CREDIT AGREEMENT
Dated as of October 4, 1995
among
GIANT INDUSTRIES, INC., as Borrower,
GIANT INDUSTRIES ARIZONA, INC.,
CINIZA PRODUCTION COMPANY,
SAN XXXX REFINING COMPANY,
GIANT EXPLORATION & PRODUCTION COMPANY, and
GIANT FOUR CORNERS, INC., as Guarantors
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
BANK OF AMERICA ILLINOIS, as a Bank and as
Letter of Credit Issuing Bank
and
THE OTHER FINANCIAL INSTITUTIONS PARTIES HERETO
- - - - - - - - - - - -
Arranged by
BA SECURITIES, INC.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS
1.01 Certain Defined Terms
1.02 Other Interpretive Provisions
1.03 Accounting Principles
ARTICLE II THE CREDITS
2.01 Amounts and Terms of Commitments
2.02 Certain Pricing Terms
2.03 Procedure for Borrowing
2.04 Conversion and Continuation Elections
2.05 Voluntary Termination or Reduction of Commitments
2.06 Optional Prepayments
2.07 Borrowing Base Determinations, Mandatory
Prepayments of Loans
2.08 Repayment
2.09 Fees
2.10 Computation of Fees and Interest
2.11 Payments by the Company
2.12 Payments by the Banks to the Agent
2.13 Sharing of Payments, Etc.
ARTICLE III THE LETTERS OF CREDIT
3.01 The Letter of Credit Facility.
3.02 Issuance, Amendment and Renewal of Letters of
Credit
3.03 Existing Bank of America Letters of Credit, Risk
Participations, Drawings and Reimbursements
3.04 Repayment of Participations
3.05 Role of the Issuing Bank
3.06 Obligations Absolute
3.07 Cash Collateral Pledge
3.08 Letter of Credit Fees
3.10 Uniform Customs and Practice
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
4.02 Illegality
4.03 Increased Costs and Reduction of Return
4.04 Funding Losses
4.05 Inability to Determine Rates
4.06 Certificates of Banks
4.07 Substitution of Banks
4.08 Survival
ARTICLE V CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions
5.02 Conditions to All Credit Extensions
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.01 Corporate Existence and Power
6.02 Corporate Authorization; No Contravention
6.03 Governmental Authorization
6.04 Binding Effect
6.05 Litigation
6.06 No Default
6.07 ERISA Compliance
6.08 Use of Proceeds; Margin Regulations
6.09 Title to Properties
6.10 Taxes
6.11 Financial Condition
6.12 Environmental Matters
6.13 Regulated Entities
6.14 No Burdensome Restrictions
6.15 Copyrights, Patents, Trademarks and Licenses, etc.
6.16 Subsidiaries
6.17 Insurance
6.18 Full Disclosure
6.20 Bloomfield Acquisition
ARTICLE VII AFFIRMATIVE COVENANTS
7.01 Financial Statements
7.02 Certificates; Other Information
7.03 Notices
7.04 Preservation of Corporate Existence, Etc
7.05 Maintenance of Property
7.06 Insurance
7.07 Payment of Obligations
7.08 Compliance with Laws
7.09 Compliance with ERISA
7.10 Inspection of Property and Books and Records
7.11 Environmental Laws
7.12 New Subsidiary Guarantors
7.13 Use of Proceeds
ARTICLE VIII NEGATIVE COVENANTS
8.01 Limitation on Liens
8.02 Disposition of Assets
8.03 Consolidations and Mergers
8.04 Loans and Investments
8.05 Limitation on Subsidiary Indebtedness
8.06 Transactions with Affiliates
8.07 Use of Proceeds
8.08 Contingent Obligations
8.09 Restricted Payments
8.10 Subsidiary Dividends
8.11 Senior Subordinated Notes
8.12 Minimum Consolidated Net Worth
8.13 Fixed Charge Coverage Ratio
8.14 Capitalization Ratio
8.15 ERISA
8.16 Change in Business
8.17 Accounting Changes
ARTICLE IX EVENTS OF DEFAULT
9.01 Event of Default
9.02 Remedies
9.03 Rights Not Exclusive
ARTICLE X THE AGENT
10.01 Appointment and Authorization
10.02 Delegation of Duties
10.03 Liability of Agent
10.04 Reliance by Agent
10.05 Notice of Default
10.06 Credit Decision
10.07 Indemnification
10.08 Agent in Individual Capacity
10.09 Successor Agent
10.10 Withholding Tax
ARTICLE XI MISCELLANEOUS
11.01 Amendments and Waivers
11.02 Notices
11.03 No Waiver; Cumulative Remedies
11.04 Costs and Expenses
11.05 Indemnity
11.06 Payments Set Aside
11.07 Successors and Assigns
11.08 Assignments, Participations, etc.
11.09 Set-off
11.10 Interest
11.11 Indemnity and Subrogation
11.12 Automatic Debits of Fees
11.13 Notification of Addresses, Lending Offices, Etc.
11.14 Counterparts
11.15 Severability
11.16 No Third Parties Benefitted
11.17 Governing Law
11.18 Waiver of Jury Trial
11.19 Entire Agreement
SCHEDULES
Schedule 1.01 Preferred Eligible Account Obligors
Schedule 2.01 Commitments
Schedule 2.02 Applicable Margin and Commitment Fee
Schedule 3.03 Existing Bank of America Letters of Credit
Schedule 6.05 Litigation
Schedule 6.07 ERISA
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 6.17 Insurance Matters
Schedule 8.01 Permitted Liens
Schedule 8.05 Permitted Indebtedness
Schedule 8.08 Contingent Obligations
Schedule 11.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Facility A Note
Exhibit F-2 Form of Facility B Note
Exhibit G Form of Guaranty Agreement
Exhibit H Borrowing Base Report
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of October 4,
1995, among GIANT INDUSTRIES, INC., a Delaware corporation (the
"Company"), GIANT INDUSTRIES ARIZONA, INC., an Arizona
corporation ("Arizona"), GIANT EXPLORATION & PRODUCTION
COMPANY, a Texas corporation ("Exploration"), SAN XXXX REFINING
COMPANY, a New Mexico corporation ("San Xxxx"), GIANT FOUR
CORNERS, INC., an Arizona corporation ("Corners"), and CINIZA
PRODUCTION COMPANY, a New Mexico corporation ("Ciniza")
(Arizona, Exploration, San Xxxx, Corners and Ciniza are
individually referred to herein as a "Guarantor" and
collectively as the "Guarantors"), the several financial
institutions from time to time parties to this Agreement
(collectively, the "Banks"; individually, a "Bank"), BANK OF
AMERICA ILLINOIS, as letter of credit issuing bank and a Bank,
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
agent for the Banks.
WHEREAS, the Banks have agreed to make available to the
Company and the Company has agreed to borrow under, a Thirty
Million Dollar ($30,000,000.00) credit facility and a Forty
Million Dollar ($40,000,000.00) working capital and letter of
credit facility upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein and other good and
valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the
following meanings:
"Acquisition" means any transaction or series of
related transactions for the purpose of or resulting, directly
or indirectly, in (a) the acquisition of all or substantially
all of the assets of a Person, or of any business or division
of a Person, (b) the acquisition of in excess of 50% of the
capital stock of a corporation (or similar entity), which stock
has ordinary voting power for the election of the members of
the acquiree's board of directors or persons exercising similar
functions (other than stock having such power only by reason of
the happening of a contingency), or the acquisition of in
excess of 50% of the partnership interests or equity of any
Person not a corporation which acquisition gives the acquirer
the power to direct or cause the direction of the management
and policies of the acquiree, or (c) a merger or consolidation
or any other combination with another Person (other than a
Person that is a Subsidiary) provided that the Company or a
Subsidiary of the Company is the surviving entity.
"Affiliate" means, as to any Person, any other
Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. A
Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agent" means Bank of America National Trust and
Savings Association in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 10.09.
"Agent-Related Persons" means Bank of America
Illinois and any successor agent arising under Section 10.09
and any successor letter of credit issuing bank hereunder,
together with their respective Affiliates (including, in the
case of Bank of America Illinois, the Arranger and the Issuing
Bank), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for
payments set forth on Schedule 11.02 hereto in relation to the
Agent, or such other address as the Agent may from time to time
specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means with respect to Base Rate
Loans and Offshore Rate Loans, the specified percent per annum
set forth in Section 2.02 of this Agreement.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assignee" has the meaning specified in Subsection
11.08(a).
"Attorney Costs" means and includes all reasonable
fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
"Bank" has the meaning specified in the introductory
clause hereto. References to the "Banks" shall include Bank of
America Illinois, including in its capacity as Issuing Bank;
for purposes of clarification only, to the extent that Bank of
America Illinois may have any rights or obligations in addition
to those of the Banks due to its status as Issuing Bank, its
status as such will be specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy
Reform Act of 1978 (11 U.S.C. '101, et seq.).
"Base Rate" means, for any day, the higher of: (a)
0.50% per annum above the latest Federal Funds Rate; and (b)
the rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is
a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced
rate.) Any change in the reference rate announced by BofA
shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Revolving Loan, or an L/C
Advance, that bears interest based on the Base Rate.
"Bloomfield Acquisition" means the acquisition of
assets by San Xxxx from Bloomfield Refining Company and
Xxxx-Xxxxxxxx Energy Corporation pursuant to the Purchase
Agreement.
"Bloomfield Refinery" shall mean the refinery
acquired by San Xxxx under the Bloomfield Acquisition.
"BofA" means Bank of America National Trust and
Savings Association, a national banking association.
"Borrower" shall mean the Company.
"Borrowing" means a borrowing hereunder consisting
of Revolving Loans of the same Interest Rate Type made to the
Company on the same day by the Banks under Article II, and,
other than in the case of Base Rate Loans, having the same
Interest Period.
"Borrowing Base" means the amount calculated monthly
pursuant to Section 2.07(a) based upon information contained in
the Borrowing Base Report.
"Borrowing Base Report" means that report delivered
monthly by the Company to the Agent in form of Exhibit "H"
hereto.
"Borrowing Date" means any date on which a Borrowing
occurs under Article II.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in Chicago,
Illinois; Scottsdale, Arizona; or San Francisco, California are
authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a
day on which dealings are carried on in the applicable offshore
dollar interbank market.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not
having the force of law, in each case, regarding capital
adequacy of any bank or of any corporation controlling a bank.
"Capital Expenditures" shall mean, for any period,
expenditures (including, without limitation, the aggregate
amount of Capital Lease Obligations incurred during such
period) made by the Company or any of its Consolidated
Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements)
during such period computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any
Person, all obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the
right to use) Property to the extent such obligations are
required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including
Statement of Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board), and, for purposes of
this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Capitalization Ratio" means, at any time, the ratio
of Consolidated Funded Indebtedness to Consolidated Total
Capitalization.
"Cash Collateralize" means to pledge and deposit
with or deliver to the Agent, for the benefit of the Agent, the
Issuing Bank and the Banks, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent
and the Issuing Bank (which documents are hereby consented to
by the Banks). Derivatives of such term shall have
corresponding meanings.
"Cash Equivalents" means: (a) securities issued or
fully guaranteed or insured by the United States Government or
any agency thereof and backed by the full faith and credit of
the United States having maturities of not more than twelve
(12) months from the date of acquisition; (b) certificates of
deposit, time deposits, Eurodollar time deposits, or bankers'
acceptances having in each case a tenor of not more than twelve
(12) months from the date of acquisition issued by any U.S.
commercial bank or any branch or agency of a non-U.S.
commercial bank licensed to conduct business in the U.S. having
combined capital and surplus of not less than Five Hundred
Million Dollars ($500,000,000) whose long term securities are
rated at least A (or then equivalent grade) by S&P and A2 (or
then equivalent grade) by Xxxxx'x at the time of acquisition;
(c) commercial paper of an issuer rated at least A-1 by S&P or
P-1 by Xxxxx'x at the time of acquisition, and in either case
having a tenor of not more than twelve (12) months; (d) debt
securities which are registered under the Securities Act of
1933, as amended (the "Securities Act") (and not "restricted
securities" in the Company's hands as defined in Rule 144 under
the Securities Act), or adjustable rate preferred stock traded
on a national securities exchange and issued by a corporation
duly incorporated under the laws of a state of the United
States, or issued by any state, county or municipality located
in the United States of America, provided, however, that such
debt securities are rated A2 by Xxxxx'x and A or better by S&P
at the time of acquisition, and such debt securities have a
maturity not in excess of twelve (12) months from the date of
creation thereof; (e) repurchase agreements with a term of not
more than seven days for underlying securities of the types
described in clauses (a) and (b) above; and (f) money market
mutual or similar funds having assets in excess of
$100,000,000.
"Change of Control" means (a) a purchase or
acquisition, directly or indirectly, by any "person" or "group"
within the meaning of Section 13(d)(3) and 14(d)(2) of the
Securities and Exchange Act of 1934 (a "Group"), of "beneficial
ownership" (as such term is defined in Rule 13d-3 under the
Exchange Act) of securities of the Company which, together with
any securities owned beneficially by any "affiliates" or
"associates" of such Group (as such terms are defined in Rule
12b-2 under the Exchange Act), shall represent more than fifty
percent (50%) of the combined voting power of the Company's
securities which are entitled to vote generally in the election
of directors and which are outstanding on the date immediately
prior to the date of such purchase or acquisition; or (b) a
sale of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any Person or Group;
or (c) the liquidation or dissolution of the Company; or (d)
the first day on which a majority of the Board of Directors of
the Company are not Continuing Directors (as herein defined).
As herein defined, "Continuing Directors" means any member of
the Board of Directors of the Company who (x) is a member of
such Board of Directors as of the date of this Agreement or (y)
was nominated for election or elected to such Board of
Directors with the affirmative vote of two-thirds of the
Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.
"Ciniza Refinery" shall mean the refinery owned on
the date hereof by the Company or one of its Subsidiaries
located near Gallup, New Mexico.
"Closing Date" means the date on which all
conditions precedent set forth in Section 5.01 and 5.02 are
satisfied or waived by all Banks (or, in the case of Subsection
5.01(g), waived by the Person entitled to receive such
payment).
"Code" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"Commitment" as to each Bank means the aggregate of
such Bank's Facility A Commitment and Facility B Commitment.
"Commitment Fee" has the meaning set forth in
Subsection 2.09(b).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit "C".
"Consolidated EBITDA" means, for the relevant
period, the sum of: (a) the Consolidated Net Income for such
period, (b) Consolidated Interest Expense, (c) all taxes
measured by income to the extent included in the determination
of such Consolidated Net Income, (d) all amounts treated as
expenses for depreciation and the amortization of intangibles
of any kind for such period to the extent included in the
determination of such Consolidated Net Income for the relevant
period, plus (e) any interest income.
"Consolidated Funded Indebtedness" means, for the
Company and its Consolidated Subsidiaries, at any time, without
duplication, the sum of: (a) liability for borrowed money or
for the deferred purchase price of property or services and (b)
obligations under leases which in accordance with GAAP should
be recorded as Capital Leases.
"Consolidated Interest Expense" means, for the
relevant period, for the Company and its Consolidated
Subsidiaries, without duplication, the sum of: (a) all interest
in respect of Indebtedness accrued or capitalized during such
period (whether or not actually paid during such period and
including fees payable in respect of letters of credit and
bankers' acceptances), (b) the net amount payable (or minus the
net amount receivable) under all Swap Contracts during such
period (whether or not actually paid or received during such
period), and (c) all dividends paid, declared or otherwise
accrued in respect of preferred stock.
"Consolidated Net Income" means, for any period, the
net income (or net loss) of the Company and its Consolidated
Subsidiaries for such period determined in accordance with
GAAP.
"Consolidated Net Worth" means, at any date, an
amount equal to the consolidated stockholders' equity of the
Company and its Consolidated Subsidiaries determined in
accordance with GAAP determined as of such date.
"Consolidated Subsidiaries" means, at any date, any
Subsidiary the accounts of which, in accordance with GAAP,
would be consolidated with those of the Company in its
consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Total Capitalization" means, at any
time, the sum of (a) Consolidated Funded Indebtedness and (b)
Consolidated Net Worth for such period.
"Contingent Obligation" means, as to any Person
without duplication, any direct or indirect liability of that
Person with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other
similar obligation (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of
that Person (i) to purchase, repurchase or otherwise acquire
such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of
the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss
in respect thereof (each, a "Guaranty Obligation"); (b) with
respect to any Surety Instrument (other than any Letter of
Credit) issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings
or payments; (c) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed
or tendered, or (d) in respect of any Swap Contract. The
amount of any Contingent Obligation shall, in the case of
Guaranty Obligations, be deemed equal to the maximum stated or
determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in
respect thereof, and in the case of other Contingent
Obligations, shall be equal to the maximum reasonably
anticipated liability in respect thereof.
"Contractual Obligation" means, as to any Person,
any provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
"Conversion/Continuation Date" means any date on
which, under Section 2.04, the Company (a) converts Loans of
one Interest Rate Type to another Interest Rate Type, or (b)
continues as Loans of the same Interest Rate Type, but with a
new Interest Period, Loans having Interest Periods expiring on
such date.
"Credit Extension" means and includes (a) the making
of any Revolving Loans hereunder, and (b) the Issuance of any
Letters of Credit hereunder.
"Default" means any event or circumstance which,
with the giving of notice, the lapse of time, or both, would
(if not cured or otherwise remedied during such time)
constitute an Event of Default.
"Default Rate" has the meaning set forth in
Subsection 2.08(c)(iii).
"Dollars", "dollars" and "$" each mean lawful money
of the United States.
"Effective Amount" means (i) with respect to any
Revolving Loans under Facility A or Facility B on any date, the
aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of
Revolving Loans occurring on such date under such facility; and
(ii) with respect to any outstanding L/C Obligations on any
date, the amount of such L/C Obligations on such date after
giving effect to any Issuances of Letters of Credit occurring
on such date and any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of
any reimbursements of drawings under any Letters of Credit or
any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
"Eligible Assignee" means (i) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (ii) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided
that such bank is acting through a branch or agency located in
the United States; and (iii) a Person with a combined capital
and surplus of at least $100,000,000 that is primarily engaged
in the business of commercial banking and that is (A) a
Subsidiary of a Bank, (B) a Subsidiary of a Person of which a
Bank is a Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
"Eligible Account Obligor" shall mean, on any date,
any Person obligated to pay a Receivable (i) that is not the
Company, a Subsidiary or Affiliate of the Company; (ii) that
has not filed for, and is not currently the object of, a
proceeding relating to its bankruptcy, insolvency,
reorganization, winding-up or composition or reorganization of
debts; (iii) that is in good standing with the Company and its
Subsidiaries and satisfies all applicable credit standards of
the Company and its Subsidiaries; and (iv) for which not more
than 50% of the aggregate value of the Receivables of such
Account Obligor have not been paid by the date 30 days after
the respective due dates therefor.
"Eligible Accounts Receivables" shall mean, on any
date, all Receivables denominated in Dollars payable by
Eligible Account Obligors except: (i) billed Receivables that
have not been paid by the date 30 days after the respective due
dates therefor; (ii) any Receivable subject to any asserted
defense, dispute, claim, offset or counterclaim, provided that,
if any such defense, dispute, claim, offset or counterclaim is
asserted with respect to such Receivable in an amount equal to
a sum certain, then such Receivable shall be an Eligible
Receivable to the extent the face amount thereof exceeds such
sum certain; (iii) all such Receivables subject to any
repurchase or return arrangement; (iv) Receivables of each
Eligible Account Obligor to the extent that the Receivables of
such Eligible Account Obligor exceed 10% of all Receivables;
and (v) all Receivables that are payable by their terms more
than 30 days from the respective invoice dates therefor.
"Eligible Refinery Hydrocarbon Inventory" means, at
any date, the aggregate value therefor on a FIFO basis
calculated in accordance with GAAP of all readily marketable,
saleable and useful Feedstocks, Intermediate Products and
Refined Products, owned by the Company and its Subsidiaries in
field production tanks, storage tanks and lines (including line
fills but excluding basic sediment and water and slop oil)
stored on or required for the Bloomfield Refinery, the Ciniza
Refinery, the Portales Refinery, the Company's or its
Subsidiaries' service stations and travel centers or the
Albuquerque Terminal and other Refined Products terminals owned
by the Company or its Subsidiaries which service the Company's
and its Subsidiaries' refineries, service stations and travel
centers.
"Environmental Claims" means all material claims by
any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental
Law, or for release or injury to the environment.
"Environmental Laws" means all material federal,
state or local laws, statutes, common law duties, rules,
regulations, ordinances and codes, together with all material
administrative orders, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities,
in each case relating to environmental, health, and safety
matters.
"ERISA" means the Employee Retirement Income
Security Act of 1974, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business
(whether or not incorporated) under common control with the
Company within the meaning of Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with
respect to a Pension Plan; (b) a withdrawal by the Company or
any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to
terminate (other than pursuant to Section 4041(b) of ERISA),
the treatment of a Plan amendment as a termination under
Section 4041(c) or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA,
other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning
specified in the definition of "Offshore Rate".
"Event of Default" means any of the events or
circumstances specified in Section 9.01.
"Exchange Act" means the Securities and Exchange Act
of 1934, and regulations promulgated thereunder.
"Existing Bank of America Letters of Credit" means
the letters of credit described in Schedule 3.03.
"Exploration and Production Assets" shall mean all
real and personal property used for the exploration, production
and gathering of oil, gas and other hydrocarbons similar to
such real and personal property now owned by Exploration and
Ciniza, provided such term shall not include any assets
downstream of such field gathering systems.
"Facility A Commitment", and "Facility B
Commitment", as to each Bank, have the meaning specified in
Section 2.01.
"Facility A Revolving Loan", and "Facility B
Revolving Loan", have the meaning specified in Section 2.01.
"Facility A Note" and "Facility B Note" means the
promissory notes specified in Section 2.01(a) in 2.01(b)
substantially in the same form as Exhibits "F-1" and "F-2",
including any amendment, modification, renewal or replacement
of such promissory notes.
"Facility A Termination Date" and "Facility B
Termination Date" means the earlier of (a) three years from the
Closing Date or (b) the date on which such Facility's
Commitment terminates in accordance with the provisions of this
Agreement.
"FDIC" means the Federal Deposit Insurance
Corporation, and any Governmental Authority succeeding to any
of its principal functions.
"Federal Funds Rate" means, for any day, the rate
set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such
rate is not so published on any such preceding Business Day,
the rate for such day will be the arithmetic mean as determined
by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York, New York
time) on that day by each of three leading brokers of Federal
funds transactions in New York, New York selected by the Agent.
"Fee Letter" has the meaning specified in Subsection
2.09(a).
"Feedstocks" means all crude oil, natural gas
liquids, other hydrocarbons valued at the lower of cost or
market crude oil prices and ethanol valued at the lower of cost
or market, in so far as such Feedstocks are used or useful as
fuel or in the manufacture, processing, refining, or blending
of Intermediate Products and Refined Products at the
Bloomfield, Ciniza or Portales Refineries.
"FRB" means the Board of Governors of the Federal
Reserve System, and any Governmental Authority succeeding to
any of its principal functions.
"Fronting Fee" has the meaning set forth in Section
3.08(b).
"GAAP" means generally accepted accounting
principles set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of
the date of determination.
"Governmental Authority" means any nation or
government, any state or other political subdivision thereof,
any central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Guarantor" means as of the date of Closing each of
Arizona, Exploration, San Xxxx, Four Corners, and Ciniza and
any other Subsidiary of the Company which is required to
execute a Guaranty under Section 7.12.
"Guaranty" means collectively each of the Guarantees
substantially in the form of Exhibit "G" hereto executed by
each of the Guarantors in favor of the Agent and the Banks, as
they may be amended, supplemented or otherwise modified from
time to time.
"Guaranty Obligation" has the meaning specified in
the definition of "Contingent Obligation."
"Highest Lawful Rate" means, as of a particular
date, the maximum nonusurious interest rate that may under
applicable federal and Texas law then be contracted for,
charged or received by the Banks in connection with the
Advances.
"Honor Date" has the meaning specified in Subsection
3.03(c).
"Indebtedness" of any Person means, without
duplication, (a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred
purchase price of property or services (other than trade
payables entered into in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of
the seller or bank under such agreement in the event of default
are limited to repossession or sale of such property); (f) all
obligations with respect to Capital Leases; (g) all net
obligations with respect to Swap Contracts; (h) all
indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any
Lien upon or in property (including accounts and contracts
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a)
through (g) above.
"Indemnified Liabilities" has the meaning specified
in Section 11.05.
"Indemnified Person" has the meaning specified in
Section 11.05.
"Independent Auditor" has the meaning specified in
Subsection 7.01(a).
"Index Debt Rating" means the rating applicable to
the Company's senior, unsecured, non-credit enhanced long term
indebtedness for borrowed money ("Index Debt") or if the
Company has no such rating, the implied rating established by
Moody's or S&P based upon the rating implied from the Company's
Senior Subordinated Debt as if the Company had Index Debt.
"Insolvency Proceeding" means (a) any case, action
or proceeding relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for
creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its
creditors; undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other
than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and, as to any Base Rate Loan, the last
Business Day of each calendar quarter and each date such Loan
is converted into another Interest Rate Type of Loan, provided,
however, that if any Interest Period for an Offshore Rate Loan
exceeds three months, the date that falls three months after
the beginning of such Interest Period, and the date that falls
three months after each Interest Payment Date thereafter for
such Interest Period, is also an Interest Payment Date.
"Interest Period" means, (a) as to any Offshore Rate
Loan, the period commencing on the Borrowing Date of such Loan
or on the Conversion/Continuation Date on which the Loan is
converted into or continued as Offshore Rate Loan, and ending
on the date one, two, three or six months thereafter as
selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that: (i) if any Interest
Period would otherwise end on a day that is not a Business Day,
that Interest Period shall be extended to the following
Business Day unless, in the case of an Offshore Rate Loan, the
result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest
Period shall end on the preceding Business Day; (ii) any
Interest Period pertaining to an Offshore Rate Loan that 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 the calendar month at the end of such Interest
Period; and (iii) no Interest Period for any Revolving Loan
under either Facility A or Facility B shall extend beyond the
Revolving Termination Date for such facility.
"Interest Rate Type" means either the Base Rate of
interest or the Offshore Rate of interest charged against any
Loan or Loans hereunder.
"Intermediate Products" means all Feedstocks that
have been partially processed or refined as isomerate, cat
feed, gasoline components or naphtha and valued at the lower of
cost or market crude oil prices.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"Issuance Date" has the meaning specified in
Subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit,
to issue or to extend the expiry of, or to renew or increase
the amount of, such Letter of Credit; and the terms "Issued,"
"Issuing" and "Issuance" have corresponding meanings.
"Issuing Bank" means Bank of America Illinois in its
capacity as issuer of one or more Letters of Credit hereunder,
together with any successor replacement letter of credit issuer
pursuant to Section 10.09, and with respect to the Existing
Bank of America Letters of Credit which have been issued by
BofA, "Issuing Bank" means BofA.
"L/C Advance" means each Bank's participation in any
L/C Borrowing in accordance with its Pro Rata Share.
"L/C Application" and "L/C Amendment Application"
means an application form for Issuance of, and for amendment of
Letters of Credit as shall at any time be in use at the Issuing
Bank.
"L/C Borrowing" means an extension of credit
resulting from a drawing under any Letter of Credit which shall
not have been reimbursed on the date when made in accordance
with Subsection 3.03(b) nor converted into a Borrowing of
Facility B Revolving Loans under Subsection 3.03(c).
"L/C Obligations" means at any time the sum of (a)
the aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding L/C
Borrowings.
"L/C-Related Documents" means the Letters of Credit,
the L/C Applications, the L/C Amendment Applications and any
other document relating to any Letter of Credit, including any
of the Issuing Bank's standard form documents for letter of
credit issuances.
"Lending Office" means, as to any Bank, the office
or offices of such Bank specified as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office", as the
case may be, on Schedule 11.02, or such other office or offices
as such Bank may from time to time notify the Company and the
Agent.
"Letter of Credit Fee" means the fee payable
pursuant to Section 3.08 of this Agreement, calculated as set
forth in Section 2.02 of this Agreement.
"Letters of Credit" means the Existing Bank of
America Letters of Credit and any standby letters of credit
Issued by the Issuing Bank pursuant to Article III.
"Lien" means any security interest, mortgage, deed
of trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a Capital
Lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or
any comparable law) and any contingent or other agreement to
provide any of the foregoing, but not including the interest of
a lessor under an Operating Lease.
"Loan" means an extension of credit by a Bank to the
Company under Article II or Article III in the form of a
Revolving Loan under the Facility A Loan or the Facility B Loan
or L/C Advance.
"Loan Documents" means this Agreement, any Notes,
the Guaranties, the Fee Letter, the L/C-Related Documents, and
all other documents delivered to the Agent or any Bank in
connection herewith.
"Majority Banks" means at any time Banks then
holding at least 66-2/3% of the then aggregate unpaid principal
amount of the Loans, or, if no such principal amount is then
outstanding, Banks then having at least 66-2/3% of the
Commitments.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material
adverse change in, or a material adverse effect upon, the
operations, business, properties or financial condition of the
Company and its Subsidiaries taken as a whole, or as to the
Company or any Significant Subsidiary; (b) a material
impairment of the ability of the Company or any Significant
Subsidiary to perform under any Loan Document and to avoid any
Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against
the Company or any Significant Subsidiary of any Loan Document.
"Material Subsidiary" means, at any time, a
Subsidiary with total assets with a book value of $2,000,000 or
more.
"Moody's" means Xxxxx'x Investor Service, Inc.
"Multiemployer Plan" means a "multiemployer plan",
within the meaning of Section 4001(a)(3) of ERISA, to which the
Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make,
contributions.
"NBD Indenture" means that certain Indenture dated
November 23, 1993, between the Company, as Issuer, NBD Bank,
National Association, as Trustee, and others evidenced by the
NBD Subordinated Notes.
"NBD Subordinated Notes" means the $100,000,000
9-3/4% Senior Subordinated Notes due 2003 issued by the Company
under the NBD Indenture.
"Non-Discretionary Capital Expenditures" shall mean
all Capital Expenditures (a) required to be made to permit the
Company and its Subsidiaries to comply with any applicable law
(including any Environmental Law), rule, regulation or order of
any governmental or regulatory authority or (b) necessary to
permit the Company and its Subsidiaries to maintain the plant
and equipment used in their businesses in good working order
and condition.
"Note" means a Revolving Note executed by the
Company in favor of a Bank pursuant to Subsection 2.01(a) and
(b).
"Notice of Borrowing" means a notice in
substantially the form of Exhibit "A".
"Notice of Conversion/Continuation" means a notice
in substantially the form of Exhibit "B".
"Obligations" means all advances, debts,
liabilities, obligations, covenants and duties arising under
any Loan Document owing by the Company to any Bank, the Agent,
or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter
arising.
"Offshore Rate" means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward to
the next 1/16th of 1%) determined by the Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any
day for any Interest Period the maximum reserve percentage
(expressed as a decimal, rounded upward to the next 1/100th of
1%) in effect on such day (whether or not applicable to any
Bank) under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum
determined by the Agent to be the arithmetic mean (rounded
upward to the next 1/16th of 1%) of the rates of interest per
annum notified to the Agent by each Reference Bank as the rate
of interest at which dollar deposits in the approximate amount
of the amount of the Loan to be made or continued as, or
converted into, an Offshore Rate Loan by such Reference Bank
and having a maturity comparable to such Interest Period would
be offered to major banks in the London interbank market at
their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest
Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date
of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears
interest based on the Offshore Rate.
"Operating Lease" means an operating lease
determined in accordance with GAAP.
"Organization Documents" means, for any corporation,
the certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions of
the board of directors (or any committee thereof) of such
corporation.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Loan
Documents.
"Participant" has the meaning specified in
Subsection 11.08(d).
"PBGC" means the Pension Benefit Guaranty
Corporation, or any Governmental Authority succeeding to any of
its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA, other than
a Multiemployer Plan, which the Company or any of its
Subsidiaries sponsors, maintains, or to which it makes, is
making, or is obligated to make contributions, or in the case
of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"Permitted Liens" has the meaning set forth in
Section 8.01.
"Person" means an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental
Authority.
"Plan" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to ERISA, other than a
Multiemployer Plan, and which the Company or any Subsidiary of
the Company sponsors or maintains or to which the Company or
any Subsidiary of the Company makes, is making, or is obligated
to make contributions and includes any Pension Plan.
"Preferred Eligible Account Obligor" means Eligible
Accounts Receivables that are either (i) fully supported by a
standby letter of credit issued by a commercial bank organized
under the laws of the United States having an "A2/A" rating or
better by Xxxxx and S&P respectively or (ii) the account debtor
is a major international oil or other company rated "A2/A" or
better by Xxxxx and S&P, respectively, or a Wholly Owned
Subsidiary of such company whose obligations are guaranteed by
such company as identified by the Company on Schedule 1.01
hereof as may be amended from time to time with the approval of
the Majority Banks.
"Principal Business" means (i) the business of the
exploration for, and development, acquisition, production,
processing, marketing, refining, storage and transportation of,
hydrocarbons, (ii) any related energy and natural resource
business, (iii) any business currently engaged in by the
Company or its Subsidiaries, (iv) convenience stores, retail
service stations, truck stops and other public accommodations
in connection therewith and (v) any activity or business that
is a reasonable extension, development or expansion of any of
the foregoing.
"Pro Rata Share" means, as to any Bank at any time,
the percentage equivalent (expressed as a decimal, rounded to
the ninth decimal place) at such time of such Bank's Commitment
divided by the combined Commitments of all Banks.
"Prudential Note Agreement" and "Prudential Notes"
means that certain Amended and Restated Note Agreement dated
September 30, 1993, as amended by Letter Amendment No. 1 dated
December 31, 1994 and Letter Amendment No. 2 dated May 9, 1995,
(as so amended the "Prudential Note Agreement") by and between
Arizona and the Company and The Prudential Insurance Company of
America ("Prudential") and Pruco Life Insurance Company
("Pruco") regarding the 10.91% Senior Notes due March 31, 1999,
and the Notes issued by Arizona to Prudential and Pruco
pursuant thereto.
"Purchase Agreement" means the Purchase and Sale
Agreement dated as of August 8, 1995 among Bloomfield Refining
Company and Xxxx-Xxxxxxxx Energy Corporation, as Sellers, and
Giant Industries Arizona, Inc., as Buyer, as same may be
amended, provided that if amended in any material respect, the
written consent of the Majority Banks shall be required.
"Receivables" shall mean, as to the Company or any
of its Subsidiaries, all accounts receivable, whether billed or
unbilled, arising out of the sale of inventory in the ordinary
course of business.
"Reference Bank" means BofA.
"Refined Products" means all gasoline, diesel,
aviation fuel, fuel oil, propane, ethanol, transmix and other
products processed, refined or blended from Feedstocks and
Intermediate Products valued at the lower of cost or market
prices.
"Regulation U" and "Regulation X" means Regulation U
and Regulation X, respectively, of the Board of Governors of
the Federal Reserve System from time to time in effect and
shall include any successor or other regulations or official
interpretations of said Board of Governors relating to the
subject matter addressed therein.
"Reportable Event" means, any of the events set
forth in Section 4043(b) of ERISA or the regulations
thereunder, other than any such event for which the 30-day
notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"Requirement of Law" means, as to any Person, any
law (statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any of
its property or to which the Person or any of its property is
subject.
"Revolving Loan" means a Facility A Loan and/or a
Facility B Loan.
"Revolving Notes" means the Facility A Note and the
Facility B Note.
"Responsible Officer" means the chief financial
officer or the treasurer of the Company.
"S&P" means Standard & Poor's Ratings Group, a
Division of XxXxxx-Xxxx, Inc., a New York corporation.
"SEC" means the Securities and Exchange Commission,
or any Governmental Authority succeeding to any of its
principal functions.
"Senior Subordinated Debt" means the subordinated
debt of the Company evidenced by the Subordinated Notes
pursuant to the NBD Indenture.
"Significant Subsidiary" means (a) Arizona, (b) San
Xxxx, (c) any other Material Subsidiary which becomes a
Subsidiary after execution of this Agreement and is designated
by the Majority Banks as a Significant Subsidiary, or (d) any
other Subsidiary in existence as of the execution of this
Agreement whose asset size materially increases above its asset
size as of the date of execution of this Agreement, if such
Subsidiary is designated as a Significant Subsidiary by the
Majority Banks.
"Solvent" means, as to any Person at any time, that
(a) the fair value of all of the property of such Person is
greater than the amount of such Person's liabilities (including
disputed, contingent and unliquidated liabilities) as such
value is established and liabilities evaluated for purposes of
Section 101(32) of the Bankruptcy Code; (b) the present fair
saleable value of all of the property of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute
and matured; (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature;
and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute
unreasonably small capital.
"Subordinated Notes" means the NBD Subordinated
Notes issued under the NBD Indenture.
"Subsidiary" of a Person means any corporation,
association, partnership, joint venture or other business
entity of which more than 50% of the voting stock or other
equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by
the Person, or one or more of the Subsidiaries of the Person,
or a combination thereof. Unless the context otherwise clearly
requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Surety Instruments" means all letters of credit
(including standby), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement (including any
master agreement and any agreement, whether or not in writing,
relating to any single transaction) that is an interest rate
swap agreement, basis swap, forward rate agreement, commodity
swap, commodity option, commodity forward contracts, equity or
equity index swap or option, bond option, interest rate option,
forward foreign exchange agreement, rate cap, collar or floor
agreement, currency swap agreement, cross-currency rate swap
agreement, swap option, currency option or any other, similar
agreement (including any option to enter into any of the
foregoing).
"Taxes" means any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of
each Bank and the Agent, such taxes (including income taxes or
franchise taxes) as are imposed on or measured by each Bank's
net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Bank or the Agent, as the
case may be, is organized or maintains a lending office.
"Unfunded Pension Liability" means the excess of a
Plan's benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan's assets, determined in
accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." each means the United
States of America.
"Wholly-Owned Subsidiary" means any corporation in
which (other than directors' qualifying shares required by law)
100% of the capital stock of each class having ordinary voting
power at the time as of which any determination is being made,
is owned, beneficially and of record, by the Company, or by one
or more of the other Wholly-Owned Subsidiaries, or both.
1.02 Other Interpretive Provisions. The meanings of
defined terms are equally applicable to the singular and plural
forms of the defined terms. Unless otherwise specified or the
context clearly requires otherwise, the words "hereof",
"herein", "hereunder" and similar words refer to this Agreement
as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit
references are to this Agreement. The term "documents"
includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however
evidenced. The term "including" is not limiting and means
"including without limitation." In the computation of periods
of time from a specified date to a later specified date, the
word "from" means "from and including"; the words "to" and
"until" each mean "to but excluding", and the word "through"
means "to and including." Unless otherwise expressly provided
herein, (i) references to agreements (including this Agreement)
and other contractual instruments shall be deemed to include
all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation are to be construed as
including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or
interpreting the statute or regulation. The captions and
headings of this Agreement are for convenience of reference
only and shall not affect the interpretation of this Agreement.
This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms. This Agreement and the other Loan
Documents are the result of negotiations among and have been
reviewed by counsel to the Agent, the Company and the other
parties, and are the products of all parties. Accordingly,
they shall not be construed against the Banks or the Agent
merely because of the Agent's or Banks' involvement in their
preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires,
all accounting terms not expressly defined herein shall be
construed, and all financial computations required under this
Agreement shall be made, in accordance with GAAP, consistently
applied. References to "consolidated", when it precedes any
accounting term, means such term as it would apply to the
Company and its Subsidiaries on a consolidated basis,
determined in accordance with GAAP.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) The Facility A Revolving Credit. Each Bank
severally agrees, on the terms and conditions set forth herein,
to make Loans to the Company (each such loan, a "Facility A
Revolving Loan") from time to time on any Business Day during
the period from the Closing Date to the Facility A Termination
Date, in an aggregate amount not to exceed at any time
outstanding, the amount set forth on Schedule 2.01(a) (such
amount, as the same may be reduced under Section 2.05 or as a
result of one or more assignments under Section 11.08, the
Bank's "Facility A Commitment"). Within the limits of each
Bank's Facility A Commitment, and subject to the other terms
and conditions of this Agreement, the Company may borrow under
this Subsection 2.01(a), prepay under Section 2.06 and reborrow
under this Subsection 2.01(a).
(b) The Facility B Revolving Credit. Each Bank
severally agrees, on the terms and conditions set forth herein,
to make Loans to the Company (each such loan, a "Facility B
Revolving Loan") from time to time on any Business Day during
the period from the Closing Date to the Facility B Termination
Date, in an aggregate amount not to exceed at any time
outstanding, the lesser of the following (such amount, as the
same may be reduced under Section 2.05 or as a result of one or
more assignments under Section 11.08, the Bank's "Facility B
Commitment"): (i) the Bank's Pro Rata Share of the current
Borrowing Base and (ii) the amount set forth on Schedule
2.01(b); provided, however, that the Effective Amount of all
Facility B Revolving Loans, and the Effective Amount of all L/C
Obligations, shall not at any time exceed the combined Facility
B Commitments. Within the limits of each Bank's Facility B
Commitment, and subject to the other terms and conditions of
this Agreement, the Company may borrow under this Subsection
2.01(b), prepay under Section 2.06 and reborrow under this
Subsection 2.01(b).
2.02 Certain Pricing Terms. The Applicable Margin and
the Commitment Fee shall be equal to the specified percent per
annum set forth in Schedule 2.02.
2.03 Procedure for Borrowing.
(a) Each Borrowing of Revolving Loans shall be made
upon the Company's irrevocable written notice delivered to the
Agent in the form of a Notice of Borrowing (which notice must
be received by the Agent prior to 9:00 a.m. (San Francisco,
California time) (i) three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; and (ii)
one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans, specifying: (A) the amount of the
Borrowing, which shall be in an aggregate minimum amount of
$2,000,000 or any multiple of $1,000,000 in excess thereof; (B)
the requested Borrowing Date, which shall be a Business Day;
(C) the Interest Rate Type of Loans comprising the Borrowing;
and (D) the duration of the Interest Period applicable to such
Loans included in such notice. If the Notice of Borrowing
fails to specify the duration of the Interest Period for any
Borrowing comprised of Offshore Rate Loans, such Interest
Period shall be three months.
(b) The Agent will promptly notify each Bank of its
receipt of any Notice of Borrowing and of the amount of such
Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata
Share of each Borrowing available to the Agent for the account
of the Company at the Agent's Payment Office by 11:00 a.m. (San
Francisco, California time) on the Borrowing Date requested by
the Company in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the
Company by the Agent by wire transfer in accordance with
written instructions provided to the Agent by the Company of
like funds as received by the Agent.
(d) After giving effect to any Borrowing, there may
not be more than seven (7) different Interest Periods in
effect.
2.04 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice
to the Agent in accordance with Subsection 2.04(b): (i) elect,
as of any Business Day, in the case of Base Rate Loans, or as
of the last day of the applicable Interest Period, in the case
of Offshore Rate Loans, to convert any such Loans (or any part
thereof in an amount not less than $2,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof) into Loans
of any other Interest Rate Type; or (ii) elect as of the last
day of the applicable Interest Period, to continue any
Revolving Loans having Interest Periods expiring on such day
(or any part thereof in an amount not less than $2,000,000, or
that is in an integral multiple of $1,000,000 in excess
thereof); provided, that if at any time the aggregate amount of
Offshore Rate Loans in respect of any Borrowing is reduced, by
payment, prepayment, or conversion of part thereof to be less
than $2,000,000, such Offshore Rate Loans shall automatically
convert into Base Rate Loans, and on and after such date the
right of the Company to continue such Loans as, and convert
such Loans into, Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/ Continuation to be received by the Agent not later
than 9:00 a.m. (San Francisco, California time) at least (i)
three Business Days in advance of the Conversion/Continuation
Date, if the Loans are to be converted into or continued as
Offshore Rate Loans; and (ii) one Business Day in advance of
the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying: (A) the proposed
Conversion/ Continuation Date; (B) the aggregate amount of
Loans to be converted or renewed; (C) the Interest Rate Type of
Loans resulting from the proposed conversion or continuation;
and (D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to
select timely a new Interest Period to be applicable to
Offshore Rate Loans, or if any Default or Event of Default then
exists, the Company shall be deemed to have elected to convert
such Offshore Rate Loans into Base Rate Loans effective as of
the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no
timely notice is provided by the Company, the Agent will
promptly notify each Bank of the details of any automatic
conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal
amounts of the Loans with respect to which the notice was given
held by each Bank.
(e) Unless the Majority Banks otherwise agree,
during the existence of a Default or Event of Default, the
Company may not elect to have a Loan converted into or
continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than seven (7)
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments.
The Company may, upon not less than five Business Days' prior
notice to the Agent, terminate the Commitments, or permanently
reduce the Commitments by an aggregate minimum amount of
$2,000,000 or any multiple of $1,000,000 in excess thereof;
unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, (a) the Effective
Amount of all Facility A Revolving Loans exceed the amount of
the combined Facility A Revolving Commitment, then in effect,
or (b) the Effective Amount of all Facility B Revolving Loans
and L/C Obligations together would exceed the amount of the
combined Facility B Revolving Commitments then in effect. Once
reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. All
accrued commitment, letter of credit and fronting fees to, but
not including, the effective date of any reduction or
termination of Commitments, shall be paid on the effective date
of such reduction or termination.
2.06 Optional Prepayments. Subject to Section 4.04, the
Company may, at any time or from time to time, upon irrevocable
notice to the Agent, not less than three (3) Business Days, for
Offshore Rate Loans and one (1) Business Day for Base Rate
Loans, ratably as to each Bank, prepay Loans in whole or in
part, in minimum amounts of $2,000,000 or any multiple of
$1,000,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment and the Interest
Rate Type(s) of Loans to be prepaid. The Agent will promptly
notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is
given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due
and payable on the date specified therein, together with
accrued interest to each such date on the amount prepaid and
any amounts required pursuant to Section 4.04.
2.07 Borrowing Base Determinations, Mandatory Prepayments
of Loans.
(a) The Borrowing Base shall be determined monthly
on the last day of each month until the Facility B Termination
Date and shall be equal to the sum of (i) eighty percent (80%)
of Eligible Refinery Hydrocarbon Inventory (except for Refined
Products at the Company's and its Subsidiaries' service
stations and travel centers), plus (ii) fifty percent (50%) of
Eligible Refinery Hydrocarbon Inventory as Refined Products at
the Company's and its Subsidiaries' service stations and travel
centers, plus (iii) ninety percent (90%) of Eligible Accounts
Receivable from Preferred Account Obligors plus (iv)
eighty-five percent (85%) of Eligible Accounts Receivable from
Account Obligors other than Preferred Eligible Account
Obligors.
(b) If on any date the Effective Amount of all
Facility B Revolving Loans and the Effective Amount of all L/C
Obligations exceed the combined Facility B Commitments, the
Company shall, and without notice or demand, prepay the
outstanding principal amount of the Facility B Revolving Loans
by an amount equal to the applicable excess ("Mandatory
Prepayment"). Subject to Section 4.04, if on any date after
giving effect to any Mandatory Prepayment made on such date
pursuant to the preceding sentence the Effective Amount of all
Facility B Revolving Loans then outstanding plus the Effective
Amount of all L/C Obligations exceeds the combined Facility B
Commitments, the Company shall immediately Cash Collateralize
on such date the outstanding Letters of Credit in an amount
equal to the excess of the maximum amount that the L/C
Obligations exceed the Facility B Commitment.
2.08 Repayment.
(a) The Facility A Revolving Credit. The Company
shall repay to the Banks the aggregate principal amount of
Facility A Loans on the Facility A Termination Date.
(b) The Facility B Revolving Credit. The Company
shall repay to the Banks the aggregate principal amount of
Facility B Loans outstanding on the Facility B Termination
Date.
(c) Interest.
(i) Each Revolving Loan shall bear
interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the
lesser of (a) Offshore Rate or the Base Rate, as the case may
be (and subject to the Company's right to convert to other
Interest Rate Types of Loans under Section 2.04), plus the
Applicable Margin, or (b) the maximum rate permitted by
applicable usury laws now or hereafter enacted.
(ii) Interest on each Revolving Loan
shall be paid in arrears on each Interest Payment Date.
Interest shall also be paid on the date of any prepayment of
Loans under Section 2.06 or 2.07 for the portion of the Loans
so prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of Default,
interest shall be paid on demand of the Agent at the request or
with the consent of the Majority Banks.
(iii) Notwithstanding subsection (a) of
this Section, while any Event of Default exists or after
acceleration, the Company shall pay interest (after as well as
before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Loans, at a
rate per annum equal to the lesser of (x) the Highest Lawful
Rate and (y) the Base Rate plus two percent (2%).
2.09 Fees. In addition to certain fees described in
Section 3.08:
(a) Arrangement, Agency Fees. The Company shall pay
an arrangement fee to the Arranger for the Arranger's own
account, and shall pay an agency fee to the Agent for the
Agent's own account, as required by the letter agreement ("Fee
Letter") between the Company and the Arranger and Agent dated
September 11, 1995.
(b) Commitment Fees. The Company shall pay to the
Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment,
computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon the daily utilization
for that quarter as calculated by the Agent, equal to the
percent per annum set forth in Schedule 2.02. For purposes of
calculating utilization under this subsection, the Commitments
shall be deemed used to the extent of the Effective Amount of
Revolving Loans then outstanding, plus the Effective Amount of
L/C Obligations then outstanding. Such commitment fee shall
accrue from the Closing Date to the Revolving Termination Date
and shall be due and payable quarterly in arrears on the last
Business Day of each quarter commencing on December 31, 1995
through the Revolving Termination Date, with the final payment
to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments
under Section 2.05 or Section 2.07, the accrued commitment fee
calculated for the period ending on such date shall also be
paid on the date of such reduction or termination, with the
following quarterly payment being calculated on the basis of
the period from such reduction or termination date to such
quarterly payment date. The commitment fees provided in this
subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or
more conditions in Article V are not met.
2.10 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans
when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations
of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more interest
being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof
to the last day thereof.
(b) Each determination of an interest rate by the
Agent shall be conclusive and binding on the Company and the
Banks in the absence of manifest error.
2.11 Payments by the Company.
(a) All payments to be made by the Company shall be
made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the
Company shall be made to the Agent for the account of the Banks
at the Agent's Payment Office, and shall be made in dollars and
in immediately available funds, no later than 11:00 a.m. (San
Francisco, California time) on the date specified herein. The
Agent will promptly distribute to each Bank its Pro Rata Share
(or other applicable share as expressly provided herein) of
such payment in like funds as received. Any payment received
by the Agent later than 11:00 a.m. (San Francisco, California
time) shall be deemed to have been received on the following
Business Day and any applicable interest or fee shall continue
to accrue.
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is
due on a day other than a Business Day, such payment shall be
made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the
Company prior to the date on which any payment is due to the
Banks that the Company will not make such payment in full as
and when required, the Agent may assume that the Company has
made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be
so required), in reliance upon such assumption, distribute to
each Bank on such due date an amount equal to the amount then
due such Bank. If and to the extent the Company has not made
such payment in full to the Agent, each Bank shall repay to the
Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Rate for each day
from the date such amount is distributed to such Bank until the
date repaid.
2.12 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on
or prior to the Closing Date or, with respect to any Borrowing
after the Closing Date, at least one Business Day prior to the
date of such Borrowing, that such Bank will not make available
as and when required hereunder to the Agent for the account of
the Company the amount of that Bank's Pro Rata Share of the
Borrowing, the Agent may assume that each Bank has made such
amount available to the Agent in immediately available funds on
the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available
to the Agent in immediately available funds and the Agent in
such circumstances has made available to the Company such
amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent,
together with interest at the Federal Funds Rate for each day
during such period. A notice of the Agent submitted to any
Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is
so made available, such payment to the Agent shall constitute
such Bank's Loan on the date of Borrowing for all purposes of
this Agreement. If such amount is not made available to the
Agent on the Business Day following the Borrowing Date, the
Agent will notify the Company of such failure to fund and, upon
demand by the Agent, the Company shall pay such amount to the
Agent for the Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any
Borrowing Date shall not relieve any other Bank of any
obligation hereunder to make a Loan on such Borrowing Date, but
no Bank shall be responsible for the failure of any other Bank
to make the Loan to be made by such other Bank on any Borrowing
Date.
2.13 Sharing of Payments, Etc. If, other than as
expressly provided elsewhere herein, any Bank shall obtain on
account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Agent of such fact, and (b) purchase
from the other Banks such participations in the Loans made by
them as shall be necessary to cause such purchasing Bank to
share the excess payment pro rata with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase
shall to that extent be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable
share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Company agrees that any Bank so
purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section
11.09) with respect to such participation as fully as if such
Bank were the direct creditor of the Company in the amount of
such participation. The Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each
case notify the Banks following any such purchases or
repayments.
ARTICLE III
THE LETTERS OF CREDIT
3.01 The Letter of Credit Facility.
(a) On the terms and conditions set forth herein (i)
the Issuing Bank agrees, (A) from time to time on any Business
Day during the period from the Closing Date to the Facility B
Termination Date to issue Letters of Credit for the account of
the Company, and to amend or renew Letters of Credit previously
issued by it, in accordance with Subsections 3.02(c) and
3.02(e), and (B) to honor drafts under the Letters of Credit;
and (ii) the Banks severally agree to participate in Letters of
Credit Issued for the account of the Company; provided, that
the Issuing Bank shall not be obligated to Issue, and no Bank
shall be obligated to participate in, any Letter of Credit if
as of the date of Issuance of such Letter of Credit (the
"Issuance Date") the Effective Amount of all L/C Obligations
plus the Effective Amount of all Facility B Revolving Loans
exceeds the combined Facility B Commitments. Within the
foregoing limits, and subject to the other terms and conditions
hereof, the Company's ability to obtain Letters of Credit shall
be fully revolving, and, accordingly, the Company may, during
the foregoing period, obtain Letters of Credit to replace
Letters of Credit which have expired or which have been drawn
upon and reimbursed.
(b) The Issuing Bank is under no obligation to Issue
any Letter of Credit if: (i) any order, judgment or decree of
any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from Issuing
such Letter of Credit, or any Requirement of Law applicable to
the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request
that the Issuing Bank refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon the Issuing Bank with respect to such Letter
of Credit any restriction, reserve or capital requirement (for
which the Issuing Bank is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the
Issuing Bank any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the Issuing Bank
in good xxxxx xxxxx material to it; (ii) the Issuing Bank has
received written notice from any Bank, the Agent or the
Company, on or prior to the Business Day prior to the requested
date of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article V is not then
satisfied; (iii) the expiry date of any requested Letter of
Credit is (A) more than 360 days after the date of Issuance,
unless the Issuing Bank and the Majority Banks have approved
such expiry date in writing, or (B) after the Facility B
Termination Date, unless all of the Banks have approved such
expiry date in writing; (iv) the expiry date of any requested
Letter of Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide for drafts,
or is not otherwise in form and substance acceptable to the
Issuing Bank, or the Issuance of a Letter of Credit shall
violate any applicable policies of the Issuing Bank; (vi) any
Letter of Credit is for the purpose of supporting the issuance
of any letter of credit by any other Person; or (vii) if such
Letter of Credit is issued to support workmen's compensation
liabilities and the face amount is more than $1,000,000.
3.02 Issuance, Amendment and Renewal of Letters of
Credit.
(a) Each Letter of Credit shall be issued two (2)
Business Days after receipt by the Issuing Bank (if received by
the Issuing Bank no later than 10:00 a.m. Chicago time) of an
irrevocable written request from the Company (with a copy sent
by the Company to the Agent) or such shorter time as the
Issuing Bank may agree in a particular instance in its sole
discretion. Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an
original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing Bank
such matters as the Issuing Bank may require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the Issuing Bank will confirm with the
Agent (by telephone or in writing) that the Agent has received
a copy of the L/C Application or L/C Amendment Application from
the Company and, if the Agent has not received such copy, the
Issuing Bank will provide the Agent with a copy thereof.
Unless the Issuing Bank has received notice on or before the
Business Day immediately preceding the date the Issuing Bank is
to issue a requested Letter of Credit from the Agent (A)
directing the Issuing Bank not to issue such Letter of Credit
because such issuance is not then permitted under Subsection
3.01(b); or (B) that one or more conditions specified in
Article V are not then satisfied; then, subject to the terms
and conditions hereof, the Issuing Bank shall, on the requested
date, issue a Letter of Credit for the account of the Company
in accordance with the Issuing Bank's usual and customary
business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Facility B Termination Date, the
Issuing Bank will, upon the written request of the Company
received by the Issuing Bank (with a copy sent by the Company
to the Agent) at or before 10:00 a.m. Chicago Time at least two
(2) Business Days (or such shorter time as the Issuing Bank may
agree in a particular instance in its sole discretion), amend
any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, and made in such
form as the Issuing Bank may require. The Issuing Bank shall
be under no obligation to amend any Letter of Credit if: (A)
the Issuing Bank would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of
Credit does not accept the proposed amendment to the Letter of
Credit.
(d) Upon receipt of notice from the Issuing Bank,
the Agent will promptly notify the Banks of the Issuance of a
Letter of Credit and any amendment thereto.
(e) If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the Issuing Bank that
such Letter of Credit shall not be renewed, the Issuing Bank
shall be permitted to allow such Letter of Credit to renew, and
the Company and the Banks hereby authorize such renewal. The
Issuing Bank shall not be obligated to allow such Letter of
Credit to renew if the Issuing Bank would have no obligation at
such time to issue or amend such Letter of Credit under the
terms of this Agreement.
(f) The Issuing Bank may, at its election (or as
required by the Agent at the direction of the Majority Banks),
deliver any notices of termination or other communications to
any Letter of Credit beneficiary, and take any other action as
necessary or appropriate, at any time and from time to time, in
order to cause the expiry date of such Letter of Credit to be a
date not later than the Facility B Termination Date.
(g) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter
of Credit).
(h) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of
each such Letter of Credit or amendment to or renewal of a
Letter of Credit.
3.03 Existing Bank of America Letters of Credit, Risk
Participations, Drawings and Reimbursements.
(a) On and after the Closing Date, the Existing BofA
Letters of Credit shall be deemed for all purposes, including
for purposes of the fees to be collected pursuant to
Subsections 3.08(a) and 3.08(c), and reimbursement of costs and
expenses to the extent provided herein, Letters of Credit
outstanding under this Agreement and entitled to the benefits
of this Agreement and the other Loan Documents, and shall be
governed by the applications and agreements pertaining thereto
and by this Agreement. Each Bank shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank on the Closing Date a participation in each
such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) such Bank's Pro Rata Share times
(ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively. For
purposes of Subsection 2.01(b) and Subsection 2.09(b), the
Existing BofA Letters of Credit shall be deemed to utilize pro
rata the Facility B Commitment of each Bank.
(b) Immediately upon the Issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Bank a
participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Pro
Rata Share of such Bank, times (ii) the maximum amount
available to be drawn under such Letter of Credit and the
amount of such drawing, respectively. For purposes of
Subsection 2.01(b), each Issuance of a Letter of Credit shall
be deemed to utilize the Facility B Commitment of each Bank by
an amount equal to the amount of such participation.
(c) In the event of any request for a drawing under
a Letter of Credit by the beneficiary thereof, the Issuing Bank
will promptly notify the Company. The Company shall reimburse
the Issuing Bank prior to 10:00 a.m. (Chicago, Illinois time),
on each date that any amount is paid by the Issuing Bank under
any Letter of Credit (each such date, an "Honor Date"), in an
amount equal to the amount so paid by the Issuing Bank. In the
event the Company fails to reimburse the Issuing Bank for the
full amount of any drawing under any Letter of Credit by 10:00
a.m. (Chicago, Illinois time) on the Honor Date, the Issuing
Bank will promptly notify the Agent and the Agent will promptly
notify each Bank thereof, and the Company shall be deemed to
have requested that Facility B Base Rate Loans be made by the
Banks to be disbursed on the Honor Date under such Letter of
Credit, subject to the amount of the unutilized portion of the
Facility B Commitment and subject to the conditions set forth
in Section 5.02. Any notice given by the Issuing Bank or the
Agent pursuant to this Subsection 3.03(c) may be oral if
immediately confirmed in writing (including by facsimile);
provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to
Subsection 3.03(c) make available to the Agent for the account
of the relevant Issuing Bank an amount in Dollars and in
immediately available funds equal to its Pro Rata Share of the
amount of the drawing, whereupon the participating Banks shall
(subject to Subsection 3.03(e)) each be deemed to have made a
Facility B Revolving Loan consisting of a Base Rate Loan to the
Company in that amount. If any Bank so notified fails to make
available to the Agent for the account of the Issuing Bank the
amount of such Bank's Pro Rata Share of the amount of the
drawing by no later than 12:00 noon (San Francisco, California
time) on the Honor Date, then interest shall accrue on such
Bank's obligation to make such payment, from the Honor Date to
the date such Bank makes such payment, at a rate per annum
equal to the Federal Funds Rate in effect from time to time
during such period. The Agent will promptly give notice to
each Bank of the occurrence of the Honor Date, but failure of
the Agent to give any such notice on the Honor Date or in
sufficient time to enable any Bank to effect such payment on
such date shall not relieve such Bank from its obligations
under this Section 3.03.
(e) With respect to any unreimbursed drawing that is
not converted into Facility B Revolving Loans consisting of
Base Rate Loans to the Company in whole or in part, because of
the Company's failure to satisfy the conditions set forth in
Section 5.02 or for any other reason, the Company shall be
deemed to have incurred from the Issuing Bank an L/C Borrowing
in the amount of such drawing, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear
interest at a rate per annum equal to the Base Rate plus 2% per
annum, and each Bank's payment to the Issuing Bank pursuant to
Subsection 3.03(d) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from such Bank in satisfaction of its participation
obligation under this Section 3.03.
(f) Each Bank's obligation in accordance with this
Agreement to make the Facility B Revolving Loans or L/C
Advances, as contemplated by this Section 3.03, as a result of
a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and
shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which
such Bank may have against the Issuing Bank, the Company or any
other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the
foregoing; provided, however, that each Bank's obligation to
make Facility B Revolving Loans under this Section 3.03 is
subject to the conditions set forth in Section 5.02.
3.04 Repayment of Participations.
(a) When the Agent receives (and only if the Agent
receives), for the account of the Issuing Bank, immediately
available funds from the Company (i) in reimbursement of any
payment made by the Issuing Bank under the Letter of Credit
with respect to which any Bank has paid the Agent for the
account of the Issuing Bank for such Bank's participation in
the Letter of Credit pursuant to Section 3.03 or (ii) in
payment of interest thereon, the Agent will pay to each Bank,
in the same funds as those received by the Agent for the
account of the Issuing Bank, the amount of such Bank's Pro Rata
Share of such funds, and the Issuing Bank shall receive the
amount of the Pro Rata Share of such funds of any Bank that did
not so pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at
any time to return to the Company, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency
Proceeding, any portion of the payments made by the Company to
the Agent for the account of the Issuing Bank pursuant to
subsection 3.04(a) in reimbursement of a payment made under the
Letter of Credit or interest or fee thereon, each Bank shall,
on demand of the Agent, forthwith return to the Agent or the
Issuing Bank the amount of its Pro Rata Share of any amounts so
returned by the Agent or the Issuing Bank plus interest thereon
from the date such demand is made to the date such amounts are
returned by such Bank to the Agent or the Issuing Bank, at a
rate per annum equal to the Federal Funds Rate in effect from
time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Company agree that, in paying
any drawing under a Letter of Credit, the Issuing Bank shall
not have any responsibility to obtain any document (other than
any sight draft, certificates and other documents, if any,
expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such
document.
(b) No Agent-Related Person nor any of the
respective correspondents, participants or assignees of the
Issuing Bank shall be liable to any Bank for: (i) any action
taken or omitted in connection herewith at the request or with
the approval of the Banks (including the Majority Banks, as
applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
L/C-Related Document.
(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
shall be liable or responsible for any of the matters described
in clauses (i) through (vii) of Section 3.06; provided,
however, anything in such clauses to the contrary
notwithstanding, that the Company may have a claim against the
Issuing Bank, and the Issuing Bank may be liable to the
Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by
the Company which the Company proves were caused by the Issuing
Bank's willful misconduct or gross negligence in failing to pay
under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft, certificate(s) and other
documents, if any, strictly complying with the terms and
conditions of such Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Issuing
Bank shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the
Company under this Agreement and any L/C-Related Document to
reimburse the Issuing Bank for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a
Letter of Credit converted into Facility B Revolving Loans,
shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and
each such other L/C-Related Document under all circumstances,
including the following: (i) any lack of validity or
enforceability of this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or
any of the L/C-Related Documents; (iii) the existence of any
claim, set-off, defense or other right that the Company may
have at any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction; (iv) any
draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in
the transmission or otherwise of any document required in order
to make a drawing under any Letter of Credit; (v) any payment
by the Issuing Bank under any Letter of Credit against
presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment
made by the Issuing Bank under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency
Proceeding; (vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the
obligations of the Company in respect of any Letter of Credit;
or (vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.07 Cash Collateral Pledge. Upon (i) the request of the
Agent, (A) if the Issuing Bank has honored any full or partial
drawing request on any Letter of Credit and such drawing has
resulted in an L/C Borrowing hereunder, or (B) if, as of the
Facility B Termination Date, any Letters of Credit may for any
reason remain outstanding and partially or wholly undrawn, or
(ii) the occurrence of the circumstances described in
Subsection 2.07(b) requiring the Company to Cash Collateralize
Letters of Credit, then, the Company shall immediately Cash
Collateralize the L/C Obligations in an amount equal to the L/C
Obligations.
3.08 Letter of Credit Fees.
(a) The Company shall pay to the Agent for the
account of each of the Banks a letter of credit fee with
respect to the Letters of Credit equal to the per annum fee
specified in Schedule 2.02 multiplied by the average daily
maximum amount available to be drawn of the outstanding Letters
of Credit, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon Letters of
Credit outstanding for that quarter as calculated by the Agent.
Such letter of credit fees shall be due and payable quarterly
in arrears on the last Business Day of each calendar quarter
during which Letters of Credit are outstanding, commencing on
the first such quarterly date to occur after the Closing Date,
through the Facility B Termination Date (or such later date
upon which the outstanding Letters of Credit shall expire),
with the final payment to be made on the Facility B Termination
Date (or such later expiration date).
(b) The Company shall pay to the Agent for the
account of the Issuing Bank a letter of credit fronting fee
(the "Fronting Fee") for each Letter of Credit Issued by the
Issuing Bank equal to .125% per annum of the average daily
maximum amount available to be drawn on the outstanding Letters
of Credit, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon Letters of
Credit outstanding for that quarter.
(c) The Company shall pay to the Issuing Bank from
time to time on demand the normal issuance, presentation,
amendment and other processing fees, and other standard costs
and charges, of the Issuing Bank relating to letters of credit
as from time to time in effect.
3.09 Cash Collateralization.
(a) If any Event of Default shall occur and be
continuing, the Company agrees that it shall on the Business
Day it receives notice from the Agent, acting upon instructions
of the Majority Banks, deposit in an account (the "Cash
Collateral Account") held by the Agent, for the benefit of the
Banks, an amount in cash equal to the Letter of Credit
Obligations as of such date. Such deposit shall be held by the
Agent as collateral for the payment and performance of the
Obligations. The Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such
account. Cash collateral shall be held in a blocked,
non-interest bearing account held by the Agent or any Affiliate
of the Agent upon such terms and in such type of account as
customary at that depository institution. The Company shall
pay any fees charged by such depository institution which fees
are of the type customarily charged by such institution with
respect to such accounts. Moneys in such account shall (i) be
applied by the Agent to the payment of Letter of Credit
Borrowings and interest thereon, (ii) be held for the
satisfaction of the reimbursement obligations of the Company in
respect of Letters of Credit, and (iii) if the maturity of the
Loans has been accelerated, with the consent of the Majority
Banks, be applied to satisfy the Obligations.
(b) As security for the payment of all Obligations,
the Company hereby grants, conveys, assigns, pledges, sets over
and transfers to the Agent, and creates in the Agent's favor a
Lien on, and security interest, in all money, instruments and
securities at any time held in or acquired in connection with
the Cash Collateral Account, together with all proceeds
thereof. At any time and from time to time, upon the Agent's
request, the Company promptly shall execute and deliver any and
all such further instruments and documents as may be necessary,
appropriate or desirable in the Agent's judgment to obtain the
full benefits (including perfection and priority) of the
security interest created or intended to be created by this
Subsection 3.09(b) and of the rights and powers herein granted.
3.10 Uniform Customs and Practice. The Uniform Customs
and Practice for Documentary Credits as published by the
International Chamber of Commerce ("UCP") most recently at the
time of issuance of any Letter of Credit shall (unless
otherwise expressly provided in the Letters of Credit) apply to
the Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Any and all payments by the Company to each Bank
or the Agent under this Agreement and any other Loan Document
shall be made free and clear of, and without deduction or
withholding for any Taxes. In addition, the Company shall pay
all Other Taxes.
(b) The Company agrees to indemnify and hold
harmless each Bank and the Agent for the full amount of Taxes
or Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section) paid by
the Bank or the Agent and any liability (including penalties,
interest, additions to tax and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days after the date the
Bank or the Agent makes written demand therefor.
(c) If the Company shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in respect
of any sum payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as necessary so that
after making all required deductions and withholdings
(including deductions and withholdings applicable to additional
sums payable under this Section) such Bank or the Agent, as the
case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made; (ii)
the Company shall make such deductions and withholdings; (iii)
the Company shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance
with applicable law; and (iv) the Company shall also pay to
each Bank or the Agent for the account of such Bank, at the
time interest is paid, all additional amounts which the
respective Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such Taxes or
Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by
the Company of Taxes or Other Taxes, the Company shall furnish
the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Agent.
(e) If the Company is required to pay additional
amounts to any Bank or the Agent pursuant to subsection (c) of
this Section, then upon written request of the Company such
Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its
Lending Office so as to eliminate any such additional payment
by the Company which may thereafter accrue, if such change in
the judgment of such Bank is not otherwise disadvantageous to
such Bank.
4.02 Illegality.
(a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of
Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central
bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the
Company through the Agent, any obligation of that Bank to make
Offshore Rate Loans shall be suspended until the Bank notifies
the Agent and the Company that the circumstances giving rise to
such determination no longer exist.
(b) If a Bank determines that it is unlawful to
maintain any Offshore Rate Loan, the Company shall, upon its
receipt of notice of such fact and demand from such Bank (with
a copy to the Agent), prepay in full such Offshore Rate Loans
of that Bank then outstanding, together with interest accrued
thereon and amounts required under Section 4.04, either on the
last day of the Interest Period thereof, if the Bank may
lawfully continue to maintain such Offshore Rate Loans to such
day, or immediately, if the Bank may not lawfully continue to
maintain such Offshore Rate Loan. If the Company is required
to so prepay any Offshore Rate Loan, then concurrently with
such prepayment, the Company shall borrow from the affected
Bank, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or
maintain Offshore Rate Loans has been so terminated or
suspended, all Loans which would otherwise be made by the Bank
as Offshore Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this
Section, the affected Bank shall designate a different Lending
Office with respect to its Offshore Rate Loans if such
designation will avoid the need for giving such notice or
making such demand and will not, in the judgment of the Bank,
be illegal or otherwise disadvantageous to the Bank.
4.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i)
the introduction of or any change (other than any change by way
of imposition of or increase in reserve requirements included
in the calculation of the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) the compliance
by that Bank with any guideline or request from any central
bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such
Bank of agreeing to make or making, funding or maintaining any
Offshore Rate Loans or participating in Letters of Credit, or,
in the case of the Issuing Bank, any increase in the cost to
the Issuing Bank of agreeing to issue, issuing or maintaining
any Letter of Credit or of agreeing to make or making, funding
or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to
time, upon demand (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Bank,
additional amounts as are sufficient to compensate such Bank
for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any
change in any Capital Adequacy Regulation, (iii) any change in
the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any
corporation controlling the Bank with any Capital Adequacy
Regulation, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration
such Bank's or such corporation's policies with respect to
capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a
consequence of its Commitments, loans, credits or obligations
under this Agreement, then, upon demand of such Bank to the
Company through the Agent, the Company shall pay to the Bank,
from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
4.04 Funding Losses. The Company shall reimburse each
Bank and hold each Bank harmless from any loss or expense which
the Bank may sustain or incur as a consequence of: (a) the
failure of the Company to make on a timely basis any payment of
principal of any Offshore Rate Loan; (b) the failure of the
Company to borrow, continue or convert a Loan after the Company
has given (or is deemed to have given) a Notice of Borrowing or
a Notice of Conversion/ Continuation (including by reason of
the failure to satisfy any condition precedent thereto); (c)
the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.06; (d) the
prepayment (including pursuant to Section 2.07 or 2.08) or
other payment (including after acceleration thereof) of an
Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period; or (e) the automatic conversion under
Section 2.04 of any Offshore Rate Loan to a Base Rate Loan on a
day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its
Offshore Rate Loans or from fees payable to terminate the
deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Banks under
this Section and under Subsection 4.03(a), each Offshore Rate
Loan made by a Bank (and each related reserve, special deposit
or similar requirement) shall be conclusively deemed to have
been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable
amount and for a comparable period, whether or not such
Offshore Rate Loan is in fact so funded.
4.05 Inability to Determine Rates. If the Reference Bank
determines that for any reason adequate and reasonable means do
not exist for determining the Offshore Rate for any requested
Interest Period with respect to a proposed Offshore Rate Loan,
or that the Offshore Rate applicable pursuant to Subsection
2.10(a) for any requested Interest Period with respect to a
proposed Offshore Rate Loan does not adequately and fairly
reflect the cost to the Bank of funding such Loan, the Agent
will promptly so notify the Company and each Bank. Thereafter,
the obligation of the Banks to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Agent upon the
instruction of the Majority Banks revokes such notice in
writing. Upon receipt of such notice, the Company may revoke
any Notice of Borrowing or Notice of Conversion/Continuation
then submitted by it. If the Company does not revoke such
Notice, the Banks shall make, convert or continue the Loans, as
proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Base Rate Loans
instead of Offshore Rate Loans.
4.06 Certificates of Banks. Any Bank claiming
reimbursement or compensation under this Article IV shall
deliver to the Company (with a copy to the Agent) a certificate
setting forth in reasonable detail the amount payable to the
Bank hereunder and such certificate shall be conclusive and
binding on the Company in the absence of manifest error.
4.07 Substitution of Banks. Upon the receipt by the
Company from any Bank (an "Affected Bank") of a claim for
compensation under Section 4.03, the Company may: (i) request
the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution satisfactory to the
Agent to acquire and assume all or a ratable part of all of
such Affected Bank's Loans and Commitment (a "Replacement
Bank"); (ii) request one more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment
but none of the Banks shall have any obligation to do so; or
(iii) designate a Replacement Bank satisfactory to Agent. Any
such designation of a Replacement Bank under clause (i) or
(iii) shall be subject to the prior written consent of the
Agent which consent shall not be unreasonably withheld.
4.08 Survival. The agreements and obligations of the
Company in this Article IV shall survive the payment of all
other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions of Initial Credit Extensions. The
obligation of each Bank to make its initial Credit Extension
and the obligation of the Issuing Bank to issue the first
Letter of Credit, hereunder is subject to the condition set
forth in Section 5.01A and the condition that the Agent shall
have received on or before the Closing Date all of the
following, in form and substance satisfactory to the Agent and
each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement, the
Notes, the Guaranties executed by each party thereto, and the
initial Borrowing Base Report;
(b) Regarding the Bloomfield Refinery. (i) A
certificate signed by a Responsible Officer of the Company, in
form and substance reasonably satisfactory to the Agent and
each Bank representing and warranting that (A) under the
Acquisition Agreement, each of the Sellers and San Xxxx have
satisfied each of their respective Closing Obligations for the
Acquisition or such conditions have been waived, save only for
San Juan's obligation to deliver to Sellers the Preliminary
Amount (as defined in the Purchase Agreement), (B) that San
Xxxx has delivered by wire transfer to an account held by
Company at BofA sufficient funds to pay the difference between
the Preliminary Amount and the amount requested by the Company
under the Notice of Borrowing for the Facility A Revolving
Loan, and (C) wire instructions indicating where to send the
full Preliminary Amount for the account of the Sellers; and
(ii) verbal confirmation from the Sellers that the Sellers are
ready, willing and able to consummate the Bloomfield
Acquisition upon receipt of the Preliminary Amount;
(c) Certificate Regarding Existing Indebtedness. A
certificate signed by a Responsible Officer of the Company,
certifying that attached thereto is a true and correct copy of
the Prudential Note Agreement and the Indenture;
(d) Resolutions; Incumbency Organization Documents.
(i) Resolutions of the board of directors of the Company and
each Guarantor authorizing the transactions contemplated
hereby, certified as of the Closing Date by the Secretary or an
Assistant Secretary of such Person; (ii) Certificates of the
Secretary or Assistant Secretary of the Company and each
Guarantor certifying the names and true signatures of the
officers or such Person authorized to execute, deliver and
perform, as applicable, this Agreement, the Guaranty, and all
other Loan Documents to be delivered by it hereunder; and (iii)
Articles or certificates of incorporation and the bylaws of the
Company and each Guarantor as in effect on the Closing Date,
certified by the Secretary or Assistant Secretary of the such
Person as of the Closing Date;
(e) Good Standing. A good standing certificate for
the Company and each Guarantor from the state of incorporation
and Arizona and New Mexico, evidencing qualification to do
business as a foreign corporation as of a recent date;
(f) Legal Opinions. Copies of (i) An opinion of
Xxxxxx Xxxx, counsel to the Company and addressed to the Agent
and the Banks, substantially in the form of Exhibit "D"; and
(ii) a favorable opinion of Xxxxxx & Xxxxxx, L.L.P., special
counsel to the Agent;
(g) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses owed
pursuant to this Agreement and the Fee Letter to the extent
then due and payable on the Closing Date, together with
Attorney Costs of the Agent to the extent invoiced prior to or
on the Closing Date, plus such additional amounts of Attorney
Costs as shall constitute the Agent's estimate of Attorney
Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter
preclude final settling of accounts between the Company and the
Agent); including any such costs, fees and expenses arising
under or referenced in Sections 2.09 and 11.04;
(h) Certificate (Representations and Warranties,
Etc.). A certificate signed by a Responsible Officer, dated as
of the Closing Date, stating that (i) the representations and
warranties contained in Article VI are true and correct on and
as of such date, as though made on and as of such date; (ii) no
Default or Event of Default exists or would result from the
Credit Extension being made on the Closing Date; (iii) no
litigation is pending or threatened against the Company or any
Subsidiary in which there is a reasonable probability of an
adverse decision which would result in a Material Adverse
Effect; and (iv) there has occurred since June 30, 1995, no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(i) Intercreditor Agreement. The Intercreditor
Agreement in the form required by Exhibit "E" to the Prudential
Note Agreement, duly executed by all parties thereto; and
(j) Other Documents. Such other approvals,
opinions, documents or materials as the Agent or any Bank may
request.
5.01A Closing Date. It is a further condition to the
initial Credit Extension that the Closing Date occur no later
than October 16, 1995.
5.02 Conditions to All Credit Extensions. The obligation
of each Bank to make any Revolving Loan to be made by it
(including its initial Revolving Loan) or to continue or
convert any Revolving Loan under Section 2.04 and the
obligation of the Issuing Bank to Issue any Letter of Credit
(including the initial Letter of Credit) is subject to the
satisfaction of the following conditions precedent on the
relevant Borrowing Date, Conversion/Continuation Date or
Issuance Date:
(a) Notice, Application. The Agent shall have
received (with, in the case of the initial Revolving Loan only,
a copy for each Bank) a Notice of Borrowing or a Notice of
Conversion/Continuation, as applicable or in the case of any
Issuance of any Letter of Credit, the Issuing Bank and the
Agent shall have received an L/C Application or L/C Amendment
Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article VI shall be true
and correct on and as of such Borrowing Date or
Conversion/Continuation Date with the same effect as if made on
and as of such Borrowing Date or Conversion/Continuation Date
(except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing or
continuation or conversion.
Each Notice of Borrowing, Notice of Conversion/Continuation and
L/C Application or L/C Amendment Application submitted by the
Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of each such
notice and as of each Borrowing Date, Conversion/Continuation
Date, or Issuance Date, as applicable, that the conditions in
Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each
Bank that:
6.01 Corporate Existence and Power. The Company and each
of its Material Subsidiaries: (a) is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation; (b) has the power and
authority and all material governmental licenses,
authorizations, consents and approvals to own its assets, carry
on its business and to execute, deliver, and perform its
obligations under the Loan Documents; (c) is duly qualified as
a foreign corporation and is licensed and in good standing
under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business
requires such qualification or license; and (d) is in
compliance in all material respects with all Requirements of
Law; except, in each case referred to in clause (d), to the
extent that the failure to do so would not reasonably be
expected to have a Material Adverse Effect.
6.02 Corporate Authorization; No Contravention. The
execution, delivery and performance by the Company and its
Subsidiaries of this Agreement and each other Loan Document to
which such Person is a party, have been duly authorized by all
necessary corporate action, and do not and will not: (a)
contravene the terms of any of that Person's Organization
Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which such
Person is a party or any order, injunction, writ or decree of
any Governmental Authority to which such Person or its property
is subject; or (c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or
performance by, or enforcement against, the Company or any of
its Subsidiaries of this Agreement or any other Loan Document
to which it is a party.
6.04 Binding Effect. This Agreement and each other Loan
Document to which the Company or any of its Subsidiaries is a
party constitute the legal, valid and binding obligations of
the Company and any of its Subsidiaries to the extent it is a
party thereto, enforceable against such Person in accordance
with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
6.05 Litigation. Except as specifically disclosed in
Schedule 6.05, there are no actions, suits, proceedings, claims
or disputes pending, or to the best knowledge of the Company,
threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, against the Company, or
its Subsidiaries or any of their respective properties which:
(i) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby
or thereby; or (ii) if determined adversely to the Company or
its Subsidiaries, would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by
any court or other Governmental Authority purporting to enjoin
or restrain the Acquisition, execution, delivery or performance
of this Agreement or any other Loan Document, or directing that
the transactions provided for herein or therein not be
consummated as herein or therein provided.
6.06 No Default. No Default or Event of Default exists
or would be reasonably expected to result from the incurring of
any Obligations by the Company. As of the Closing Date,
neither the Company nor any Material Subsidiary is in default
under or with respect to any Contractual Obligation in any
respect which, individually or together with all such defaults,
would reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the Closing
Date, create an Event of Default under Subsection 9.01(e).
6.07 ERISA Compliance. Except as specifically disclosed
in Schedule 6.07:
(a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and
other federal or state law. Each Plan which is intended to
qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS and to the best
knowledge of the Company, nothing has occurred which would
cause the loss of such qualification. The Company and each
ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Code, and no application for a
funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect
to any Plan.
(b) There are no pending or, to the best knowledge
of Company, threatened claims, actions or lawsuits, or action
by any Governmental Authority, with respect to any Plan which
has resulted or could reasonably be expected to result in a
Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or would reasonably
be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded
Pension Liability; (iii) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to
a Multiemployer Plan; and (v) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) or ERISA.
6.08 Use of Proceeds; Margin Regulations. The proceeds
of the Loans shall be used solely for the purposes set forth in
and permitted by Section 7.13 and Section 8.07. Neither the
Company nor any Subsidiary is generally engaged in the business
of purchasing or selling Margin Stock or extending credit for
the purpose of purchasing or carrying Margin Stock.
6.09 Title to Properties. The Company and each
Subsidiary have good record and marketable title in fee simple
to, or valid leasehold interests in, or other sufficient title
to all real property necessary or used in the ordinary conduct
of their respective businesses, except for such defects in
title as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. As
of the Closing Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted
Liens.
6.10 Taxes. The Company and its Subsidiaries have filed
all Federal tax returns and reports required to be filed, and
have paid all Federal taxes, assessments, fees and other
governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided
in accordance with GAAP. The Company and its Subsidiaries have
filed all material state and other material non-Federal tax
returns and reports required to be filed, and have paid all
material state and other material non-Federal taxes,
assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for
which adequate reserves have been provided in accordance with
GAAP, except where failure to do so would not reasonably be
expected to have a Material Adverse Effect. To the Company's
knowledge, there is no proposed tax assessment against the
Company or any Subsidiary that would, if made, reasonably be
expected to have a Material Adverse Effect.
6.11 Financial Condition.
The unaudited consolidated financial statements of
the Company and its Subsidiaries dated June 30, 1995, and the
related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal quarter
ended on that date: (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly
present the financial condition of the Company and its
Subsidiaries as of the date thereof and results of operations
for the period covered thereby (subject to ordinary, good faith
year-end adjustments); and (iii) except as specifically
disclosed in Schedule 6.11, show all material indebtedness and
other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof which are
required to be disclosed pursuant to GAAP, including
liabilities for taxes, material commitments and Contingent
Obligations. Since June 30, 1995, through the Closing Date,
there has been no Material Adverse Effect.
6.12 Environmental Matters. The Company conducts in the
ordinary course of business a review of the effect of existing
Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof
the Company has reasonably concluded that, except as
specifically disclosed in Schedule 6.12, such Environmental
Laws and Environmental Claims would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
6.13 Regulated Entities. None of the Company, any Person
controlling the Company, or any Subsidiary, is an "Investment
Company" within the meaning of the Investment Company Act of
1940. The Company is not subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor
any Subsidiary is a party to or bound by any Contractual
Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which would reasonably be
expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc.
The Company or its Subsidiaries own or are licensed or
otherwise have the right to use all of the material patents,
trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the
best knowledge of the Company, no slogan or other advertising
device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by
the Company or any Subsidiary infringes upon any rights held by
any other Person. Except as specifically disclosed in Schedule
6.05, no claim or litigation regarding any of the foregoing is
pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the
Company, proposed, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
6.16 Subsidiaries. As of the Closing Date, the Company
has no Subsidiaries other than those specifically disclosed in
part (a) of Schedule 6.16 hereto and has no material equity
investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 6.16.
6.17 Insurance. Except as specifically disclosed in
Schedule 6.17, the properties of the Company and its
Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Company
or such Subsidiary operates.
6.18 Full Disclosure. None of the representations or
warranties made by the Company or any Subsidiary in the Loan
Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained
in any exhibit, report, written statement or certificate
furnished by or on behalf of the Company or any Subsidiary in
connection with the Loan Documents (including the offering and
disclosure materials delivered by or on behalf of the Company
to the Banks prior to the Closing Date), taken as whole,
contains any untrue statement of a material fact known to the
Company or omits any material fact known to the Company
required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under
which they are made, not misleading as of the time when made or
delivered.
6.19 Solvency. At the Closing Date, the Company and its
Subsidiaries, taken as a whole, and the Company, individually,
and each of the Guarantors individually, is Solvent.
6.20 Bloomfield Acquisition. As of the Closing Date,
all shareholder approvals required for consummation of the
Bloomfield Acquisition have been obtained, all lien releases
and all third party approvals required for consummation of the
Bloomfield Acquisition have been obtained, and all necessary
material consents and approvals of and filings and registration
with, and all other material actions in respect of, all
Governmental Authorities required for consummation of the
Bloomfield Acquisition have been obtained, given, filed or
taken and are in full effect and all waiting periods relating
thereto have expired without, in any such case, any action
being taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the
consummation of the Bloomfield Acquisition pursuant to the
Purchase Agreement. The Purchase Agreement has not been
amended in any material respect, except as consented to by the
Banks, as of the Closing Date. Upon the making of the initial
Credit Extension hereunder, the Bloomfield Acquisition will
have been consummated in accordance with the Purchase
Agreement.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Majority Banks waive compliance in writing:
7.01 Financial Statements. The Company shall maintain
for itself and each Subsidiary, a system of accounting
established and administered in accordance with GAAP and
deliver to the Agent, with sufficient copies for each Bank:
(a) As soon as available, but not later than 90 days
after the end of each fiscal year a copy of the annual audited
consolidated financial statement of the Company as at the end
of such year and the related consolidated statements of income
or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the
figures for the previous fiscal year, and the Company's
financial statement shall be accompanied by the opinion of a
nationally recognized independent public accounting firm (the
"Independent Auditor"), which report shall state that such
consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years; and
(b) As soon as available, but not later than 45 days
after the close of each of the first three quarterly periods
each fiscal year, a copy of the unaudited consolidated balance
sheet of the Company as of the end of such quarter and the
related consolidated statements of income, shareholders' equity
and cash flows for the period commencing on the first day and
ending on the last day of such quarter, and certified by a
Responsible Officer as fairly presenting, in accordance with
GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of
operations of the Company.
7.02 Certificates; Other Information. The Company shall
furnish to the Agent, with sufficient copies for each Bank:
(a) As soon as available, but not later than 20 days
after the close of each month until Facility B Termination
Date, a Borrowing Base Report in the form of Exhibit "H"
hereto, certified by a Responsible Officer as fairly presenting
the Eligible Refinery Hydrocarbon Inventory and Eligible
Accounts Receivable as of the last day of the immediately
preceding month;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.01(a) and (b), a
Compliance Certificate executed by a Responsible Officer;
(c) promptly, copies of all financial statements and
reports that the Company sends to its shareholders, and,
promptly after the filing thereof, copies of all financial
statements and regular, periodical or special reports
(including Forms 10K, 10Q and 8K) that the Company or any
Subsidiary may make to, or file with, the SEC;
(d) promptly, copies of all annual Earnout Payment
reports delivered by San Xxxx to the Sellers and any written
objections thereto furnished by Sellers to San Xxxx under the
Purchase Agreement; and
(e) promptly, such additional information regarding
the business, financial or corporate affairs of the Company or
any Subsidiary as the Agent, at the request of any Bank, may
from time to time reasonably request.
7.03 Notices. The Company shall promptly notify the
Agent:
(a) of the occurrence of any Default or Event of
Default, and of the occurrence or existence of any event or
circumstance that would reasonably be expected to become a
Default or Event of Default;
(b) of any matter that has resulted or may
reasonably be expected to result in a Material Adverse Effect,
including (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary
and any Governmental Authority; or (iii) the commencement of,
or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary; including pursuant to
any applicable Environmental Laws;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than 10 days after such event), and deliver to the Agent
and each Bank a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Company or any
ERISA Affiliate with respect to such event: (i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of
any Pension Plan; (iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by the Company or any ERISA Affiliate; or (iv) the adoption of
any amendment to a Plan subject to Section 412 of the Code, if
such amendment results in a material increase in contributions
or Unfunded Pension Liability;
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its
consolidated Subsidiaries; and
(e) of the formation or acquisition of any Material
Subsidiary.
Each notice under this Section shall be accompanied
by a written statement by a Responsible Officer setting forth
details of the occurrence referred to therein, and stating what
action the Company or any affected Subsidiary proposes to take
with respect thereto and at what time. Each notice under
subsection 7.03(a) shall describe with particularity any and
all clauses or provisions of this Agreement or other Loan
Document that have been (or foreseeably will be) breached or
violated.
7.04 Preservation of Corporate Existence, Etc. The
Company and each Material Subsidiary shall:
(a) preserve and maintain in full force and effect
its corporate existence and good standing under the laws of its
state or jurisdiction of incorporation except where the failure
to do so would not reasonably be expected to have a Material
Adverse Effect;
(b) preserve and maintain in full force and effect
all governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal
conduct of its business except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect;
(c) use reasonable efforts, in the ordinary course
of business, to preserve its business organization and goodwill
except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material
Adverse Effect.
7.05 Maintenance of Property. The Company and each
Material Subsidiary shall maintain and preserve all its
property which is used or useful in its business in good
working order and condition, ordinary wear and tear excepted
and to use the standard of care typical in the industry in the
operation and maintenance of its facilities except where the
failure to do so would not reasonably be expected to have a
Material Adverse Effect.
7.06 Insurance. The Company and each Guarantor shall,
and shall cause each of their Subsidiaries to, maintain, with
financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar
circumstances by such other Persons except where the failure to
do so would not reasonably be expected to have a Material
Adverse Effect.
7.07 Payment of Obligations. The Company and each
Material Subsidiary shall pay and discharge as the same shall
become due and payable, all their respective obligations and
liabilities, including: (a) all tax liabilities, assessments
and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company, such Guarantor
or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all
indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or
agreement evidencing such Indebtedness; except where the
failure to do so would not reasonably be expected to have a
Material Adverse Effect.
7.08 Compliance with Laws. The Company and each
Guarantor shall, and shall cause each of their Subsidiaries to,
comply in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its
business (including the Federal Fair Labor Standards Act),
except (x) such as may be contested in good faith or as to
which a bona fide dispute may exist or (y) where the failure to
do so would not reasonably be expected to have a Material
Adverse Effect.
7.09 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan
in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law;
(b) cause each Plan which is qualified under Section 401(a) of
the Code to maintain such qualification; and (c) make all
required contributions to any Plan subject to Section 412 of
the Code.
7.10 Inspection of Property and Books and Records. The
Company and each Guarantor shall, and shall cause each of their
Subsidiaries to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial
transactions and matters involving the assets and business of
the Company and such Guarantor. The Company and each Guarantor
shall, and shall cause each of their Subsidiaries to, permit,
representatives and independent contractors of the Agent or any
Bank to visit and inspect any of their respective properties,
to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public
accountants, all at the expense of the Company and at such
reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to
the Company; provided, however, when an Event of Default exists
the Agent or any Bank may do any of the foregoing at the
expense of the Company at any time during normal business hours
and without advance notice.
7.11 Environmental Laws. The Company and each Guarantor
shall, and shall cause each of their Subsidiaries to, conduct
its operations and keep and maintain its property in compliance
with all Environmental Laws except where the failure to do so
would not reasonably be expected to have a Material Adverse
Effect.
7.12 New Subsidiary Guarantors. If, at any time after
the date of this Agreement, there exists any Subsidiary
incorporated under the laws of any state in the United States
of America with total assets with a book value of $2,000,000 or
more, then the Company shall cause each such Subsidiary to do
the following: (i) execute and deliver a Guaranty to the Agent
substantially in the form of Exhibit "D" hereto and (ii)
furnish the Agent with a written opinion of counsel for each
such Subsidiary Guarantor in substantially the form set forth
in Exhibit "G"; in each case with such revisions as may be
reasonably requested by the Agent or the Banks.
7.13 Use of Proceeds. The Company shall use the proceeds
of the Facility A Revolving Loan to (a) make a capital
contribution or loan to San Xxxx to be used to finance the
purchase of assets pursuant to the Bloomfield Acquisition, and
(b) to make capital contributions and loans to the Guarantors
for general corporate purposes, provided, however, that the
Facility A Revolving Loan shall not be used for working capital
expenditures unless all Banks consent. The Company shall use
the proceeds of the Facility B Revolving Loan to make capital
contributions and loans to the Guarantors for working capital
expenditures, and for issuance of standby letters of credit
pursuant to Article III hereof in the ordinary course of
business.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Majority Banks waive compliance in writing:
8.01 Limitation on Liens. Each of the Company and
each Guarantor agrees that it shall not, and shall not permit
any of their respective Subsidiaries to, directly or
indirectly, make, create, incur, assume or suffer to exist any
Lien upon or with respect to any part of its property, whether
now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on property of the Company or
any Subsidiary on the Closing Date and set forth in Schedule
8.01 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 7.07;
(d) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar Liens
arising in the ordinary course of business which are not
delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or
sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens on the property of the Company, the
Guarantor or any Subsidiary of such Person securing (i) the
non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii)
contingent obligations on surety and appeal bonds, and (iii)
other non-delinquent obligations of a like nature; in each
case, incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions, defects
or other exceptions to title and other similar encumbrances
incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries;
(h) Liens arising solely by virtue of any statutory
or common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository
institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions against access by the Company, (ii) the Company
(or applicable Subsidiary) maintains (subject to such right of
set off) dominium and control over such account(s), and (iii)
such deposit account is not intended by the Company, any
Guarantor or any Subsidiary to provide cash collateral to the
depository institution;
(i) Liens on any property acquired or held by the
Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such
property after the date hereof; provided that (i) any such Lien
attaches to such property concurrently with or within 20 days
after the acquisition thereof, (ii) such Lien attaches solely
to the property so acquired in such transaction, (iii) the
principal amount of the debt secured thereby does not exceed
100% of the cost of such property, and (iv) the principal
amount of the Indebtedness secured by any and all such purchase
money security interests, together with all other Indebtedness
securing Liens permitted under Subsection 8.01(j) below, shall
not exceed $5,000,000 in the aggregate at any time outstanding;
and
(j) Any Liens not otherwise described in Subsection
8.01(a) through (h) above, provided that the Indebtedness and
other obligations secured by such Liens, together with all
other Indebtedness securing Liens permitted under Subsection
8.01(i), shall not at any time exceed $5,000,000 in the
aggregate at any time outstanding.
8.02 Disposition of Assets. The Company and the
Guarantors shall not, and shall not permit any of their
respective Subsidiaries to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) (collectively,
"Dispositions") any property (including accounts and notes
receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:
(a) Dispositions of inventory, or used, worn-out or
surplus equipment, all in the ordinary course of business;
(b) The sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price of
similar replacement equipment, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such
replacement equipment;
(c) Dispositions of assets by the Company or any
Subsidiary to the Company or any Subsidiary;
(d) Dispositions permitted pursuant to Section 8.03;
(e) Dispositions of Exploration and Production
Assets by the Company or any Subsidiary, which are made for
fair market value; provided, that (i) at the time of any
disposition, no Event of Default shall exist or shall result
from such disposition, (ii) the aggregate sales price from such
disposition shall be paid principally in cash, and (iii) to the
extent net proceeds from such Dispositions exceed $2 million in
the aggregate in any fiscal year, such net proceeds must be
used either (x) by the Company or a Subsidiary within six (6)
months from the date of such Disposition to acquire assets used
in a Permitted Business or (y) by the Company to repay the
Loans or the Loan and the Prudential Notes pro rata in
proportion to the principal amount of the Loans and the
Prudential Notes then outstanding; and such prepayment of the
Loans shall result in a corresponding permanent reduction in
the Commitments first to reduce the Facility A Commitment and
the remainder, if any, to reduce the Facility B Commitment as
provided in Section 2.05 and Section 2.07(b); and
(f) Dispositions of assets (other than Dispositions
of Exploration and Production Assets, the net proceeds of which
were used for the purposes specified in Subsection
8.02(e)(iii)) not otherwise permitted hereunder which are made
for fair market value, provided, that (i) at the time of any
such Disposition, no Event of Default shall exist or shall
result from such Disposition, (ii) with respect to Dispositions
of such assets by the Company and its Subsidiaries in any
fiscal year, the aggregate book value of such assets shall not
exceed in any fiscal year the aggregate amount of $5,000,000.
8.03 Consolidations and Mergers. The Company and the
Material Subsidiaries shall not merge, consolidate with or
into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all
or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except:
(a) The Company may merge with any Person not
otherwise permitted under Subsection 8.03(b) below, provided
that there is no Change in Control as a result of the merger
and the surviving Person continues to meet all financial
covenants herein for the Company and agrees to be bound by the
terms of the Agreement and assumes in writing all Obligations;
(b) any Subsidiary may merge with the Company,
provided that the Company shall be the continuing or surviving
corporation, or with any one or more Subsidiaries, provided
that if any transaction shall be between a Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation; and
(c) any Subsidiary may sell all or substantially all
of its assets (upon voluntary liquidation or otherwise), to the
Company or a Wholly-Owned Subsidiary.
8.04 Loans and Investments. The Company and each of the
Guarantors agrees that it shall not purchase or acquire, or
permit any of their respective Subsidiaries to purchase or
acquire, or make any commitment therefor, any capital stock,
equity interest, or any obligations or other securities of, or
any interest in, any Person, or make or commit to make any
Acquisitions, or make or commit to make any advance, loan,
extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of the
Company, except for:
(a) investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease
of goods or services in the ordinary course of business;
(c) extensions of credit by the Company to any of
its Wholly-Owned Subsidiaries or by any of its Wholly-Owned
Subsidiaries to the Company or another of its Wholly-Owned
Subsidiaries;
(d) investments incurred in order to consummate
Acquisitions, provided that (i) such Acquisitions are
undertaken in accordance with all applicable Requirements of
Law; (ii) the prior, effective written consent or approval to
such Acquisition of the board of directors or equivalent
governing body of the acquiree is obtained; and (iii) no
Default or Event of Default shall have occurred either prior to
or subsequent to such Acquisition; and
(e) investments by the Company and its Subsidiaries
not otherwise permitted in Subsections 8.04(a) through (d),
which do not exceed $2.5 million in the aggregate at any time
outstanding.
8.05 Limitation on Subsidiary Indebtedness. Neither the
Guarantors nor any other Subsidiary of the Company or any
Guarantor shall create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this
Agreement;
(b) Indebtedness consisting of Contingent
Obligations permitted pursuant to Section 8.08; and
(c) Indebtedness existing on the Closing Date and
set forth in Schedule 8.05.
8.06 Transactions with Affiliates. The Company and each
of the Guarantors agrees that it shall not, and shall not
permit any of their respective Subsidiaries to, enter into any
transaction with or make any payment or transfer to any
Affiliate of the Company, except in the ordinary course of
business and upon fair and reasonable terms no less favorable
to the Company or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an
Affiliate of the Company or such Subsidiary.
8.07 Use of Proceeds.
(a) The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds
or any Letter of Credit, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to
acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act.
(b) The Company shall not, directly or indirectly,
use any portion of the Loan proceeds or any Letter of Credit
(i) knowingly to purchase Ineligible Securities from the
Arranger during any period in which the Arranger makes a market
in such Ineligible Securities, (ii) knowingly to purchase
during the underwriting or placement period Ineligible
Securities being underwritten or privately placed by the
Arranger, or (iii) to make payments of principal or interest on
Ineligible Securities underwritten or privately placed by the
Arranger and issued by or for the benefit of the Company or any
Affiliate of the Company. The Arranger is a registered
broker-dealer and permitted to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means
securities which may not be underwritten or dealt in by member
banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. ' 24, Seventh), as amended.
8.08 Contingent Obligations. Each of the Company and
each Guarantor agrees that it shall not, and shall not permit
any of their respective Subsidiaries to, create, incur, assume
or suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Swap Contracts entered into in the ordinary
course of business;
(c) guarantees by the Company or any Subsidiary
guaranteeing obligations (other than obligations for money
borrowed) of any Consolidated Subsidiary in the ordinary course
of business and guarantees by any Guarantor guaranteeing
obligations of the Company provided that such obligations are
permitted under this Agreement;
(d) obligations under the Earnout (as defined in the
Purchase Agreement) and the Company's obligations pursuant to
the Guarantee and Agreement executed by the Company pursuant to
the Purchase Agreement;
(e) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in
Schedule 8.08;
(f) obligations under bid bonds, performance bonds
and fidelity bonds issued for the account of the Company or its
Subsidiaries, obligations to indemnify or make whole any surety
and similar agreements incurred in the ordinary course of
business;
(g) this Agreement and the Guaranties.
8.09 Restricted Payments. Each of the Company and each
Guarantor agrees that it shall not, and shall not permit any of
their respective Subsidiaries to purchase, redeem or otherwise
acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or
hereafter outstanding (collectively "Restricted Payments");
provided that immediately prior to and after giving effect to
any of the following described payments, there exists no
Default or Event of Default, the Company and any Subsidiary
may:
(a) any Subsidiary may declare and make Restricted
Payments to the Company or any Wholly-Owned Subsidiary;
(b) purchase, redeem or otherwise acquire shares of
its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock; and
(c) purchase, redeem or otherwise acquire shares of
its capital stock or warrants, rights or options to acquire any
such shares for cash solely out of net income of the Company
and its Subsidiaries to the extent approved by resolution of
its Board of Director's passed on or before July 31, 1995.
8.10 Subsidiary Dividends. Each of the Company and each
Guarantor agrees that it will not, and it will not permit any
of their Subsidiaries to, be a party to or enter into any
agreement, instrument or other document which prohibits or
restricts in any way, or to otherwise, directly or indirectly,
create or cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary of
the Company to (i) pay dividends or make any other
distributions in respect of its capital stock or any other
equity interest or participation in any Subsidiary or pay or
repay any Indebtedness owed to the Company or any Subsidiary,
(ii) make loans or advances to the Company or (iii) transfer
any of its properties or assets to the Company or any
Subsidiary (subject to the rights of any holder of a Lien on
any such properties or assets which Lien is a Permitted Lien).
8.11 Senior Subordinated Notes. The Company shall not,
and shall not permit any Subsidiary to: (i) amend, modify or
change, or consent or agree to any amendment, modification or
change to, any of the terms of the NBD Bank Indenture, the NBD
Subordinated Notes or the Guarantees executed in connection
therewith, other than (A) any such amendment or modification
which would extend the maturity or reduce the amount of any
payment of principal thereof or which would reduce the rate or
extend the date of payment of interest thereon, (B) amendments
pursuant to Section 9.01(1) and (2) of the NBD Indenture and
(C) such other amendments and modifications acceptable to the
Majority Banks; or (ii) make any payments to the holders of the
Subordinated Notes or to any trustee acting under the
Indentures which is prohibited by the Indentures or (iii) make
any prepayment or redeem in whole or in part the Subordinated
Notes.
8.12 Minimum Consolidated Net Worth. From and after the
Closing Date, the Company will maintain at all times
Consolidated Net Worth in an amount not less than the sum of
(i) $95,000,000, plus (ii) 50% of Consolidated Net Income
computed on a cumulative basis for the period beginning June
30, 1995 and ending on the date of determination (provided that
no negative adjustment will be made in the event that
Consolidated Net Income is a deficit figure for such period),
plus (iii) 100% of the aggregate amount of the net assets (cash
or otherwise) received by the Company from the issuance of any
class of capital stock after June 30, 1995, less (iv) any
allowance for non-cash write-downs, provided that such
allowance on a cumulative basis shall not exceed $10,000,000.
8.13 Fixed Charge Coverage Ratio. The Company shall not
permit (as of the end of any fiscal quarter) the ratio of (i)
Consolidated EBITDA less Non-Discretionary Capital Expenditures
to (ii) Consolidated Interest Expense for any period of four
consecutive fiscal quarters to be less than 2.5 to 1.0.
8.14 Capitalization Ratio. From and after the Closing
Date the Company shall not permit the Capitalization Ratio to
be greater than 65% through June 30, 1997, and thereafter no
greater than 62.5%.
8.15 ERISA. The Company shall not, and shall not suffer
or permit any of its ERISA Affiliates to: (a) engage in a
prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has
resulted or could reasonably expected to result in liability of
the Company in an aggregate amount which could have a Material
Adverse Effect; or (b) engage in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
8.16 Change in Business. The Company shall not, and
shall not permit any Subsidiary to, engage in any business or
activity other than the Principal Business.
8.17 Accounting Changes. The Company shall not, and
shall not suffer or permit any Subsidiary to, make any
significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal
year of the Company or of any Subsidiary.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when
and as required to be paid herein, any amount of principal of
any Loan, or (ii) within two (2) Business Days after the same
becomes due, any L/C Obligation or any interest, fee or other
amount payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation
or warranty by the Company or any Subsidiary made or deemed
made herein, in any other Loan Document, or which is contained
in any certificate, document or financial or other statement by
the Company, any Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any
other Loan Document, is incorrect in any material respect on or
as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
Section 7.03(a) or in Article VIII except for such Liens under
Section 8.01 other than arising by consensual action of the
Company or any of its Subsidiaries; or
(d) Other Defaults. The Company or any Subsidiary
fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and
such default shall continue unremedied for a period of 30 days
after the earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such default or
(ii) the date upon which written notice thereof is given to the
Company by the Agent or any Bank; or
(e) Cross-Default. The Company or any Subsidiary
(i) fails to make any payment in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount
(including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $3,000,000 when due (whether
by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (ii) fails to
perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement
or instrument relating to any such Indebtedness or Contingent
Obligation, if the effect of such failure, event or condition
is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its
stated maturity, or such Contingent Obligation to become
payable or cash collateral in respect thereof to be demanded;
or (iii) any Indebtedness or Contingent Obligations of the
Company or any Subsidiary in excess of $3,000,000 shall be
declared due and payable prior to its stated maturity or cash
collateral is demanded in respect of such Contingent
Obligations; or
(f) Insolvency; Voluntary Proceedings. The Company
or any Subsidiary (i) generally fails to pay, or admits in
writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) commences any Insolvency Proceeding
with respect to itself; or (iii) takes any action to effectuate
or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company
or any Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied
against all or a substantial part of the Company's or any
Subsidiary's properties, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement,
filing or levy; (ii) the Company or any Subsidiary admits the
material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii)
the Company or any Subsidiary acquiesces in the appointment of
a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar
Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with
respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability
of the Company or a Subsidiary under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of $3,000,000 and such amount is not paid when
due; or (ii) the aggregate amount of Unfunded Pension Liability
among all Pension Plans is in an aggregate amount which would
reasonably be expected to cause a Material Adverse Effect; or
(i) Monetary Judgments. One or more
non-interlocutory judgments, non-interlocutory orders, decrees
or arbitration awards is entered against the Company or any
Subsidiary involving in the aggregate a liability (to the
extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage) as to any single
or related series of transactions, incidents or conditions, of
$3,000,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof; or
(j) Change of Control. There occurs any Change of
Control; or
(k) Loss of Permit. Any Governmental Authority
revokes or fails to renew any material license, permit or
franchise of the Company or any Material Subsidiary, or the
Company or any Material Subsidiary for any reason loses any
material license, permit or franchise, or the Company or any
Material Subsidiary suffers the imposition of any restraining
order, escrow, suspension or impound of funds in connection
with any proceeding (judicial or administrative) with respect
to any material license, permit or franchise; or
(l) Adverse Change. There occurs a Material Adverse
Effect; or
(m) Guaranty Default. A Guaranty is for any reason
partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise ceases to be in full force
and effect, or such Guarantor or any other Person contests in
any manner the validity or enforceability thereof or denies
that it has any further liability or obligation thereunder; or
any event described at subsections (f) or (g) of this Section
occurs with respect to such Guarantor; or
(n) Invalidity of Subordination Provisions. The
subordination provisions of the Indenture or Subordinated Notes
or any agreement or instrument governing the Senior
Subordinated Debt is for any reason revoked or invalidated, or
otherwise cease to be in full force and effect, NBD Bank,
National Association, as Trustee any successor trustee thereto
or any other Person contests in any manner the validity or
enforceability thereof or denies that it has any further
liability or obligation thereunder, or the Indebtedness
hereunder is for any reason subordinated or does not have the
priority contemplated by this Agreement or the Indenture or
such subordination provisions; or
(o) Prepayment of Subordinated Notes. If the
Company or any Subsidiary is required for any reason to prepay,
redeem or purchase in whole or in part any of the Subordinated
Notes during the term of this Agreement.
9.02 Remedies. If any Event of Default occurs and is
continuing, the Agent shall, at the request of, or may, with
the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make
Loans and any obligation of the Issuing Bank to Issue Letters
of Credit to be terminated, whereupon such Commitments shall be
terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available
for drawing under any outstanding Letters of Credit (whether or
not any beneficiary shall have presented, or shall be entitled
at such time to present, the drafts or other documents required
to draw under such Letters of Credit) to be immediately due and
payable, and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest, notice of intention to
accelerate, notice of acceleration or any other notice of any
kind, all of which are hereby expressly waived by the Company;
(c) require cash collateral as set forth in Section
3.09; and
(d) exercise on behalf of itself and the Banks all
rights and remedies available to it and the Banks under the
Loan Documents or applicable law;
provided, however, that upon the occurrence of any event
specified in subsection (f) or (g) of Section 8.01 (in the case
of clause (i) of subsection (g) upon the expiration of the
60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of the Issuing Bank to Issue
Letters of Credit shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and
payable and (y) cash collateral as set forth in Section 3.09
shall automatically be due and payable, in each case without
further act of the Agent, the Issuing Bank or any Bank and
without presentment, demand, protest, notice of intention to
accelerate, notice of acceleration or any other notice of any
kind, all of which are hereby expressly waived by the Company.
9.03 Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative and
are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
ARTICLE X
THE AGENT
10.01 Appointment and Authorization.
(a) Each Bank hereby irrevocably (subject to Section
10.09) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the
Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Agent have or
be deemed to have any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against the Agent.
(b) The Issuing Bank shall act on behalf of the
Banks 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 Agent may agree at the request of the
Majority Banks to act for such Issuing Bank with respect
thereto; provided, however, that the Issuing Bank shall have
all of the benefits and immunities (i) provided to the Agent in
this Article X 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 "Agent", as used
in this Article X, 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.
10.02 Delegation of Duties. The Agent may execute any of
its duties under this Agreement or any other Loan Document by
or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining
to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that
it selects with reasonable care.
10.03 Liability of Agent. None of the Agent-Related
Persons shall (i) be liable for any action taken or omitted to
be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to
any of the Banks for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of
the Company, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this
Agreement or any other Loan Document, or the validity,
effectiveness (other than such Agent-Related Person's own due
execution and delivery), genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or
for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any
of the Company's Subsidiaries or Affiliates.
10.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so requests,
it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent
of the Majority Banks and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of
the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 5.01, each Bank that has made
available to the Agent its Pro Rata Share of the initial Credit
Extension or subsequent Credit Extension, as the case may be,
shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter either sent
by the Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to the Bank as a
condition precedent to such initial Credit Extension or
subsequent Credit Extension, as applicable.
10.05 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or
Event of Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to
the Agent for the account of the Banks, unless the Agent shall
have received written notice from a Bank or the Company
referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a "notice of
default". The Agent will notify the Banks of its receipt of
any such notice. Subject to Subsection 10.04(a), the Agent
shall take such action with respect to such Default or Event of
Default as may be requested by the Majority Banks in accordance
with Article IX; provided, however, that unless and until the
Agent has received any such request, the Agent may (but shall
not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default
as it shall deem advisable or in the best interest of the
Banks.
10.06 Credit Decision. Each Bank acknowledges that none
of the Agent-Related Persons has made any representation or
warranty to it, and that no act by any Agent-Related Person
hereafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any
Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to
the Company hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related
Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information
concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the
Company which may come into the possession of any of the
Agent-Related Persons.
10.07 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify
upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting
the obligation of the Company to do so), pro rata, each
Agent-Related Person from and against any and all Indemnified
Liabilities INCLUDING SUCH INDEMNIFIED LIABILITIES AS MAY ARISE
OR BE CAUSED BY THE NEGLIGENCE, SOLE, JOINT, CONCURRENT,
COMPARATIVE OR OTHERWISE OF SUCH AGENT-RELATED PERSONS;
provided, however, that no Bank shall be liable for the payment
to the Agent-Related Persons of any portion of such Indemnified
Liabilities to the extent the same arise from such Person's
gross negligence or willful misconduct. Without limitation of
the foregoing, each Bank shall reimburse the Agent upon demand
for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection
with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the
Agent is not reimbursed for such expenses by or on behalf of
the Company. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or
replacement of the Agent.
10.08 Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Company and
its Subsidiaries and Affiliates as though BofA were not the
Agent or the Issuing Bank hereunder and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to
such activities, BofA or its Affiliates may receive information
regarding the Company or its Affiliates (including information
that may be subject to confidentiality obligations in favor of
the Company or such Subsidiary) and acknowledge that the
Agent-Related Persons shall be under no obligation to provide
such information to them. With respect to its Loans, BofA
shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not
the Agent.
10.09 Successor Agent. The Agent may, and at the request
of the Majority Banks shall, resign as Agent upon 30 days'
notice to the Banks. If the Agent resigns under this
Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks. If no successor agent
is appointed prior to the effective date of the resignation of
the Agent, the Agent may appoint, after consulting with the
Banks, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall
mean such successor agent and the retiring Agent's appointment,
powers and duties as Agent shall be terminated. After any
retiring Agent's resignation hereunder as Agent, the provisions
of this Article X and Sections 11.04 and 11.05 shall inure to
its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement. If no successor
agent has accepted appointment as Agent by the date which is 30
days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties
of the Agent hereunder until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, for so long as Bank of
America Illinois or BofA (referred to interchangeably as "Bank
of America" in this sentence) is the Issuing Bank, then Bank of
America may not be removed as the Agent at the request of the
Majority Banks unless Bank of America shall also simultaneously
be replaced as "Issuing Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to
Bank of America.
10.10 Withholding Tax.
(a) If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such
Bank claims exemption from, or a reduction of, U.S. withholding
tax under Sections 1441 or 1442 of the Code, such Bank agrees
with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or
a reduction of, withholding tax under a United States tax
treaty, properly completed IRS Forms 1001 and W-8 before the
payment of any interest in the first calendar year and before
the payment of any interest in each third succeeding calendar
year during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid
under this Agreement is exempt from United States withholding
tax because it is effectively connected with a United States
trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 before the payment of any
interest is due in the first taxable year of such Bank and in
each succeeding taxable year of such Bank during which interest
may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be
required under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Bank claims exemption from, or reduction
of, withholding tax under a United States tax treaty by
providing IRS Form 1001 and such Bank sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Bank, such Bank agrees to
notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to
such Bank. To the extent of such percentage amount, the Agent
will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United
States withholding tax by filing IRS Form 4224 with the Agent
sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such
Bank, such Bank agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any
interest payment to such Bank an amount equivalent to the
applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent,
then the Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority
of the United States or other jurisdiction asserts a claim that
the Agent did not properly withhold tax from amounts paid to or
for the account of any Bank (because the appropriate form was
not delivered, was not properly executed, or because such Bank
failed to notify the Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Bank shall indemnify
the Agent fully for all amounts paid, directly or indirectly,
by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney
Costs). The obligation of the Banks under this subsection
shall survive the payment of all Obligations and the
resignation or replacement of the Agent.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement or any other Loan Document, and
no consent with respect to any departure by the Company or any
applicable Subsidiary therefrom, shall be effective unless the
same shall be in writing and signed by the Majority Banks (or
by the Agent at the written request of the Majority Banks) and
the Company and acknowledged by the Agent, and then any such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks and the
Company and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank
(or reinstate any Commitment terminated pursuant to Section
9.02;
(b) postpone or delay any date fixed by this
Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Banks (or
any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (iii)
below) any fees or other amounts payable hereunder or under any
other Loan Document;
(d) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans which is
required for the Banks or any of them to take any action
hereunder; or
(e) amend this Section, or Section 2.13 or any
provision herein providing for consent or other action by all
Banks;
and, provided further, that (i) no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Bank in
addition to the Majority Banks or all the Banks, as the case
may be, affect the rights or duties of the Issuing Bank under
this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no
amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Majority Banks or all
the Banks, as the case may be, affect the rights or duties of
the Agent under this Agreement or any other Loan Document, and
(iii) the Fee Letters may be amended, or rights or privileges
thereunder waived, only in a writing executed by the parties
thereto.
11.02 Notices.
(a) All notices, requests and other communications
shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that
any matter transmitted by the Company by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at
the number specified on Schedule 11.02, and (ii) shall be
followed promptly by delivery of a hard copy original thereof)
and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 11.02; or, as directed
to the Company or the Agent, to such other address as shall be
designated by such party in a written notice to the other
parties, and as directed to any other party, at such other
address as shall be designated by such party in a written
notice to the Company and the Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively,
or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery;
except that notices pursuant to Article II, III or X shall not
be effective until actually received by the Agent, and notices
pursuant to Article III to the Issuing Bank shall not be
effective until actually received by the Issuing Bank at the
address specified for the "Issuing Bank" on the applicable
signature page hereof.
(c) Any agreement of the Agent and the Banks herein
to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Company. The
Agent and the Banks shall be entitled to rely on the authority
of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall
not have any liability to the Company or other Person on
account of any action taken or not taken by the Agent or the
Banks in reliance upon such telephonic or facsimile notice.
The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent
by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the
receipt by the Agent and the Banks of a confirmation which is
at variance with the terms understood by the Agent and the
Banks to be contained in the telephonic or facsimile notice.
11.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent
or any Bank, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated
hereby are consummated, pay or reimburse the Agent, and the
Issuing Bank within five Business Days after demand (subject to
subsection 5.01(g)) for all reasonable costs and expenses
incurred by the Agent and the Issuing Bank in connection with
the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated),
this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and
thereby, including Attorney Costs incurred by the Agent and the
Issuing Bank with respect thereto; and
(b) pay or reimburse the Agent, the Arranger and
each Bank within five Business Days after demand (subject to
subsection 5.01(g)) for all costs and expenses (including
Attorney Costs) incurred by each of them in connection with the
enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan
Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including
in any Insolvency Proceeding or appellate proceeding).
11.05 Indemnity. Whether or not the transactions
contemplated hereby are consummated, the Company shall
indemnify and hold the Agent-Related Persons, and each Bank and
each of their respective officers, directors, employees,
counsel, agents and attorneys-in-fact (each, an "Indemnified
Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses and disbursements (including
Attorney Costs) of any kind or nature whatsoever which may at
any time (including at any time following repayment of the
Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Agent or
replacement of any Bank) be imposed on, incurred by or
asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in
connection with any of the foregoing, including with respect to
any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or Letters of Credit
or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities") WHETHER OR NOT
SUCH INDEMNIFIED LIABILITIES ARISE OUT OF OR AS A RESULT OF ANY
INDEMNIFIED PARTIES NEGLIGENCE IN WHOLE OR IN PART, INCLUDING,
WITHOUT LIMITATION, THOSE CLAIMS WHICH RESULT FROM THE SOLE,
JOINT, CONCURRENT OR COMPARATIVE NEGLIGENCE OF THE INDEMNIFIED
PARTY, OR ANY ONE OR MORE OF THEM; provided, that the Company
shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities to the extent same
arise from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
11.06 Payments Set Aside. To the extent that the Company
makes a payment to the Agent or the Banks, or the Agent or the
Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered
into by the Agent or such Bank in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with
any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such
set-off had not occurred, and (b) each Bank severally agrees to
pay to the Agent upon demand its pro rata share of any amount
so recovered from or repaid by the Agent.
11.07 Successors and Assigns. Except for all provisions
in Section 11.08, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written
consent of the Agent and each Bank.
11.08 Assignments, Participations, etc.
(a) Any Bank (including the Issuing Bank) may, with
the prior written consent of the Company (at all times other
than during the existence of an Event of Default) which consent
of the Company shall not be unreasonably withheld and written
consent of the Agent, at any time assign and delegate to one or
more Eligible Assignees (provided that no written consent of
the Company or the Agent shall be required in connection with
any assignment and delegation by the Bank to an Eligible
Assignee that is an Affiliate of such Bank) (each an
"Assignee") all, or any ratable part of all, of the Loans, the
Commitments, the L/C Obligations and the other rights and
obligations of such Bank hereunder, in a minimum amount of
$5,000,000; provided, however, that the Company and the Agent
may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until
(i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to
the Assignee, shall have been given to the Company and the
Agent by such Bank and the Assignee; (ii) such Bank and its
Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance in the form of Exhibit "E"
("Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (iii) the assignor Bank or
Assignee has paid to the Agent a processing fee in the amount
of $3,500.00.
(b) From and after the date that the Agent notifies
the assignor Bank that it has received an executed Assignment
and Acceptance and payment of the above-referenced processing
fee, (i) the Assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under the other Loan
Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents.
(c) Within five Business Days after its receipt of
notice by the Agent that it has received an executed Assignment
and Acceptance and payment of the processing fee, (and provided
that it consents to such assignment in accordance with
Subsection 11.08(a)) the Company shall execute and deliver to
the Agent, new Notes evidencing such Assignee's assigned Loans
and Commitment and, if the assignor Bank has retained a portion
of its Loans and its Commitment, replacement Notes in the
principal amount of the Loans retained by the assignor Bank
(such Notes to be in exchange for, but not in payment of, the
Notes held by such Bank). Immediately upon each Assignee's
making its processing fee payment under the Assignment and
Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Bank
pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loans, the
Commitment of that Bank and the other interests of that Bank
(the "originating Bank") hereunder and under the other Loan
Documents; provided, however, that (i) the originating Bank's
obligations under this Agreement shall remain unchanged, the
originating Bank shall remain a Bank for all purposes hereof
and the other Loan Documents to which such originating Bank is
a party, and the Participant may not become a Bank for purposes
hereof or for any other of the Loan Documents, (ii) the
originating Bank shall remain solely responsible for the
performance of such obligations, (iii) the Company, the Issuing
Bank and the Agent shall continue to deal solely and directly
with the originating Bank in connection with the originating
Bank's rights and obligations under this Agreement and the
other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has
rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document,
except to the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in the
first proviso to Section 11.01. In the case of any such
participation, the Participant shall not have any rights under
this Agreement, or any of the other Loan Documents (the
Participant's rights against the granting Bank in respect of
such participation being those set forth in the agreement
creating or evidencing such participation with such Bank), and
all amounts payable by the Company hereunder shall be
determined as if such Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as a
Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential"
or "secret" by the Company and provided to it by the Company
or any of its Subsidiaries, or by the Agent on such Company's
or Subsidiary's behalf, under or in connection with this
Agreement or any other Loan Document, and neither it nor any of
its Affiliates shall use any such information other than in
connection with or in enforcement of this Agreement and the
other Loan Documents; except to the extent such information (i)
was or becomes generally available to the public other than as
a result of disclosure by the Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than
the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank;
provided, however, that any Bank may disclose such information
(A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such
authority; (B) pursuant to subpoena or other court process; (C)
when required to do so in accordance with the provisions of any
applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to
which the Agent, any Bank or their respective Affiliates may be
party; (E) to the extent reasonably required in connection with
the exercise of any remedy hereunder or under any other Loan
Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Affiliate of such Bank, or to
any Participant or Assignee, actual or potential, provided that
such Affiliate, Participant or Assignee agrees to keep such
information confidential to the same extent required of the
Banks hereunder, and (H) as to any Bank, as expressly permitted
under the terms of any other document or agreement regarding
confidentiality to which the Company is party or is deemed
party with such Bank.
(f) Notwithstanding any other provision in this
Agreement, any Bank may at any time create a security interest
in, or pledge, all or any portion of its rights under and
interest in this Agreement and the Notes held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR '203.14, and such
Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
11.09 Set-off. In addition to any rights and remedies of
the Banks provided by law, if an Event of Default exists or the
Loans have been accelerated, each Bank is authorized at any
time and from time to time, without prior notice to the
Company, any such notice being waived by the Company to the
fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any
time owing by, such Bank to or for the credit or the account of
the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the
Agent or such Bank shall have made demand under this Agreement
or any Loan Document and although such Obligations may be
contingent or unmatured. Each Bank agrees promptly to notify
the Company and the Agent after any such set-off and
application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of
such set-off and application.
11.10 Interest. (a) It is the intention of the parties
hereto to comply with applicable usury laws; accordingly,
notwithstanding any provision to the contrary in this
Agreement, the Notes or in any of the other Loan Documents
securing the payment hereof or otherwise relating hereto, in no
event shall this Agreement, the Notes or such other Loan
Documents require the payment or permit the payment, taking,
reserving, receiving, collection, or charging of any sums
constituting interest under applicable laws, if any, which
exceed the maximum amount permitted by such laws. If any such
excess interest is called for, contracted for, charged, taken,
reserved, or received in connection with the Loans evidenced by
the Notes or in any of the Loan Documents securing the payment
thereof or otherwise relating thereto, or in any communication
by the Agents or the Banks or any other person to any Borrower
or any other person, or in the event all or part of the
principal or interest thereof shall be prepaid or accelerated,
so that under any of such circumstances or under any other
circumstance whatsoever the amount of interest contracted for,
charged, taken, reserved, or received on the amount of
principal actually outstanding from time to time under the
Notes shall exceed the maximum amount of interest permitted by
applicable usury laws, then in any such event it is agreed as
follows: (i) the provisions of this paragraph shall govern and
control, (ii) neither any Borrower nor any other person or
entity now or hereafter liable for the payment of the Notes
shall be obligated to pay the amount of such interest to the
extent such interest is in excess of the maximum amount of
interest permitted by applicable usury laws, (iii) any such
excess which is or has been received notwithstanding this
paragraph shall be credited against the then unpaid principal
balance of the Notes or, if the Notes have been or would be
paid in full, refunded to the applicable Borrower, and (iv) the
provisions of this Agreement, the Notes and the other Loan
Documents securing the payment hereof and otherwise relating
hereto, and any communication to any Borrower, shall
immediately be deemed reformed and such excess interest
reduced, without the necessity of executing any other document,
to the maximum lawful rate allowed under applicable laws as now
or hereafter construed by courts having jurisdiction hereof or
thereof. Without limiting the foregoing, all calculations of
the rate of the interest contracted for, charged, taken,
reserved, or received in connection with the Notes or this
Agreement which are made for the purpose of determining whether
such rate exceeds the maximum lawful rate shall be made to the
extent permitted by applicable laws by amortizing, prorating,
allocating and spreading during the period of the full term of
the Loans, including all prior and subsequent renewals and
extensions, all interest at any time contracted for, charged,
taken, reserved, or received. The terms of this paragraph
shall be deemed to be incorporated in every document and
communication relating to the Notes, the Loans or any other
Loan Document.
(b) Tex. Rev. Civ. Stat. Xxx art. 0000 Xx. 15 (which
regulates certain revolving loan accounts and revolving
tri-party accounts) shall not apply to any Loans.
(c) To the extent that the interest rate laws of the
State of Texas are applicable to the Loans, the applicable
interest rate ceiling is the indicated (weekly) ceiling
determined in accordance with Article 5069-1.04(a)(1) of the
Texas Revised Civil Statutes, as amended.
11.11 Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Guarantors may have
under applicable law, the Company agrees that in the event a
payment shall be made by any Guarantor under a Guaranty in
respect of a Loan to the Company, the Company shall indemnify
such Guarantor for the full amount of such payment and such
Guarantor shall be subrogated to the rights of the person to
whom such payment shall have been made to the extent of such
payment subject to the provisions of the Guaranty executed by
such Guarantor. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under
this Section 11.11 and all other rights of indemnity,
contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full
of the Obligations, and no payments may be made in respect of
such rights of indemnity, contribution or subrogation until all
the Obligations have been paid in full, all Commitments have
expired and all Letters of Credit have expired. No failure on
the part of a Borrower to make the payments required by this
Section (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and
liabilities of any Guarantor with respect to any Guaranty, and
each Guarantor shall remain liable for the full amount of the
obligation of such Guarantor under each such Guaranty in
accordance therewith.
11.12 Automatic Debits of Fees. With respect to any
commitment fee, arrangement fee, letter of credit fee or other
fee, or any other cost or expense (including Attorney Costs)
due and payable to the Agent, the Issuing Bank, BofA or the
Arranger under the Loan Documents, the Company hereby
irrevocably authorizes BofA, after giving reasonable prior
notice to the Company, to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed such fee
or other cost or expense. If there are insufficient funds in
such deposit accounts to cover the amount of the fee or other
cost or expense then due, such debits will be reversed (in
whole or in part, in BofA's sole discretion) and such amount
not debited shall be deemed to be unpaid. No such debit under
this Section shall be deemed a set-off.
11.13 Notification of Addresses, Lending Offices, Etc.
Each Bank shall notify the Agent in writing of any changes in
the address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably
request.
11.14 Counterparts. This Agreement may be executed in
any number of separate counterparts, each of which, when so
executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but
one and the same instrument.
11.15 Severability. The illegality or unenforceability
of any provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement
required hereunder.
11.16 No Third Parties Benefitted. This Agreement is
made and entered into for the sole protection and legal benefit
of the Company, the Banks, the Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan
Documents.
11.17 Governing Law.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
TEXAS AND APPLICABLE FEDERAL LAW; AND THE AGENT AND THE BANKS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) THE COMPANY IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SCHEDULE 11.02.
SUCH SERVICE TO BECOME EFFECTIVE TEN DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY BANK
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
11.18 Waiver of Jury Trial. THE COMPANY, THE BANKS AND
THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.19 Entire Agreement. This Agreement, together with
the other Loan Documents, embodies the entire agreement and
understanding among the Company, the Banks and the Agent, and
supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
THIS WRITTEN LOAN AGREEMENT, TOGETHER WITH THE OTHER
WRITTEN LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Houston, Texas
by their proper and duly authorized officers as of the day and
year first above written.
GIANT INDUSTRIES, INC., as Borrower
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
GIANT INDUSTRIES ARIZONA, INC., as Guarantor
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
GIANT EXPLORATION & PRODUCTION COMPANY, as
Guarantor
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
GIANT FOUR CORNERS, INC., as Guarantor
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
SAN XXXX REFINING COMPANY, as Guarantor
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
CINIZA PRODUCTION COMPANY, as Guarantor
By: /s/ A. XXXXX XXXXXXXXX
-----------------------------------------
Name: A. Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By: /s/ XXXXX X. XXX
-----------------------------------------
Name: Xxxxx X. Xxx
---------------------------------------
Title: Vice President
--------------------------------------
BANK OF AMERICA ILLINOIS, as a
Bank and as Issuing Bank
By: /s/ C. XXXXX XXXXXXXX
_________________________________________
C. Xxxxx XxXxxxxx
Vice President
SCHEDULE 1.01
PREFERRED ACCOUNT OBLIGORS
Amoco Corporation
BP Oil Company
Chevron USA Inc.
Conoco Inc.
Exxon Company USA
Xxxx Industries Inc.
Mobil Oil Corporation
Shell Oil Company
Texaco Trading & Transportation Inc.
Texaco USA Inc.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
------------------------ --------------------------------
Bank of America Illinois Facility A: $30,000,000 100%
Facility B: $40,000,000 100%
TOTAL $70,000,000 100%
SCHEDULE 2.02
Pricing Chart
(Expressed in basis points per annum)
Pricing Level Level I Level II Level III
------------- ------- -------- ---------
Offshore Rate Margin 75.0 112.5 137.5
Base Rate Margin 0 0 0
Letter of Credit Fee 62.5 100.0 125.0
Commitment Fee 27.5 32.5 42.5
Level I shall apply if the Company's Index Debt Rating is BBB-
or better by S & P or Baa3 or better by Xxxxx'x. Level II
shall apply if the Company's Index Debt Rating is BB- or better
(but less than BBB-) by S & P or Ba3 or better (but less than
Baa3) by Xxxxx'x. Level III shall apply if the Company's Index
Debt Rating is lower than BB- by S & P and lower than Ba3 by
Xxxxx'x. Each adjustment of the Applicable Margin, the Letter
of Credit Fees and Commitment Fee shall be made by the Agent
and shall be effective as of the date the changed rating is
effective (the "Adjustment Date"). The Agent shall not be
deemed to have notice of any change in the Index Debt Rating
unless it receives notice from the Company or a Bank of such
rating. Such adjusted rate shall be effective as of the
Adjustment Date, except that with respect to all Loans made
prior to the Adjustment Date, the adjusted Applicable Margin
shall apply as of the first day of the Interest Period next
following the Adjustment Date.
SCHEDULE 3.03
EXISTING BANK OF AMERICA
LETTERS OF CREDIT
Letters of Credit Issued by Bank of America National Trust and
Savings Association
Outstanding
L/C No. Amount
------- -----------
1. 0221968 $ 216,900.00
2. 0221969 6,000.00
3. 0221970 48,500.00
4. 0221971 250,000.00
5. 0221973 140,000.00
6. 0222419 28,000.00
7. 0222564 400,000.00
8. LASB #225605 85,000.00
-------------
Total: $1,174,400.00
=============
Letter of Credit Issued by Bank of America Illinois.
Outstanding
L/C No. Amount
------- -----------
1. C7262813 $15,300,000.00
SCHEDULE 6.05
This Schedule 6.05 hereby incorporates by reference all
actions, suits, proceedings, claims or disputes pending,
threatened or contemplated against the Company, or any
subsidiary, or any of their respective properties,
contained in any Forms 10-K for the year ended December
31, 1994 or Forms 10-Q for the quarters ended March 30,
1995 and June 30, 1995 filed by the Company with the
Securities and Exchange Commission.
SCHEDULE 6.07
ERISA COMPLIANCE AS OF SEPTEMBER 30, 1995
Exceptions - None
SCHEDULE 6.11
MATERIAL INDEBTEDNESS AND OTHER LIABILITIES
DIRECT OR CONTINGENT
NOT SPECIFICALLY DISCLOSED IN ANNUAL 10K
None
SCHEDULE 6.12
1. Environmental matters identified in Giant's
Form 10-K for the year ended December 31, 1994 and Form
10-Q for the quarters ended March 30, 1995 and June 30,
1995 filings with the United States Securities and
Exchange Commission.
2. As has been disclosed to the
Bank, contamination is present in the soil and
groundwater
at the Bloomfield Refinery (as used herein, the term
"Bloomfield Refinery" includes property related to
refinery operations that is owned by Bloomfield Refining
Company ("BRC") and/or by Xxxx-Xxxxxxxx Energy
Corporation ("GWEC")). Contamination originating at the
refinery goes past the boundaries of the refinery.
Bloomfield Refining Company ("BRC") is in the process of
requesting approval from the United States Environmental
Protection Agency ("EPA") to implement a corrective
measures program to address certain refinery
contamination in accordance with a 1992 agreement
between
EPA and BRC. Giant (as used herein, the term "Giant"
means Giant Industries, Inc. and any company affiliated
with Giant, both individually and collectively) will
assume part or all of BRC's obligations under this
agreement. Additionally, private parties, EPA, and
other
governmental entities may assert claims against Giant
after the purchase of the refinery for property damage,
personal injury, and other damages allegedly arising out
of contamination that originated at the refinery.
3. BRC and GWEC have identified environmental
matters relating to assets to be purchased by Giant in a
writing, dated August 8, 1995, captioned "Environmental
Disclosure." This document was provided to Giant in
connection with the Purchase and Sale Agreement between
BRC, GWEC and Giant.
SCHEDULE 6.16(a)
GIANT INDUSTRIES, INC.
& AFFILIATES CORPORATE STRUCTURE
Giant Industries, Inc.
(a Delaware corporation)
Giant Exploration & Production Company
(formerly Xxxxx Development Company)
(a Texas corporation)
Giant Industries Arizona, Inc.
(formerly Giant Industries, Inc.)
(an Arizona corporation)
Ciniza Production Company
(a New Mexico corporation)
Giant Stop-N-Go of New Mexico, Inc.
(a New Mexico corporation)
Giant Four Corners, Inc.
(an Arizona corporation)
Giant Mid-Continent, Inc.
(an Arizona corporation)
San Xxxx Refining Company
(a New Mexico corporation)
SCHEDULE 6.16(b)
The Company and its Subsidiaries invest in several
minor oil and gas partnerships, drilling ventures and
similar arrangements in the ordinary course of business.
SCHEDULE 6.17
UNINSURED PROPERTIES OF THE COMPANY
AND ITS SUBSIDIARIES
None
SCHEDULE 8.01
LIENS REMAINING AS OF
SEPTEMBER 30, 1995
Metlife Capital Corporation - Seven Service Stations
Metlife Capital Corporation - Corporate Airplane
Prudential Insurance Company
of America and Pruco Life
Insurance Company - Covenant to secure note
equally
Miscellaneous Liens,
including capitalized leases
on trucks and trailers with
an aggregate value not
exceeding $1,500,000 - Various
SCHEDULE 8.05
SCHEDULE OF
EXISTING INDEBTEDNESS
AS OF SEPTEMBER 30, 1995
Prudential 8,750,000
Met Life 3,768,927
Sandia 1,945,053
X. Xxxxxxx 1,299,433
Miscellaneous 500,000 (estimate)
-----------
TOTAL $16,263,413
===========
SCHEDULE 8.08
This Schedule hereby incorporates by reference all
Contingent Obligations pending, threatened or
contemplated against the Company, or any subsidiary, or
any of their respective properties, contained in Forms
10-K for the year ended December 31, 1994 or Forms 10-Q
for the quarters ended March 30, 1995 and June 30, 1995
filed by the Company with the Securities and Exchange
Commission.
In addition to those items disclosed above, the
following is a list of certain Contingent Obligations.
Giant Industries, Inc., as Issuer, and all
Subsidiaries, as Guarantors, of the $100,000,000 9.75%
Senior Subordinated Notes Due 2003, Indenture dated as
of November 29, 1993.
Giant Industries Arizona, Inc. as Borrower, Giant
Industries, Inc. and Subsidiaries as Guarantors of the
$20,000,000, 10.91% Senior Notes Due March 31, 1999,
Note Agreement dated as of September 30, 1993, with The
Prudential Insurance Company of America and Pruco Life
Insurance Company.
Giant Industries Arizona, Inc. as Buyer and New
Bank of New England N.A., Den Norske Bank,
Kansallis-Osake-Pankki, and Portales Energy Company,
Inc. as sellers of the Portales Ethanol Facility pursuant to
the Purchase and Sale Agreement Dated May 7, 1991.
Within 90 days following the end of each twelve-month
period (an "Operating Year") commencing with the Closing
Date and ending with the Operating Year ending five
years from the Closing Date, the Sellers shall be entitled to
receive a payment ("Contingent Payment") equal to the
EBIT Percentage for such Operating Year, provided that
in no event shall the Contingent Payment exceed the sum of
$900,000 per Operating Year.
SCHEDULE 11.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
GIANT INDUSTRIES, INC.
Giant Industries, Inc.
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GUARANTORS
Giant Industries Arizona, Inc.
Giant Four Corners, Inc.
Ciniza Production Company
San Xxxx Refining Company
Giant Exploration & Production Company
c/o Giant Industries, Inc.
00000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Agent's Payment office:
Bank of America-San Francisco
F/O: Agency Mgmt. Svcs. 5596
ABA No.: 0000-0000-0
Acct. No.: 12334-14782
Ref: Giant Industries, Inc.
Bank of America National Trust
and Savings Association
Global Agency #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA ILLINOIS,
as a Bank
Address of Lending Offices:
Domestic and Eurodollar Lending Office:
Bank of America Illinois
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Address for Notices (other than Borrowing
Notices and Notices of Conversion/
Continuation):
Bank of America Illinois
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxx
Bank of America
Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA ILLINOIS,
as Issuing Bank
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxx
Bank of America
Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT "A"
FORM OF NOTICE OF BORROWING
Date:__________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent (the "Agent") for the Banks (as herein defined)
from time to time party to the Credit Agreement, dated
as of October 4, 1995 (as the same may be amended, modified
or restated from time to time, the "Credit Agreement"),
among GIANT INDUSTRIES, INC., a Delaware corporation
("Company"), the Guarantors (as defined in the Credit
Agreement) party thereto, the several financial
institutions from time to time party thereto (the
"Banks"), the Agent and BANK OF AMERICA ILLINOIS, as
letter of credit issuing bank and a Bank.
Ladies and Gentlemen:
The undersigned GIANT INDUSTRIES, INC. (the
"Company") hereby refers to the Credit Agreement and
hereby gives you notice irrevocably, pursuant to Section
2,03 of the Credit Agreement, of the Borrowing(s)
specified below:
A. FACILITY A REVOLVING LOAN:
1. Aggregate Total Amount: $__________
2. Revolving Loan advance date: _________, 199_.
3. Requested Loan Type and applicable Dollar
amount:
RATE SELECTION
(a) Base Rate Loan for $__________.
(b) Offshore Rate Loan with Interest Period of:
(i) one month for $__________
(ii) two months for $__________
(iii) three months for $__________
(iv) six months for $__________
B. FACILITY B REVOLVING LOAN:
1. Aggregate Total Amount: $__________
2. Revolving Loan advance date: _________, 199_.
3. Requested Loan Type and applicable Dollar
amount:
RATE SELECTION
(a) Base Rate Loan for $__________.
(b) Offshore Rate Loan with Interest Period of:
(i) one month for $__________
(ii) two months for $__________
(iii) three months for $__________
(iv) six months for $__________
C. The Borrowing(s) herein requested are to be received
in immediately available funds on _________,
____________, 199_, in the following account:
Bank Name:________________________
ABA Number:_______________________
Account Title:____________________
Account Number:___________________
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true
on the date of the proposed Borrowing(s), before and
after giving effect thereto and to the application of
the proceeds therefrom:
(a) the representations and warranties of the
undersigned contained in Article VI of the Credit
Agreement are true and correct in all material respects
as though made on and as of the date hereof and the date
of the proposed Borrowing(s) (except such
representations and warranties which expressly refer to
an earlier date, which are true and correct in all
material respects as of such earlier date); and
(b) no Default or Event of Default has
occurred and is continuing, or would result from such
proposed Borrowing(s); and
(c) the aggregate outstanding principal
amount of all Loans does not exceed the Commitments; and
(d) the aggregate outstanding principal
amount of all Facility A Revolving Loans does not exceed
the Facility A Commitment; and
(e) the aggregate outstanding principal
amount of all Facility B Revolving Loans does not exceed the
Facility B Commitment.
The Company agrees that if prior to the time of the
making of the Loans requested hereby any matter
certified to by it will not be true and correct at such
time as if then made, it will immediately so notify the Agent.
CLOSING DATE ONLY:
The proceeds of the Revolving Loan(s) which are
the subject of this Notice of Borrowing will be used for
_______________________________________].
Capitalized terms used herein without definition
have the meanings assigned to them in the Credit
Agreement.
GIANT INDUSTRIES, INC.
By:_______________________
Name:
Title:
EXHIBIT "B"
FORM OF NOTICE OF
CONVERSION/CONTINUATION
Date:_______________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent (the "Agent") for the Banks (as herein defined)
from time to time party to the Credit Agreement, dated
as of October 4, 1995 (as the same may be amended, modified
or restated from time to time, the "Credit Agreement"),
among GIANT INDUSTRIES, INC., a Delaware corporation
("Company"), the Guarantors (as defined in the Credit
Agreement) party thereto, the several financial
institutions from time to time party thereto (the
"Banks"), the Agent and BANK OF AMERICA ILLINOIS, as
letter of credit issuing bank and a Bank.
Ladies and Gentlemen:
The undersigned GIANT INDUSTRIES, INC. (the
"Company") hereby refers to the Credit Agreement and
hereby gives you notice irrevocably, pursuant to Section
2.04 of the Credit Agreement, of the conversion or
continuation of the Loan specified below:
A. FACILITY A REVOLVING LOAN:
1. Loan to be converted or continued:
(1) Amount: $__________
(2) Loan Date: __________, 199__
(3) Existing Loan Type: CHECK APPLICABLE BLANK
(a) Base Rate _______
(b) Offshore Rate with an
Interest Period of:
(i) one month _______
(ii) two months _______
(iii) three months _______
(iv) six months _______
(4) Date Loan matures: ___________, 199__
2. Proposed conversion or continuation date:
__________, 199__ (the "Continuation/Conversion
Date").
3. Loan described in (A) above is to be converted or
continued as follows:
(1) Amount: $__________
(2) Loan Date: __________, 199__
(3) Requested Loan Type and applicable Dollar
amount:
(a) Base Rate for $____________
(b) Offshore Rate with an Interest Period of:
(i) one month _______
(ii) two months _______
(iii) three months _______
(iv) six months _______
(B) FACILITY B REVOLVING LOAN:
1. Loan to be converted or continued:
(1) Amount: $__________
(2) Loan Date:____________, 199__
(3) Existing Loan Type: CHECK APPLICABLE BLANK
(a) Base Rate _______
(b) Offshore Rate with an
Interest Period of:
(i) one month _______
(ii) two months _______
(iii) three months _______
(iv) six months _______
(4) Date Loan matures: ___________, 199__
2. Proposed conversion or continuation date: _________,
199___ (the "Continuation/Conversion Date").
3. Loan described in (A) above is to be converted or
continued as follows:
(a) Base Rate for $____________
(b) Offshore Rate with an Interest Period of:
(i) one month _______
(ii) two months _______
(iii) three months _______
(iv) six months _______
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true
on the Conversion/Continuation Date, before and after
giving effect to the Conversion/Continuation Date of the
Loans as herein specified:
(a) the representations and warranties of the
undersigned contained in Article VI of the Credit
Agreement are true and correct in all material respects
as though made on and as of the date hereof and the
Continuation/Conversion Date (except such
representations and warranties which expressly refer to
an earlier date, which are true and correct in all
material respects as of such earlier date); and
(b) no Default or Event of Default has
occurred and is continuing, or would result from such
Conversion/Continuation; and
(c) the aggregate outstanding principal
amount of all Loans does not exceed the Commitments; and
(d) the aggregate outstanding principal
amount of all Facility A Revolving Loans does not exceed the
Facility A Commitment; and
(e) the aggregate outstanding principal
amount of all Facility B Revolving Loans does not exceed the
Facility B Commitment.
The Company agrees that if prior to the time of the
conversion or continuation of the Loan requested hereby
any matter certified to by it will not be true and
correct at such time as if then made, it will
immediately so notify the Agent.
Capitalized terms used herein without definition
have the meanings assigned to them in the Credit
Agreement.
GIANT INDUSTRIES, INC.
By:_______________________
Name:
Title:
EXHIBIT "C"
COMPLIANCE CERTIFICATE
The undersigned authorized officer of GIANT
INDUSTRIES, INC. ("Company"), delivers this Certificate
pursuant to the Credit Agreement dated as of October 4,
1995 (as the same may be amended, modified or restated
from time to time, the "Credit Agreement"), among Bank
of America National Trust and Savings Association as Agent,
(the "Agent") the several financial institutions from
time to time party thereto (the "Banks"), the Company,
and the Guarantors. The undersigned hereby certifies
to the Agent and the Banks as follows:
1. A review of the activities of the Company and
its Subsidiaries during the period from _________, 199__
to _________, 199__ the "Subject Period") has been made
to obtain the information necessary to execute and
deliver this Certificate.
2. To the best of the undersigned's knowledge,
information and belief, except as described in
Attachment 2 attached hereto: (a) as of the date heres&
no Default or Event of Default exists under the Credit
Agreement; and (b) as of the date hereof, the Company and
its Subsidiaries are in compliance with the financial
covenants contained in the Credit Agreement as set forth
in Attachment 1 attached hereto.
Capitalized terms used herein without definition
have the meanings assigned to them in the Credit
Agreement.
EXECUTED AND DELIVERED as of _________, 199__.
GIANT INDUSTRIES, INC.
_____________________________
Authorized Officer
ATTACHMENT 1
GIANT INDUSTRIES, INC. & SUBSIDIARIES
CALCULATION OF FINANCIAL COVENANTS AND RATIOS
AS OF _____________, 199__ (THE "DETERMINATION DATE")
1. MINIMUM NET WORTH (SECTION 8.12 of the Credit
Agreement)
(a) Net Income, calculated from the period
beginning after June 30, 1995, and ending
on the Determination Date (provided no
negative adjustment will be made in the
event Consolidated Net Income is a deficit
for such period), is: $__________
$___________
(b) 50% of the amount in (a) is: $___________
(c) 100% Net Proceeds received from the
issuance of any capital stock or other
equity interest by the Company or any of
its Consolidated Subsidiaries after June
30, 1995 is: $___________
(d) Plus $95,000,000 $95,000,000
(e) Subtotal (the sum of 2(b) plus 2(c) plus
2(d)) is: $___________
(f) Less Allowance for non-cash write-downs
(not to exceed a cumulative amount of
$10,000,000): $___________
(g) Minimum Net Worth (the balance of 2(e)
minus 2(f)) $___________
Net Worth: $___________
2. Fixed Charge Coverage Ratio (Section 8.13 of the
Credit Agreement)
(a) Consolidated EBITDA for the four fiscal
quarters ending on the Determination Date:
$___________
(b) Less Non-Discretionary Capital
Expenditures: $___________
(c) Subtotal (the balance of 2(a) minus 2(b)
is): $___________
(d) Consolidated Interest Expense for the
four fiscal quarters ending on the
Determination Date: $___________
(e) The ratio of 3(c) to 3(d) is: ___:1.00
Fixed Charge Coverage Ratio required by Section
8.13 of the Credit Agreement, is not less than
2.5 to 1.00.
3. Capitalization Ratio (Section 8.14 of the Credit
Agreement)
(a) Consolidated Funded Indebtedness is:
$___________
(b) Consolidated Total Capitalization is:
$___________
(c) The percentage of 1(a) to 1(b) is:
________%
Capitalization Ratio required by Section 8.14 of the
Credit Agreement is not more than 65% through June
30, 1997 or 62.5%, thereafter.
4. Borrowing Base Certificate: attached
Capitalized terms used herein without definition have
the meanings assigned to them in the Credit Agreement.
EXECUTED AND DELIVERED as of __________, 199___.
GIANT INDUSTRIES, INC.
_____________________________
Authorized Officer
ATTACHMENT 2
EXCEPTIONS TO
COMPLIANCE CERTIFICATE
EXHIBIT "D"
OPINION OF COUNSEL
SUBSTANTIVE ISSUES TO BE ADDRESSED
IN OPINION(S) OF COUNSEL TO
GIANT INDUSTRIES, INC. AND AFFILIATED ENTITIES
1. Each of the Company, the Guarantors and each
of their Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing under
the laws of the respective jurisdiction of its
incorporation and (b) is duly qualified and licensed to
do business and in good standing in each of the other
respective jurisdictions wherein the ownership, lease or
operation of property or the conduct of business
requires such qualification or licensing.
2. Each of the Company, the Guarantors and each
other Subsidiary or Affiliate, if any, party to any of
the Loan Documents has all requisite corporate,
partnership or other power and authority, as applicable,
to execute, deliver and perform its obligations under
the Agreement and the other Loan Documents applicable to
it.
3. The execution, delivery and performance by each
of the Company, the Guarantors and each other
Subsidiary or Affiliate, if any, party to any of the
Loan Documents of the Agreement and each of the other
Loan Documents to which it is a party have been duly
authorized by all necessary corporate action, and each
of the Agreement and the other Loan Documents has been
duly executed and delivered by the Company, the
Guarantors and each other Subsidiary party to any of
the Loan Documents, as applicable.
4. The execution, delivery and performance by each
of the Company, the Guarantors and each other
Subsidiary party to any of the Loan Documents do not and
will not (a) breach or constitute a default under (i)
their respective charter, articles or certificate of
incorporation or bylaws, (ii) any decree, injunction,
order, writ or other action of any Governmental
Authority applicable to them or their respective assets,
or (iii) the Prudential Note Agreement or the notes or
any other documents executed in connection therewith,
the NBD Indenture or the notes or any other documents
executed in connection therewith, or any other material
Contractual Obligation to which any of them is a party
or by which any of their respective properties may be
bound, (b) result in or require the creation of any Lien
upon or with respect to any of their respective assets,
or (c) violate any Requirement of Law.
5. No consent, approval, exemption, waiver,
license or authorization from, or action by or filing
with, any Governmental Authority is or will be required
in connection with the (a) due execution, delivery or
performance by, or enforcement against, the Company, the
Guarantors and each other Subsidiary party to any of
the Loan Documents, of the Agreement or any of the other
Loan Documents, and (b) the Bloomfield Acquisition,
except such as have been obtained or completed. The
Bloomfield Acquisition is in compliance with all
applicable laws and regulations.
6. Each of the Agreement and the other Loan
Documents to which the Company is a party is the legal,
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except
as such enforcement may be limited by bankruptcy,
insolvency or other laws governing the enforcement of
creditors' rights generally or by equitable principles
relating to enforceability.
7. Each of the Agreement and the other Loan
Documents to which any of the Guarantors is a party is
the legal, valid and binding obligation of each such
Guarantor, enforceable against such Guarantor in
accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other laws
governing the enforcement of creditors' rights generally
or by equitable principles relating to enforceability.
8. Each of the Agreement and the other Loan
Documents to which any other Subsidiary is a party is
the legal, valid and binding obligation of each such
Subsidiary, enforceable against such Subsidiary in
accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other
laws governing the enforcement of creditors' rights
generally or by equitable principles relating to
enforceability.
9. There is no pending or, to our knowledge,
threatened action, suit, claim, dispute or proceeding in
arbitration or before any Governmental Authority against
any of the Company, the Guarantors or any other
Subsidiary thereof or any of their respective assets or
with respect to any Plan (a) which purports to affect or
pertain to the Agreement or any other Loan Document, or
any of the transactions referenced therein or
contemplated thereby, or (b) if determined adversely,
could reasonably be expected to have a Material Adverse
Effect.
10. There are no outstanding judgments against any
one or more of the Company, the Guarantors or any other
Subsidiary thereof, and, to our knowledge, no
injunction, writ, temporary restraining order or order
or restraint of any nature has been issued by any court
or other Governmental Authority purporting to enjoin or
restrain the consummation of the Bloomfield Acquisition,
the execution, delivery or performance of the Agreement
or any other Loan Document, or directing that the
transactions referenced therein or contemplated thereby
not be consummated as therein provided or contemplated.
11. Neither the consent of the shareholders of any
of the Company, the Guarantors and each other
Subsidiary party to any of the Loan Documents, nor the
consent of any holder of any Indebtedness of any thereof
is or will be required as a condition to the validity or
enforceability of the Agreement or any of the other Loan
Documents or the consummation of the Bloomfield
Acquisition, except such as have been obtained.
12. The transaction contemplated by the Agreement
and the other Loan Documents is not usurious under
applicable law.
13. The consummation of the transactions
contemplated by the Agreement and the other Loan
Documents will not violate Regulation G,
T, U or X of the FRB.
14. The choice of law provisions set forth in
the Agreement and the other Loan Documents wherein the
parties agree that the laws of the State of Texas shall
govern and control the terms of the Agreement and the
other Loan Documents (except as otherwise specifically
provided therein) is a valid, effective and enforceable
choice of law under the laws of the State of Arizona and
would be upheld and enforced by the courts of the State of
Arizona and by Federal courts sitting and applying the laws
of the State of Arizona.
15. None of the Company or the Guarantors is a
"holding company," a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company," as
such terms are defined in the Public Utility Holding Company
Act of 1935, as amended.
16. None of the Company or the Guarantors is an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the
Investment Company Act of 1940, as amended.
17. Neither the Company nor any of its
Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utility
code, or any other Federal or state statute or
regulation limiting, in any such case, its ability to incur
Indebtedness.
We acknowledge that the Agents and the Banks are
relying on the opinions expressed herein in extending
any credit under the Agreement and the other Loan Documents
and hereby consent to reliance by the Agents and the Banks
now or hereafter parties to the Agreement on the opinions
expressed herein.
EXHIBIT "E"
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this
"Agreement") dated as of ________, 199__, is made
between __________________ (the "Assignor") and
___________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain
Credit Agreement, dated as of October 4, 1995 (as the
same may be amended, modified or restated from time to
time, the "Credit Agreement"), among GIANT INDUSTRIES,
INC., a Delaware corporation ("Company"), the Guarantors
(as defined in the Credit Agreement) party thereto, the
several financial institutions from time to time party
thereto (the "Banks"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent (the "Agent") for the
Banks from time to time party to the Credit Agreement,
and BANK OF AMERICA ILLINOIS, as letter of credit
issuing bank and a Bank (terms defined in the Credit
Agreement are used herein with the same meaning);
WHEREAS, as provided in the Credit Agreement, the
Banks have committed to extend credit to the Company in
an aggregate amount not to exceed SEVENTY MILLION AND
NO/100 DOLLARS ($70,000,000.00); and
WHEREAS, the Assignor wishes to assign to the
Assignee part of the rights and obligations of the
Assignor under the Credit Agreement in respect of its
Commitment, together with a corresponding portion of
each of its outstanding Loans and its Pro Rata Share of
the outstanding L/C Obligations, in a total amount equal
to ____________________ Dollars (U.S.$_________) (the
"Assigned Amount") on the terms listed on Annex I hereto
and subject to the conditions set forth herein and in
the Credit Agreement, and the Assignee wishes to accept
assignment of such rights and to assume such obligations
from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
1. Assignment and Assumption.
(a) Before giving effect to this Agreement,
Assignor's (a) Commitment is $_________, (b) aggregate
principle amount of its outstanding Loans is $_________,
(c) aggregate principal amount of its outstanding L/L
Obligation is $__________ and (d) Pro Rata Share is
____%. With effect on and after the Effective Date (as
defined in Section 4 hereof), the Assignor hereby sells
and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, the Assigned
Amount, which shall be equal to ____ percent (___%) (the
"Assignee's Percentage Share") of all of the Assignor's
rights and obligations under the Credit Agreement,
including, without limitation, the Assignee's Percentage
Share of the Assignor's (i) Commitment, and (ii)
outstanding Loans and L/C Obligations. After giving
effect to this Agreement on the Effective Date, the
Commitment, outstanding Loans and L/C Obligations, and
Pro Rata Share of Assignor and Assignee, respectively,
are set forth as follows:
Outstanding
Outstanding L/C Pro Rata
Loans Obligations Share Commitment
----------- ----------- -------- ----------
Assignor $__________ $__________ _______% $________
Assignee $__________ $__________ _______% $________
The assignment set forth in this Section l(a)
shall be without recourse to, or representation or
warranty (except as expressly provided in this
Agreement) by, the Assignor.
(b) With effect on and after the Effective Date,
the Assignee shall be a party to the Credit Agreement,
shall become a "Bank" for all purposes as therein
defined and contemplated, and shall succeed to all of
the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement with a
Commitment in the amount and with the Pro Rata Share set
forth above for the Assignee. The Assignee agrees that
it is bound by the terms and conditions set forth in the
Credit Agreement as if it were an original signatory
thereto, and that it will perform in accordance with
their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it
as a Bank. It is the intent of the parties hereto that
(i) the Commitment of the Assignor shall, as of the
Effective Date, be reduced by the Assignee's Percentage
Share and (ii) the Assignor shall relinquish its rights
and be released from its obligations under the Credit
Agreement to the extent such obligations have been
assumed by the Assignee.
2. Payments.
(a) As consideration for the sale, assignment
and transfer contemplated in Section 1 hereof, the
Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount equal to
$____________ Dollars ($_______), representing the
Assignee's Percentage Share of the principal amount of
all Loans previously made, and currently owned, by the
Assignor under the Credit Agreement and outstanding on
the Effective Date. The difference between the Assigned
Amount and the amount paid to Assignor under this
Section 2(a) represents the amount of outstanding L/C
Obligations assumed by Assignee pursuant to the terms
hereof as of the Effective Date.
(b) The Assignee further agrees to pay to the
Agent a processing or transfer fee in the amount of
$3,500.00.
(c) To the extent payment to be made by the
Assignee pursuant to Section 2(a) hereof is not made when
due, the Assignor shall be entitled to recover such
amount together with interest thereon at the Federal
Funds Rate per annum accruing from the date such amounts
were due.
together with interest thereon at the Federal Funds Rate
per annum accruing from the date such amounts were due.
3. Reallocation of Payments. Any interest,
commissions, fees and other payments accrued to but
excluding the Effective Date with respect to the
Assignor's Commitment Percentage of the Loans and L/C
Obligations, shall be for the account of the Assignor.
Any interest, fees and other payments accrued on and
after the Effective Date with respect to the Assigned
Amount shall be for the account of the Assignee. Each
of the Assignor and the Assignee agree that it will hold
in trust for the other party any interest, commissions,
fees and other amounts which it may receive to which the
other party is entitled pursuant to the preceding
sentence and pay to the other party any such amounts
which it may receive promptly upon receipt. The
Assigner's and the Assignee's obligations to make the
payments referred to in this Section 3 are
non-assignable.
4. Effective Date. Notices; Notes.
(a) The effective date for this Agreement
shall be ______________ (the "Effective Date"); provided
that the following conditions precedent
have been satisfied on or before the Effective Date:
(i) this Agreement shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the
Agent shall have been duly obtained in the form set
forth on Annex II hereof, and shall be in full force and
effect as of the Effective Date;
(iii) the Assignee shall pay to the
Assignor all amounts due to the Assignor under this
Agreement; and
(iv) the processing or transfer fee
referred to in Section 2(b) shall have been paid to the
Agent.
(b) Promptly following the execution of this
Agreement, the Assignor shall deliver to the Agent for
acceptance by the Agent, the notices, agreements or
other documents as may be required under the Credit
Agreement.
(c) Promptly following payment by the Assignee
of the consideration as provided in Section 2 hereof,
the Assignor shall deliver its promissory note(s) to the
Agent and shall request that new notes be issued to the
Assignor and the Assignee dated the Effective Date to
properly reflect the respective amounts of the Loans and
L/C Obligations held by each party.
[5. Agent [INCLUDE ONLY IF ASSIGNOR IS AGENT].
(a) The Assignee hereby appoints and
authorizes the Assignor to take such action as Agent on
its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks
pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as
Agent under the Credit Agreement-]
6. Representations and Warranties.
(a) The Assigner represents and warrants that
(i) it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is
free and clear of any lien, security interest or other
adverse claim; (ii) it is duly organized and existing
and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this
Agreement and any other documents required or permitted
to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations hereunder,
(iii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any
already given or obtained) for its due execution,
delivery and performance of this Agreement, and apart
from any agreements or undertaking or filings required
by the Credit Agreement, no further action by, or notice
to, or filing with, any person is required of it for
such execution, delivery or performance; and (iv) this
Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligations of
the Assignor, enforceable against the Assignor in
accordance with the terms hereof, except subject, as to
enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application
relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or
warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or
in connection with the Credit Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished
pursuant thereto. The Assigner makes no representation
or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial
condition or statements of the Company or any guarantor
or the performance or observance by the Company or any
guarantor of any of its respective obligations under the
Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants that
(i) it is duly organized and existing and it has full
power and authority to take, and has taken, all action
necessary to execute and deliver this Agreement and any
other documents required or permitted to be executed or
delivered by it in connection with this Agreement, and
to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any
person are required (other than any already given or
obtained) for its due execution, delivery and
performance of this Agreement; and apart from any
agreements or undertaking or filings required by the
Credit Agreement, no further action by, or notice to, or
filing with, any person is required of it for such
execution, delivery or performance; (iii) this Agreement
has been duly executed and delivered by it and
constitutes the legal, valid and binding obligations of
the Assignee, enforceable against the Assignee in
accordance with the terms hereof, except subject, as to
enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application
relating to or affecting creditors' rights and to
general equitable principles; (iv) it is eligible under
the Credit Agreement to be an assignee in accordance
with the terms hereof; and (v) that it has received a
copy of the Credit Agreement and the exhibits and
schedules thereto, and has received (or waived the
requirement that it receive) copies of each of the
documents which were required to be delivered under the
Credit Agreement as a condition to the making of the
Loans thereunder.
7. Further Assurances. The Assigner and the
Assignee each hereby agree to execute and deliver such
other instruments, and take such other action, as either
party may reasonably request in connection with the
transactions contemplated by this Agreement, including,
without limitation, the delivery of any notices or other
documents or instruments to the Company, the Agent or
any guarantor which may be required in connection with
the assignment and assumption contemplated hereby.
8. Indemnity. The Assignee agrees to indemnity
and hold harmless the Assignor against any and all
losses, costs, expenses (including, without limitation,
reasonable attorneys' fees and the allocated costs and
expenses for in-house counsel) and liabilities incurred
by the Assignor in connection with or arising in any
manner from the nonperformance by the Assignee of any
obligation assumed by the Assignee under this Agreement.
9. Miscellaneous.
(a) Any amendment or waiver of any provision
of this Agreement shall be in writing signed by the
parties hereto. No failure or delay by either party
hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any
waiver of any breach of the provisions of this Agreement
shall be without prejudice to any rights with respect to
any other or further breach hereof
(b) All payments made hereunder shall be made
without any set-off or counterclaim.
(c) All communications among the parties or
notices in connection herewith shall be in writing and
mailed, hand-delivered or transmitted by facsimile as
follows: (i) if to the Assigner or the Assignee, at
their respective addresses or facsimile numbers set
forth on the signature pages hereof and (ii) if to the
Company, the Agent or any guarantor, at their respective
addresses or facsimile numbers set forth in the Credit
Agreement or to such other address or facsimile number
as shall be designated in a written notice given in
accordance with the Credit Agreement. All such
communications and notices shall be effective upon
receipt. The Assignee specifies as its Domestic and
Offshore landing Office(s) the offices set forth beneath
its name on the signature pages hereof
(d) The Assignor and the Assignee shall each
pay its own costs and expenses incurred in connection
with the negotiation, preparation, execution and
performance of this Agreement.
(e) The representations and warranties made
herein shall survive the consummation of the
transactions contemplated hereby.
(f) Subject to the terms of the Credit
Agreement, this Agreement shall be binding upon and
inure to the benefit of the Assignor and the Assignee
and their respective successors and assigns; however that
no party shall assign its rights hereunder without the
prior written consent of the other party and the Company
and any purported assignment, absent such consents,
shall be void. The preceding sentence shall not limit
or enhance the right of the Assignee to assign or
participate all or part of the Assignee's Percentage
Share and the Assigned Amount and any outstanding Loans
and L/C Obligations attributable thereto in accordance
with the Credit Agreement.
(g) This Agreement may be executed in any
number of counterparts and all of such counterparts
taken together shall be deemed to constitute one and the
same instrument.
(h) This Agreement shall be governed by and
construed in accordance with the law of the State of
Texas (without regard to principles of conflicts of
law). The Assignor and the Assignee each irrevocably
submits to the non-exclusive jurisdiction of any Texas
State or Federal court sitting in the Southern District
of Texas over any suit, action or proceeding arising out
of or relating to this Agreement or the Credit Agreement
and irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in
such Texas State or Federal court. Each party to this
Agreement hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or
proceeding.
(i) This Agreement and any agreement, document
or instrument attached hereto or referred to herein
integrate all the terms and conditions mentioned herein
or incidental hereto, and together with the Credit
Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes
any and all prior agreements and understandings related
to the subject matter hereof In the event of any
conflict between the terms, conditions and provisions of
this Agreement and the Credit Agreement, the terms,
conditions and provisions of the Credit Agreement shall
prevail.
(j) In the event of any inconsistency between
the provisions of this Agreement and Annex I hereto,
this Agreement shall control. Headings are for
reference only and are to be ignored in interpreting
this Agreement.
(k) The illegality or unenforceability of any
provision of this Agreement or any instrument or
agreement required hereunder shall not in any way affect
or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument
or agreement required hereunder.
IN WITNESS WHEREOF, the Assigner and the Assignee
have caused this Agreement to be executed and delivered
by their duly authorized officers as of the date first
above written.
______________________________
By____________________________
Name:
Title:
Address for Notices:
______________________________
______________________________
______________________________
Facsimile No.:________________
- ASSIGNOR -
By____________________________
Name:
Title:
Address for Notices:
______________________________
______________________________
______________________________
Facsimile No.:________________
Domestic Lending Office
______________________________
______________________________
______________________________
______________________________
Offshore Lending Office
______________________________
______________________________
______________________________
______________________________
ANNEX I
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. Company:
2. Date of Credit Agreement:__________, 1995
3. Assignor:
4. Assignee:
5. Date of Assignment Agreement:
6. Effective Date:
7. Fees paid by Assignee to Assignor:
8. Interest paid by Assignee to Assignor:
(i) Base Rate Loan
(ii) Offshore Rate Loan
9. Payment Instructions:
Assignor:
Assignee:
10. Assignee's Notice
Instructions:
11. Other Information
ANNEX II
TO
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
_________, 199__
Bank of America National Trust
and Savings Association, as
Agent
Agency Management Services #5506
0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Giant Industries, Inc.
______________________
______________________
Attention:____________
Dear Sirs:
We refer to the Credit Agreement dated as of October
1995 (the "Credit Agreement") among GIANT INDUSTRIES,
INC., a Delaware corporation ("Company"), the Guarantors
(as defined in the Credit Agreement) parties thereto, the
several financial institutions from time to time party
thereto (the "Banks"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent (the "Agent") for the Banks
(as herein defined) from time to time party to the Credit
Agreement, and BANK OF AMERICA ILLINOIS, as letter of
credit issuing bank and a Bank. Terms defined in the
Credit Agreement are used herein as therein defined.
1. We hereby give you notice of, and request the
consent of the Company to, the assignment by ___________
(the "Assignor") to _____________________________ (the
"Assignee") of __% of the right, title and interest of the
Assignor in and to the Credit Agreement (including without
limitation the right, title and interest of the Assignor
in and to the Commitment of the Assignor and all
outstanding Loans made by and L/C Obligations of the
Assignor). Before giving effect to such assignment the
Assigner's (a) Commitment is $________, (b) Commitment
Percentage is ______%, (c) aggregate principal amount of
its outstanding Loans is $_________, and (d) the aggregate
principal amount of its outstanding L/C Obligations is
$____________. After giving effect to such assignment,
the Assignor's and Assignee's respective Loans, L/C
Obligations, Commitment and Commitment Percentage are
as follows:
Outstanding
Outstanding L/C Commitment
Loans Obligations Percentage Commitment
----------- ----------- ---------- ----------
Assignor $__________ $__________ _______% $________
Assignee $__________ $__________ _______% $________
2. The Assignee agrees that upon
receiving the consent of the Company and the
Agent to such assignment and from and after
the effective date of the Assignment, the
Assignee will be bound by the terms of the
Credit Agreement, with respect to the interest
in the Credit Agreement assigned to it as
specified above, as fully and to the same
extent as if the Assignee were the Bank
originally holding such interest in the Credit
Agreement.
3. The following administrative details
apply to the Assignee:
(A) Offshore Lending Office:
Assignee:________________________
Address:_________________________
_________________________
_________________________
Attention:_______________________
Telephone:(___)__________________
Facsimile:(___)__________________
(B) Domestic Lending Office:
Assignee:________________________
Address:_________________________
_________________________
_________________________
Attention:_______________________
Telephone:(___)__________________
Facsimile:(___)__________________
(C) Notice Address:
Assignee:________________________
Address:_________________________
_________________________
_________________________
Attention:_______________________
Telephone:(___)__________________
Facsimile:(___)__________________
(D) Payment Instructions:
Account No.:_____________________
At:_____________________
_____________________
_____________________
Reference:_______________________
Attention:_______________________
4. Without limiting the generality of Paragraph
2 hereinabove, the tax forms to be delivered by the
Assignee pursuant to Section 4.01 of the Credit
Agreement, if any, will be promptly provided in
compliance therewith.
IN WITNESS WHEREOF, the Assignor and the Assignee
have caused this Assignment and Acceptance to be
executed by their respective duly authorized officials,
officers or agents as of the date first above mentioned.
Very truly yours,
[Name of Assignor]
By_____________________
Name:
Title:
[Name of Assignee]
By_____________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent, hereby grants its consent
to the foregoing instrument:
By______________________________
Name:
Title:
GIANT INDUSTRIES, INC.
hereby grants its consent
to the foregoing assignment:
By______________________________
Name:
Title:
EXHIBIT "F-1"
BANK OF AMERICA ILLINOIS
FACILITY A REVOLVING NOTE
$30,000,000 October 4, 1995
FOR VALUE RECEIVED, the undersigned, GIANT
INDUSTRIES, INC., a Delaware corporation (the
"Borrower"), promises to pay to the order of BANK OF
AMERICA ILLINOIS (the "Bank"), for the account of its
Lending Office, the principal amount of THIRTY MILLION
AND NO/100 DOLLARS ($30,000,000.00) or the aggregate
unpaid principal amount of all Facility A Revolving
Loans made by the Bank to the Borrower pursuant to
Section 2.01(a) of the Credit Agreement hereinafter
referred to, whichever is less, in immediately available
funds at BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, AGENCY MANAGEMENT SERVICES,
#5596, 0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, at the times and in the amounts as set
forth in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal balance of the
Facility A Revolving Loans, from time to time
outstanding, at the rates and on the dates set forth in
the Credit Agreement. The aggregate unpaid principal
amount of all Facility A Revolving Loans shall be due
and payable on the Facility A Termination Date.
This note is one of the notes issued pursuant to
and entitled to the benefits of that certain Credit
Agreement, dated as of October 4, 1995 (as the same
may be amended, modified or restated from time to time,
the "Credit Agreement"), among Borrower, the Guarantors
(as defined in the Credit Agreement) party thereto, the
several financial institutions from time to time party
thereto (the "Banks'), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION as Agent for the Banks, and BANK
OF AMERICA ILLINOIS as letter of credit issuing bank
and a Bank. All captioned terms used but not defined
herein shall have the meaning assigned to them in the
Credit Agreement. Reference is made to the Credit
Agreement for, inter alia, provisions for the prepayment
hereof the acceleration of the maturity hereof and to
the effect that no provision of the Credit Agreement or
this Facility A Revolving Note shall require the payment
or permit the charging or collection of interest in an
amount in excess of the highest non-usurious amount
permitted by applicable law.
It is contemplated that by reason of prepayments
hereon prior to the Facility A Termination Date, there
may be times when no indebtedness is owing hereunder
prior to such date, but notwithstanding such occurrence
this note shall be in full force and effect as to the
Facility A Revolving Loans made pursuant to the Credit
Agreement subsequent to each such occurrence.
All Facility A Revolving Loans made by the Bank
pursuant to the Credit Agreement and all payments of the
principal thereof shall be endorsed by the holder of
this Facility A Revolving Note on the schedule annexed
hereto (including any additional pages such holder may
add to such schedule), which endorsement shall
constitute prima facie evidence of the accuracy of the
information so endorsed; provided, however, that the
failure of the holder of this Facility A Revolving Note
to insert any date or amount or other information on
such schedule shall not in any manner affect the
obligation of the Borrower to repay any Facility A
Revolving Loans in accordance with the terms of the
Credit Agreement.
The Borrower and any and all sureties, guarantors
and endorsers of this Facility A Revolving Note and all
other parties now or hereafter liable hereon, severally
waive, except as otherwise provided in the Credit
Agreement, grace, demand, presentment for payment,
protest, notice of any kind (including, but not limited
to, notice of dishonor, notice of protest, notice of
intention to accelerate and notice of acceleration) and
diligence in collecting and bringing suit against any
party hereto, and agree (i) to all extensions and
partial payments, with or without notice, before or
after maturity, (ii) to any substitution, exchange or
release of any security now or hereafter given for this
Facility A Revolving Note, (iii) to the release of any
party primarily or secondarily liable hereon, and (iv)
that it will not be necessary for the Bank, in order to
enforce payment of this Facility A Revolving Note, to
first institute or exhaust the Bank's remedies against
the Borrower or any other party liable therefor or
against any security for this Facility A Revolving Note.
This Facility A Revolving Note may not be changed,
modified or terminated orally, but only by an agreement
in writing signed by the party charged. If any term or
provision of this Facility A Revolving Note shall be
held invalid, illegal or unenforceable, the validity of
all other terms and provisions herein shall in no way be
affected thereby.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS
FACILITY A REVOLVING NOTE, THE BORROWER WAIVES THE RIGHT
TO A TRIAL BY JURY AND THE DEFENSES OF FORUM NON
CONVENIENCE AND IMPROPER VENUE. THIS FACILITY A REVOLVING
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS AND SHALL BE BINDING UPON
THE SUCCESSORS AND ASSIGNS OF THE BORROWER AND INURE TO
THE BENEFIT OF THE BANK AND ITS SUCCESSORS AND ASSIGNS
(INCLUDING PARTICIPANT'S) IN ACCORDANCE WITH THE TERMS
OF THE CREDIT AGREEMENT.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Facility A Revolving Note on the date
first above written.
GIANT INDUSTRIES, INC.
By______________________
Name:
Title:
GRID SCHEDULE
Attached to and made part of the Facility A Revolving
Note, dated October 4, 1995, issued pursuant to that
certain Credit Agreement, dated as of October 4, 1995,
among GIANT INDUSTRIES, INC., a Delaware corporation, the
Guarantors party thereto, the several financial
institutions from time to time party thereto (the
"Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as Agent for the Banks from time to time to
the Credit Agreement, and BANK OF AMERICA ILLINOIS as
letter of credit issuing bank and a Bank.
Date of Loan:
Principal Amount of Loan:
Type of Loan(1):
Interest Rate:
Interest Paid
Maturity Date:
Amount of Principal Paid or Prepaid or Converted:
Unpaid Principal Balance (Balance continued):
Name of Person Making Notation:
(1) The type of loan may be represented by either "B" for
Base Rate Loans or "O" for Offshore Rate Loans.
EXHIBIT "F-2"
BANK OF AMERICA ILLINOIS
FACILITY B REVOLVING NOTE
$40,000,000 October 4, 1995
FOR VALUE RECEIVED, the undersigned, GIANT INDUSTRIES,
INC., a Delaware corporation (the "Borrower), promises to
pay to the order of BANK OF AMERICA ILLINOIS (the "Bank"),
for the account of its Lending Office, the principal
amount of FORTY MILLION AND No/100 DOLLARS ($40,000,000.00)
or the aggregate unpaid principal amount of all Facility
B Revolving Loans made by the Bank to the Borrower
pursuant to Section 2,01(b) of the Credit Agreement
hereinafter referred to, whichever is less, in immediately
available funds at BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AGENCY MANAGEMENT SERVICES,
#5596, 0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, at the times and in the amounts as set
forth in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal balance of the
Facility B Revolving Loans, from time to time outstanding,
at the rates and on the dates set forth in the Credit
Agreement. The aggregate unpaid principal amount of all
Facility B Revolving Loans shall be due and payable on the
Facility B Termination Date.
This note is one of the notes issued pursuant to and
entitled to the benefits of that certain Credit Agreement,
dated as of October 4, 1995 (as the same may be amended,
modified or restated from time to time, the "Credit
Agreement"), among Borrower, the Guarantors (as defined in
the Credit Agreement) party thereto, the several financial
institutions from time to time party thereto (the
'Banks'), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as Agent for the Banks, and BANK OF AMERICA
ILLINOIS as letter of credit issuing bank and a Bank. AU
capitalized terms used but not defined herein shall have
the meaning assigned to them in the Credit Agreement.
Reference is made to the Credit Agreement for, inter alia,
provisions for the prepayment hereof the acceleration of
the maturity heres& and to the effect that no provision of
the Credit Agreement or this Facility B Revolving Note shall
require the payment or permit the charging or collection
of interest in an amount in excess of the highest
non-usurious amount permitted by applicable law.
It is contemplated that by reason of prepayments
hereon prior to the Facility B Termination Date, there may
be times when no indebtedness is owing hereunder prior to
such date, but notwithstanding such occurrence this note
shall be in full force and effect as to the Facility B
Revolving Loans made pursuant to the Credit Agreement
subsequent to each such occurrence.
All Facility B Revolving Loans made by the Bank
pursuant to the Credit Agreement and all payments of the
principal thereof shall be endorsed by the holder of this
Facility B Revolving Note on the schedule annexed hereto
(including any additional pages such holder may add to
such schedule), which endorsement shall constitute prima
facie evidence of the accuracy of the information so endorsed;
provided, however, that the failure of the holder of this
Facility B Revolving Note to insert any date or amount or
other information on such schedule shall not in any manner
affect the obligation of the Borrower to repay any
Facility B Revolving Loans in accordance with the terms of
the Credit Agreement.
The Borrower and any and all sureties, guarantors and
endorsers of this Facility B Revolving Note and all other
parties now or hereafter liable hereon, severally waive,
except as otherwise provided in the Credit Agreement,
grace, demand, presentment for payment, protest, notice of
any kind (including, but not limited to, notice of
dishonor, notice of protest, notice of intention to
accelerate and notice of acceleration) and diligence in
collecting and bringing suit against any party hereto, and
agree (i) to all extensions and partial payments, with or
without notice, before or after maturity, (ii) to any
substitution, exchange or release of any security now or
hereafter given for this Facility B Revolving Note, (iii)
to the release of any party primarily or secondarily
liable hereon, and (iv) that it will not be necessary for
the Bank, in order to enforce payment of this Facility B
Revolving Note, to first institute or exhaust the Bank's
remedies against the Borrower or any other party Liable
therefor or against any security for this Facility B
Revolving Note.
This Facility B Revolving Note may not be changed,
modified or terminated orally, but only by an agreement in
writing signed by the party charged. If any term or
provision of this Facility B Revolving Note shall be held
invalid, illegal or unenforceable, the validity of all
other terms and provisions herein shall in no way be
affected thereby.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS
FACILITY B REVOLVING NOTE, THE BORROWER WAIVES THE RIGHT TO
A TRIAL BY JURY AND THE DEFENSES OF FORUM NON CONVENIENS
AND IMPROPER VENUE. THIS FACILITY B REVOLVING NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS AND SHALL BE BINDING UPON THE SUCCESSORS
AND ASSIGNS OF THE BORROWER AND INURE TO THE BENEFIT OF
THE BANK AND ITS SUCCESSORS AND ASSIGNS (INCLUDING
PARTICIPANTS) IN ACCORDANCE WITH THE TERMS OF THE CREDIT
AGREEMENT.
IN WITNESS WHEREOF, the Borrower has executed and
delivered this Facility B Revolving Note on the date
first above written.
GIANT INDUSTRIES, INC.
By______________________
Name:
Title:
GRID SCHEDULE
Attached to and made part of the Facility B Revolving
Note, dated October 4, 1995, issued pursuant to that
certain Credit Agreement, dated as of October 4, 1995,
among GIANT INDUSTRIES, INC., a Delaware corporation, the
Guarantors party thereto, the several financial
institutions from time to time party thereto (the
"Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as Agent for the Banks from time to time to
the Credit Agreement, and BANK OF AMERICA ILLINOIS as
letter of credit issuing bank and a Bank.
Date of Loan:
Principal Amount of Loan:
Type of Loan(1):
Interest Rate:
Interest Paid
Maturity Date:
Amount of Principal Paid or Prepaid or Converted:
Unpaid Principal Balance (Balance continued):
Name of Person Making Notation:
(1) The type of loan may be represented by either "B" for
Base Rate Loans or "O" for Offshore Rate Loans.
EXHIBIT "G"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") by _______,
a __________ corporation (the "Guarantor"), is effective
as of October 4, 1995, and is in favor of each of the
Banks (herein defined) from time to time parties to the
Credit Agreement(herein defined) and in favor of BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (together
with its successors and assigns herein called the
"Agent"), as the Agent for and on behalf of the financial
institutions (the "Banks") now or hereafter party to that
certain Credit Agreement (as the same may be amended,
modified or restated from time to time and at any time,
the "Credit Agreement") among GIANT INDUSTRIES, INC., a
Delaware corporation (the "Company"), the Guarantors (as
defined in the Credit Agreement) party thereto, the
Banks, the Agent and BANK OF AMERICA ILLINOIS as letter
of credit issuing bank and a Bank. All capitalized terms
used but not defined herein shall have the meaning
assigned to them in the Credit Agreement.
WITNESSETH:
WHEREAS, pursuant to the terms of the Credit
Agreement, the Banks have agreed to make certain
Loans to the Company;
WHEREAS, the obligation of the Banks to make the
Loans is conditioned upon, among other things, the
execution and delivery by the Guarantor of this
Guaranty;
WHEREAS, the Guarantor is a wholly-owned subsidiary
of the Company and the Guarantor and the Company are
engaged in related businesses and the Guarantor shall
derive substantial direct and indirect economic benefit
from the Loans;
NOW, THEREFORE, (i) in consideration of the premises
and to induce the Banks to enter into the Credit
Agreement and to make the Loans, (ii) at the special
insistence and request of the Agent and the Banks, and
(iii) for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Guarantor, for the benefit of the Agent and the Banks,
hereby agrees as follows:
Section 1. Defined Terms, Unless otherwise defined
herein, terms defined in the Credit Agreement are used
herein as therein defined.
Section 2. Guaranty. The Guarantor hereby,
unconditionally and irrevocably, guarantees the prompt
performance and payment in full in Dollars by the Company
when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations of the Company, and the
Guarantor further agrees to pay all costs, fees and
expenses (including, without limitation, counsel fees,
and the allocated cost of in-house counsel) incurred by
the Agent or any Bank in enforcing any rights under this
Guaranty.
Section 3. Guaranty Absolute.
(a) The obligations of the Guarantor hereunder
are those of a primary obligor, and not merely a surety,
and are independent of the Obligations. A separate
action or actions may be brought against the Guarantor
whether or not an action is brought against the Company,
any other guarantor or other obligor in respect of the
Obligations or whether the Company, any other guarantor
or any other obligor in respect of the Obligations are
joined in any such action or actions.
(b) The Guarantor guarantees that the
Obligations will be paid and performed strictly in
accordance with the terms of the Credit Agreement and the
other Loan Documents regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or
the Banks with respect thereto. Guarantor agrees that its
guarantee constitutes a guarantee of payment when due and
not of collection. The liability of the Guarantor under
this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of genuineness, validity,
legality or enforceability of the Credit Agreement, any
other Loan Document or any other document, agreement or
instrument relating thereto or any assignment or transfer
of any thereof;
(ii) any change in the time, manner or
place of payment of, or in any other term of, all or any
of the Obligations (including, without limitation, the
possible extension of the Facility A Termination Date,
Facility B Termination Date and increase of the amount of
the Commitments all on the terms and conditions set forth
in the Credit Agreement), or any waiver, indulgence,
compromise, renewal, extension, amendment, modification
of, or addition, consent, supplement to, or consent to
departure from, or any other action or inaction under or
in respect of, the Credit Agreement or any other Loan
Document or any document, instrument or agreement
relating to the Obligations or any other instrument or
agreement referred to therein or any assignment or
transfer of any thereof;
(iii) any release or partial release of any
other guarantor or other obligor in respect of the
Obligations;
(iv) any exchange, release or
non-perfection of any collateral for all or any of the
Obligations, or any release, or amendment or waiver of,
or consent to departure from, any guaranty or security,
for all or any of the Obligations;
(v) any furnishing of any additional
security for any of the Obligations;
(vi) the liquidation, bankruptcy,
insolvency or reorganization of the Company, any other
guarantor or other obligor in respect of the Obligations
or any action taken with respect to this Guaranty by any
trustee or receiver, or by any court, in any such
proceeding;
(vii) any modification or termination
of any Intercreditor or subordination agreement pursuant
to which the claims of other creditors of the Company or
the Guarantor are subordinated to those of the Banks; or
(viii) any other circumstance which might
otherwise constitute a defense available to, or a legal
or equitable discharge of, the Company or the Guarantor.
(c) This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any
time payment or performance of the Obligations, or any
part thereof, is, upon the insolvency, bankruptcy or
reorganization of the Company or the Guarantor or
otherwise pursuant to applicable law, rescinded or
reduced in amount or must otherwise be restored or
returned by the Agent or any Bank, all as though such
payment or performance had not been made.
(d) If an event permitting the acceleration of
any of the Obligations shall at any time have occurred
and be continuing and such acceleration shall at such
time be prevented by reason of the pendency against the
Company of a case or proceeding under any bankruptcy or
insolvency law, the Guarantor agrees that, for purposes
of this Guaranty and its obligations hereunder, the
Obligations shall be deemed to have been accelerated and
the Guarantor shall forthwith pay such Obligations
(including, without limitation, interest which but for
the filing of a petition in bankruptcy with respect to
the Company, would accrue on such Obligations), and the
other obligations hereunder, without any further notice
or demand.
Section 4. Waivers. To the extent permitted by
applicable law, the Guarantor hereby waives promptness,
diligence, notice of intention to accelerate, notice of
acceleration, notice of acceptance and any and all other
notices with respect to any of the Obligations and this
Guaranty and any requirement that the Agent or any Bank
protect, secure, perfect or insure any security interest
in or any Lien on any property subject thereto or exhaust
any right or take any action against the Company, any
other guarantor or any other Person or any collateral or
security or to any balance of any deposit accounts or
credit on the books of any Bank in favor of the Company
or the Guarantor. Guarantor expressly waives each and
every right to which it may be entitled by virtue of the
suretyship law of the State of Texas including without
limitation any rights it may have pursuant to Rule 31,
Texas Rules of Civil Procedure, Section 17.001, Civil
Practice and Remedies Code and Chapter 34 of the Texas
Business and Commerce Code.
Section 5. Subrogation.
(a) The Guarantor will not exercise any rights
of subrogation, reimbursement and contribution,
contractual statutory or otherwise, which it may acquire
by way of subrogation under this Guaranty, by any payment
hereunder or otherwise, until all of the Obligations of
the Company have been paid, all Commitments have
terminated and all Letters of Credit have expired.
(b) If, in the exercise of any of its rights
and remedies, the Agent or any Bank shall forfeit any of
its rights or remedies, including its right to enter a
deficiency judgment against the Company or any other
Person, whether because of any applicable laws pertaining
to "election of remedies" or the like, the Guarantor
hereby consents to such action by the Agent or such Bank
and waives any claim based upon such action, even if such
action by the Agent or such Bank shall result in a full
or partial loss of any rights of subrogation which the
Guarantor might otherwise have had but for such action by
the Agent or such Bank. Any election of remedies which
results in the denial or impairment of the right of the
Agent or such Bank to seek a deficiency judgment against
the Company shall not impair the Guarantor's obligation
to pay the full amount of the Obligations. In the event
the Agent or any Bank shall bid at any foreclosure or
trustee's sale or at any private sale permitted by law or
under the Loan Documents, the Agent or such Bank may bid
all or less than the amount of the Obligations and the
amount of such bid need not be paid by the Agent or such
Bank but shall be credited against the Obligations. The
amount of the successful bid at any such sale, whether
the Agent or such Bank or any other party is the
successful bidder, shall be conclusively deemed to be the
fair market value of the collateral and the difference
between such bid amount and the remaining balance of the
Obligations shall be conclusively deemed to be the amount
of the Obligations guaranteed under this Guaranty,
notwithstanding that any present or future law or court
decision or ruling may have the effect of reducing the
amount of any deficiency claim to which the Agent or any
Bank might otherwise be entitled but for such bidding at
any such sale.
Section 6. Representations and Warranties.
(a) General. The Guarantor represents and
warrants to the Agent and the Banks as of the date hereof
that all of the representations and warranties contained
in Article VI of the Credit Agreement are true and
correct with respect to the Guarantor to the extent such
representations and warranties refer to (a) Subsidiaries
of the Company, and such representations and warranties
are hereby incorporated by reference.
(b) Full Disclosure, The Guarantor represents
and warrants that none of the representations or
warranties made by the Guarantor or any of its
Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made,
and none of the statements contained in any exhibit,
report, written statement or certificate furnished by or
on behalf of the Guarantor or any of its Subsidiaries in
connection with the Loan Documents (including the
offering and disclosure materials delivered by or on
behalf of the Guarantor to the Banks prior to the Closing
Date), taken as a whole, contains any untrue statement of
a material fact known to the Guarantor or omits any
material fact known to the Guarantor required to be
stated therein or necessary to make the statements made
therein, in light of the circumstances under which they
are made, not misleading as of the time when made or
delivered.
(c) Benefit to Guarantor. The Guarantor
represents and warrants that the Guarantor has determined
that its liability and obligation under this Guaranty
will substantially benefit it directly, and its board of
directors has made that determination. The Company, the
Guarantor and the other Subsidiaries of the Company are
mutually dependent on each other in the conduct of their
respective businesses and do business together as an
integrated business enterprise. The maintenance and
improvement of the Company's financial condition is vital
to sustaining the Guarantor's business and the
transactions contemplated in the Credit Agreement produce
distinct and identifiable financial and economic direct
and indirect benefits to the Guarantor.
The representations and warranties set forth in this
Section 6 shall survive the execution and delivery of
this Guaranty.
Section 7. Further Assurances.
(a) As long as any of the Obligations remain
outstanding and the Commitments have not expired, the
Guarantor shall, unless the Majority Banks waive
compliance in writing, comply with all the covenants
related to the Guarantor contained in the Credit
Agreement.
(b) The Guarantor agrees that at any time and
from time to time, at the expense of the Guarantor, the
Guarantor will promptly execute and deliver all further
instruments and documents, and take all further action,
that may be necessary or desirable, or that the Agent may
reasonably request, to enable the Agent to protect and to
exercise and enforce its rights and remedies hereunder.
Section 8. Application of Payments. Any payment
received by the Agent from the Guarantor (or from any
Bank pursuant to Section 13 below), shall be applied by
the Agent as follows:
First, to the payment of costs and expenses of
collection and all expenses (including, without
limitation, any legal fees and disbursements and the
allocated cost of in-house counsel), liabilities and
advances made or incurred by the Agent in connection
therewith;
Next, to the Banks pro rata based on the then
outstanding amount of the Obligations owed to each in
payment in full of the Obligations; and
Finally, after payment in full of all
Obligations and the termination of the Commitments,
the payment to the Guarantor, or its successors and
assigns, or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction
may direct, of any surplus then remaining from such
proceeds.
Section 9. Decisions Relating to Exercise of
Remedies. Notwithstanding anything in this Guaranty to
the contrary, the Agent may exercise, and at the request
of the Majority Banks shall exercise or refrain from
exercising, all rights and remedies provided for herein
and provided by law.
Section 10. No Waiver. No failure on the part of
the Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 11. Amendments, Etc, No amendment or waiver
of any provision of this Guaranty, nor consent to any
departure by the Guarantor herefrom, shall in any event
be effective unless the same shall be in writing and
signed, in the case of amendments, by the Guarantor and
by the Agent and, in the case of consent or waivers, by
the Agent and then such amendment, waiver or consent
shall be effective only in the specific instance and for
the specific purpose for which made or given.
Section 12. Notices. All notices, requests and
other communications provided for hereunder shall be in
writing and given to Agent as provided in Section 11,02
of the Credit Agreement. All communications and notices
hereunder to Guarantor shall be given to or, at such
other address as shall be designated by
Guarantor in a written notice to the Agent.
Section 13. Right to Set-off.
(a) Upon the occurrence and during the
continuance of any Event of Default under the Credit
Agreement, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by
law, to set-off and apply any and all deposits (general
or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by
such Bank to or for the credit or the account of the
Guarantor against any and all of the Obligations,
irrespective of whether or not such Bank shall have made
any demand under this Guaranty and although such
Obligations may be contingent and unmatured. Each Bank
which sets-off pursuant to this Section 13(a) shall give
prompt notice to the Guarantor following the occurrence
thereof; provided that the failure to give such notice
shall not affect the validity of the set-off.
(b) Any payment obtained pursuant to Section
13(a) above (or in any other manner directly from the
Guarantor) by any Bank shall be remitted to the Agent and
distributed among the Banks in accordance with the
provisions of Section 8 above.
Section 14. Continuing Guaranty. This Guaranty
is a continuing guaranty and shall (a) remain in full
force and effect until payment in full (after the
termination of the Commitments) of the Obligations and
all other amounts payable under this Guaranty; (b) be
binding upon the Guarantor, its successors and assigns;
and (c) inure to the benefit of the Agent, the Banks and
their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause
(c), any Bank may assign or otherwise transfer its rights
and obligations under the Credit Agreement to any other
Person or entity, and such other Person or entity shall
thereupon become vested with all the benefits in respect
thereof granted to the Bank herein or otherwise, au as
provided in, and to the extent set forth in, Sections
11,07 and 11.08 of the Credit Agreement.
Section 15. Subordination of the Credit Parties'
Obligations to the Guarantor. The Guarantor hereby
expressly covenants and agrees for the benefit of the
Agent and the Banks that all obligations and liabilities
of the Company, the Other Guarantors (as defined in
Section 17 of this Guaranty) and each of their respective
Subsidiaries to the Guarantor of whatsoever description
(including, without limitation, all intercompany
receivables of the Guarantor from the Company, other
Guarantors and Subsidiaries) shall be subordinated and
junior in right of payment to the Obligations. Following
the occurrence of an Event of Default, any indebtedness
of the Company, Other Guarantors and their Subsidiaries
to the Guarantor shall, if the Agent shall so request, be
collected and received by the Guarantor as trustee for
the Agent and the Banks and paid over to the Agent and
the Banks on account of the Obligations but without
reducing or affecting in any manner the liability of the
Guarantor under this Guaranty.
Section 16. Financial Reporting. Guarantor shall
furnish to the Agent all such financial statements and
other information relating to the financial condition,
properties and affairs of Guarantor as any Bank, acting
through the Agent, may from time to time reasonably
request.
Section 17. Other Guarantors. Guarantor acknowledges
that other Subsidiaries of the Company (collectively, the
"Other Guarantors") have guaranteed the payment and
performance of the Obligations pursuant to other guaranty
agreements executed in connection with the Credit
Agreement (the "Other Guaranty Agreements"), and to the
extent Guarantor is required to satisfy all or any part
of the Obligations pursuant to the terms of this
Guaranty, Guarantor shall have and be entitled to rights
of contribution against the Other Guarantors. The
Guarantor agrees that in the event a payment shall be
made by any Other Guarantor under any Other Guaranty
Agreement, the Other Guarantor (the "Claiming Guarantor")
shall have and be entitled to rights of contribution
against the Guarantor pursuant to and in accordance with
applicable law. In the event the Guarantor makes any
such payment to a Claiming Guarantor, the Guarantor shall
be subrogated to the rights of such Claiming Guarantor to
the extent of such payment. Notwithstanding any
provision of this Guaranty to the contrary, all rights of
the Other Guarantors under this Section and all other
rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated
to the indefeasible payment in full of the Obligations,
and no payment may be made in respect of such rights of
indemnity, contribution or subrogation until all of the
Obligations have been paid in full, all Commitments have
expired and all Letters of Credit have expired. No
failure on the part of the Guarantor or any Other
Guarantor to make the payments required by this Section
(or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and
liabilities of the Guarantor or any Other Guarantor with
respect to any Guaranty, and the Guarantor and each Other
Guarantor shall remain liable for the frill amount of the
obligations under the guaranty agreement executed by it.
This Section 12 is intended only to confirm the relative
rights of the Guarantor and all Other Guarantors, and
nothing set forth in this sentence is intended to or
shall impair the obligations of the Guarantor and Other
Guarantors, jointly and severally, to pay to the Agent
and the Banks, or any one or more of them, as the case
may be, the Obligations as and when the same shall become
due and payable in accordance with the terms of this
Guaranty.
Section 18. Severability. If for any reason any
provision or provisions hereof are determined to be
invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or affect
those portions of this Guaranty which are valid.
Section 19. Taxes.
(a) Any and all payments by the Guarantor to
each Bank or the Agent under this Guaranty and any other
Loan Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In
addition, the Guarantor shall pay all Other Taxes.
(b) The Guarantor agrees to indemnity and hold
harmless each Bank and the Agent for the full amount of
Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this
Section) paid by the Bank or the Agent and any liability
(including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly
or legally asserted. Payment under this indemnification
shall be made within 30 days after the date the Bank or
the Agent makes written demand therefor.
(c) If the Guarantor shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable hereunder to any Bank or the
Agent, then: (i) the sum payable shall be increased as
necessary so that after remaining all required deductions
and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section)
such Bank or the Agent, as the case may be, receives an
amount equal to the sum it would have received had no
such deductions or withholdings been made; (ii) the
Guarantor shall make such deductions and withholdings;
(iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxing authority or other
authority in accordance with applicable law; and (iv) the
Guarantor shall also pay to each Bank or the Agent for
the account of such Bank, at the time interest is paid,
all additional reasonable amounts which the respective
Bank specifies as necessary to preserve the after-tax
yield the Bank would have received if such Taxes or Other
Taxes had not been imposed.
(d) Within 30 days after the date of any payment
by the Guarantor of Taxes or Other Taxes, the Guarantor
shall furnish the Agent the original or a certified copy
of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the
SECTION 20. GOVERNING LAW AND JURISDICTION.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
]LAWS); PROVIDED THAT THE AGENT AND THE BANKS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE XXXXX XX XXXXX XX XX XXX
XXXXXX XXXXXX FOR THE SOUTHERN DISTRICT OF TEXAS, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE XXXXXX OF COPIES THEREOF BY REGISTERED
OR CERTIFIED MAIL POSTAGE PREPAID, TO ALL AT ITS ADDRESS
SET FORTH IN SCHEDULE 11,02 OF THE CREDIT AGREEMENT, SUCH
SERVICE TO BECOME EFFECTIVE TEN DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY
BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION. THE
GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY TEXAS LAW.
(c) THE GUARANTOR IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY AC-NON
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED HERETO.
SECTION 21. WAIVER OF JURY TRIAL. THE GUARANTOR
WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF AC-NON BASED UPON OR ARISING OUT OF OR RELATED
TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER with RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE GUARANTOR AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE GUARANTOR
FURTHER AGREES THAT ITS RIGHT TO A BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABLE OF THIS GUARANTY OR
THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 22. ENTIRE AGREEMENT. THIS WRITTEN GUARANTY
AND THE INSTRUMENTS AND DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.
___________________________
By:________________________
Name:
Title:
EXHIBIT "H"
FORM OF BORROWING BASE REPORT
DELIVERED PURSUANT TO SECTION 7.01(c)
OF THE CREDIT AGREEMENT
BORROWING BASE REPORT
Calendar Month Ended ________, 199__
The undersigned authorized officer of GIANT
INDUSTRIES, INC., a Delaware corporation (the "Company"),
delivers this Certificate pursuant to Section 7.01(c) of
the Credit Agreement dated as of October 4, 1995 (the
"Credit Agreement"), among Bank of America National Trust
and Savings Association, as Agent (the "Agent"), Bank of
America Illinois as a Bank and as a Letter of Credit
Issuing Bank, the several financial institutions from
time to time party thereto (the "Banks"),
the Company and the Guarantors named therein.
Capitalized terms used herein without definition have
the meanings assigned to them in the Credit Agreement.
The undersigned hereby certifies to the Agent
and the Banks as follows:
1. The undersigned hereby certifies that, to the
best of his knowledge (a) Annex I hereto is a true and
accurate calculation of the Borrowing Base as at the end
of the calendar month ended ___________, 199___,
determined in accordance with the requirements of the
Credit Agreement, and (b) Annex 2 hereto is a correct
description of the aging of all Eligible Account
Receivables as at the end of the calendar month ended
____________, 199__.
2. All Eligible Refinery Hydrocarbon Inventory
covered by this Certificate has been produced in
compliance with all applicable laws, including, without
limitation, the minimum wage and overtime requirement of
the Fair Labor Standards Act of 1938, as amended.
EXECUTED AND DELIVERED as of October __, 1995.
GIANT INDUSTRIES, INC.
Authorized Officer
ANNEX I
GIANT INDUSTRIES, INC.
BORROWING BASE CERTIFICATE
CALENDAR MONTH
ENDED ___________, 1995
Borrowing Base Calculation:
A. Eligible Accounts Receivables (Annex 1a) $______
B. Eligible Refinery Hydrocarbon Inventory $______
[Annex 1b]
C. Borrowing Base (Sum of A&B) $______
Lesser of Borrowing Base or $45,000,000 $______
Less Outstanding at Month End:
Aggregate Facility B Loans $______
Aggregate L/C Obligations $______
Total $______
Net Availability at Month End: $______
ANNEX 1(a)
GIANT INDUSTRIES, INC.
DETAIL OF ELIGIBLE ACCOUNTS RECEIVABLE, FIFO BASIS
______________, 199___
A B
Preferred Account Other Account
Obligors Obligors
1. Service Stations:
A. Trade _______ _______
B. Other _______ _______
C. Giant Travel Center _______ _______
1. Trade _______ _______
2. Other _______ _______
D. Total ______ _____
2. Refinery;
A. Trade _______ _______
B. Raw Material Supply _______ _______
C. Product Supply _______ _______
X. Xxxxxxxx Plant _______ _______
E. Total ______ _____
3. Eligible Accounts Receivable
A. Total Accounts $______ $_____
Receivables
B. Advance Rate x .90 x .85
C. Sub Total per Obligor $______ $_____
Type (AxB)
D. Total Eligible Accounts $_____
Receivables (Sum of
Column A and B)
ANNEX 1(b)
GIANT INDUSTRIES, INC.
INVENTORY DETAIL
_______________, 199__
Bloomfield Ciniza Portales
Bbls Bbls Bbls
Albuquerque Other Total
Terminal Bbls Bbls
$/Bbl $
FEED STOCK:
Crude Oil
Field Tanks/Terminals
Pipeline Linefill
Tex New Mex Pipeline
Exchange and Other Common Carriers
Refinery Crude
(Less B.S.& W.)
(Less Slop)
NGL's
Natural Gasoline
Isobutane
Normal Butane
Other
MTBE
Ethanol
Subtotal
INTERMEDIATE PRODUCTS:
Isomerate
Cat Feed
Gasoline Components
Naptha
Subtotal
REFINED PRODUCTS
Leaded Regular
Unleaded Regular
Unleaded Premium
Propane
JP-8
Jet-A
Diesel
Residual Fuel Oil
Other:
Portales Ethanol
Gasolines
Service Station
Stop-N-Go
Four Corners
Travel Center
Subtotal
Inventory Total
ANNEX 1(b)
GIANT INDUSTRIES, INC.
INVENTORY DETAIL
_______________, 199__
Borrowing Base Calculation:
Gross
Inventory Advance Advance
Product Line Amount Rate Amount
Feedstock 80.00%
Intermediate
Products 80.00%
Refined Products
(Excluding SS
and TC) 80.00%
Service Stations
and Travel Center 50.00%
Total
