as amended April 25, 2005, executed by SunTrust Capital Markets, Inc. and
SunTrust Bank and accepted by Holdings.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrowers.
"Fiscal Year" shall mean any fiscal year of the Borrowers.
"Fixed Charge Coverage Ratio" shall mean, as of any date, the ratio of
(a) Consolidated EBITDA less the actual amount paid by the Borrowers and their
Subsidiaries in cash on account of Capital Expenditures less cash taxes paid to
(b) Consolidated Fixed Charges, in each case measured for the four consecutive
Fiscal Quarters ending on or immediately prior to such date.
-17-
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(30) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized under
the laws of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
"Funding Guaranty" shall mean that certain Funding Guaranty of even
date herewith executed by Delek Group in favor of the Administrative Agent,
pursuant to which Delek Group guarantees to the Administrative Agent, for its
benefit and for the benefit of the Collateral Agent, the Issuing Bank and the
Lenders, the funding obligations of Delek Finance under the Subordinated Working
Capital Credit Documents up to a maximum amount of $5,000,000.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean 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, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GP" shall mean Delek US Refining GP, LLC, a Texas limited liability
company.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so 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. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon
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gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions, (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions, and (iv) without duplication, Net
Xxxx-to-Market Exposure.
"Hedging Transaction" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate transaction,
commodity swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Holdings" shall mean
Delek US Holdings, Inc., a Delaware corporation,
and the sole shareholder of Parent.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(g), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, to the
extent of the amount guaranteed, (viii) all Indebtedness of a third party
secured by any Lien on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person, (ix) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, (x) Off-Balance Sheet
Liabilities and (xi) all Hedging Obligations. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the extent that the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
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"Information Memorandum" shall mean the Officers' Certificate dated on
or prior to the Original Closing Date relating to the Borrowers and the
transactions contemplated by this Agreement and the other Loan Documents.
"Interest Period" shall mean with respect to (i) any Swingline
Borrowing, such period as the Swingline Lender and the Borrowers shall mutually
agree and (ii) any Eurodollar Borrowing, a period of one, two, three or six
months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding Business
Day;
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Instrument" shall have the meaning given to the term in the Security
Agreement.
"Inventory" shall mean all goods, merchandise and other personal
property owned and held for sale, and all raw materials, work or goods in
process, materials, supplies and packaging of every nature which contribute to
the finished products of a Borrower in the ordinary course of its business,
whether now owned or hereafter acquired by Borrowers.
"Inventory Formula Amount" shall mean, on any date of determination
thereof, an amount equal to the sum of (a) 80% of the Petroleum Inventory Market
Price of Eligible Petroleum Inventory on such date consisting of Petroleum
Products, plus (b) 85% of Eligible Petroleum Inventory-Not-Received, plus (c)
80% of Eligible Positive Exchange Agreement Balances. The Agents shall have the
right at any time to decrease the foregoing advance rate percentages in their
reasonable credit judgment, provided, that any such decrease in the advance rate
percentages shall not be effective until three (3) Business Days after written
notice thereof is provided to Borrowers by the Agents.
"Issuing Bank" shall mean SunTrust Bank in its capacity as an issuer
of Letters of Credit pursuant to Section 2.23.
"Land Newco" shall mean MPC Land Acquisition, Inc., a Texas
corporation.
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"Landlord Waiver" shall mean a letter in form and substance reasonably
acceptable to the Administrative Agent and executed by a landlord in respect of
Inventory of a Borrower located at any leased premises of a Borrower pursuant to
which such landlord, among other things, waives or subordinates on terms and
conditions reasonably acceptable to the Administrative Agent any Lien such
landlord may have in respect of such Inventory.
"LC Backed Accounts" shall mean (i) an Account in support of which a
Preferred Issuer has issued an irrevocable standby letter of credit in the
amount of such Account or (ii) Accounts in an aggregate face amount not to
exceed at any time the sum of $10,000,000 in support of which an Other Issuer
has issued an irrevocable standby letter of credit in the amount of such
Accounts, with all such standby letters of credit to be issued for the benefit
of a Borrower and on which such Borrower may draw in the event of a default by
the Account Debtor under any such Account; provided that such letters of credit
contain provisions directing the issuing bank to make payment thereunder to the
Dominion Account or that SunTrust is the collecting bank for such letter of
credit, otherwise contain drawing provisions acceptable to the Agents and, upon
an Agent's request, a copy of such letter of credit shall be delivered to the
Administrative Agent; and provided, further, that the proceeds of any drawing
under such letter of credit are to be deposited directly into a Cash Collateral
Account.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrowers for the issuance of Letters
of Credit in an aggregate face amount not to exceed $250,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrowers at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and any Person that joins this Agreement as a Lender pursuant to Section
10.4.
"Letter of Credit" shall mean any Documentary or Standby Letter of
Credit issued pursuant to Section 2.23 by the Issuing Bank for the account of
the Borrowers pursuant to the LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the
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day that is two Business Days prior to the first day of the Interest Period or
if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. (Atlanta,
Georgia time) for
delivery on the first day of such Interest Period, for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes
(if any), the Security Documents, the Subordination Agreement, the LC Documents,
the Subsidiary/Delek Land Guaranty Agreement, the Funding Guaranty, the Parent
Guaranty Agreement, all Notices of Borrowing, all Notices of
Conversion/Continuation, all Compliance Certificates, Borrowing Base
Certificates, and any and all other instruments, agreements, documents and
writings executed in connection with any of the foregoing, and all other
documents, lockbox agreements, instruments, certificates, and agreements
executed or delivered in connection with or contemplated by this Agreement.
"Loan Parties" shall mean the Borrowers and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"Management Agreement" shall mean that certain Management Agreement
dated on or about the Original Closing Date, between Delek Refining and Mapco.
"Mapco" shall mean Mapco Express, Inc., a Delaware corporation.
"Mapco Reserve" shall mean, on any date of determination, the
aggregate amount owed by Mapco to Persons who are also Account Debtors of a
Borrower, provided, however, that the amount of the Mapco Reserve shall not
exceed at any time an amount equal to the aggregate net amount of all Accounts
owing by such Persons to Borrowers.
"Mapco Reserve Conditions" shall mean an Agent's receipt of a
Borrowing Base Certificate which does not indicate that Mapco has more than
$4,500,000 available at all times during the period covered by such Borrowing
Base Certificate for additional working capital loans under the formulae
contained in Mapco's working capital credit facilities, assuming all trade
payables of Mapco are paid within normal terms.
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"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets or liabilities of the
Borrowers and their Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform their respective obligations under the Loan Documents, (iii)
the rights and remedies of the Administrative Agent, the Issuing Bank, Swingline
Lender, and the Lenders under any of the Loan Documents or (iv) the legality,
validity or enforceability of any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans,
the Letters of Credit and Permitted Subordinated Debt) and Hedging Obligations
of the Borrowers or any of their Subsidiaries, individually or in an aggregate
principal amount exceeding $1,000,000. For purposes of determining the amount of
attributed Indebtedness from Hedging Obligations, the "principal amount" of any
Hedging Obligations at any time shall be the Net Xxxx-to-Market Exposure of such
Hedging Obligations.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section 4001
(a)(3) of ERISA.
"Negative Exchange Agreement Balance" shall mean, at any date of
determination, the amount of the negative balance, valued at a xxxx to market
basis, of any rights of trading partners under an Exchange Agreement to receive
Petroleum Products or money from a Borrower arising from the exchange of
Petroleum Products under an Exchange Agreement.
"Net Xxxx-to-Market Exposure" of any Person shall mean, as of any date
of determination with respect to any Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized profits of such Person arising from
such Hedging Obligation. "Unrealized losses" shall mean the fair market value of
the cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction were to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrowers to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.8(b).
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"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
"Notice of Swingline Borrowing"' shall have the meaning as set forth
in Section 2.4.
"Obligations" shall mean all amounts owing by any Borrower to an
Agent, the Issuing Bank or any Lender (including the Swingline Lender) pursuant
to or in connection with this Agreement or any other Loan Document, including
without limitation, all principal, interest (including any interest accruing
after the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceeding relating to a Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and expenses of
counsel to an Agent, the Issuing Bank and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan Document), whether
direct or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising hereunder or thereunder, all Banking Relationship
Debt (other than Hedging Obligations), and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"Ordinary Course of Business" shall mean, with respect to any
transaction involving any Person, the ordinary course of such Person's business,
as undertaken by such Person in good faith and not for the purpose of evading
any covenant or restriction in any Loan Document.
"Original Closing Date" shall mean April 29, 2005.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Issuer" shall mean a United States domestic bank or United
States branch of a foreign bank, in each case rated "BBB+" or higher by S&P and
"Baa" or higher by Moody's.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
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"Out-of-Formula Condition" shall have the meaning set forth in Section
2.2(b) hereof.
"Out-of-Formula Loan" shall mean a Revolving Loan made or existing
when an Out-of-Formula Condition exists or the amount of any Revolving Loan
which, when funded, results in an Out-of-Formula Condition.
"Paid but Unexpired Standby Letters of Credit" shall mean, during a
Post Supplier Payment Period, the amount available for drawing under an
outstanding Standby Letter of Credit issued to support the purchase of Petroleum
Inventory of the Borrowers as of such date of determination where the supplier
of such Petroleum Inventory in connection with which such Standby Letter of
Credit was specifically issued has been paid in full.
"Parent" shall mean Delek Refining, Inc., a Delaware corporation.
"Parent Guaranty Agreement" shall mean that certain Parent Guaranty,
dated the Original Closing Date, executed by Parent and GP in favor of
Administrative Agent, on its behalf and on behalf of the Collateral Agent, the
Issuing Bank and the Lenders, substantially in the form of Exhibit G hereto.
"Participant" shall have the meaning set forth in Section 10.4(d).
"Payment Account" shall mean an account maintained by the
Administrative Agent to which all monies from time to time deposited to a
Dominion Account shall be transferred and all other payments shall be sent in
immediately available federal funds.
"Payment Items" shall mean all checks, drafts, or other items of
payment payable to a Borrower, including proceeds of any of the Collateral.
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrowers and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PBGC Release Agreement" shall mean that certain Agreement and Release
of Claims, dated on or about the Original Closing Date, between the PBGC and the
Seller, with respect to the release by the PBGC of any and all liens, claims,
encumbrances and other interests that the PBGC may have or assert against or in
the assets and stock transferred pursuant to the Acquisition, whether arising
under or in connection with a Plan of the Seller, the PBGC Settlement Agreement
or otherwise.
"PBGC Settlement Agreement" shall mean that certain agreement dated
January 25, 2005 among the PBGC, Seller and certain Affiliates and Subsidiaries
of Seller.
"Permitted Investments" shall mean (a) securities issued or fully
guaranteed or insured by the United States federal government or any agency
thereof (including Federal Home
-25-
Loan Bank, Federal National Mortgage Association, Student Loan Marketing
Association and Government National Mortgage Association), (b) certificates of
deposit, Eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations) that, at
the time of acquisition, are rated at least "A-2" by S&P or "P-2" by Moody's,
(c) commercial paper of an issuer rated at least "A-2" by S&P or "P-2" by
Moody's, (d) 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 Moody's, "A" by S&P or "A" by Fitch, and (e) shares of any
money market or similar fund that has net assets whose Dollar Equivalent exceeds
$500,000,000 and any other investment that is, in each case, either (i)
described on Schedule 1.1(c) or (ii) approved in writing by the Administrative
Agent (such approval not to be unreasonably withheld) for the purposes of this
definition; provided, however, that the maturities of all obligations of the
types specified in (A) clauses (a) and (b) above shall not exceed 90 days and
(B) clauses (c) and (d) above shall not exceed 90 days.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of an Agent, the Issuing Bank or the Lenders given to
secure the Obligations;
(b) (i) Liens on real estate for real estate taxes, assessments, sewer and
water charges and/or other governmental charges and levies not yet delinquent
and (ii) Liens for taxes, assessments, judgments, governmental charges or
levies, or claims not yet delinquent or the non-payment of which is being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves have been set aside on such Person's books;
(c) Liens of mechanics, laborers, suppliers, workers and materialmen
incurred in the ordinary course of business for sums not yet due or being
diligently contested in good faith, if such reserve or appropriate provision, if
any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection with
worker's compensation and unemployment insurance or other types of social
security benefits;
(e) Easements, rights-of-way, restrictions, and other similar encumbrances
on the use of real property which either (x) are non-monetary in nature and are
existing as of the date of this Agreement or (y) do not materially interfere
with the ordinary conduct of the business of such Person;
(f) Purchase money security interests provided that such Lien attaches only
to the asset so purchased by a Borrower and secures only Indebtedness incurred
by a Borrower in order to purchase such asset, but only to the extent permitted
by Section 7.1(c) hereof;
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(g) Deposits to secure the performance of bids, trade contracts, tenders,
sales, leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
(h) Liens on assets of a Borrower and/or their Subsidiaries on the Original
Closing Date (after giving effect to the Acquisition) which are set forth on
Schedule 7.2, attached hereto;
(i) Liens securing Capitalized Lease Obligations provided that such Liens
attach only to the assets leased by a Borrower and/or its Subsidiaries and
secure only Indebtedness incurred by a Borrower and/or its Subsidiaries in order
to lease such assets, but only to the extent permitted by Section 7.l(c) hereof;
and
(j) Liens securing rental, storage, throughput, handling or other fees or
charges owing from time to time to Eligible Carriers, solely to the extent of
such fees or charges.
"Permitted Subordinated Debt" shall mean (i) the Subordinated Note (as
defined in the Subordination Agreement), (ii) the Subordinated Working Capital
Indebtedness, or (iii) any other Indebtedness of a Borrower or any Subsidiary
(i) that is expressly subordinated to the Obligations on terms satisfactory to
the Administrative Agent and the Required Lenders in their sole discretion, (ii)
that matures by its terms no earlier than six months after the Revolving
Commitment Termination Date, (iii) that bears interest at a rate per annum not
to exceed 10.0% and (iv) that is evidenced by an instrument that is in a form
reasonably satisfactory to the Administrative Agent and the Required Lenders.
"Permitted Tax Distributions" shall mean (i) cash dividends or
distributions to the partners of a Borrower with respect to each taxable year
during which such Borrower is a partnership in an amount not to exceed the
aggregate of the maximum federal and state income tax liability of the partners
of such Borrower (assuming that all of such partners are taxed at the maximum
permissible federal and state rates of such partners or members) attributable to
the taxable income of such Borrower for such taxable year, computed in
accordance with the Code, and (ii) dividends to Holdings to permit Holdings to
pay any Taxes which are due and payable by Holdings and attributable to the
Borrowers and their Subsidiaries as part of a consolidated group.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Petroleum Inventory" means Inventory consisting of Petroleum
Products, which Inventory shall be valued at" the Petroleum Inventory Market
Price (including any premium or discount to reflect location differentials).
"Petroleum Inventory Market Price" means, with respect to any
Petroleum Inventory, the market price for such Petroleum Inventory as set forth
in a published or reported price index maintained by a third-party that is not
an Affiliate of the Borrowers and that prepares such index in the ordinary
course of its business or such other price as the Collateral Agent may ascribe
thereto in its reasonable credit judgment. Such market price shall be determined
using published or reported price indices created or distributed by Oil Price
Information Service,
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commonly known as OPIS, and/or Platts Oilgram Price Report, commonly known as
Platts, less in each case applicable location differentials and product
adjustments. In the event OPIS or Platts no longer provides the aforementioned
price indices, or in the event the Borrowers and the Collateral Agent determine
that either OPIS or Platts no longer accurately provides pricing information for
Petroleum Inventory, the Borrowers and the Collateral Agent shall replace one or
both of the OPIS and Platts price indices, as applicable, with other third-party
price indices reasonably acceptable to each of the Borrowers and the Collateral
Agent.
"Petroleum Product" means crude oil, petroleum, refined petroleum
products, byproducts and intermediate feed stocks, and other energy-related
commodities, including, without limitation, blend components commonly used in
the petroleum industry to improve characteristics of, or meet governmental or
customer specifications for, petroleum or refined petroleum products.
"Pipeline Newco" shall mean MPC Pipeline Acquisition, Inc., a Texas
corporation.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which a Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean that certain Pledge Agreement of even
date herewith executed by Delek Pipeline, Delek Land, Holdings, Parent and GP in
favor of the Administrative Agent, pursuant to which Delek Pipeline, Delek Land,
Holdings, Parent and GP pledge to the Administrative Agent, for its benefit and
for the benefit of the Administrative Agent, the Issuing Bank and the Lenders,
all of the Capital Stock of Borrowers, Delek Land, Parent, GP, Pipeline Newco
and Land Newco substantially in the form of Exhibit D hereto.
"Post Supplier Payment Period" shall mean the period commencing on the
date on which a Borrower shall have paid in full all amounts owed for the
purchase of Petroleum Inventory (the "Full Payment Date") the payment for which
was supported by a Standby Letter of Credit issued specifically for such purpose
and ending on the sooner of (i) ten (10) days after the Full Payment Date or
(ii) the date the original of such Standby Letter of Credit is returned to the
Administrative Agent for cancellation.
"Preferred Issuer" shall mean a United States domestic bank or United
States branch of a foreign bank, in each case rated "A-" or higher by S&P and
"A3" or higher by Xxxxx'x.
"Projections" shall mean projections of the Borrowers' financial
condition, results of operations, cash flow, operating budget and Availability,
prepared on a monthly-to-month basis for the applicable Fiscal Year pursuant to
and as required by Section 5.1(f) hereof
"Pro Rata Share" shall mean, with respect to all Commitments of any
Lender at any time, a percentage, the numerator of which shall be the sum of
such Lender's Revolving Commitment (or if such Revolving Commitments have been
terminated or expired or the Loans
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have been declared to be due and payable, such Lender's Revolving Credit
Exposure) and the denominator of which shall be the sum of all Lenders'
Revolving Commitments (or if such Revolving Commitments have been terminated or
expired or the Loans have been declared to be due and payable, all Revolving
Credit Exposure of all Lenders funded under such Commitments).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding more than 50% of
the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of a Borrower or such other representative of a
Borrower as may be designated in writing by any one of the foregoing with the
consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer, chief executive officer or the
treasurer of a Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrowers and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on
Schedule II, as such schedule may be amended pursuant to Section 2.24, or in the
case of a Person becoming a Lender after the Closing Date through an assignment
of an existing Revolving Commitment, the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance executed by such Person
as an assignee, as the same may be increased or deceased pursuant to terms
hereof.
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"Revolving Commitment Termination Date" shall mean the earliest of (i)
April 28, 2009, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.9(c) and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrowers
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrowers under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the XxXxxx-Xxxx
Companies.
"Security Agreement" shall mean that certain Security Agreement, dated
the Original Closing Date among the Borrowers, Parent, GP, Delek Land, MPC
Pipeline Acquisition, Inc. and MPC Land Acquisition, Inc. and the Administrative
Agent, on its behalf and on behalf of the Collateral Agent, the Issuing Bank and
the Lenders, substantially in the form of Exhibit B hereto.
"Security Documents" shall mean, collectively, the Security Agreement,
the Pledge Agreement, the Deposit Account Control Agreements, the Delek Land
Negative Pledge, all UCC-1 financing statements and any other document,
instrument or agreement granting Collateral for the Obligations, as the same may
be amended or modified from time to time.
"Seller" shall mean La Xxxxxx Oil and Gas Company, a Delaware
corporation.
"Settlement Date" shall mean Friday of each week (or if any Friday is
not a Business Day on which all Lenders are open for business, the immediately
preceding Business Day on which all Lenders are open for business), provided
that, after the occurrence of an Event of Default or during a continuing decline
or sudden increase in the principal amount of Revolving Loans, the
Administrative Agent, in its discretion, may require that the Settlement Date
occur more frequently (even daily) so long as any Settlement Date chosen by the
Administrative Agent is a Business Day on which each Lender is open for
business.
"Solvent" shall mean, as to any Person, such Person (i) owns property
whose fair saleable value is greater than the amount required to pay all of such
Person's Indebtedness (including contingent Indebtedness and trade payables),
(ii) is able to pay all of its Indebtedness as such Indebtedness matures, (iii)
has capital sufficient to carry on its business and transactions and all
business and transactions in which it is about to engage, and (iv) is not
"insolvent" within the meaning of Section 101(32) Bankruptcy Code.
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"Standby Letter of Credit" shall mean any Letter of Credit that is not
a Documentary Letter of Credit, and includes any direct - pay Letter of Credit.
"Subordinated Debt Documents" shall mean any indenture, agreement or
similar instrument governing any Permitted Subordinated Debt.
"Subordinated Note" shall mean the Subordinated Note in the original
principal amount of $51,000,000 referenced in and subject to the Subordination
Agreement.
"Subordinated Working Capital Credit Documents" shall mean the
Intercompany Loan Agreement, dated on or about the Original Closing Date, among
Delek Finance and the Borrowers and each other agreement, guaranty, note,
instrument or document delivered pursuant thereto, as the same may be modified,
supplemented, extended, restated, refinanced or replaced from time to time.
"Subordinated Working Capital Indebtedness" shall mean Indebtedness of
the Borrowers owing to Delek Finance under the Subordinated Working Capital
Credit Documents.
"Subordination Agreement" shall mean the Debt Subordination Agreement,
dated on or about the Original Closing Date, among Delek Finance, the Borrowers
and the Administrative Agent.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to "Subsidiary" hereunder
shall mean a Subsidiary of the Borrowers.
"Subsidiary/Delek Land Guaranty Agreement" shall mean the Subsidiary
Guaranty, dated as of the date hereof and substantially in the form of Exhibit
F, made by certain Subsidiaries of the Borrowers and Delek Land in favor of the
Administrative Agent for the benefit of the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary that executes or
becomes a party to the Subsidiary/Delek Land Guaranty Agreement.
"SunTrust" shall mean SunTrust Bank, a
Georgia banking corporation.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $20,000,000.
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"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.4, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank.
"Swingline Loan" shall mean a loan made to the Borrowers by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrowers
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit C.
"Swingline Rate" shall mean the Base Rate plus the Applicable Margin
or such other rate as offered by the Swingline Lender and accepted by the
Borrowers. The Borrowers are under no obligation to accept such other rate, and
the Swingline Lender is under no obligation to provide it.
"Synthetic Lease" shall mean a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "Revolving Eurodollar
Borrowing").
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SECTION 1.3 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrowers delivered pursuant to Section 5.1(a); provided, that if the Borrowers
notify the Administrative Agent that the Borrowers wish to amend any covenant in
Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrowers that the
Required Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrowers and the Required Lenders.
SECTION 1.4 TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
restated, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and permitted assigns, (iii) the words "hereof, "herein" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in the
city and state of the Administrative Agent's principal office, unless otherwise
indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1 GENERAL DESCRIPTION OF FACILITIES. Subject to and
upon the terms and conditions herein set forth, (i) the Lenders hereby establish
in favor of the Borrowers a revolving credit facility pursuant to which each
Lender severally agrees (to the extent of such Lender's Revolving Commitment) to
make Revolving Loans to the Borrowers in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.23,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.4, and (iv) each Lender agrees to purchase a participation interest in
the Letters of Credit and the Swingline Loans pursuant to the terms and
conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans
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and outstanding LC Exposure exceed at any time the Aggregate Revolving
Commitment Amount from time to time in effect.
SECTION 2.2 REVOLVING LOANS.
(a) Subject to the terms and conditions set forth herein, each Lender
severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata
Share of the Revolving Commitments, to the Borrowers, from time to time during
the Availability Period, in an aggregate principal amount outstanding at any
time that will not result in (i) such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Commitment or (ii) the sum of the aggregate
Revolving Credit Exposures of all Lenders exceeding the lesser of the Aggregate
Revolving Commitment Amount or the Borrowing Base at any date of determination.
During the Availability Period, the Borrowers shall be entitled to borrow,
prepay and reborrow Revolving Loans in accordance with the terms and conditions
of this Agreement; provided, that the Borrowers may not borrow or reborrow
should there exist a Default or an Event of Default.
(b) If at any time the aggregate Revolving Credit Exposure exceeds the
Aggregate Revolving Commitment Amount or the Borrowing Base (an "Out-of-Formula
Condition"), such aggregate Revolving Credit Exposure shall nevertheless
constitute Obligations that is secured by the Collateral and entitled to all
benefits thereof. In no event, however, shall Borrowers have any right
whatsoever to (i) receive any Revolving Loan, (ii) receive any Swingline Loan,
or (iii) request the issuance of any Letter of Credit if, before or after giving
effect thereto, there shall exist a Default or after giving effect thereto, the
outstanding Revolving Loans and Letter of Credit Exposure would exceed the
Availability. Out-of-Formula Loans shall be payable (y) no later than one (1)
Business Day after the date of the Administrative Agent's demand for payment for
so long as the aggregate amount of Out-of-Formula Loans is less than $5,000,000,
and (z) immediately on demand if the aggregate amount of Out-of-Formula Loans is
$5,000,000 or more at any time, provided that the Borrowers shall not be
entitled to more than a single payment period of one (1) Business Day in respect
of Out-of-Formula Loans in any Fiscal Quarter. For so long as an Out-of-Formula
Condition exists, the Obligations, at the election of the Administrative Agent,
shall bear interest at the Default Interest rate.
SECTION 2.3 PROCEDURE FOR REVOLVING BORROWINGS.
(a) The Borrowers shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a "Notice of Revolving Borrowing") (x)
prior to noon (Atlanta,
Georgia time) one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to noon (Atlanta,
Georgia time) three (3) Business Days prior to the requested date of each
Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable
and shall specify: (i) the aggregate principal amount of such Borrowing, (ii)
the date of such Borrowing (which shall be a Business Day), (iii) the Type of
such Revolving Loan comprising such Borrowing and (iv) in the case of a
Eurodollar Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar
Loans, as the Borrowers may request. The aggregate principal amount of each
Eurodollar Borrowing
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shall be not less than $5,000,000 or a larger multiple of $1,000,000, and the
aggregate principal amount of each Base Rate Borrowing shall not be less than
$100,000 or a larger multiple of $50,000; provided, that Base Rate Loans made
pursuant to Section 2.4 or Section 2.23(d) may be made in lesser amounts as
provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed five (5). Promptly following the receipt of a
Notice of Revolving Borrowing in accordance herewith, the Administrative Agent
shall advise each Lender of the details thereof and the amount of such Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing.
(b) Unless payment is otherwise timely made by the Borrowers, the
becoming due of any amount required to be paid under this Agreement or any of
the other Loan Documents as principal, accrued interest, fees or other charges,
including all reimbursable expenses of the Agents and the Lenders, shall be
deemed irrevocably to be a request for a Revolving Borrowing on the due date of
(provided the Borrowers shall not be deemed to have made any representations
under Section 3.2(b) in connection therewith), and in an aggregate amount
required to pay, such principal, accrued interest, fees or other charges, and
the proceeds of a Revolving Loan made pursuant thereto may be dispersed by way
of direct payment of the relevant Obligation and shall bear interest as a Base
Rate Borrowing. Administrative Agent and the Lenders shall have no obligation to
Borrowers to honor any such deemed request for a Revolving Loan, but may do so
in their sole discretion and without regard to the existence of, and without
being deemed to have waived, any Default or Event of Default.
SECTION 2.4 SWINGLINE COMMITMENT.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrowers, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the lesser of the aggregate Revolving Credit Exposures of
all Lenders or the Borrowing Base; provided, that the Swingline Lender shall not
be required to make a Swingline Loan to refinance an outstanding Swingline Loan.
The Borrowers shall be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this Agreement.
(b) The Borrowers shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4 attached hereto ("Notice of Swingline
Borrowing") prior to 11:00 a.m. (Atlanta,
Georgia time) on the requested date of
each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrowers to which the proceeds of such Swingline Loan should
be credited. The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest
at the Swingline Rate. The aggregate principal amount of each Swingline Loan
shall be not less than $100,000 or a larger multiple of $50,000, or such other
minimum amounts agreed to by the Swingline Lender and the Borrowers. The
Swingline Lender will make the proceeds of each Swingline Loan available to the
Borrowers in Dollars in immediately available funds at the account specified by
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the Borrowers in the applicable Notice of Swingline Borrowing not later than
1:00 p.m. (Atlanta,
Georgia time) on the requested date of such Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrowers (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan on each Settlement Date or
more frequently as the Swingline Lender may elect. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.7, which will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(e) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.4(c) or to purchase the participating interests pursuant to Section
2.4(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrowers or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or would reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrowers, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section 2.4, until such amount has been
purchased in full.
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SECTION 2.5 AGENT ADVANCES.
(a) The Administrative Agent hereby is authorized by Borrowers and the
Lenders, from time to time in Administrative Agent's sole credit judgment (and
with no obligation to do so), (1) after the occurrence and during the
continuance of a Default or an Event of Default, or (2) at any time that any of
the other applicable conditions precedent set forth in Section 3.2 (including as
to Availability) have not been satisfied, or (3) when a Borrower is unable to
provide notice of a Borrowing within the time required by Section 2.3, to make
Revolving Loans to Borrowers on its own behalf that Administrative Agent, in its
sole credit judgment deems necessary or desirable (A) to preserve or protect the
Collateral or any portion thereof, (B) to enhance the likelihood of repayment of
the Obligations, or (C) to pay any other amount chargeable to Borrowers pursuant
to the terms of this Agreement (any of the advances described in this Section
2.5 shall be referred to as "Agent Advances"); provided, however, (w) that the
aggregate amount of Agent Advances outstanding at any time shall not exceed
$10,000,000, (x) that after giving effect to any such Agent Advance, the
Aggregate Revolver Credit Exposure (including all Agent Advances) shall not
exceed the Aggregate Revolving Commitment Amount, (y) after giving effect to
each such Agent Advance, the aggregate Revolving Credit Exposure shall not
exceed the Borrowing Base by more than $5,000,000, and (z) at the time of the
making of any such Agent Advance, the Administrative Agent does not believe, in
good faith, that the any Out-of-Formula Condition created by such Agent Advance
will be outstanding for more than 90 days. Each Agent Advance shall be deemed to
be a Borrowing hereunder subject to the terms set forth in this Section 2.5
(provided that the Borrowers shall not be deemed to have made any
representations under Section 3.2(b) in connection therewith). Each Agent
Advance shall be secured by Administrative Agent's Liens granted to the
Administrative Agent under the Loan Documents, shall constitute Obligations
hereunder, and shall bear interest as Base Rate Borrowings and shall be
repayable on demand. Subject to clauses (b), (c) and (d) below of this Section
2.5, all Agent Advances made by Administrative Agent pursuant to this Section,
shall be for Administrative Agent's sole account and shall be senior in right of
payment to all other Loans (as set forth in Section 2.24).
(b) The Administrative Agent may give at any time and from time to
time, and in no event later than 30 days after the making of an Agent Advances
the Administrative Agent shall give, notice to the Lenders requesting the
Lenders to make Base Rate Loans in an amount equal to the unpaid principal
amount of any Agent Advance on the next following Business Day. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Administrative Agent, which will
be used solely for the repayment of such Agent Advances.
(c) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender shall purchase an
undivided participating interest in such Agent Advances in an amount equal to
its Pro Rata Share thereof on the date that such Base Rate Borrowing should have
occurred. On the date of such required purchase, each Lender shall promptly
transfer, in immediately available funds, the amount of its participating
interest to the Administrative Agent for the account of the Administrative
Agent. If any such Agent Advance bears interest at a rate other than the Base
Rate, such Agent Advance shall
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automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrowers or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or an
Out of Formula Condition or the termination of any Lender's Revolving
Commitment, (iii) the existence (or alleged existence) of any event or condition
which has had or would reasonably be expected to have a Material Adverse Effect,
(iv) any breach of this Agreement or any other Loan Document by the Borrowers,
the Administrative Agent or any Lender or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Administrative Agent in respect of
Agent Advances by any Lender, the Administrative Agent shall be entitled to
recover such amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof (i) at the Federal Funds
Rate until the second Business Day after such demand and (ii) at the Base Rate
at all times thereafter. Until such time as such Lender makes its required
payment, the Administrative Agent shall be deemed to continue to have
outstanding Agent Advances in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans and
any other amounts due to it hereunder, to the Administrative Agent to fund the
amount of such Lender's participation interest in such Agent Advances that such
Lender failed to fund pursuant to this Section 2.5, until such amount has been
purchased in full.
SECTION 2.6 [RESERVED].
SECTION 2.7 FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds by noon (Atlanta,
Georgia time) to the Administrative Agent at the Payment
Office; provided, that the Swingline Loans will be made as set forth in Section
2.4. The Administrative Agent will make such Loans available to the Borrowers by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrowers with
the Administrative Agent or at the Borrowers' option, by effecting a wire
transfer of such amounts to an account designated by the Borrowers to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. (Atlanta,
Georgia time) one (1) Business Day prior to
the date of a Borrowing in which such Lender is to participate that such Lender
will not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date, and the
Administrative Agent, in reliance on such assumption, may make available to the
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Borrowers on such date a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate until the second Business Day after such demand and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrowers, and the Borrowers (to
the extent they received such amount) shall pay such corresponding amount to the
Administrative Agent within 3 Business Days together with interest at the rate
specified for such Borrowing (but without any amounts being due under Section
2.20). Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice
any rights which the Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
SECTION 2.8 INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrowers may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section 2.8. The
Borrowers may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section 2.8, the Borrowers
shall give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.8 attached hereto (a "Notice of Conversion/Continuation") that is to
be converted or continued, as the case may be, (x) prior to noon (Atlanta,
Georgia time) one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to noon (Atlanta, Georgia time) three
(3) Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of
Continuation/Conversion, which shall be a Business Day, (iii) whether the
resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
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Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrowers shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrowers shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrowers shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if an Event of Default has occurred and is continuing,
unless the Administrative Agent and each of the Lenders shall have otherwise
consented in writing. No conversion of any Eurodollar Loans shall be permitted
except on the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.9 OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments, Swingline
Commitments and LC Commitments shall terminate on the Revolving Commitment
Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable) at any time after April 30, 2006, the
Borrowers may reduce the Aggregate Revolving Commitments in part; provided, that
(i) any partial reduction shall apply to reduce proportionately and permanently
the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to
this Section 2.9 shall be in an amount of at least $20,000,000 and any larger
multiple of $1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Aggregate Revolving Commitment Amount to an amount less than
the outstanding Revolving Credit Exposures of all Lenders. Any such reduction in
the Aggregate Revolving Commitment Amount below the sum of the principal amount
of the Swingline Commitment and the LC Commitment shall result in a
proportionate reduction (rounded to the next lowest integral multiple of
$100,000) in the Swingline Commitment and the LC Commitment.
(c) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable) the Borrowers may terminate the Aggregate
Revolving Commitments in whole. If the Borrowers terminate the Revolving
Commitments in whole in accordance with this Section 2.9(c), then the Borrowers
shall pay a premium to the Lenders (such premium, the "Prepayment Fee") in
connection with any such voluntary early termination of the Revolving
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Loan Commitments (the date of such early termination, the "Early Termination
Date"), a Prepayment Fee (for the ratable benefit of the Lenders) in an amount
equal to 1% of the Revolving Commitments if such Early Termination Date occurs
prior to April 28, 2006.
SECTION 2.10 REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued and unpaid interest thereon) on the Revolving
Commitment Termination Date.
SECTION 2.11 EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the Indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Lender from
time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each Loan made hereunder by each Lender, the
Class and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.8. (iv) the date of each
conversion of all or a portion thereof to another Type pursuant to Section 2.8.
(v) the date and amount of any principal or interest due and payable or to
become due and payable from the Borrowers to each Lender hereunder in respect of
such Loans and (vi) both the date and amount of any sum received by the
Administrative Agent hereunder from the Borrowers in respect of the Loans and
each Lender's Pro Rata Share thereof. The entries made in such records shall be
prima facie evidence of the existence and amounts of the obligations of the
Borrowers therein recorded; provided, that the failure or delay of any Lender or
the Administrative Agent in maintaining or making entries into any such record
or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans (both principal and unpaid accrued interest) of
such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrowers agree that they will execute and deliver to such Lender
a Revolving Credit Note and, in the case of the Swingline Lender only, a
Swingline Note, payable to the order of such Lender.
SECTION 2.12 OPTIONAL PREPAYMENTS. The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, without premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent no
later than (i) in the case of prepayment of any Eurodollar Borrowing, noon
(Atlanta, Georgia time) not less than three (3) Business Days prior to any such
prepayment, (ii) in the case of any prepayment of any Base Rate Borrowing, not
less than one Business Day prior to the date of such prepayment, and (iii) in
the case of
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Swingline Borrowings, prior to noon (Atlanta, Georgia time) on the date of such
prepayment. Each such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.14(e); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an Interest
Period applicable thereto, no such prepayment shall be in an amount of less than
$500,000 and the Borrowers shall also pay all amounts required pursuant to
Section 2.20 with respect thereto. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the case
of an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2
or in the case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
SECTION 2.13 MANDATORY PREPAYMENTS.
(a) Immediately upon receipt by the Borrowers or any of their
Subsidiaries of proceeds of any sale or disposition by the Borrowers or such
Subsidiary of any of its assets (excluding (i) sales of inventory in the
ordinary course of business, and (ii) sales of obsolete equipment, (iii) sales
of assets the proceeds of which are invested into the businesses of the
Borrowers and their Subsidiaries within 180 days after such assets are sold and
(iv) so long as no Event of Default has occurred and is continuing, other sales
of assets of the Borrowers or any of their Subsidiaries with an aggregate book
value not to exceed $1,000,000 in any Fiscal Year) the Borrowers shall prepay
the Loans in an amount equal to all such proceeds, net of commissions and other
reasonable and customary transaction costs, fees and expenses properly
attributable to such transaction and payable by such Borrowers in connection
therewith (in each case, paid to non-Affiliates). Any such prepayment shall be
applied in accordance with paragraph (c) below.
(b) If the Borrowers or any of their Subsidiaries issues any debt or
equity securities (other than Indebtedness permitted under Section 7.1, equity
securities issued by a Subsidiary of a Borrower to another Borrower or another
Subsidiary) then no later than the Business Day following the date of receipt of
the proceeds thereof, the Borrowers shall prepay the Loans in an amount equal to
all such proceeds, net of underwriting discounts and commissions and other
reasonable costs paid to non-Affiliates in connection therewith. Any such
prepayment shall be applied in accordance with Section 2.13(c).
(c) Any prepayments made by the Borrowers pursuant to Sections 2.13(a)
or (b) above shall be applied as follows: first, to Administrative Agent's fees
and reimbursable expenses then due and payable pursuant to any of the Loan
Documents; second, to all other fees and reimbursable expenses of the Lenders
and the Issuing Bank then due and payable pursuant to any of the Loan Documents,
pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata
Shares of such fees and expenses; third, to interest then due and payable on the
Loans made to Borrowers, pro rata to the Lenders based on their respective
Revolving Commitments; fourth, to the principal balance of the Swingline Loans,
until the same shall have
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been paid in full, to the Swingline Lender; fifth, to the principal balance of
the Revolving Loans, until the same shall have been paid in full, pro rata to
the Lenders based on their respective Revolving Commitments; sixth, to cash
collateralize the Letters of Credit in accordance with Section 2.23(g) in an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid fees thereon and seventh, to the Cash Collateral Account. The Revolving
Commitments of the Lenders shall not be permanently reduced by the amount of any
prepayments made pursuant to clauses fourth and fifth above.
(d) If at any time the Revolving Credit Exposure of all Lenders
exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to
Section 2.9 or otherwise, the Borrowers shall immediately repay Swingline Loans
and Revolving Loans in an amount equal to such excess, together with all accrued
and unpaid interest on such excess amount and any amounts due under Section
2.20. Each prepayment shall be applied first to the Swingline Loans to the full
extent thereof, second to the Base Rate Loans to the full extent thereof, and
finally to Eurodollar Loans to the full extent thereof. If after giving effect
to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the
Borrowers shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Issuing Bank and the
Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees
thereon to be held as collateral for the LC Exposure. Such account shall be
administered in accordance with Section 2.23(g) hereof.
SECTION 2.14 INTEREST ON LOANS.
(a) The Borrowers shall pay interest on each Base Rate Loan at the
Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrowers shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrowers shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at the rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
monthly in arrears on the last day of each calendar month and on the Revolving
Commitment Termination Date, as the case may be. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months or 90 days, respectively, on each day which
occurs every three months
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or 90 days, as the case may be, after the initial date of such Interest Period,
and on the Revolving Commitment Termination Date. Interest on each Swingline
Loan shall be payable on the maturity date of such Loan, which shall be the last
day of the Interest Period applicable thereto, and on the Revolving Commitment
Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the amount
repaid or prepaid) thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrowers and
the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
(f) The Base Rate on the date hereof is 5.75% per annum and,
therefore, the rate of interest in effect hereunder on the date hereof,
expressed in simple interest terms, is 6.25% per annum with respect to any
portion of the Revolving Loans bearing interest as a Base Rate Loan. The
Swingline Rate on the date hereof is 5.75% per annum and, therefore, the rate of
interest in effect hereunder on the date hereof, expressed in simple interest
terms, is 6.25% per annum with respect to Swingline Loans.
SECTION 2.15 FEES.
(a) The Borrowers shall pay to the Administrative Agent for its own
account fees in the amounts and at the times agreed upon in the Fee Letter.
(b) The Borrowers agree to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable
Percentage per annum (determined daily in accordance with Schedule I) on the
daily amount of the unused Revolving Commitment of such Lender during the
Availability Period. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender shall be
deemed used to the extent of the outstanding Revolving Loans and LC Exposure,
but not Swingline Exposure, of such Lender.
(c) The Borrowers agree to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of credit fee with respect to its
participation in each Letter of Credit, which shall accrue at a rate per annum
equal to the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter of Credit expires or is
drawn in full (including without limitation any LC Exposure that remains
outstanding after the Revolving Commitment Termination Date) and (ii) to the
Issuing Bank for its own account a fronting fee, which shall accrue at the rate
of 0.125% per annum on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is irrevocably
cancelled, whichever is later), as well as the Issuing Bank's standard fees with
respect to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the foregoing, if the
Required Lenders elect to increase the
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interest rate on the Loans to the Default Interest pursuant to Section 2.14(c),
the rate per annum used to calculate the letter of credit fee pursuant to clause
(i) above shall automatically be increased by an additional 2% per annum.
(d) The Borrowers shall pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront fee previously agreed upon by the
Borrowers and the Administrative Agent, which shall be due and payable on the
Closing Date, unless previously paid to an Existing Lender on the Original
Closing Date.
(e) Accrued fees under paragraphs (b) and (c) above shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on June 30, 2005 and on the Revolving Commitment
Termination Date (and if later, the date the Loans and LC Exposure shall be
repaid in their entirety); provided further, that any such fees accruing after
the Revolving Commitment Termination Date shall be payable on demand.
(f) The Borrowers shall pay audit, appraisal, and valuation fees and
charges as follows (each of which shall be for the sole benefit of the
applicable Agent relating thereto): (i) a fee of $850 per day, per auditor, plus
reasonable out-of-pocket expenses for each financial audit of Borrowers
performed by personnel employed by the Administrative Agent, (ii) if
implemented, a fee of $850 per day, per applicable individual, plus
out-of-pocket expenses for the establishment of electronic collateral reporting
systems, (iii) a fee of $850 per day per appraiser, plus out-of-pocket expenses,
for each appraisal or field audit of the Collateral, or any portion thereof,
performed by personnel employed by the Collateral Agent, and (iv) the actual
reasonable charges paid or incurred by the Administrative Agent or Collateral
Agent, as applicable (for the sole benefit of such Agents) if it elects to
employ the services of one or more third Persons to perform financial audits of
Borrowers or a Subsidiary, to establish electronic collateral reporting systems,
to appraise the Collateral, or any portion thereof, or to assess a Borrower's or
its Subsidiaries' business valuation; provided, however, that so long as no
Event of Default has occurred and is continuing, Borrowers shall only be
obligated to pay for fees and expenses incurred for financial and/or field
audits conducted no more frequently than three (3) times per calendar year in
the aggregate (it being understood that simultaneously conducted financial and
field audits shall be considered as a single audit for purposes of the foregoing
limitation).
SECTION 2.16 COMPUTATION OF INTEREST AND FEES.
All computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
or fees are payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
SECTION 2.17 INABILITY TO DETERMINE INTEREST RATES. If prior to
the commencement of any Interest Period for any Eurodollar Borrowing,
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(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrowers and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrowers prepay
such Loans in accordance with this Agreement. Unless the Borrowers notify the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.18 ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrowers and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrowers that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date (provided that
no amount shall be due under Section 2.20 in connection therewith).
Notwithstanding the foregoing, the affected Lender shall, prior to giving such
notice to the Administrative Agent, designate a different Applicable Lending
Office if such designation would avoid the need for giving such notice and if
such designation would not otherwise be materially disadvantageous to such
Lender in the good faith exercise of its discretion.
SECTION 2.19 INCREASED COSTS.
(a) If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of
the Adjusted LIBO Rate hereunder against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the Eurodollar
interbank market any other condition affecting this Agreement or any
Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;
and the result of either of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrowers shall promptly pay, upon written notice from
and demand by such Lender on the Borrowers (with a copy of such notice and
demand to the Administrative Agent), to the Administrative Agent for the account
of such Lender, within 20 calendar days after the date of such notice and
demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within twenty (20) calendar days after
receipt by the Borrowers of written demand by such Lender (with a copy thereof
to the Administrative Agent), the Borrowers shall pay to such Lender such
additional amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's parent corporation for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section 2.19 shall be delivered to the
Borrowers (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrowers shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within twenty (20) calendar
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.19 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided Borrowers shall have no
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obligation to pay any such amounts with respect to any period which was more
than 120 days prior to the date of such notice.
SECTION 2.20 FUNDING INDEMNITY. In the event of (a) the payment
of any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrowers
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified
in any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrowers shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrowers failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.20 submitted to the Borrowers by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.21 TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrowers hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided, that if the Borrowers shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.21) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrowers shall make such
deductions and (iii) the Borrowers shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrowers hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.21) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto,
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whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrowers by a Lender
or the Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error. Notwithstanding anything to the contrary contained in this Section
2.21(c), the Borrowers shall not be obligated to indemnify the Administrative
Agent, any Lender or the Issuing Bank for any portion of such penalties,
interest and reasonable expenses to the extent such liability is attributable to
a failure or delay by the Administrative Agent, such Lender or the Issuing Bank,
as applicable, in making demand for such Indemnified Taxes or Other Taxes.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrowers (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrowers as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrowers (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrowers hereunder are effectively
connected with such Foreign Lender's conduct of a trade or business in the
United States; or (ii) Internal Revenue Service Form W-8 BEN, or any successor
form thereto, certifying that such Foreign Lender is entitled to benefits under
an income tax treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest; or (iii) Internal Revenue
Service Form W-8 BEN, or any successor form prescribed by the Internal Revenue
Service, together with a certificate (A) establishing that the payment to the
Foreign Lender qualifies as "portfolio interest" exempt from U.S. withholding
tax under Code section 871(h) or 881(c), and (B) stating that (1) the Foreign
Lender is not a bank for purposes of Code section 881(c)(3)(A), or the
obligation of the Borrowers hereunder is not, with respect to such Foreign
Lender, a loan agreement entered into in the ordinary course of its trade or
business, within the meaning of that section; (2) the Foreign Lender is not a
10% shareholder of any Borrower within the meaning of Code section 871(h)(3) or
881(c)(3)(B); and (3) the Foreign Lender is not a controlled foreign corporation
that is related to a Borrower within the meaning of Code section 881(c)(3)(C);
or (iv) such other Internal Revenue Service forms as may be applicable to the
Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Borrowers and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case of a
Participant, on or before the date such Participant purchases the related
participation). In addition, each such Foreign Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously
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delivered by such Foreign Lender. Each such Foreign Lender shall promptly notify
the Borrowers and the Administrative Agent at any time that it determines that
it is no longer in a position to provide any previously delivered certificate to
the Borrowers (or any other form of certification adopted by the Internal
Revenue Service for such purpose).
(f) Upon the Borrowers' reasonable request, each Lender that is a
"United States person" as defined in Section 7701(a)(30) of the Code shall
deliver to the Borrowers and the Administrative Agent two (2) duly completed
copies of Internal Revenue Service Form W-9 (or applicable successor form) to
establish that such Lender is entitled to receive all payments from the
Borrowers hereunder free and clear from withholding of United States federal
income Tax.
(g) If the Borrowers are required to pay additional amounts to the
Administrative Agent, any Lender or the Issuing Bank pursuant to Section 2.21(a)
or required to indemnify the Administrative Agent, any Lender or the Issuing
Bank pursuant to Section 2.2l(c) and if the Administrative Agent, such Lender or
Issuing Bank may be entitled to a refund which is attributable to the imposition
of Indemnified Taxes or Other Taxes giving rise to the payment of additional
amounts or an indemnification payment, then the Administrative Agent, such
Lender or the Issuing Bank shall use its best effort to obtain the refund by
filing any forms, certificates, documents, applications or returns in a timely
fashion. In the event that the Administrative Agent, Lender or Issuing Bank
receives a refund in respect of Indemnified Taxes or Other Taxes as to which it
has been paid additional amounts by the Borrowers pursuant to Section 2.2l(a) or
been indemnified pursuant to Section 2.2(c), then the Administrative Agent, such
Lender or the Issuing Bank shall promptly remit to the Borrowers the amount of
such refund.
SECTION 2.22 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrowers shall make each payment required to be made by them
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.19, 2.20 or 2.21, or
otherwise) prior to 12:00 noon (Atlanta, Georgia time) on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.19, 2.20 and 2.21 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
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(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrowers or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrowers
consent to the foregoing and agree, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrowers rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrowers prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrowers will not make such payment, the Administrative
Agent may assume that the Borrowers have made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In
such event, if the Borrowers have not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
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(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.4(d), 2.7(b), 2.22(d), 2.23(d) or (e) or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.23 LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance upon
the agreements of the other Lenders pursuant to Section 2.23(d), agrees to
issue, at the request of the Borrowers, Letters of Credit for the account of the
Borrowers on the terms and conditions hereinafter set forth; provided, that (i)
each Letter of Credit shall expire on the earlier of (A) the stated expiry date
of such Letter of Credit (or in the case of any renewal or extension thereof,
the expiry date of any such renewal or extension) and (B) the date that is five
(5) Business Days prior to the Revolving Commitment Termination Date; (ii) each
Letter of Credit shall be in a stated amount of at least $1,000,000; and (iii)
the Borrowers may not request any Letter of Credit, if, after giving effect to
such issuance (A) the aggregate LC Exposure would exceed the LC Commitment or
(B) the aggregate Revolving Credit Exposure of all Lenders would exceed the
lesser of the Aggregate Revolving Commitment Amount or the Borrowing Base. Upon
the issuance of each Letter of Credit each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank
without recourse a participation in such Letter of Credit equal to such Lender's
Pro Rata Share of the aggregate amount available to be drawn under such Letter
of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an amount equal to the amount of such
participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrowers shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In addition
to the satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be subject to the further conditions that such Letter of Credit
shall be in such form and contain such terms as the Issuing Bank shall approve
and that the Borrowers shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit as
the Issuing Bank shall reasonably require; provided, that in the event of any
conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from
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the Administrative Agent on or before 2:00 p.m. on the Business Day immediately
preceding the date the Issuing Bank is to issue the requested Letter of Credit
(1) directing the Issuing Bank not to issue the Letter of Credit because such
issuance is not then permitted hereunder because of the limitations set forth in
Section 2.23(a) or that one or more conditions specified in Article III are not
then satisfied, then, subject to the terms and conditions hereof, the Issuing
Bank shall, on the requested date, issue such Letter of Credit in accordance
with the Issuing Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrowers and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrowers of their
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrowers shall be irrevocably and unconditionally obligated
to reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank
in respect of such drawing, without presentment, demand or other formalities of
any kind. Unless the Borrowers shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. (Atlanta, Georgia time) on the Business
Day immediately prior to the date on which such drawing is honored that the
Borrowers intend to reimburse the Issuing Bank for the amount of such drawing in
funds other than from the proceeds of Revolving Loans, the Borrowers shall be
deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders to make a Base Rate Borrowing on the
date on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the conditions
precedent set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Lenders of such Borrowing in accordance
with Section 2.3, and each Lender shall make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent for the account
of the Issuing Bank in accordance with Section 2.7. The proceeds of such
Borrowing shall be applied directly by the Administrative Agent to reimburse the
Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrowers or any of their Subsidiaries, (iv) any breach of this
Agreement by the Borrowers or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. On the date
that such participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its participation to the
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Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, that if such payment is required
to be returned for any reason to the Borrowers or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such
Lender will return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the Issuing Bank
to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) above on the due date therefor,
such Lender shall pay interest to the Issuing Bank (through the Administrative
Agent) on such amount from such due date to the date such payment is made at a
rate per annum equal to the Federal Funds Rate; provided, that if such Lender
shall fail to make such payment to the Issuing Bank within three (3) Business
Days of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the rate set forth in Section
2.14(d).
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrowers receive notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrowers shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to 105% of the LC Exposure
as of such date plus any accrued and unpaid fees thereon; provided, that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrowers described in clause (g) or (h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrowers agree to execute any
documents and/or certificates to effectuate the intent of this paragraph. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrowers for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrowers under
this Agreement and the other Loan Documents. If the Borrowers are required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrowers within three Business Days after all Events
of Default have been cured or waived.
(h) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrowers a report
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describing the aggregate Letters of Credit outstanding at the end of such Fiscal
Quarter. Upon the request of any Lender from time to time, the Issuing Bank
shall deliver to such Lender any other information reasonably requested by such
Lender with respect to each Letter of Credit then outstanding.
(i) The Borrowers' obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit or
this Agreement;
(ii) The existence of any claim, set-off, defense or other right which
the Borrowers or any Subsidiary or Affiliate of the Borrowers may have at
any time against a beneficiary or any transferee of any Letter of Credit
(or any Persons or entities for whom any such beneficiary or transferee may
be acting), any Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.23, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrowers to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of which are
hereby waived by the Borrowers to the extent permitted by applicable law)
suffered by the Borrowers that are caused by the Issuing Bank's failure to
exercise due care when determining whether drafts or other documents
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presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree, that in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised due
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time, or
to ISP 98 (International Standby Practices), as the same may be amended from
time to time, and, to the extent not inconsistent therewith, the governing law
of this Agreement set forth in Section 10.5.
SECTION 2.24 APPLICATION OF PAYMENTS.
(a) Except for payments and other amounts received by the
Administrative Agent and applied in accordance with the provisions of Section
2.24(b) below, all payments and any other amounts received by the Administrative
Agent from or for the benefit of the Borrowers shall be applied as follows:
first to pay principal of, and interest on, any portion of the Loans the
Administrative Agent may have advanced pursuant to the express provisions of
this Agreement on behalf of any Lender, for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrowers, second, to pay all
other Obligations then due and payable and third, as the Borrowers so designate.
Payments in respect of Swingline Loans received by the Administrative Agent
shall be distributed to the Swingline Lender; payments in respect of Revolving
Loans received by the Administrative Agent shall be distributed to each Lender
in accordance with its Pro Rata Share; and all payments of fees and all other
payments in respect of any other Obligation shall be allocated among such of the
Lenders and Issuing Bank as are entitled thereto and, for such payments
allocated to the Lenders, in proportion to their respective Pro Rata Shares.
(b) Each Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Obligations and any
proceeds of Collateral after the occurrence and during the continuance of an
Event of Default and agrees that, notwithstanding Section 2.24(a) above, the
Administrative Agent may and, upon either (A) the written direction of the
Required Lenders or (B) the acceleration of the Obligations, shall apply all
payments in respect of any Obligations and all funds on deposit in any Cash
Collateral Account and all other proceeds of Collateral in the following order:
(i) first, to pay interest on and the principal of any portion of the
Revolving Loans that the Administrative Agent or the Collateral Agent may
have advanced on behalf of any Lender for which the Administrative Agent or
Collateral Agent has not then been reimbursed by such Lender or the
Borrowers;
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(ii) second, to pay Obligations in respect of any expense
reimbursements or indemnities (except with respect to Banking Relationship
Debt) then due to the Administrative Agent or the Collateral Agent;
(iii) third, to pay Obligations in respect of any expense
reimbursements or indemnities (except with respect to Banking Relationship
Debt) then due to the Lenders and the Issuing Bank;
(iv) fourth, to pay Obligations in respect of any fees (except with
respect to Banking Relationship Debt) then due to the Administrative Agent,
the Collateral Agent and the Issuing Bank;
(v) fifth, to pay interest then due and payable in respect of the
Loans and LC Exposure and fees due to any Lender;
(vi) sixth, to pay or prepay principal amounts on the Loans and LC
Exposure, to provide cash collateral for the LC Exposure in the manner
described in Section 2.23(g) (provided, however, that upon the expiration
or termination of a Letter of Credit that has been cash collateralized such
cash collateral shall be applied in accordance with the provisions of this
Section 2.24(b)), ratably to the aggregate principal amount of such Loans
and LC Exposure;
(vii) seventh, to the ratable payment of Obligations owing with
respect to Banking Relationship Debt; and
(viii) eighth, to the ratable payment of all other Obligations;
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any Secured Obligation described in any of
clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) above the available
funds being applied with respect to any such Obligations (unless otherwise
specified in such clause) shall be allocated to the payment of such Obligations
ratably, based on the proportion of the Agents' and each Lender's or Issuing
Bank's interest in the aggregate outstanding Obligations described in such
clauses; provided, however, that payments that would otherwise be allocated to
the Lenders shall be allocated first to repay Agent Advances and Swingline Loans
pro rata and then to the Lenders.
SECTION 2.25 MITIGATION OF OBLIGATIONS. If any Lender requests
compensation under Section 2.19, or if the Borrowers are required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.21. then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.19 or Section 2.21, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
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SECTION 2.26 REPLACEMENT OF LENDERS. If any Lender requests
compensation under Section 2.19, or if the Borrowers are required to pay any
additional amount to any Lender or any Governmental Authority of the account of
any Lender pursuant to Section 2.21, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrowers may, at their sole expense and
effort, upon notice to such Lender and the Administrative Agent delivered within
30 days after the request for compensation or payment or the default by such
Lender, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions set forth in Section 10.4(b) all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender); provided,
that (i) the Borrowers shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld, (ii)
within 60 days after receipt of such notice, such Lender shall have received
payment of an amount equal to the outstanding principal amount of all Loans owed
to it, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (in the case of such outstanding principal and
accrued interest) and from the Borrowers (in the case of all other amounts) and
(iii) in the case of a claim for compensation under Section 2.19 or payments
required to be made pursuant to Section 2.21, such assignment will result in a
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
SECTION 2.27 AGENT BORROWER. Each Borrower hereby irrevocably
appoints Delek Refining, and Delek Refining agrees to act under this Agreement,
as the agent and representative of itself and each other Borrower for all
purposes under this Agreement (in such capacity, "Borrower Agent"), including
requesting Borrowings, selecting whether any Loan or portion thereof is to bear
interest as a Base Rate Borrowing or a Eurodollar Borrowing, and receiving
account statements and other notices and communications to Borrowers (or any of
them) from an Agent. The Agents may rely, and shall be fully protected in
relying, on any request for a Borrowing, Notice of Conversion/Continuation,
disbursement instructions, reports, information, Borrowing Base Certificate or
any other notice or communication made or given by Borrower Agent, whether in
its own name, on behalf of any Borrower or on behalf of "Borrowers," and no
Agent shall have any obligation to make any inquiry or request any confirmation
from or on behalf of any other Borrower as to the binding effect on such
Borrower of any such request for a Borrowing, Notice of Conversion Continuation,
instruction, report, information, Borrowing Base Certificate or other notice or
communication, nor shall the joint and several character of Borrowers' liability
for the Obligations be affected, provided that the provisions of this Section
2.27 shall not be construed so as to preclude any Borrower from directly
requesting Borrowings or taking other actions permitted to be taken by "a
Borrower" hereunder. The Administrative Agent may maintain a single Loan Account
in the name of "Delek Refining" hereunder, and each Borrower expressly agrees to
such arrangement and confirms that such arrangement shall have no effect on the
joint and several character of such Borrower's liability for the Obligations.
SECTION 2.28 NATURE AND EXTENT OF EACH BORROWER'S LIABILITY.
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(a) Each Borrower shall be liable for, on a joint and several basis,
and hereby guarantees the timely payment by all other Borrowers of, all of the
Loans and other Obligations, regardless of which Borrower actually may have
received the proceeds of any Loans or other extensions of credit hereunder or
the amount of such Loans received or the manner in which Administrative Agent or
any Lender accounts for such Loans or other extensions of credit on its books
and records, it being acknowledged and agreed that Loans to any Borrower inure
to the mutual benefit of all Borrowers and that the Agents and the Lenders are
relying on the joint and several liability of Borrowers in extending the Loans
and other financial accommodations hereunder. Each Borrower hereby
unconditionally and irrevocably agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any principal of,
or interest owed on, any of the Loans or other Obligations, such Borrower shall
forthwith pay the same, without notice or demand.
(b) Each Borrower's joint and several liability hereunder with respect
to, and guaranty of, the Loans and other Obligations shall, to the fullest
extent permitted by applicable law, be unconditional irrespective of (i) the
validity, enforceability, avoidance or subordination of any of the Obligations
or of any promissory note or other document evidencing all or any part of the
Obligations, (ii) the absence of any attempt to collect any of the Obligations
from any other Loan Party or any Collateral or other security therefor, or the
absence of any other action to enforce the same, (iii) the waiver, consent,
extension, forbearance or granting of any indulgence by an Agent or any Lender
with respect to any provision of any instrument evidencing or securing the
payment of any of the Obligations, or any other agreement now or hereafter
executed by any other Borrower and delivered to an Agent or any Lender, (iv) the
failure by an Agent to take any steps to perfect or maintain the perfected
status of its security interest in or Lien upon, or to preserve its rights to,
any of the Collateral or other security for the payment or performance of any of
the Obligations or an Agent's release of any Collateral or of its Liens upon any
Collateral, (v) an Agent's or Lenders' election, in any proceeding instituted
under the Bankruptcy Code, for the application of Section llll(b)(2) of the
Bankruptcy Code, (vi) any borrowing or grant of a security interest by any other
Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code,
(vii) the release or compromise, in whole or in part, of the liability of any
Loan Party for the payment of any of the Obligations, (viii) any amendment or
modification of any of the Loan Documents or any waiver of a Default or Event of
Default, (ix) any increase in the amount of the Obligations beyond any limits
imposed herein or in the amount of any interest, fees or other charges payable
in connection therewith, or any decrease in the same, (x) the disallowance of
all or any portion of an Agent's or any Lender's claims against any other Loan
Party for the repayment of any of the Obligations under Section 502 of the
Bankruptcy Code, or (xi) any other circumstance that might constitute a legal or
equitable discharge or defense of any Borrower. After the occurrence and during
the continuance of any Event of Default, the Administrative Agent may proceed
directly and at once, without notice to any Loan Party, against any or all of
the Loan Parties to collect and recover all or any part of the Obligations,
without first proceeding against any other Loan Party or against any Collateral
or other security for the payment or performance of any of the Obligations, and
each Borrower waives any provision under applicable law that might otherwise
require an Agent to pursue or exhaust its remedies against any Collateral or a
Loan Party before pursuing another Loan Party. Each Borrower consents and agrees
that no Agent shall be under any obligation to marshal any assets in favor of
any Loan Party or against or in payment of any or all of the Obligations.
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(c) No payment or payments made by a Loan Party or received or
collected by an Agent from a Borrower or any other Person by virtue of any
action or proceeding or any setoff or appropriation or application at any time
or from time to time in reduction of or in payment of the Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Borrower under this Agreement, each of whom shall remain jointly and severally
liable for the payment and performance of all Loans and other Obligations until
the Obligations are paid in full and this Agreement is terminated.
(d) Each Borrower is unconditionally obligated to repay the
Obligations as a joint and several obligor under this Agreement. If, as of any
date, the aggregate amount of payments made by a Borrower on account of the
Obligations and proceeds of such Borrower's Collateral that are applied to the
Obligations exceeds the aggregate amount of Loan proceeds actually used by such
Borrower in its business (such excess amount being referred to as an
"Accommodation Payment"), then each of the other Borrowers (each such Borrower
being referred to as a "Contributing Borrower") shall be obligated to make
contribution to such Borrower (the "Paying Borrower") in an amount equal to (A)
the product derived by multiplying the sum of each Accommodation Payment of each
Borrower by the Allocable Percentage of the Borrower from whom contribution is
sought less (B) the amount, if any, of the then outstanding Accommodation
Payment of such Contributing Borrower (such last mentioned amount which is to be
subtracted from the aforesaid product to be increased by any amounts theretofore
paid by such Contributing Borrower by way of contribution hereunder, and to be
decreased by any amounts theretofore received by such Contributing Borrower by
way of contribution hereunder); provided, however, that a Paying Borrower's
recovery of contribution hereunder from the other Borrowers shall be limited to
that amount paid by the Paying Borrower in excess of its Allocable Percentage of
all Accommodation Payments then outstanding of all Borrowers. As used herein,
the term "Allocable Percentage" shall mean, on any date of determination
thereof, a fraction the denominator of which shall be equal to the number of
Borrowers who are parties to this Agreement on such date and the numerator of
which shall be 1; provided, however, that such percentages shall be modified in
the event that contribution from a Borrower is not possible by reason of
insolvency, bankruptcy or otherwise by reducing such Borrower's Allocable
Percentage equitably and by adjusting the Allocable Percentage of the other
Borrowers proportionately so that the Allocable Percentages of all Borrowers at
all times equals 100%.
(e) Each Borrower hereby subordinates any claims, including any right
of payment, subrogation, contribution and indemnity, that it may have from or
against any other Loan Party, and any successor or assign of any other Loan
Party, including any trustee, receiver or debtor-in-possession, howsoever
arising, due or owing or whether heretofore, now or hereafter existing, to the
full and indefeasible payment of all of the Obligations.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing
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Bank to issue any Letter of Credit hereunder shall not become effective until
the date on which each of the following conditions is satisfied (or waived in
accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrowers hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Sole Lead Arranger and Book Manager.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement and the other Loan Documents
signed by or on behalf of each party hereto or written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement;
(ii) duly executed Revolving Credit Note payable to such Lender and
the Swingline Note payable to the Swingline Lender;
(iii) satisfactory Phase I and, where applicable, Phase II
environmental reports for property of Seller to be acquired in connection
with the Acquisition, and the Administrative Agent's receipt of reliance
letters with respect to such Phase I and Phase II environmental reports;
(iv) copies of duly executed payoff letters, in form and substance
satisfactory to Administrative Agent, executed by each of the Existing
Lenders or the agent thereof, together with (a) UCC-3 or other appropriate
termination or partial release statements, in form and substance
satisfactory to Administrative Agent, releasing all liens of the Existing
Lenders upon any of the personal property of the Borrowers and their
Subsidiaries, (b) cancellations and releases, in form and substance
satisfactory to the Administrative Agent, releasing all liens of the
Existing Lenders upon any of the real property of the Borrowers and their
Subsidiaries acquired from Seller in the Acquisition, and (c) any other
releases, terminations or other documents reasonably required by the
Administrative Agent to evidence the payoff of Indebtedness owed to the
Existing Lenders;
(v) a certificate of the Secretary or Assistant Secretary of each Loan
Party in the form of Exhibit 3.1(b)(v), attaching and certifying copies of
its bylaws and of the resolutions of its boards of directors, or
partnership agreement or limited liability company agreement, or comparable
organizational documents and authorizations, authorizing the execution,
delivery and performance of the Loan Documents to which it is a party and
certifying the name, title and true signature of each officer of such Loan
Party executing the Loan Documents to which it is a party;
(vi) certified copies of the articles or certificate of incorporation,
certificate of organization or limited partnership, or other registered
organizational documents of each
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Loan Party, together with certificates of good standing or existence, as
may be available from the Secretary of State of the jurisdiction of
organization of such Loan Party and each other jurisdiction where such Loan
Party is required to be qualified to do business as a foreign corporation;
(vii) a favorable written opinion of each of Xxxxx & Xxxxx LLP, Xxxxxx
and Xxxxxxxx LLP and Fulbright & Xxxxxxxx LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each of the Lenders, and covering
such matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(viii) [Reserved];
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement, together with a
report setting forth the sources and uses of the proceeds hereof and the
Permitted Subordinated Debt;
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders (if any) required to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and the failure to obtain any of which
would reasonably be expected to have a Material Adverse Effect and such
consents, approvals, authorizations, registrations, filings and orders
shall be in full force and effect and all applicable waiting periods shall
have expired, and no investigation or inquiry by any Governmental Authority
regarding this Agreement or any transaction being financed with the
proceeds thereof shall be ongoing;
(xii) a duly completed and executed certificate of the type described
in Section 5.l(d) including pro forma calculations of the financial
covenants set forth in Article VI hereof as of the Original Closing Date
after giving effect to the Acquisition;
(xiii) certified copies of all agreements, indentures or notes
governing the terms of any Material Indebtedness and all other material
agreements, documents and instruments to which any Loan Party or any of its
assets are bound;
(xiv) certificates of insurance issued on behalf of insurers of the
Borrowers describing in reasonable detail the types and amounts of
insurance (property and liability) maintained by the Borrowers, naming the
Administrative Agent as additional insured;
(xv) a copy of the executed Asset Purchase Agreement, together with
all exhibits and schedules thereto, and of the other Acquisition Documents,
accompanied by the certificate of a senior officer of Borrowers as to the
consummation of the transactions contemplated by the Acquisition Documents
and related matters;
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(xvi) a certificate of the Secretary or an Assistant Secretary of each
Borrowers certifying that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of such Borrowers authorizing
the execution, delivery and performance of the Asset Purchase Agreement and
the consummation of the transactions provided for therein;
(xvii) projected consolidated financial statements for Borrowers,
after giving effect to the Acquisition, for the 2005 fiscal year on a month
by month basis, and for the 2006, 2007 and 2008 fiscal years on an annual
basis;
(xviii) the Administrative Agent shall have received evidence
reasonably satisfactory to Administrative Agent that Borrowers have issued
Permitted Subordinated Debt in an original principal amount of not less
than $51,000,000 and issued additional Capital Stock in an aggregate issue
price of not less than $35,500,000;
(xix) the Administrative Agent shall have received evidence reasonably
satisfactory to Administrative Agent that, on the Original Closing Date,
Seller shall have received the aggregate Purchase Price (as defined in the
Asset Purchase Agreement) payable as of the Original Closing Date under the
Acquisition Documents but for the portion thereof to be funded with the
proceeds of Loans hereunder;
(xx) the Administrative Agent shall have received evidence that all
required consents of any applicable Governmental Authority to the
Acquisition have been obtained, and other evidence reasonably satisfactory
to Administrative Agent that the Acquisition will be consummated
immediately following the initial Revolving Loan(s);
(xxi) the Administrative Agent shall have determined that, immediately
after the Lenders have made the initial Revolving Loans under this
Agreement, the Issuing Bank has issued the initial Letters of Credit under
this Agreement and Borrowers have paid (or made provision for payment of)
all fees and closing costs incurred in connection with the Commitments, and
after increasing the Availability Reserve in the amount of any payables of
Borrowers and Seller that are unpaid beyond customary payment periods,
Availability is not less than $25,000,000, minus the amount of the Backup
LC Overage;
(xxii) the Administrative Agent shall have received fully executed
copies of the Subordinated Working Capital Documents, the terms of which
shall be acceptable to the Administrative Agent in all respects;
(xxiii) the Administrative Agent shall have received a fully executed
copy of the PBGC Release Agreement, in form and substance satisfactory to
the Administrative Agent in its sole and absolute discretion, and Borrowers
or the PBGC shall have executed and delivered UCC termination statements,
mortgage satisfactions and such other agreements, documents or instruments
as Administrative Agent may deem necessary to reflect the termination of
any liens, claims, encumbrances or other interests that the PBGC may have
or assert against or in the assets and stock transferred in connection with
the Acquisition; and
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(xxiv) the Administrative Agent shall have received confirmation that
the Borrowers shall have acquired or will acquire no less than 1,000,000
barrels of Petroleum Products in connection with the Acquisition as of the
Original Closing Date.
SECTION 3.2 EACH CREDIT EVENT. The obligation of each Lender to
make a Loan and of the Issuing Bank to issue, amend, renew or extend any Letter
of Credit is subject to the satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to the making
of such Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall have occurred and be
continuing;
(b) at the time of and immediately after giving effect to the making
of such Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Loan or the date of issuance, amendment, extension
or renewal of such Letter of Credit (except to the extent relating to an earlier
date, in which case such representations and warranties were true and correct in
all material respects as of such earlier date), in each case before and after
giving effect thereto;
(c) the Borrowers shall have delivered the required Notice of
Borrowing; and
(d) the Collateral Agent shall have received each Borrowing Base
Certificate then required by the terms of this Agreement.
The making of each Loan and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrowers on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
SECTION 3.3 DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, Borrowing Base Certificates, or notices of Borrowings or Notices of
Conversion/Continuation, in sufficient counterparts or copies for each of the
Lenders and shall be in form and substance satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agents and each Lender as
follows, assuming the consummation of the Acquisition:
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SECTION 4.1 EXISTENCE; POWER. The Borrowers and each of their
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification
is required, except where a failure to be so qualified and in good standing
would not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.2 ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder,
partner or member, action. This Agreement has been duly executed and delivered
by the Borrowers, and constitutes, and each other Loan Document to which any
Loan Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of the Borrowers or such Loan Party
(as the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrowers of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect, (b) will not violate any Requirements of Law applicable
to the Borrowers or any of their Subsidiaries or any judgment, order or ruling
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, material agreement or other material instrument binding on the
Borrowers or any of their Subsidiaries or any of its assets or give rise to a
right thereunder to require any payment to be made by the Borrowers or any of
their Subsidiaries and (d) will not result in the creation or imposition of any
Lien on any asset of the Borrowers or any of their Subsidiaries, except Liens
(if any) created under the Loan Documents.
SECTION 4.4 [RESERVED.]
SECTION 4.5 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Except for the matters set forth on Schedule 4.5, no litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrowers, threatened
against or affecting the Borrowers or any of their Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that would
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into question the
validity or enforceability of this Agreement or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5 or except as
would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect, neither the Borrowers nor any of their
Subsidiaries (i) has failed to comply with any
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Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 4.6 COMPLIANCE WITH LAWS AND AGREEMENTS. Except for the
matters set forth on Schedule 4.6. The Borrowers and each Subsidiary is in
compliance with (a) all Requirements of Law (except Environmental Laws, without
limiting the representation made in Section 4.5(b) and all judgments, decrees
and orders of any Governmental Authority and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where
non-compliance, either singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.7 INVESTMENT COMPANY ACT, ETC. Neither the Borrowers
nor any of their Subsidiaries is (a) an "investment company" or is "controlled"
by an "investment company", as such terms are defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt or requiring any approval
or consent from or registration or filing with, any Governmental Authority in
connection therewith.
SECTION 4.8 TAXES. The Borrowers and their Subsidiaries and each
other Person for whose taxes the Borrowers or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other material taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority, except where
the same are currently being contested in good faith by appropriate proceedings
and for which the Borrowers or such Subsidiary, as the case may be, has set
aside on its books adequate reserves. The charges, accruals and reserves on the
books of the Borrowers and their Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
SECTION 4.9 MARGIN REGULATIONS. None of the proceeds of any of
the Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulation U. Neither the Borrowers
nor their Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying "margin stock."
SECTION 4.10 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, would reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each
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Plan (based on the assumptions used for purposes of Statement of Financial
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans.
SECTION 4.11 OWNERSHIP OF PROPERTY.
(a) Each of the Borrowers and their Subsidiaries has good title to, or
valid leasehold interests in, all of its real and personal property material to
the operation of its business, free and clear of Liens prohibited by this
Agreement. All leases that individually or in the aggregate are material to the
business or operations of the Borrowers and their Subsidiaries are valid and
subsisting and are in full force.
(b) Each of the Borrowers and their Subsidiaries owns, or is licensed,
or otherwise has the right, to use, all patents, trademarks, service marks,
trade names, copyrights and other intellectual property material to its
business, and the use thereof by the Borrowers and their Subsidiaries does not
infringe in any material respect on the rights of any other Person.
(c) The properties of the Borrowers and their Subsidiaries are insured
(except with respect to title) with financially sound and reputable insurance
companies which are not Affiliates of the Borrowers, in such amounts with such
deductibles and covering such risks as Borrowers believe are customarily carried
by companies engaged in similar businesses and owning similar properties in
localities where the Borrowers or any applicable Subsidiary operates.
SECTION 4.12 DISCLOSURE. Each Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrowers or any of their Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect. Neither the
Information Memorandum nor any of the reports (including without limitation all
reports that the Borrowers are required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrowers to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, taken as a whole, in light of the circumstances under which they were
made, not misleading.
SECTION 4.13 LABOR RELATIONS. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrowers or any of
their Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrowers or any of their Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrowers or any
of their Subsidiaries, or to the Borrower's knowledge, threatened against any
of them before any Governmental Authority. All payments due from the Borrowers
or any of their Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been
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paid or accrued as a liability on the books of the Borrowers or any such
Subsidiary, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect.
SECTION 4.14 SUBSIDIARIES. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrowers in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Closing Date.
SECTION 4.15 INSOLVENCY. After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
and the consummation of the Acquisition, neither the Borrowers nor any of their
Subsidiaries will be "insolvent," within the meaning of such term as defined in
Section 101 of Title 11 of the United States Code, as amended from time to
time, or be unable to pay its debts generally as such debts become due, or have
an unreasonably small capital to engage in any business or transaction, whether
current or contemplated.
SECTION 4.16 SUBORDINATION OF SUBORDINATED DEBT. This Agreement,
and all amendments, modifications, extensions, renewals, refinancings and
refundings hereof, constitute the "Senior Credit Agreement" within the meaning
of the applicable Subordinated Debt Document; this Agreement, together with each
of the other Loan Documents and all amendments, modifications, extensions,
renewals, refinancings and refundings hereof and thereof, constitute "Senior
Loan Documents" within the meaning the applicable Subordinated Debt Document;
and the Revolving Loans and all other Obligations of the Borrowers to the
Lenders and the Administrative Agent under this Agreement, the Notes and all
other Loan Documents, and all amendments, modifications, extensions, renewals,
refundings or refinancings of any of the foregoing constitute "Senior
Indebtedness" of the Borrowers within the meaning of the applicable Subordinated
Debt Document, and the holders thereof from time to time shall be entitled to
all of the rights of a holder of "Senior Indebtedness" pursuant to the
applicable Subordinated Debt Document.
SECTION 4.17 ACCOUNTS Agents may rely, in determining which
Accounts are Eligible Accounts, on all statements and representations made by
Borrowers with respect to any Account. Unless otherwise indicated in writing to
Agents or excluded by Borrowers in their calculation of the Borrowing Base in
any Borrowing Base Certificate, with respect to each Account, each Borrower
warrants that:
(a) It is genuine and in all respects what it purports to be, and it
is not evidenced by a judgment;
(b) It arises out of a completed, bona fide sale and delivery of goods
by a Borrower in the Ordinary Course of Business and substantially in accordance
with the terms and conditions of all purchase orders, contracts or other
documents relating thereto and forming a part of the contract between a Borrower
and the Account Debtor;
(c) It is for a sum certain maturing as stated in the duplicate
invoice covering such sale, a copy of which has been furnished or is available
to Administrative Agent on request;
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(d) Such Account, and Administrative Agent's security interest
therein, is not, and will not (by voluntary act or omission of a Borrower) be in
the future, subject to any offset, Lien, deduction, defense, dispute,
counterclaim or any other adverse condition except for disputes resulting in
returned goods where the "amount in controversy is immaterial, and each such
Account is absolutely owing to a Borrower and is not contingent in any respect
or for any reason;
(e) Such Borrower has not made any agreement with any Account Debtor
thereunder for any extension, compromise, settlement or modification of any such
Account or any deduction therefrom, except discounts or allowances which are
granted by a Borrower in the Ordinary Course of Business for prompt payment and
which are reflected in the calculation of the net amount of each respective
invoice related thereto and are reflected in the Schedules of Accounts submitted
to Administrative Agent pursuant to Section 5.6(a) hereof;
(f) To the best of such Borrower's knowledge, there are no facts,
events or occurrences which are reasonably likely to impair the validity or
enforceability of such Account or reduce in any material respect the amount
payable thereunder from the face amount of the invoice and statements delivered
to Administrative Agent with respect thereto; and
(g) To the best of such Borrower's knowledge, the Account Debtor
thereunder (1) had the capacity to contract at the time any contract or other
document giving rise to the Account was executed and (2) is solvent.
SECTION 4.18 OFAC. No Loan Party (i) is 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 Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) 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) is 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.
SECTION 4.19 PATRIOT ACT. Each Loan Party is in compliance, in
all material respects, with (i) the Trading with the Enemy Act, as amended, and
each of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001). 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.
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ARTICLE V
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 5.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Agents and each Lender:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year of Borrowers, a copy of the annual audited report for such
Fiscal Year for the Borrowers and their Subsidiaries, containing a consolidated
balance sheet of the Borrowers and their Subsidiaries as of the end of such
Fiscal Year and the related consolidated statements of income, stockholders'
equity and cash flows (together with all footnotes thereto) of the Borrowers and
their Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, all in reasonable
detail and reported on by Ernst&Young or other independent public accountants
reasonably acceptable to the Administrative Agent (without a "going concern" or
like qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrowers and their Subsidiaries for such
Fiscal Year on a consolidated and consolidating basis in accordance with GAAP
and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards;
(b) as soon as available and in any event within 60 days after the end
of each Fiscal Quarter of the Borrowers, an unaudited consolidated and
consolidating balance sheet of the Borrowers and their Subsidiaries as of the
end of such Fiscal Quarter and the related unaudited consolidated and
consolidating statements of income and cash flows of the Borrowers and their
Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal
Year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrowers' previous
Fiscal Year;
(c) as soon as available and in any event within 30 days after the end
of each month, an unaudited consolidated and consolidating balance sheet of the
Borrowers and their Subsidiaries as of the end of such month and the related
unaudited consolidated and consolidating statements of income and cash flows of
the Borrowers and their Subsidiaries for such month and the then elapsed portion
of such Fiscal Year, setting forth in each case in comparative form the figures
for the corresponding month and the corresponding portion of Borrowers' previous
Fiscal Year, when applicable;
(d) concurrently with the delivery of the financial statements
referred to in clauses (a), (b) and (c) above, a Compliance Certificate signed
by (x) one of the principal executive officer, the principal financial officer
or treasurer and (y) any other Responsible Officer of the Borrowers;
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(e) concurrently with the delivery of the financial statements
referred to in clause (a) above, any management letters issued by the accounting
firm in connection with such financial statements;
(f) no later than 30 days after the commencement of each Fiscal Year,
deliver to the Agents Projections for such Fiscal Year; and
(g) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrowers or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.2 LIEN PERFECTION. Promptly upon the request of an
Agent, the Borrowers will execute all Uniform Commercial Code financing
statements, and amendments and continuation statements thereto, provided for by
applicable law together with any and all other instruments, assignments or
documents and shall take such other action as may be required to perfect or
continue the perfection of the Administrative Agent's (on behalf of the
Administrative Agent, the Lenders and the Issuing Banks) security interest in
the Collateral. The Borrowers hereby authorize the Administrative Agent to
execute and file any such financing statement on the Borrowers' behalf to the
extent permitted by applicable law.
SECTION 5.3 LOCATION OF COLLATERAL; CONSIGNMENT OF INVENTORY. All
Collateral, other than Inventory in transit and Inventory sold in the Ordinary
Course of Business, will at all times be kept by the Borrowers and their
Subsidiaries at one or more of the business locations of Borrowers or their
Subsidiaries set forth in Schedule 5.3. The Inventory shall not, without the
prior written approval of the Agents, be moved therefrom except as permitted in
the immediately preceding sentence and so long as no Event of Default exists,
(i) sales or other dispositions of assets permitted pursuant to Section 7.6
hereof and (ii) the storage of Inventory at locations within the continental
United States other than those specified in the first sentence of this Section
5.3 if (A) Borrowers give the Agents written notice of the new storage location
outside of (x) the state, or (y) if the Uniform Commercial Code as in effect in
such state has a county filing requirement, the county, in which it is currently
stored at least thirty (30) days prior to storing Inventory at such location,
(B) the Administrative Agent's security interest in such Inventory is and
continues to be a duly perfected, first priority Lien thereon, and (C) neither
the Borrowers' nor an Agent's right of entry upon the premises where such
Inventory is stored or its right to remove the Inventory therefrom, is more
restricted than at the prior location of such Inventory.
SECTION 5.4 PROTECTION OF COLLATERAL. All insurance expenses and
expenses of protecting, storing, warehousing, insuring, handling, maintaining
and shipping the Collateral (including, without limitation, all rent payable by
Borrowers to any landlord of any premises where any of the Collateral may be
located), and any and all excise, property, sales, and use taxes imposed by any
state, federal, or local authority on any of the Collateral or in respect of the
sale thereof, shall be borne and paid by Borrowers. If Borrowers fail to
promptly pay any portion thereof when due, the Lenders may, at their option,
after notice to the Borrowers, but shall not be required to, make a Base Rate
Revolving Loan for such purpose and pay the same directly to the appropriate
Person; provided that Borrowers shall not be deemed to have made any
representations under Section 3.2(a) in connection therewith. Borrowers agree to
reimburse
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the Lenders promptly therefor with interest accruing thereon daily at the
Default Interest rate provided in this Agreement. All sums so paid or incurred
by the Lenders for any of the foregoing and all reasonable costs and expenses
(including reasonable attorneys' fees, reasonable legal expenses, and court
costs) which the Lenders may incur in enforcing or protecting the Lien on or
rights and interest in the Collateral or any of their rights or remedies under
this or any other agreement between the parties hereto or in respect of any of
the transactions to be had hereunder until paid by Borrowers to the Lenders with
interest at the Default Interest rate, shall be considered Obligations owing by
Borrowers to the Lenders hereunder. Such Obligations shall be secured by all
Collateral and by any and all other collateral, security, assets, reserves, or
funds of Borrowers in or coming into the hands or inuring to the benefit of the
Lenders. Neither the Collateral Agent, the Administrative Agent nor the Lenders
shall be liable or responsible in any way for the safekeeping of any of the
Collateral or for any loss or damage thereto (except for reasonable care in the
custody thereof while any Collateral is in the Lenders' actual possession) or
for any diminution in the value thereof, or for any act or default of any
warehouseman, carrier, forwarding agency, or other person whomsoever, but the
same shall be at the Borrowers' sole risk.
SECTION 5.5 ASSIGNMENTS AND RECORDS OF ACCOUNTS. If so requested
by an Agent following an Event of Default and for so long as the same shall be
continuing, the Borrowers shall execute and deliver to the Administrative Agent
formal written assignments of all of the Accounts weekly (unless the Collateral
Agent requests that such assignments be executed and delivered more frequently),
which shall include all Accounts that have been created since the date of the
last assignment, together with copies of invoices or invoice registers related
thereto. Borrowers shall keep accurate and complete records of the Accounts and
all payments and collections thereon.
SECTION 5.6 ADMINISTRATION OF ACCOUNTS.
(a) Records and Schedules of Accounts. Each Borrower shall keep
accurate and complete records of its Accounts and all payments and collections
thereon and shall submit to the Collateral Agent on such periodic basis as the
Collateral Agent shall request a sales and collections report for the preceding
period, in form satisfactory to the Collateral Agent; provided that Collateral
Agent shall not request such report more than once during any 30 day period for
so long as no Event of Default exists. Each Borrower shall also provide to the
Collateral Agent on or before the 20th day of each month, (i) a detailed aged
trial balance of all Accounts existing as of the last day of the preceding
month, specifying the names, addresses, face value, dates of invoices and due
dates for each Account Debtor obligated on an Account so listed ("Schedule of
Accounts"), (ii) upon the Collateral Agent's request therefor, copies of proof
of delivery and a copy of all documents, including repayment histories and
present status reports relating to the Accounts so scheduled, (iii) a
reconciliation of the Borrowers' Accounts aging report to the Borrowers' general
ledger and applicable Borrowing Base Certificates delivered to the Collateral
Agent and (iv) such other matters and information relating to the status of then
existing Accounts as the Collateral Agent shall reasonably request. In addition,
if Accounts in an aggregate face amount in excess of $1,500,000 cease to be
Eligible Accounts in whole or in part, Borrowers shall notify the Collateral
Agent of such occurrence promptly (and in any event within 2 Business Days)
after any Borrower's having obtained knowledge of such occurrence and the
Borrowing Base shall thereupon be adjusted to reflect such occurrence.
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(b) Discounts, Disputes and Returns. If any Borrower grants any
discounts, allowances or credits that are not shown on the face of the invoice
for the Account involved, such Borrower shall report such discounts, allowances
or credits, as the case may be to the Collateral Agent as part of the next
required Schedule of Accounts. If any amounts due and owing in excess of
$1,500,000 are in dispute between any Borrower and any Account Debtor, or if any
returns are made in excess of $1,500,000 with respect to any Accounts owing from
an Account Debtor, such Borrower shall provide the Collateral Agent with written
notice thereof at the time of submission of the next Schedule of Accounts,
explaining in reasonable detail the reason for the dispute or return, all claims
related thereto and the amount in controversy. At any time an Event of Default
exists, the Collateral Agent shall have the right to settle or adjust all
disputes and claims directly with the Account Debtor and to compromise the
amount or extend the time for payment of any Accounts comprising a part of the
Collateral upon such terms and conditions as the Collateral Agent may deem
advisable, and to charge the deficiencies, costs and expenses thereof, including
attorneys' fees, to Borrowers.
(c) Taxes. If an Account of any Borrower includes a charge for any
Taxes payable to any Governmental Authority, and unless the Borrowers are
diligently contesting the payment of such Taxes in good faith and by appropriate
proceedings and for which adequate reserves have been set aside on Borrowers'
books, the Administrative Agent is authorized, in its sole discretion, upon
notice to the Borrowers and after the Borrowers' failure or inability to pay
such Tax, to pay such Tax (without duplication of other payments made with
respect to any such Tax), the amount thereof to the proper taxing authority for
the account of such Borrower and to charge Borrowers therefor; provided,
however, that neither the Administrative Agent nor Lenders shall be liable for
any Taxes that may be due by Borrowers.
(d) Account Verifications. Whether or not a Default or an Event of
Default exists, the Collateral Agent shall have the right at any time, in the
name of the Collateral Agent, any designee of the Collateral Agent or any
Borrower to verify the validity, amount or any other matter relating to any
Accounts of such Borrower by mail, telephone, telegraph or otherwise, provided,
that the Collateral Agent will endeavor in good faith to notify the Borrowers
after any such request for verification, but the Collateral Agent shall have no
liability, nor shall the Borrowers have any recourse against the Collateral
Agent, in the event the Collateral Agent fails to so notify the Borrowers.
Borrowers shall cooperate fully with the Collateral Agent in an effort to
facilitate and promptly conclude any such verification process.
(e) Maintenance of Dominion Account. The Borrowers shall maintain a
Dominion Account at SunTrust (or such other bank acceptable to the
Administrative Agent) pursuant to arrangements acceptable to the Administrative
Agent. The Borrowers shall issue to SunTrust an irrevocable letter of
instruction directing such bank to deposit all payments or other remittances
received in the Dominion Account. Borrowers shall enter into agreements, in form
satisfactory to the Administrative Agent, with each bank at which a Dominion
Account is maintained by which such bank shall immediately transfer to the Cash
Collateral Account all monies deposited to the Dominion Account. All funds
deposited in each Dominion Account shall be subject to the Administrative
Agent's Lien. Borrowers shall obtain the agreement (in favor of and in form and
content satisfactory to the Administrative Agent) by each bank at which a
Dominion Account is maintained to waive any offset rights against the funds
deposited into such Dominion Account, except offset rights in respect of charges
incurred in the
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administration of such Dominion Account. Neither Agent nor any Lender assumes
any responsibility to Borrowers for such Dominion Account, including any claim
of accord and satisfaction or release with respect to deposits accepted by any
bank thereunder.
(f) Collection of Accounts and Proceeds of Collateral. To expedite
collection, each Borrower shall endeavor in the first instance to make
collection of such Borrower's Accounts for the Administrative Agent and Lenders.
Borrowers shall request in writing and otherwise take such reasonable steps to
ensure that all Account Debtors forward payment directly to such Dominion
Account (or other collection arrangements related to the Dominion Account), and
deposit and cause its Subsidiaries to deposit or cause to be deposited promptly,
and in any event no later than the first Business Day after the date of receipt
thereof, all cash, checks, drafts or other similar items of payment relating to
or constituting payments made in respect of any and all Collateral (whether or
not otherwise delivered to pursuant to such collection arrangements) into the
Dominion Account. Borrowers shall issue to each bank servicing such collection
arrangements an irrevocable letter of instruction directing such bank to deposit
all payments or other remittances received by it to the Dominion Account. All
Payment Items received by any Borrower in respect of its Accounts, together with
the proceeds of any other Collateral, shall be held by such Borrower as trustee
of an express trust for the Administrative Agent's and Lenders' benefit; such
Borrower shall immediately deposit same in kind in the Dominion Account.
(g) Application of Proceeds; Cash Collateral Account. The balance in
each Dominion Account shall be swept at least once on each Business Day to a
Cash Collateral Account. If at any time there are any Loans outstanding, or any
other Obligation which is then due and payable, the Borrowers authorize the
Administrative Agent to apply the outstanding balance in any Cash Collateral
Account in repayment of such Loan or other Obligation; provided, however, that
in the event that the Administrative Agent elects to apply such amount (or a
portion thereof) in repayment of a Eurodollar Rate Loan, such amount shall at
the Borrowers' option, instead of being applied in repayment of such Eurodollar
Rate Loan, be held by the Administrative Agent for application to such Loan on
the last day of the Interest Period applicable thereto or otherwise applied to
Borrowers' obligations under Section 2.20. The Borrower agrees that each such
Cash Collateral Account shall be under the sole dominion and control of the
Administrative Agent. Without limiting the foregoing, funds on deposit in any
Cash Collateral Account, after application to any outstanding Loans or other
Obligations shall be invested (but the Administrative Agent shall be under no
obligation to make any such investment at any time an Event of Default has
occurred and is continuing) only in cash and Permitted Investments, which shall
be made (i) except when an Event of Default has occurred which is continuing, at
the direction of the Borrowers and (ii) during the continuance of an Event of
Default, at the direction of the Administrative Agent; provided, however, that
the Administrative Agent shall not have any responsibility for, or bear any risk
of loss of, any such investment or income thereon. Neither of the Borrowers nor
any Person claiming on behalf of or through either of them shall have any right
to demand payment of any funds held in any Cash Collateral Account at any time
prior to the termination of all outstanding Letters of Credit, the payment in
full of all then outstanding and payable monetary Obligations and termination of
the Revolving Credit Commitments. Notwithstanding the foregoing, the
Administrative Agent shall be authorized to apply all funds and Permitted
Investments in a Cash Collateral Account as provided in Section 2.2A(b) and the
Loan Documents.
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(h) Notification of Account Debtors. The Administrative Agent retains
the right at all times after an Event of Default has occurred and is continuing
to notify Account Debtors of any Borrower that Accounts have been assigned to
the Administrative Agent and to collect Accounts directly in its own name and to
charge to Borrowers the collection costs and expenses incurred by the Agents,
including reasonable attorneys' fees.
(i) Limitations on Bank Accounts. Except as otherwise disclosed in
this Agreement, the Borrowers and their Subsidiaries shall not open any other
deposit account unless the Administrative Agent shall have consented thereto and
the depository bank for such deposit account shall have entered into a Deposit
Account Control Agreement reasonably acceptable to the Administrative Agent. As
of the Closing Date, all bank accounts of any nature of Borrowers and their
Subsidiaries are listed on Schedule 5.6 and such Schedule designates which such
accounts are deposit accounts.
SECTION 5.7 ADMINISTRATION OF INVENTORY.
(a) Records and Reports of Inventory. Each Borrower shall keep
accurate and complete records of its Inventory (including records showing the
cost thereof and daily withdrawals therefrom and additions thereto) and shall
furnish the Collateral Agent inventory reports respecting such Inventory in form
and detail satisfactory to the Collateral Agent at such times as the Collateral
Agent may request, but so long as no Event of Default has occurred and is
continuing, no more frequently than daily for 60 days after Closing Date and not
more frequently than once each week thereafter unless the Collateral Agent shall
elect to receive such reports on a more frequent basis (provided that,
notwithstanding the foregoing, certain items noted in Schedule IV, shall only be
updated on a weekly basis). Each Borrower shall, at its own expense, conduct a
physical inventory no less frequently than annually (and on a more frequent
basis if requested by the Collateral Agent when an Event of Default exists) and
periodic cycle counts consistent with such Borrower's historical practices and
shall provide to the Collateral Agent a report based on each such physical
inventory and cycle count promptly after completion thereof, together with such
supporting information as the Collateral Agent shall request. The Agents may
participate in and observe each physical count or inventory, which participation
shall be at Borrowers' expense at any time that an Event of Default exists.
(b) Returns of Inventory. No Borrower shall return any of its
Inventory to a supplier or vendor thereof, or any other Person, whether for
cash, credit against future purchases or then existing payables, or otherwise,
unless (i) such return is in the Ordinary Course of Business of such Borrower
and such Person; (ii) no Event of Default has occurred and is continuing or
would result therefrom; (iii) the return of such Inventory will not result in an
Out-of-Formula Condition; (iv) such Borrower promptly notifies the Collateral
Agent thereof if the aggregate value of all Inventory returned in any month
exceeds $1,500,000; and (v) any payments received by such Borrower in connection
with any such return are promptly turned over to the Administrative Agent for
application to the Obligations.
(c) Acquisitions and Sale of Inventory. No Borrower shall acquire or
accept any Inventory on consignment or approval. No Borrower shall sell any
Inventory to any
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customer on approval or any other basis upon which the customer has a right to
return (except if non-conforming) or obligates any Borrower to repurchase such
Inventory.
(d) Maintenance of Inventory. Borrowers shall produce, use, store and
maintain all Inventory with all reasonable care and caution in accordance with
applicable standards of any insurance and in conformity with Applicable Law
(including the requirements of the FLSA) and will maintain current rent payments
(within applicable grace periods provided for in leases) at all locations at
which any Inventory is maintained or stored.
SECTION 5.8 [RESERVED]
SECTION 5.9 BORROWING BASE CERTIFICATES. On the Closing Date and
on each Business Day through the 60th day after the Closing Date or until
Borrowers are able to report the value of Inventory at both cost and market in a
manner reasonably satisfactory to the Agents, whichever is the later to occur,
and thereafter weekly as of Thursday (or the next Business Day) of each week for
the weekly period ending not more than two (2) Business Days earlier, or at such
more frequent intervals as the Collateral Agent may request (provided that,
notwithstanding the foregoing, certain items as noted in Schedule IV, shall only
be updated on a weekly basis), Borrowers shall deliver to the Collateral Agent
(and the Collateral Agent shall, on request from a Lender, promptly deliver to
such Lender) a Borrowing Base Certificate. All calculations of Availability in
connection with any Borrowing Base Certificate shall originally be made by the
Borrowers and certified by a Responsible Officer to the Agents, provided that
the Agents shall have the right to review and adjust, in the exercise of their
credit judgment, any such calculation (i) to reflect its reasonable estimate of
declines in value of any of the Collateral described therein and (ii) to the
extent that such calculation is not in accordance with this Agreement or does
not accurately reflect the amount of the Availability Reserve. In no event shall
the Borrowing Base on any date be deemed to exceed the amount of the Borrowing
Base shown on the Borrowing Base Certificate last received by the Collateral
Agent prior to such date, as the calculation in such Borrowing Base Certificate
may be adjusted from time to time by the Agents as herein authorized. No less
frequently than weekly, a Borrowing Base Certificate shall indicate, without
limitation, the Account Debtors of a Borrower who are also creditors of Mapco
and the availability on any applicable date of Mapco under its working capital
credit facility for purposes of the Agents' determination of the applicability
and extent of the Mapco Reserve.
SECTION 5.10 NOTICES of MATERIAL EVENTS. The Borrowers will
furnish to each Agent prompt written notice, upon a Responsible Officer's
obtaining actual knowledge, of any of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrowers, affecting the Borrowers or any Subsidiary which, if adversely
determined, would reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the
Borrowers or any of their Subsidiaries (i) fails to comply with any
Environmental Law or to
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obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, would reasonably be expected to result in
liability of the Borrowers and their Subsidiaries in an aggregate amount
exceeding $100,000;
(e) the occurrence of any default or event of default, or the receipt
by Borrowers or any of their Subsidiaries of any written notice of an alleged
default or event of default, in respect of any Material Indebtedness of the
Borrowers or any of their Subsidiaries;
(f) the entering into by a Borrower of any Exchange Agreement and the
material terms of such agreement;
(g) any material transaction with an Affiliate of a Borrower, whether
or not in the Ordinary Course of Business;
(h) any material claim made or asserted by a Borrower against the
Seller or by the Seller against a Borrower in connection with the Acquisition;
(i) the receipt by the Borrowers or any of their Subsidiaries of any
notice of material non-compliance with or violation of any applicable federal,
state or local law, statute or regulation governing the sale, storage or
transportation of oil or any such agreement; and
(j) any other development that results in, or would reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.10 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.11 EXISTENCE; CONDUCT OF BUSINESS. The Borrowers will,
and will cause each of their Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names, in each case material to the
conduct of its business, and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section 5.11 shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
SECTION 5.12 COMPLIANCE WITH LAWS, ETC. The Borrowers will, and
will cause each of their Subsidiaries to, comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
business and properties, including without limitation, all Environmental Laws,
ERISA and OSHA, except where the failure to do
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so, either individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.13 PAYMENT OF OBLIGATIONS. The Borrowers will, and will
cause each of their Subsidiaries to, pay and discharge at or before maturity,
all of their obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrowers or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.14 BOOKS AND RECORDS. The Borrowers will, and will
cause each of their Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to their business and activities to the extent
necessary to prepare the consolidated financial statements of Borrowers in
conformity with GAAP.
SECTION 5.15 VISITATION, INSPECTION, ETC. The Borrowers will, and
will cause each of their Subsidiaries to, permit any representative of the
Agents or any Lender, to visit and inspect their properties, to examine their
books and records, to perform audits, appraisals or valuations and to make
copies and take extracts therefrom, and to discuss their affairs, finances and
accounts with any of their officers and with their independent certified public
accountants, all at such reasonable times and as often as the Agents or any
Lender may reasonably request after reasonable prior notice to the Borrowers;
provided, however, that if an Event of Default has occurred and is continuing,
no prior notice shall be required; provided, further, however, that the
Borrowers' obligations in respect of the costs and expenses of any such visits
or inspections shall be as provided in Section 2.15(f).
SECTION 5.16 MAINTENANCE OF PROPERTIES; INSURANCE. The Borrowers
will, and will cause each of their Subsidiaries to, (a) keep and maintain all
property material to the conduct of their businesses in good working order and
condition, ordinary wear and tear excepted, and (b) maintain insurance
including, but not limited to, public liability, product liability, business
interruption and fidelity coverage insurance, in such amounts and against such
risks as would be customary for companies in the same industry and of comparable
size as the Borrowers from responsible companies having and maintaining an A.M.
Best rating of "A minus" or better and being in a size category of VI or larger
or otherwise reasonably acceptable to the Administrative Agent, provided, that
SCOR Reinsurance Company shall be acceptable to the Administrative Agent for so
long as it maintains a rating not lower than BBB by S&P, B+ by A.M. Best or Baa3
by Xxxxx'x. In addition to the foregoing, Borrowers further agree to maintain
and pay for insurance upon all goods constituting Collateral wherever located,
in storage or in transit in vehicles, including goods evidenced by documents,
covering casualty, hazard, public liability and such other risks and in such
amounts as would be customary for companies in the same industry and of
comparable size as Borrowers, from responsible companies having and maintaining
an A.M. Best rating of "A minus" or better and being in a size category of VI or
larger or otherwise reasonably acceptable to the Administrative Agent to insure
the Administrative Agent's interest in such Collateral. All such property
insurance policies
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shall name the Administrative Agent as loss payee and all liability insurance
policies shall name the Administrative Agent as additional insured. The
Borrowers shall deliver the original certificates of insurance evidencing that
the required insurance is in force together with satisfactory lender's loss
payable and additional insured, as applicable, endorsements. Each policy of
insurance or endorsement shall contain a clause requiring the insurer to give
not less than thirty (30) days' prior written notice to the Administrative Agent
in the event of cancellation or modification of the policy for any reason
whatsoever and a clause that the interest of the Administrative Agent shall not
be impaired or invalidated by any act or neglect of the Borrowers or owner of
the Collateral nor by the occupation of the premises for purposes more hazardous
than are permitted by said policy. If Borrowers fail to provide and pay for such
insurance, the Administrative Agent may, at Borrowers' expense, procure the
same, but shall not be required to do so. The Borrowers agree to deliver to the
Administrative Agent, promptly as rendered, true copies of all reports made in
any reporting forms to insurance companies at the Administrative Agent's
request.
SECTION 5.17 USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrowers
will use the proceeds of all Loans to finance the Acquisition, working capital
needs, capital expenditures and for other general corporate purposes of the
Borrowers and their Subsidiaries. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that would violate any
rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes.
SECTION 5.18 COMMODITY HEDGING. As promptly as practicable, the
Borrowers will enter into, and thereafter maintain in effect at all times for
the months of December, 2005, and January, February and March of 2006 (the
"Hedging Period"), one or more Hedging Transactions in respect of Borrowers'
Petroleum Products assuring a liquidation value of not less than 70% of the
average of the lower of Borrowers' cost or the prevailing Petroleum Inventory
Market Price of Eligible Petroleum Inventory, Eligible Petroleum
Inventory-Not-Received and Eligible Positive Exchange Agreement Balances, with
such Hedging Transactions to be described in reasonable detail in each Borrowing
Base Certificate delivered during the Hedging Period.
SECTION 5.19 SUBORDINATED WORKING CAPITAL FACILITY. From and
after any Availability Support Trigger Date, the Administrative Agent may
require the Borrowers to obtain (a "Funding Request"), and the Borrowers shall
obtain no later than five (5) days after the date of any such Funding Request,
advances under the Subordinated Working Capital Credit Documents in amounts on
any applicable date of not less than (a) $2,000,000, less (b) the lowest daily
Availability during the five (5) consecutive Business Days immediately preceding
the date of any such Funding Request and each day thereafter for so long as
Availability shall be less than $2,000,000, provided that the Borrowers shall
not be obligated to incur Subordinated Working Capital Indebtedness hereunder in
an aggregate amount exceeding $5,000,000 outstanding at any time. The Borrowers
may request advances under the Subordinated Working Capital Documents in excess
of such required amounts from time to time upon prior notice to the Agents. The
Borrowers may repay Subordinated Working Capital Indebtedness, whether incurred
voluntarily or otherwise hereunder, if and only if, (i) Availability shall have
been greater than $2,000,000 for five (5) consecutive Business Days preceding
any
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repayment date, (ii) after giving effect to such repayments there will be not
less than $2,000,000 of Availability for five (5) consecutive Business Days
thereafter, (iii) the aggregate amount of such repayments do not exceed the
amount of the Subordinated Working Capital Indebtedness plus interest and other
fees at a rate not to exceed 10% per annum in the aggregate, and (iv) no
Default or Event of Default exists. Amounts repaid in respect of Subordinated
Working Capital Indebtedness, to the extent permitted under the provisions of
this Section 5.19, shall be deemed applied first to that portion of the
Subordinated Working Capital Indebtedness voluntarily incurred by the Borrowers,
to the extent thereof, and next to Subordinated Working Capital Indebtedness
incurred to satisfy the requirements of this Section 5.19.
SECTION 5.20 COLLATERAL ACCESS AGREEMENTS. The Borrowers shall
use commercially reasonable efforts to obtain such Landlord Waivers and Bailee's
Letters as the Administrative Agent shall request in its sole discretion
exercised reasonably.
SECTION 5.21 BSI REPORT. Upon their receipt of the BSI Report,
the Borrowers shall promptly deliver copies of such report to the Agents.
SECTION 5.22 OPENING BALANCE SHEET. No later than 45 days after
the Closing Date, the Borrowers shall deliver to the Agents a pro forma opening
balance sheet giving effect to the Acquisition as of the Original Closing Date.
ARTICLE VI
FINANCIAL COVENANTS
Each Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 6.1 FIXED CHARGE COVERAGE RATIO. The Borrowers shall
maintain, as of the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending March 31, 2006, a Fixed Charge Coverage Ratio of not less than
(a) 1.10:1.00 for the Fiscal Quarter ending Xxxxx 00, Xxxx 00 xxx Xxxxxxxxx 00,
0000, (x) 1.15:1.00 for the Fiscal Quarters ending December 31, 2006 and March
31 and June 30, 2007, and (c) 1.25:1.00 for the Fiscal Quarter ending September
30, 2007 and as of the last day of each Fiscal Quarter thereafter.
SECTION 6.2 CAPITAL EXPENDITURES. The Borrowers and their
Subsidiaries will not make Capital Expenditures in excess of (a) $15,000,000
during the Fiscal Year ending December 31, 2005, (b) $21,000,000 during the
Fiscal Year ending December 31, 2006, (c) $20,000,000 during the Fiscal Year
ending December 31, 2007, or (a) $10,000,000 during the Fiscal Year ending
December 31, 2008, provided, that up to $1,000,000 of Capital Expenditures
permitted in any Fiscal Year that were not made in such Fiscal Year may be
carried to the next, and only the next, Fiscal Year.
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ARTICLE VII
NEGATIVE COVENANTS
Each Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains outstanding:
SECTION 7.1 INDEBTEDNESS AND PREFERRED EQUITY. The Borrowers will
not, and will not permit any of their Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness of the Borrowers and their Subsidiaries existing on
the date hereof and set forth on Schedule 7.1 and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;
(c) Indebtedness of the Borrowers or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof to the extent consistent with the
provisions of Section 6.2;
(d) Indebtedness of the Borrowers owing to any Subsidiary and of any
Subsidiary owing to a Borrower or any other Subsidiary; provided, that any such
Indebtedness that is owed to a Subsidiary that is not a Subsidiary Loan Party
shall be subject to Section 7.4;
(e) Guarantees by a Borrower of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of a Borrower or any other Subsidiary; provided,
that Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not
a Subsidiary Loan Party shall be subject to Section 7.4;
(f) Permitted Subordinated Debt;
(g) Indebtedness in respect of Hedging Obligations permitted by
Section 7.10; and
(h) other unsecured Indebtedness of a Borrower or its Subsidiaries in
an aggregate principal amount not to exceed $1,000,000 at any time outstanding.
No Borrower will, nor will it permit any Subsidiary to, issue any preferred
stock or other preferred equity interests that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may
become redeemable or repurchaseable by a Borrower or such Subsidiary at the
option of the holder thereof, in whole or in part, or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock or any other
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preferred equity interests described in this paragraph, on or prior to, in the
case of clause (i), (ii) or (iii), the first anniversary of the Revolving
Commitment Termination Date.
SECTION 7.2 NEGATIVE PLEDGE. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any of their assets or property now owned or hereafter acquired or,
except:
(a) Liens securing the Obligations;
(b) Permitted Liens;
(c) any Liens on any property or asset of a Borrower or any Subsidiary
existing on the Closing Date set forth on Schedule 7.2; provided, that such Lien
shall not apply to any other property or asset of such Borrower or any
Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of a Borrowers, (ii) existing on any asset of any
Person at the time such Person is merged with or into a Borrower or any
Subsidiary of a Borrower or (iii) existing on any asset prior to the acquisition
thereof by a Borrower or any Subsidiary of a Borrower; provided, that any such
Lien was not created in the contemplation of any of the foregoing and any such
Lien secures only those obligations which it secures on the date that such
Person becomes a Subsidiary or the date of such merger or the date of such
acquisition; and
(f) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section 7.2; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
SECTION 7.3 FUNDAMENTAL CHANGES.
(a) The Borrowers will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all or substantially
all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of their Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i) a Borrower
or any Subsidiary may merge with a Person if a
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Borrower (or such Subsidiary if such Borrower is not a party to such merger) is
the surviving Person, (ii) any Subsidiary may merge into another Subsidiary;
provided, that if any party to such merger is a Subsidiary Loan Party, the
Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrowers or to a Subsidiary Loan Party and (iv) any Subsidiary
(other than a Subsidiary Loan Party) may liquidate or dissolve if the Borrowers
determine in good faith that such liquidation or dissolution is in the best
interests of the Borrowers and is not materially disadvantageous to the Lenders;
provided, that any such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 7.4.
(b) The Borrowers will not, and will not permit any of their
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrowers and their Subsidiaries on the date hereof and
businesses reasonably related thereto.
SECTION 7.4 INVESTMENTS, LOANS, ETC. The Borrowers will not, and
will not permit any of their Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively
called "Investments"), or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrowers in or to any Subsidiary and by
any Subsidiary to the Borrowers or in or to another Subsidiary; provided, that
the aggregate amount of Investments by Loan Parties in or to, and Guarantees by
Loan Parties of Indebtedness of any Subsidiary that is not a Subsidiary Loan
Party (including all such Investments and Guarantees existing on the Closing
Date) shall not exceed $250,000 at any time outstanding;
(e) loans or advances to employees, officers or directors of the
Borrowers or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate
outstanding amount of all such loans and advances does not exceed $300,000 at
any time;
(f) Hedging Transactions permitted by Section 7.10; and
(g) Other Investments which in the aggregate do not exceed $250,000 in
any Fiscal Year.
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SECTION 7.5 RESTRICTED PAYMENTS. The Borrowers will not, and will
not permit their Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of
the Borrowers or any Guarantee thereof or any options, warrants, or other rights
to purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends payable by
the Borrowers solely in shares of any class of their common stock, (ii)
Restricted Payments made by any Subsidiary to the Borrowers or to another
Subsidiary, on at least a pro rata basis with any other shareholders if such
Subsidiary is not wholly owned by a Borrower and other wholly owned
Subsidiaries, (iii) after payment in full of the Subordinated Note, cash
dividends and distributions paid in common stock of a Borrower; provided, that
for purposes of this clause (iii) that each of the Conditions to Dividends shall
have been satisfied as of the date of and after giving effect to any such
dividend or distribution, (iv) fees payable under the Management Agreement up to
an aggregate amount not to exceed $1,500,000 during any Fiscal Year, (iv)
Permitted Tax Distributions, and (v) payments permitted in respect of Permitted
Subordinated Debt.
SECTION 7.6 SALE OF ASSETS. The Borrowers will not, and will not
permit any of their Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's Capital Stock to any Person other than a Borrower or
any wholly-owned Subsidiary of a Borrower (or to qualify directors if required
by applicable law), except:
(a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the ordinary
course of business; and
(c) the sale or other disposition of such assets in an aggregate
amount not to exceed $1,000,000 in any Fiscal Year.
SECTION 7.7 TRANSACTIONS WITH AFFILIATES. The Borrowers will not,
and will not permit any of their Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except, after written notice to the Agents (except with
respect to clause (d) below), (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrowers or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties provided, that no such Accounts arising from sales to an Affiliate shall
be permitted unless either (i) such Accounts are LC Backed Accounts, or (ii) for
so long as Availability is greater than $20,000,000, the Borrowers may enter
into transactions giving rise to Accounts owing by Affiliates that are not LC
Backed Accounts but in an aggregate amount not to exceed $5,000,000 at any time
outstanding, (b)
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transactions between or among the Borrowers and any Subsidiary Loan Party not
involving any other Affiliates, (c) any Restricted Payment permitted by Section
7.5, and (d) under the Management Agreement subject to the restrictions set
forth in Section 7.5.
SECTION 7.8 RESTRICTIVE AGREEMENTS. The Borrowers will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrowers or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans or
advances to the Borrowers or any other Subsidiary, to Guarantee Indebtedness of
the Borrowers or any other Subsidiary or to transfer any of its property or
assets to a Borrower or any Subsidiary of a Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 7.9 SALE AND LEASEBACK TRANSACTIONS. The Borrowers will
not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred.
SECTION 7.10 HEDGING TRANSACTIONS. The Borrowers will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Transaction,
other than (a) Hedging Transactions required by Section 5.18 and (b) Hedging
Transactions entered into in the ordinary course of business to hedge or
mitigate interest rate or commodity pricing risks to which the Borrowers or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities; provided, that the Borrowers shall not enter into any Hedging
Transactions, whether voluntary or required under this Agreement, under which
the Borrowers have a Net Xxxx-to-Market Exposure or any other counterparty
exposure. Solely for the avoidance of doubt, the Borrowers acknowledge that a
Hedging Transaction entered into for speculative purposes or of a speculative
nature (which shall be deemed to include any Hedging Transaction under which the
Borrowers or any of their Subsidiaries is or may become obliged to make any
payment (i) in connection with the purchase by any third party of any common
stock or any Indebtedness or (ii) as a result of changes in the market value of
any common stock or any Indebtedness) is not a Hedging Transaction entered into
in the ordinary course of business to hedge or mitigate interest rate risks.
SECTION 7.11 AMENDMENT TO MATERIAL DOCUMENTS. The Borrowers will
not, and will not permit any of their Subsidiaries to, amend, modify or waive
any
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of its rights in a manner materially adverse to the Lenders under (a) its
certificate of incorporation, bylaws or other organizational documents or (b)
the Asset Purchase Agreement.
SECTION 7.12 PERMITTED SUBORDINATED INDEBTEDNESS.
(a) The Borrowers will not, and will not permit any of their
Subsidiaries to (i) prepay, redeem, repurchase or otherwise acquire for value
any Permitted Subordinated Debt, or (ii) make any principal, interest or other
payments on any Permitted Subordinated Debt that is not expressly permitted by
the subordination provisions of the Subordinated Debt Documents.
(b) The Borrowers will not, and will not permit any of their
Subsidiaries to, agree to or permit any amendment, modification or waiver of any
provision of any Subordinated Debt Document if the effect of such amendment,
modification or waiver is to (i) increase the interest rate on such Permitted
Subordinated Debt or change (to earlier dates) the dates upon which principal
and interest are due thereon; (ii) alter the redemption, prepayment or
subordination provisions thereof; (iii) alter the covenants and events of
default in a manner that would make such provisions more onerous or restrictive
to the Borrowers or any such Subsidiary; or (iv) otherwise increase the
obligations of the Borrowers or any Subsidiary in respect of such Permitted
Subordinated Debt or confer additional rights upon the holders thereof which
individually or in the aggregate would be adverse to the Borrowers or any of
their Subsidiaries or to the Agents or the Lenders.
SECTION 7.13 ACCOUNTING CHANGES. The Borrowers will not, and will
not permit any of their Subsidiaries to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Borrowers or of any of their Subsidiaries, except
to change the fiscal year of a Subsidiary to conform its fiscal year to that of
the Borrowers.
SECTION 7.14 LEASE OBLIGATIONS. The Borrowers will not, and will
not permit any Subsidiary to, create or suffer to exist any obligations for the
payment under operating leases or agreements to lease (but excluding any
obligations under leases required to be classified as capital leases under GAAP
having a term of five years or more) which would cause the present value of the
direct or contingent liabilities of the Consolidated Companies under such leases
or agreements to lease, on a consolidated basis, to exceed $1,000,000 in the
aggregate in any Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrowers shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
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(b) the Borrowers shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf
of the Borrowers or any Subsidiary in or in connection with this Agreement or
any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrowers shall fail to observe or perform any covenant or
agreement contained in (i) Sections 5.1, 5.2, or 5.11 (with respect to the
Borrowers' existence) or Articles VI or VII, or (ii) with respect to the
Borrowers' obligation to deliver Borrowing Base Certificates under Section 5.9,
such failure shall remain unremedied (i) one (1) Business Day on more than three
occasions during any 30 day period during any period in which Borrowing Base
Certificates are deliverable daily and (ii) three (3) Business Days during a
period in which Borrowing Base Certificates are deliverable less frequently; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any Responsible Officer
of a Borrower becomes aware of such failure, or (ii) written notice thereof
shall have been given to the Borrower by an Agent or any Lender; or
(f) any Subordinated Debt Document shall cease to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of any subordinated lender party thereto, or any Obligations fail to constitute
"Senior Indebtedness" for purposes of the applicable Subordinated Debt Document,
or all or any part of the Permitted Subordinated Debt is accelerated, declared
to be due and payable, or is required to be prepaid or redeemed, in each case
prior to the stated maturity thereof or the holder of any Permitted Subordinated
Debt shall breach the terms of any subordination agreement with an Agent or the
Lenders; or
(g) the Borrowers or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or premium or
interest on, any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing or governing such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument relating to
such Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or
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redemption), purchased or defeased, or any offer to prepay, redeem, purchase or
defease such Indebtedness shall be required to be made, in each case prior to
the stated maturity thereof; or
(h) a Borrower or any Subsidiary shall (i) commence a voluntary case
or other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of its or any
substantial part of its property, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section 8.1, (iii) apply for or consent to the appointment
of a custodian, trustee, receiver, liquidator or other similar official for a
Borrower or any such Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the
foregoing; or
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of a Borrower or any Subsidiary or its debts, or any substantial part
of its assets, under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for a
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(j) a Borrower or any Subsidiary shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts as they
become due; or
(k) an ERISA Event shall have occurred that, when taken together with
other ERISA Events that have occurred, would reasonably be expected to result in
a Material Adverse Effect; or
(l) any judgment or order for the payment of money in excess of
$500,000 in the aggregate shall be rendered against a Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(m) any non-monetary judgment or order shall be rendered against a
Borrower or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(n) a Change in Control shall occur or exist; or
(o) any Loan Document shall for any reason cease to be valid and
binding on, or enforceable against, any Loan Party that is a party thereto, or
any Loan Party shall so state in writing, or any Loan Party shall seek to
terminate a Loan Document;
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then, and in every such event (other than an event with respect to the Borrowers
described in clause (h) or (i) of this Section 8.1) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrowers, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers,
(iii) exercise all remedies contained in any other Loan Document, and (iv)
exercise any other remedies available at law or in equity; and that, if an Event
of Default specified in either clause (h) or (i) shall occur, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 9.1 APPOINTMENT OF AGENTS.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and The CIT Group/Business Credit, Inc. as the Collateral
Agent and authorizes each to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent and the Collateral
Agent, respectively, under this Agreement and the other Loan Documents, together
with all such actions and powers that are reasonably incidental thereto. The
Administrative Agent and the Collateral Agent may perform any of their duties
hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the either. The Administrative
Agent, the Collateral Agent and any such sub-agent or attorney-in-fact may
perform any and all of their duties and exercise their rights and powers through
their respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent or attorney-in-fact and the Related
Parties of the Administrative Agent or the Collateral Agent, any such sub-agent
and any such attorney-in-fact and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent and the Collateral Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article with respect
to any acts taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used
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in this Article included the Issuing Bank with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2 NATURE OF DUTIES. Neither the Administrative Agent
nor the Collateral Agent shall have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) neither the Administrative Agent
nor the Collateral Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default or an Event of Default has occurred and
is continuing, (b) neither the Administrative Agent nor the Collateral Agent
shall have any duty to take any discretionary action or exercise any
discretionary powers, except those discretionary rights and powers expressly
contemplated by the Loan Documents that either Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2), and (c) except as expressly set forth in the Loan Documents, neither the
Administrative Agent nor the Collateral Agent shall have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to
the Borrowers or any of their Subsidiaries that is communicated to or obtained
by an Agent or any of its Affiliates in any capacity. Neither the Administrative
Agent nor the Collateral Agent shall be liable for any action taken or not taken
by it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. Neither the
Administrative Agent nor the Collateral Agent shall be responsible for the
negligence or misconduct of any sub-agents or attorneys-in-fact selected by it
with reasonable care. Neither the Administrative Agent nor the Collateral Agent
shall be deemed to have knowledge of any Default or Event of Default unless and
until written notice thereof (which notice shall include an express reference to
such event being a "Default" or "Event of Default" hereunder) is given to an
Agent by the Borrowers or any Lender, and neither Agent shall be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to an Agent. The Agents may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such
duties.
SECTION 9.3 LACK OF RELIANCE ON THE AGENTS. Each of the Lenders,
the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each of the Lenders,
the Swingline Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Agents or any other Lender and based
on such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
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SECTION 9.4 CERTAIN RIGHTS OF THE AGENTS. If an Agent shall
request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, such
Agent shall be entitled to refrain from such act or taking such act, unless and
until it shall have received instructions from such Lenders; and such Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against either Agent as a result of such Agent acting or refraining from acting
hereunder in accordance with the instructions of the Required Lenders where
required by the terms of this Agreement.
SECTION 9.5 RELIANCE BY AGENTS. The Agents shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed, sent or made by the proper
Person. The Agents may also rely upon any statement made to them orally or by
telephone and believed by them to be made by the proper Person and shall not
incur any liability for relying thereon. The Agents may consult with legal
counsel (including counsel for the Borrowers), independent public accountants
and other experts selected by them and shall not be liable for any action taken
or not taken by them in accordance with the advice of such counsel, accountants
or experts.
SECTION 9.6 THE AGENTS IN THEIR INDIVIDUAL CAPACITY. Any bank or
other financial institution serving as an Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not an Agent; and the terms "Lenders", "Required Lenders",
"holders of Notes", or any similar terms shall, unless the context clearly
otherwise indicates, include each of the Administrative Agent and the Collateral
Agent in their individual capacities. Any bank acting as an Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrowers or any Subsidiary or Affiliate of the
Borrowers as if it were not an Agent hereunder.
SECTION 9.7 SUCCESSOR AGENTS.
(a) An Agent may resign at any time by giving notice thereof to the
Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Agent, subject to the approval by the
Borrowers provided that no Event of Default shall exist at such time. If no
successor Agent shall have been so appointed, and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of resignation,
then the retiring Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Agent, which shall be a commercial bank organized under the
laws of the United States of America or any state thereof or a bank or a
commercial finance lender which maintains an office in the United States, having
a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as an Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Agent's resignation under this
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Section 9.7 no successor Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Agent's resignation
shall become effective, (ii) the retiring Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and (iii) the Required
Lenders shall thereafter perform all duties of the retiring Agent under the Loan
Documents until such time as the Required Lenders appoint a successor Agent as
provided above. After any retiring Agent's resignation hereunder, the provisions
of this Article shall continue in effect for the benefit of such retiring Agent
and its representatives and agents in respect of any actions taken or not taken
by any of them while it was serving as an Agent.
SECTION 9.8 AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes each Agent to execute on behalf of all Lenders all Loan
Documents other than this Agreement.
SECTION 9.9 DOCUMENTATION AGENT; SYNDICATION AGENT. Each Lender
hereby designates The CIT Group/Business Credit, Inc. and National City Business
Credit, Inc. as Co-Documentation Agents and agrees that the Co-Documentation
Agents shall have no duties or obligations, as such, under any Loan Documents to
any Lender or any Loan Party. Each Lender hereby designates Bank of America,
N.A. and PNC Business Credit, Inc. as Co-Syndication Agents and agrees that the
Co-Syndication Agents shall have no duties or obligations, as such, under any
Loan Documents to any Lender or any Loan Party.
SECTION 9.10 BSI REPORT; RECONCILIATION TO BORROWING BASE. Upon
the Agents' receipt of the BSI Report, they shall promptly reconcile such report
to the most recent Borrowing Base Certificate and deliver such reconciliation to
the Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrowers: DELEK REFINING, LTD.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Mr. Xx Xxxxxx, CFO and Treasurer
Telecopy No.: (000) 000-0000
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and
Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Telecopy No.: (000) 000-0000
To the Administrative Agent
or Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
With a copy to: SunTrust Bank
Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Xx. Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
and
Xxxxxx Xxxxxx Xxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./ Mail Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy Number: (000) 000-0000
To the Swingline Lender: SunTrust Bank
Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Xx. Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
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To the Collateral Agent: The CIT Group/Business Credit, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Regional Credit Manager
Telecopy No.: (000)000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire or the
Assignment and Acceptance Agreement
executed by such Lender
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
such notices and other communications to any Person shall, when transmitted
by overnight delivery, or faxed, be effective the next day after
presentation to an overnight courier for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if
mailed, upon the fifth Business Day after the date on which the same is
deposited with the US Postal Service by certified or registered mail or if
delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Bank shall not be effective until actually received by such
Person at its address specified in this Section 10.1.
(b) Any agreement of the Agents and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrowers. The Agents and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the
Borrowers to give such notice and the Agents and Lenders shall not have any
liability to the Borrowers or other Person on account of any action taken or not
taken by the Agents or the Lenders in good faith reliance upon such telephonic
or facsimile notice. The obligation of the Borrowers to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent by
any failure of the Agents and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by an Agent and the Lenders of a
confirmation which is at variance with the terms understood by the such Agent
and the Lenders to be contained in any such telephonic or facsimile notice.
SECTION 10.2 WAIVER; AMENDMENTS; OUT-OF-FORMULA LOANS.
(a) No failure or delay by an Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no
course of dealing between the Borrowers and the Agents or any Lender, shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or thereunder. The rights and
remedies of the Agents, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies provided by law. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrowers therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of
this Section 10.2. and then such waiver or consent shall be
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effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or the
issuance of a Letter of Credit shall not be construed as a waiver of any Default
or Event of Default, regardless of whether an Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default or Event of Default at the
time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrowers therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrowers and the Required Lenders or the Borrowers and the Agents with
the consent of the Required Lenders and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that no amendment or waiver shall: (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the date fixed for any payment of
any principal of, or interest on, any Loan or LC Disbursement or interest
thereon or any fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or reduction of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.22(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 10.2, Section 2.24, Section 5.19 or
the definitions of "Availability Reserve", "Borrowing Base", Pro Rata Share" or
"Required Lenders" (or other defined terms used in such definitions) in a manner
more favorable to the Borrowers or any other provisions hereof specifying the
number or percentage of Lenders which are required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; (vii) enforce the Administrative Agent's rights
under the Pledge Agreement, without the consent of each Lender; (viii) release a
material portion of the Collateral except as provided in this Agreement or agree
to subordinate any Lien in the Collateral to any other creditor of a Borrower or
any Subsidiary, without the written consent of each Lender or (ix) consent or
agree to any material amendment to the Subordination Agreement without the
consent of each Lender; provided further, that no such agreement shall amend,
modify or otherwise affect the rights, duties or obligations of an Agent, the
Swingline Bank or the Issuing Bank without the prior written consent of such
Person. Notwithstanding anything contained herein to the contrary, this
Agreement may be amended and restated without the consent of any Lender (but
with the consent of the Borrowers and the Agents) if, upon giving effect to such
amendment and restatement, such Lender shall no longer be a party to this
Agreement (as so amended and restated), the Commitments of such Lender shall
have terminated (but such Lender shall continue to be entitled to the benefits
of Sections 2.19, 2.20, 2.21 and 10.3), such Lender shall no other commitment or
other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this
Agreement.
(c) Unless otherwise directed in writing by the Required Lenders, the
Administrative Agent may require the Lenders to honor requests by the Borrowers
for Out-of-Formula Loans (in which event, and notwithstanding anything to the
contrary set forth in
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Section 2.1 or elsewhere in this Agreement, the Lenders shall continue to make
Revolving Loans up to their respective Revolving Commitment) and to forbear from
requiring the Borrowers to cure an Out-of-Formula Condition, (1) when no Default
exists (or if a Default exists, when the existence of such Default is not known
by the Administrative Agent), if and for so long as (i) such Out-of-Formula
Condition does not continue for a period of more than 30 consecutive days,
following which no Out-of-Formula Condition exists for at least 15 consecutive
days before another Out-of-Formula Condition exists, (ii) the amount of the
aggregate Revolving Credit Exposure at any time does not exceed the aggregate of
the Revolving Commitments at such time, and (iii) the Out-of-Formula Condition
is not known by the Administrative Agent at the time in question to exceed
$10,000,000; and (2) regardless of whether or not an Event of Default exists, if
the Administrative Agent discovers the existence of an Out-of-Formula Condition
not previously known by it to exist or if any Out-of-Formula Condition exists by
reason of the making of any Agent Advance, the Lenders shall be obligated to
continue making such Revolving Loans as directed by the Administrative Agent
only (A) if the amount of the Out-of-Formula Condition is not increased by more
than $7,500,000 above the amount determined by the Administrative Agent to exist
on the date of discovery thereof and (B) for a period not to exceed 5 Business
Days; provided that at no time shall the aggregate amount of all such
Out-of-Formula Loans exceed $15,000,000. In no event shall the Borrowers or any
other Loan Party be deemed to be a beneficiary of this Section 10.2(c) or
authorized to enforce any of the provisions of this Section 10.2(c).
(d) Each Lender grants to the Administrative Agent the right to
purchase all (but not less than all) of such Lender's Revolving Commitment, LC
Commitment, the Loans and LC Exposure owing to it and the Notes held by it and
all of its rights and obligations hereunder and under the other Loan Documents
at a price equal to the aggregate amount of outstanding Loans and LC Exposure
owed to such Lender (together with all accrued and unpaid interest and fees owed
to such Lender), which right may be exercised by the Administrative Agent if
such Lender refuses to execute any amendment, waiver or consent which requires
the written consent of all Lenders and to which the Administrative Agent, the
Required Lenders and the Borrowers have agreed. Each Lender agrees that if the
Administrative Agent exercises its option hereunder, it shall promptly execute
and deliver an Assignment and Assumption Agreement and other agreements and
documentation necessary to effectuate such assignment. The Administrative Agent
may assign its purchase rights hereunder to any assignee if such assignment
complies with the requirements of Section 10.4(b).
SECTION 10.3 EXPENSES; INDEMNIFICATION.
(a) The Borrowers shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Agents and their Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Agents and their Affiliates, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel and the
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allocated cost of inside counsel) incurred by the Agents, the Issuing Bank or
any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section 10.3, or
in connection with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Borrowers shall indemnify the Agents (and any sub-agent
thereof), each Lender and the Issuing Bank, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all reasonable fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrowers or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or Release of Hazardous Materials
on or from any property owned or operated by the Borrowers or any of their
Subsidiaries, or any Environmental Liability related in any way to the Borrowers
or any of their Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrowers or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrowers or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if the Borrowers or such Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.
(c) The Borrowers shall pay, and hold the Agents and each of the
Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Agents and each Lender harmless from and against any
and all liabilities with respect to or resulting from any delay or omission to
pay such taxes.
(d) To the extent that the Borrowers fail to pay any amount required
to be paid to an Agent, the Issuing Bank or the Swingline Lender under clauses
(a), (b) or (c) hereof, each Lender severally agrees to pay to such Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender's Pro Rata
Share (determined as of the time that the
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unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent, the Issuing Bank or the Swingline Lender in its capacity as
such.
(e) To the extent permitted by applicable law, the Borrowers shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section 10.3 shall be payable promptly
after written demand therefor.
SECTION 10.4 SUCCESSORS AND ASSIGNS.
(a) 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 no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by any Borrower without such
consent 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 and, to the
extent expressly contemplated hereby, the Related Parties of each of the Agents
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000, in the case of any assignment of a Revolving Loan
or reimbursement obligation of outstanding Letters of Credit, unless the
Administrative Agent shall consent thereto (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 Loan or the Commitment
assigned and (iii) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $1,000, and the Eligible Assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon (i) the execution and delivery of the Assignment and
Acceptance by the assigning Lender and assignee Lender, (ii) acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section 10.4, (iii) consent thereof
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from the Borrowers to the extent required pursuant to this clause (b) and (iv)
compliance by such assignee with Section 2.2l(e) or Section 2.2l(f), as
applicable, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance 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
2.19, 2.20, 2.21 and 10.3). 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 10.4. Notwithstanding the foregoing, no Assignee will be entitled
to receive any greater payment under Section 2.19, 2.20 or 2.21 than the
applicable Assignor would have been entitled to receive had such assignment not
occurred.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive (absent manifest error), and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary.
(d) Any Lender may, without the consent of, or notice to, the
Borrowers, an Agent, the Swingline Bank or the Issuing Bank sell participations
to one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrowers, the Agents, the
Swingline Bank, the Issuing Bank and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver with
respect to the following to the extent affecting such Participant: (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the
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termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.22(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
10.4 or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender; (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement without the written consent of each Lender except to the extent such
release is expressly provided under the terms of the Guaranty Agreement; or
(vii) release all or substantially all collateral (if any) securing any of the
Obligations. Subject to paragraph (e) of this Section 10.4, the Borrowers agree
that each Participant shall be entitled to the benefits of Sections 2.19, 2.20,
and 2.21 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section 10.4, provided that such
Participant agrees to be bound by and subject to the provisions of each such
section as though it were a Lender. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7 as though it
were a Lender, provided such Participant agrees to be subject to Section 10.7 as
though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 2.19 and Section 2.21 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant shall not be entitled to the
benefits of Section 2.21 unless the Borrowers are notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.2l(e) or Section 2.21(f), as applicable, as
though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 10.5 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the Northern District of Georgia, and of any state court of
the State of Georgia located in Xxxxxx County and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or
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proceeding may be heard and determined in such Georgia state court or, to the
extent permitted by applicable law, such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against any Borrower or its properties
in the courts of any jurisdiction.
(c) Each Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section 10.5 and brought
in any court referred to in paragraph (b) of this Section 10.5. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
SECTION 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrowers, any such notice being expressly
waived by the Borrowers to the extent permitted by applicable law, to set off
and apply against all deposits (general or special, time or demand, provisional
or final) of the Borrowers at any time held or other obligations at any time
owing by such Lender and the Issuing Bank to or for the credit or the account of
the Borrowers against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
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Administrative Agent and the Borrowers after any such set-off and any
application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 10.8 COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 10.9 SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.19, 2.20, 2.21, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
SECTION 10.10 SEVERABILITY. Any provision of this Agreement or
any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11 CONFIDENTIALITY. Each of the Administrative Agent,
the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrowers or any Subsidiary,
except that such information may be disclosed (i) subject to provisions
substantially similar to this Section 10.11, to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any
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subpoena or similar legal process, (iii) to the extent requested by any
regulatory agency or authority, (iv) to the extent that such information becomes
publicly available other than as a result of a breach of this Section 10.11, or
which becomes available to the Administrative Agent, the Issuing Bank, any
Lender or any Related Party of any of the foregoing on a non-confidential basis
from a source other than the Borrowers, (v) in connection with the exercise of
any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, and (vi) subject to provisions
substantially similar to this Section 10.11, to any actual or prospective
assignee or Participant, or (vii) with the consent of the Borrower. Any Person
required to maintain the confidentiality of any information as provided for in
this Section 10.11 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 its own
confidential information.
SECTION 10.12 INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.12 shall be cumulated
and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.13 WAIVER OF EFFECT OF CORPORATE SEAL. Each Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrowers under seal and waives any shortening of the statute of limitations
that may result from not affixing the corporate seal to this Agreement or such
other Loan Documents.
SECTION 10.14 POSTING OF ELECTRONIC COMMUNICATIONS; VIEWING OF
ACCOUNTS.
(a) Each of the Lenders, the Issuing Bank and the Borrowers agree that
the Administrative Agent may, but shall not be obligated to, make the
Approved Electronic Communications available to the Collateral Agent, the
Lenders and the Issuing Bank by posting such Approved Electronic
Communications on IntraLinks(TM) or a substantially similar electronic
platform chosen by the Administrative Agent to be its electronic
transmission system (the "Approved Electronic Platform").
(b) Although the Approved Electronic Platform and its primary web
portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agent from time to
time (including, as of the Closing
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Date, a dual firewall and a User ID/Password Authorization System) and the
Approved Electronic Platform is secured through a single-user-per-deal
authorization method whereby each user may access the Approved Electronic
Platform only on a deal-to-deal basis, each of the Lenders, the Issuing
Bank and the Borrowers acknowledges and agrees that the distribution of
material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such
distribution. In consideration for the convenience and other benefits
afforded by such distribution and for the other consideration provided
hereunder, the receipt and sufficiency of which is hereby acknowledged,
each of the Lenders, the Issuing Bank and the Borrowers hereby approves
distribution of the Approved Electronic Communications through the Approved
Electronic Platform and understands and assumes the risks of such
distribution.
(c) THE APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC
PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE". NONE OF THE
ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (THE
"AGENT AFFILIATES") WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE
APPROVED ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM AND
EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED
ELECTRONIC COMMUNICATIONS AND THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS) IS MADE BY THE ADMINISTRATIVE AGENT OR ITS AFFILIATES IN
CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM.
(d) Each of the Lenders, the Issuing Bank and the Borrowers agree that
the Administrative Agent may, but (except as may be required by applicable
law) shall not be obligated to, store the Approved Electronic
Communications on the Approved Electronic Platform in accordance with the
Administrative Agent's generally-applicable document retention procedures
and policies.
(e) The Borrowers hereby grant to the Collateral Agent access to the
Borrowers' Cash Collateral and Dominion Accounts maintained at SunTrust
through SunTrust's on-line platforms for the sole purpose of viewing the
account balance reporting and other transactions affecting such accounts.
If the Collateral Agent shall at any time notify the Administrative Agent
that such access has been denied, terminated or limited, SunTrust shall be
authorized to grant such access to the Collateral Agent, but SunTrust shall
have no liability to the Borrowers for granting such access nor any
liability for the Collateral Agent's misuse, mistakes or misconduct in
connection therewith.
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SECTION 10.15 TRANSITIONAL PROVISIONS.
(a) On the Closing Date, this Agreement shall supersede the Existing
Credit Agreement in its entirety, except as provided in this Section 10.15.
On the Closing Date, the rights and obligations of the parties evidenced by
the Existing Credit Agreement shall be evidenced by this Agreement and the
other Loan Documents, the "Loans" as defined in the Existing Credit
Agreement shall be converted to Loans as defined herein and the Letters of
Credit issued by the Issuing Bank for the account of the Borrowers under
the Existing Credit Agreement shall be converted into Letters of Credit
under this Agreement. Without limiting the generality of the foregoing and
to the extent necessary, the Existing Lenders and the Agents reserve all
their rights under the Existing Credit Agreement and each of the Borrowers
hereby obligates itself again in respect of all present and future
Obligations under, inter alia, the Existing Credit Agreement, as amended
and restated by this Agreement.
(b) As soon as reasonably practicable after the Closing Date, the
Existing Lenders under the Existing Credit Agreement will promptly return
to the Borrowers, marked "Substituted" or "Cancelled", as the case may be,
any notes held by the Existing Lenders pursuant to the Existing Credit
Agreement.
(c) The credit extensions and commitments made by the Existing Lenders
and outstanding pursuant to the Existing Credit Agreement shall be assigned
without recourse and re-allocated among the Lenders so that, and credit
extensions and commitments shall be made by the Lenders pursuant to this
Agreement so that, from and after the Closing Date, the respective
commitments and credit extensions of the Lenders shall be in accordance
with Schedule II. Credit extensions made by Existing Lenders shall,
effective as of the Closing Date, be evidenced and governed by this
Agreement and the Loan Documents.
(d) All interest and fees and expenses, if any, owing or accruing
under or in respect of the Existing Credit Agreement through the Closing
Date shall be calculated as of the Closing Date (pro rated in the case of
any fractional periods), and shall be paid on the Closing Date. Unless
sooner paid on the Original Closing Date, on the Closing Date the fees
hereunder shall be payable by the Borrowers to the Administrative Agent for
the account of the Lenders in accordance with the terms of this Agreement.
(e) This Agreement amends and restates the Existing Credit Agreement
in its entirety and is entitled to the benefit of all existing Loan
Documents. Any reference in any other Loan Documents to the "Credit
Agreement", the "
Revolving Credit Agreement, the "Agreement," "thereunder,"
"therein," "thereof or words of like import referring to the Existing
Credit Agreement shall mean and refer to this Agreement. Any reference in
any other Loan Document to the "Obligations" or any similar term including
or referencing obligations under the Existing Credit Agreement shall
include and reference the Obligations as defined in this Agreement. All
Obligations under the Existing Credit Agreement and the other Loan
Documents shall continue to be outstanding except as expressly modified by
this Agreement and shall be governed in all respects by this
-105-
Agreement and the other Loan Documents, it being agreed and understood by
the parties hereto that this Agreement does not constitute a novation,
satisfaction, payment or reborrowing of any Obligation under the Existing
Credit Agreement or any other Loan Document except as expressly modified by
this Agreement, nor, except as expressly provided herein, does it operate
as a waiver of any right, power or remedy of any Agent, the Issuing Bank or
any Lender under any Loan Document. The security interests granted pursuant
to any Loan Documents shall, as modified hereby, continue in full force and
effect, and are hereby affirmed, with respect to this Agreement and the
Obligations as defined herein. In the event of a conflict between the terms
and provisions of this Agreement and the terms and provisions of any other
Loan Document, the terms and provisions of this Agreement shall govern.
(remainder of page left intentionally blank)
-106-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective autliorized officers as of the day and year
first above written.
DELEK REFINING, LTD.
By: DELEK U.S. REFINING GP, LLC
Title: General Partner
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX, CFO and Treasurer
DELEK PIPELINE TEXAS, INC.
By: /s/ UZI YEMIN
------------------------------------
UZI YEMIN, President
By: /s/ XXXXXX XXXXXX
------------------------------------
XXXXXX XXXXXX CFO and Treasurer
[Signatures will continue on following page]
SUNTRUST BANK,
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as a
Lender
By: /s/ XXXX XXXXXXXXX
------------------------------------
XXXX XXXXXXXXX, Vice President
[Signatures will continue on following page]
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, as Co-Documentation
Agent and as A Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
[Signatures will continue on following page]
BANK OF AMERICA, N.A., as Co-Syndication
Agent and as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
[Signatures will continue on following page]
PNC BANK, NATIONAL ASSOCIATION, as
Co-Syndication Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[Signatures will continue on following page]
NATIONAL CITY BUSINESS CREDIT, INC.
as Co-Documentation Agent and as a
Lender
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Associate
[Signatures will continue on following page]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
----------------------------------
Title: Managing Director
---------------------------------
[Signatures will continue on following page]
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
[Signatures will continue on following page]
UNION PLANTERS BANK, N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
[Signatures will continue on following page]
TEXTRON FINANCIAL CORPORATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxx III
------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Portfolio Manager
[Signatures will continue on following page]
SIEMENS FINANCIAL SERVICES, INC.
as a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President - Credit
[Signatures will continue on following page]
FIFTH THIRD BANK, as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[Signatures will continue on following page]
ISRAEL DISCOUNT BANK OF NEW YORK,
as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
[Signatures will continue on following page]
XXXXX FARGO FOOTHILL, LLC, as a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[Signatures will continue on following page]
XXXXXXX BUSINESS CREDIT CORP.,
as a Lender
By: /s/ Xxxx X. XxXxx
------------------------------------
Name: Xxxx X. XxXxx
Title: Vice President
[Signatures will continue on following page]
BANK LEUMI USA, as a Lender
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
