EXHIBIT 10.7
EXECUTION COPY
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$205,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
MAPCO EXPRESS, INC.
AND
MAPCO FAMILY CENTERS, INC.,
AS BORROWERS,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
▇▇▇▇▇▇ BROTHERS INC.,
AS ARRANGER,
SUNTRUST BANK,
AS SYNDICATION AGENT,
BANK LEUMI USA,
AS CO-ADMINISTRATIVE AGENT,
AND
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF APRIL 28, 2005
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.................................................. 3
1.1 Defined Terms................................................ 3
1.2 Other Definitional Provisions................................ 27
SECTION 2. AM0UNT AND TERMS OF COMMITMENTS.............................. 28
2.1 Term Loan Commitments........................................ 28
2.2 Effective Date Procedure for Term Loans...................... 28
2.3 Repayment of Term Loans...................................... 29
2.4 Revolving Credit Commitments................................. 29
2.5 Procedure for Revolving Credit Borrowing..................... 30
2.6 Repayment of Loans; Evidence of Debt......................... 30
2.7 Commitment Fees, etc......................................... 31
2.8 Termination or Reduction of Revolving Credit Commitments..... 32
2.9 Optional Prepayments......................................... 32
2.10 Mandatory Prepayments........................................ 32
2.11 Conversion and Continuation Options.......................... 33
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.... 34
2.13 Interest Rates and Payment Dates............................. 34
2.14 Computation of Interest and Fees............................. 35
2.15 Inability to Determine Interest Rate......................... 35
2.16 Pro Rata Treatment and Payments.............................. 36
2.17 Requirements of Law.......................................... 37
2.18 Taxes........................................................ 38
2.19 Indemnity.................................................... 40
2.20 Illegality................................................... 41
2.21 Change of Lending Office..................................... 41
2.22 Replacement of Lenders under Certain Circumstances........... 41
SECTION 3. LETTERS OF CREDIT............................................ 42
3.1 L/C Commitment............................................... 42
3.2 Procedure for Issuance of Letter of Credit................... 42
3.3 Fees and Other Charges....................................... 43
3.4 L/C Participations........................................... 43
3.5 Reimbursement Obligation of the Borrowers.................... 44
3.6 Obligations Absolute......................................... 45
3.7 Letter of Credit Payments.................................... 45
3.8 Applications................................................. 45
SECTION 4. REPRESENTATIONS AND WARRANTIES............................... 46
4.1 Financial Condition.......................................... 46
4.2 No Change.................................................... 46
4.3 Corporate Existence; Compliance with Law..................... 46
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4.4 Corporate Power; Authorization; Enforceable Obligations...... 47
4.5 No Legal Bar................................................. 47
4.6 No Material Litigation....................................... 47
4.7 No Default................................................... 47
4.8 Ownership of Property; Liens................................. 48
4.9 Intellectual Property........................................ 48
4.10 Taxes........................................................ 48
4.11 Federal Regulations.......................................... 48
4.12 Labor Matters................................................ 48
4.13 ERISA........................................................ 48
4.14 Investment Company Act; Other Regulations.................... 49
4.15 Subsidiaries................................................. 49
4.16 Use of Proceeds.............................................. 49
4.17 Environmental Matters........................................ 49
4.18 Accuracy of Information, etc................................. 51
4.19 Security Documents........................................... 51
4.20 Solvency..................................................... 52
4.21 Regulation H................................................. 52
4.22 Certain Documents............................................ 52
SECTION 5. CONDITIONS PRECEDENT......................................... 52
5.1 Conditions to Effectiveness.................................. 52
5.2 Conditions to Each Extension of Credit....................... 58
SECTION 6. AFFIRMATIVE COVENANTS........................................ 58
6.1 Financial Statements......................................... 58
6.2 Certificates; Other Information.............................. 59
6.3 Payment of Obligations....................................... 60
6.4 Conduct of Business and Maintenance of Existence;
Compliance................................................... 60
6.5 Maintenance of Property; Insurance........................... 60
6.6 Inspection of Property; Books and Records; Discussions....... 61
6.7 Notices...................................................... 61
6.8 Environmental Laws........................................... 62
6.9 Interest Rate Protection..................................... 62
6.10 Additional Collateral, etc................................... 63
6.11 Further Assurances........................................... 64
6.12 Post-Effective Date Covenants................................ 65
SECTION 7. NEGATIVE COVENANTS........................................... 65
7.1 Financial Condition Covenants................................ 65
7.2 Limitation on Indebtedness................................... 66
7.3 Limitation on Liens.......................................... 67
7.4 Limitation on Fundamental Changes............................ 68
7.5 Limitation on Disposition of Property........................ 69
7.6 Limitation on Restricted Payments............................ 69
7.7 Limitation on Capital Expenditures........................... 70
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7.8 Limitation on Investments.................................... 70
7.9 Limitation on Transactions with Affiliates................... 71
7.10 Limitation on Sales and Leasebacks........................... 71
7.11 Limitation on Changes in Fiscal Periods...................... 71
7.12 Limitation on Negative Pledge Clauses........................ 71
7.13 Limitation on Restrictions on Subsidiary Distributions....... 72
7.14 Limitation on Lines of Business.............................. 72
7.15 Limitation on Amendments to Other Documents.................. 72
7.16 Limitation on Hedge Agreements............................... 72
7.17 La ▇▇▇▇▇▇ Management Agreement............................... 72
SECTION 8. EVENTS OF DEFAULT............................................ 73
SECTION 9. THE AGENTS................................................... 76
9.1 Appointment.................................................. 76
9.2 Delegation of Duties......................................... 76
9.3 Exculpatory Provisions....................................... 76
9.4 Reliance by Agents........................................... 76
9.5 Notice of Default............................................ 77
9.6 Non-Reliance on Agents and Other Lenders..................... 77
9.7 Indemnification.............................................. 78
9.8 Agent in Its Individual Capacity............................. 78
9.9 Successor Administrative Agent............................... 78
9.10 Authorization to Release Liens and Guarantees................ 79
9.11 The Arranger; the Syndication Agent; the
Co-Administrative Agent...................................... 79
SECTION 10. MISCELLANEOUS................................................ 79
10.1 Amendments and Waivers....................................... 79
10.2 Notices...................................................... 81
10.3 No Waiver; Cumulative Remedies............................... 83
10.4 Survival of Representations and Warranties................... 84
10.5 Payment of Expenses.......................................... 84
10.6 Successors and Assigns; Participations and Assignments....... 85
10.7 Adjustments; Set-off......................................... 88
10.8 Counterparts................................................. 89
10.9 Severability................................................. 89
10.10 Integration.................................................. 89
10.11 GOVERNING LAW................................................ 89
10.12 Submission To Jurisdiction; Waivers.......................... 89
10.13 Acknowledgments.............................................. 90
10.14 Confidentiality.............................................. 90
10.15 Release of Collateral and Guarantee Obligations.............. 91
10.16 Accounting Changes........................................... 91
10.17 Delivery of Lender Addenda................................... 92
10.18 WAIVERS OF JURY TRIAL........................................ 92
10.19 Maximum Liability of any Borrower............................ 92
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10.20 Effect of Amendment and Restatement of the Existing Credit
Facilities.................................................. 92
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ANNEXES:
A Existing Letters of Credit
SCHEDULES:
1.1A Mortgaged Property
1.1B Real Property
4.4 Consents
4.8 Defects in Title
4.15 Subsidiaries
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
6.12(a) Post-Closing Surveys
6.12(b) Post-Closing Title Policies
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.3(j) Liens Securing Hedge Agreements
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-l Form of Mortgage
D-2 Form of Mortgage Assignment
D-3 Form of Mortgage Amendment
D-4 Form of Leasehold Landlord Agreement
E Form of Assignment and Acceptance
F Form of Legal Opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
H Form of Exemption Certificate
I Form of Lender Addendum
J Form of Borrowing Notice
K Form of Escrow Agreement
L Form of Subordination Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28, 2005,
among MAPCO EXPRESS, INC., a Delaware corporation ("MAPCO Express"), and MAPCO
FAMILY CENTERS, INC., a Delaware corporation ("MAPCO Family" and, together with
MAPCO Express, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders"), ▇▇▇▇▇▇ BROTHERS INC., as advisor, sole lead arranger and sole
bookrunner (in such capacity, the "Arranger"), SUNTRUST BANK, as syndication
agent (in such capacity, the "Syndication Agent"), BANK LEUMI USA, as
co-administrative agent (in such capacity, the "Co-Administrative Agent"), and
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, MAPCO Express is party to that certain Amended and Restated
Credit Agreement, dated as of April 30, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Existing Bank Leumi Agreement"),
among MAPCO Express, the guarantors from time to time party thereto, the
financial institutions from time to time party thereto (the "Existing Bank Leumi
Lenders"), and Bank Leumi USA, as agent (the "Existing Bank Leumi Agent");
WHEREAS, MAPCO Family is a party to that certain Revolving Credit and
Term Loan Agreement, dated as of April 30, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Existing SunTrust Agreement" and,
together with the Existing Bank Leumi Agreement, the "Existing Credit
Facilities"), among MAPCO Family, the lenders from time to time party thereto
(the "Existing SunTrust Lenders" and, together with the Existing Bank Leumi
Lenders, the "Existing Lenders"), and SunTrust Bank, as administrative agent
(the "Existing SunTrust Agent" and, together with the Existing Bank Leumi Agent,
the "Existing Agents");
WHEREAS, pursuant to the Existing Bank Leumi Agreement, the Existing
Leumi Lenders made term loans (the "Existing Bank Leumi Term Loans") and
revolving credit loans (the "Existing Bank Leumi Revolving Credit Loans") to
MAPCO Express and pursuant to the Existing SunTrust Agreement, the Existing
SunTrust Lenders made term loans (the "Existing SunTrust Term Loans" and,
together with the Existing Bank Leumi Term Loans, the "Existing Term Loans") and
revolving credit loans (the "Existing SunTrust Revolving Credit Loans" and,
together with the Existing Bank Leumi Revolving Credit Loans, the "Existing
Revolving Credit Loans") to MAPCO Family;
WHEREAS, on the Effective Date (such term and other capitalized terms
used in these recitals and not defined in these recitals being used with the
definitions given to such terms in Section 1.1), the Existing Bank Leumi Lenders
will assign to ▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI"), and LCPI will assume, the
Existing Bank Leumi Term Loans and the Revolving Credit Commitments (as defined
in the Existing Bank Leumi Agreement), together with the related Existing Bank
Leumi Revolving Credit Loans (collectively, the "Existing Bank Leumi Loans"),
pursuant to a master assignment and acceptance;
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WHEREAS, on the Effective Date, the Existing SunTrust Lenders will
assign to LCPI, and LCPI will assume, the Existing SunTrust Term Loans and the
Revolving Commitment (as defined in the Existing SunTrust Agreement), together
with the related Existing SunTrust Revolving Credit Loans (collectively, the
"Existing SunTrust Loans" and, together with the Existing Bank Leumi Loans, the
"Existing Loans"), pursuant to a master assignment and acceptance;
WHEREAS, on the Effective Date, concurrently with the consummation of
the assignments to, and assumptions by, LCPI described in the two preceding
recitals, the Borrower shall pay to each Existing Agent, for the ratable benefit
of the relevant Existing Lenders, an amount equal to the accrued and unpaid
interest on the Existing Loans to and including the Effective Date;
WHEREAS, on the Effective Date, immediately following the consummation
of the assignments to, and assumptions by, LCPI described in the second
preceding recital, the Existing Bank Leumi Agent will resign as Agent under the
Existing Bank Leumi Agreement and LCPI will be appointed, and will accept its
appointment, as Administrative Agent under the Existing Bank Leumi Agreement,
and, concurrently therewith, the Existing Bank Leumi Agent will assign and
deliver to LCPI, as successor Agent, all Collateral (as defined in the Existing
Bank Leumi Agreement, the "Existing Bank Leumi Collateral") and all Security
Documents (such Security Documents, as defined in the Existing Bank Leumi
Agreement, together with any other security documents held by the Administrative
Agent under the Existing Bank Leumi Agreement, the "Existing Bank Leumi Security
Documents");
WHEREAS, on the Effective Date, immediately following the consummation
of the assignments to, and assumptions by, LCPI described in the second
preceding recital, the Existing SunTrust Agent will resign as Administrative
Agent under the Existing SunTrust Agreement and LCPI will be appointed, and will
accept its appointment, as Administrative Agent under the Existing SunTrust
Agreement, and, concurrently therewith, the Existing SunTrust Agent will assign
and deliver to LCPI, as successor Administrative Agent, all Collateral (as
defined in the Existing SunTrust Agreement, the "Existing SunTrust Collateral"
and, together with the Existing Bank Leumi Collateral, the "Existing
Collateral") and all Collateral Documents (such Collateral Documents, as defined
in the Existing SunTrust Agreement, together with any other security documents
held by the Administrative Agent under the Existing SunTrust Agreement, the
"Existing SunTrust Security Documents" and, together with the Existing Bank
Leumi Security Documents, the "Existing Security Documents");
WHEREAS, on the Effective Date, immediately following the consummation
of the transactions described in the two preceding recitals, (i) LCPI will
assign to each of the Lenders party hereto with a Revolving Credit Commitment
hereunder, and each of such Lenders will assume, a portion of the Existing
Revolving Credit Loans, equal to its Revolving Credit Percentage multiplied by
the aggregate amount of the Existing Revolving Credit Loans, and the Revolving
Credit Commitment of each such Lender hereunder shall be increased, to the
extent necessary, to equal the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender, and (ii) each of the Existing Credit
Facilities will be amended and restated in their entirety by this Agreement; and
immediately following the Effective Date, additional lenders will acquire,
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pursuant to Section 10.6(c), all or part of the Term Loans (including all or a
lesser percentage of the Term Loans representing the Existing Term Loans
assigned to LCPI on the Effective Date, as well as all or the same lesser
percentage of the Term Loans made on the Effective Date pursuant to Section
2.1), whereupon such additional lenders will become Term Loan Lenders hereunder
holding Term Loans in the amounts so assigned;
WHEREAS, from and after the Effective Date, after giving effect to the
transactions described in the foregoing recitals and to the amendment and
restatement of the Existing Credit Facilities effected hereby, (i) the Existing
Term Loans shall become the Term Loans hereunder, (ii) the Revolving Credit
Commitments of each of the Existing Bank Leumi Lenders under the Existing Bank
Leumi Agreement and the Existing SunTrust Lenders under the Existing SunTrust
Agreement, as increased by the immediately preceding recital and as amended as
provided herein, shall become the Revolving Credit Commitments held by the
Lenders hereunder, (iii) all Existing Collateral shall become Collateral
hereunder and (iv) all Existing Security Documents, as amended, amended and
restated or otherwise modified as provided herein, shall become Security
Documents hereunder;
WHEREAS, the Borrower has requested that each of the Existing Credit
Facilities be amended and restated in their entirety as set forth herein; and
WHEREAS, the Lenders are willing to amend and restate the Existing
Credit Facilities solely on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
that on the Effective Date, as provided in Section 10.20, the Existing Credit
Facilities shall be amended and restated in their entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent, the
Co-Administrative Agent and the Administrative Agent.
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"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Effective Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lender's
Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the sum of the Aggregate Exposures of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for each Type of Loan under each Facility, the
rate per annum set forth opposite such Facility under the relevant column
heading below:
Base Rate Eurodollar
Loans Loans
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Revolving Credit Facility 1.25% 2.25%
Term Loan Facility 1.75% 2.75%
provided, that on and after the first Adjustment Date occurring after the
completion of two full fiscal quarters of the Borrowers after the Effective
Date, the Applicable Margins will be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 7.5 and any lease or sublease of real property)
which yields gross proceeds to the Borrowers or any of their Subsidiaries
(valued at the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market value in
the case of other non-cash proceeds) in excess of $100,000.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": with respect to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding.
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"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the prime
lending rate as set forth on the British Banking Association Telerate Page 5 (or
such other comparable publicly available page as may, in the reasonable opinion
of the Administrative Agent after notice to the Borrowers, replace such page for
the purpose of displaying such rate if such rate no longer appears on the
British Bankers Association Telerate page 5), as in effect from time to time.
The Prime Rate is a reference rate and does not necessarily represent the lowest
or best rate actually available. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest is
based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by a Borrower as a date
on which such Borrower requests the relevant Lenders to make Loans hereunder.
"Borrowing Notice": with respect to any request for borrowing of Loans
hereunder, a notice from any Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit J, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by clause
(b) below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (b) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (a) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"Business Unit": as defined in the definition of "Consolidated
EBITDA."
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person for the acquisition,
development or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which are required to be capitalized under GAAP
on a balance sheet of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be
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classified and accounted for as capital leases on a balance sheet of such Person
under GAAP; and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or P-2
by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; and (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Change of Control": the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
excluding the Permitted Investors, shall become, or obtain rights (whether by
means or warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 30% of the outstanding common stock of Holdings; (b)
the board of directors of Holdings shall cease to consist of a majority of
Continuing Directors; and (c) Holdings shall cease to own and control, of record
and beneficially, directly, 100% of each class of outstanding Capital Stock of
each Borrower free and clear of all Liens (except Liens created by the Guarantee
and Collateral Agreement).
"Co-Administrative Agent": as defined in the preamble hereto.
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"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": with respect to any Lender, each of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with a Borrower within the meaning of Section 4001
of ERISA or is part of a group that includes a Borrower and that is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated April 2005 and furnished to the initial Lenders in connection
with the syndication of the Facilities.
"Consolidated Adjusted Debt": on any date, the sum of (a) Funded Debt
of the Borrowers and their Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP, plus (b) the product of Consolidated
Lease Expense for the period of four consecutive fiscal quarters most recently
ended on or prior to such date multiplied by 8.
"Consolidated Adjusted Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDAR of the Borrowers and their Subsidiaries for
such period to (b) the sum of Consolidated Interest Expense of the Borrowers and
their Subsidiaries for such period plus Consolidated Lease Expense for such
period.
"Consolidated Adjusted Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters of the Borrowers, the ratio of (a)
Consolidated Adjusted Debt on such day to (b) Consolidated EBITDAR of the
Borrowers and their Subsidiaries for such period.
"Consolidated Current Assets": of any Person at any date, all amounts
(other than cash and Cash Equivalents) that would, in conformity with GAAP, be
set forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries at such date.
"Consolidated Current Liabilities": of any Person at any date, all
amounts that would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of such Person and its Subsidiaries at such date, but excluding, with
respect to the Borrowers, (a) the current portion of any Funded Debt of the
Borrowers and their Subsidiaries and (b) without duplication, all Indebtedness
consisting of Revolving Credit Loans, to the extent otherwise included therein.
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"Consolidated EBITDA": of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
interest expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill) and organization costs,
(e) any extraordinary, unusual or non-recurring non-cash expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), and (f) any other non-cash
charges, and minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) interest income (except to the extent
deducted in determining such Consolidated Net Income), (b) any extraordinary,
unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business), (c) any other non-cash income and (d) any cash payments made during
such period in respect of items described in clause (e) above subsequent to the
fiscal quarter in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis; provided that, for purposes of calculating Consolidated
EBITDA of the Borrowers and their Subsidiaries for any period:
(i) the Consolidated EBITDA of any Person (or attributable to
assets constituting an ongoing business (a "Business Unit")) acquired
by the Borrowers or their Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the
consummation of such acquisition and the incurrence or assumption of
any Indebtedness in connection therewith occurred on the first day of
such period) if the consolidated balance sheet of such acquired Person
and its consolidated Subsidiaries or of such Business Unit as at the
end of the period preceding the acquisition of such Person or of such
Business Unit and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in respect of
which Consolidated EBITDA is to be calculated (x) have been previously
provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the
scope of the audit by independent certified public accountants of
nationally recognized standing or (2) have been found acceptable by
the Administrative Agent;
(ii) the Consolidated EBITDA of any Person or Business Unit
Disposed of by the Borrowers or their Subsidiaries during such period
shall be excluded for such period (assuming the consummation of such
Disposition and the repayment of any Indebtedness in connection
therewith occurred on the first day of such period);
(iii) solely for the purpose of determining Consolidated EBITDA
on the Effective Date pursuant to Section 5.1(c), the portion of such
Consolidated EBITDA attributable to ▇▇▇▇▇▇▇▇▇▇ Oil Co., Inc. shall be
included on an
9
annualized basis assuming the acquisition of ▇▇▇▇▇▇▇▇▇▇ Oil Co., Inc.
was consummated on January 1, 2004;
(iv) solely for the purpose of determining Consolidated EBITDA on
the Effective Date pursuant to Section 5.1(c) for the period of four
consecutive fiscal quarters ended prior to the Effective Date for
which financial statements are available, such Consolidated EBITDA
shall be increased by (A) $3,100,000 representing the rebate to be
received by the Borrowers pursuant to the ▇▇▇▇▇▇ Distribution Service
Agreement, (B) an amount equal to the amount actually paid by the
Borrowers and their Subsidiaries on account of legal fees in an
aggregate amount not exceeding $220,000 and (C) an amount equal to
payments made by MAPCO Express to the State of Tennessee's Division of
Underground Storage Tanks Fund in an aggregate amount not exceeding
$200,000;
(v) solely for the purpose of determining Consolidated EBITDA for
any period of four consecutive fiscal quarters which includes the
fiscal quarters ending March 31, 2004, June 30, 2004, September 30,
2004, December 31, 2004 or March 31, 2005, Consolidated EBITDA shall
be increased by an amount equal to $375,000 for each such fiscal
quarter ending during such period representing the La ▇▇▇▇▇▇
Management Fee; and
(vi) (x) in the event that the La ▇▇▇▇▇▇ Management Agreement is
not effective on or prior to June 30, 2005, solely for the purpose of
determining Consolidated EBITDA for any period of four consecutive
fiscal quarters ending during the Test Period, Consolidated EBITDA for
each quarter ending during the Test Period shall be increased by the
amount released to MAPCO Express pursuant to Section 5.2 of the Escrow
Agreement and (y) in the event that the La ▇▇▇▇▇▇ Management Agreement
is effective on or prior to June 30, 2005, solely for the purpose of
determining Consolidated EBITDA for any period of four consecutive
fiscal quarters which includes the fiscal quarter ending June 30,
2005, Consolidated EBITDA shall be increased by an amount equal to (a)
$375,000 minus (b) the amount of the La ▇▇▇▇▇▇ Management Fee actually
received by MAPCO Express on June 30, 2005.
"Consolidated EBITDAR": of any Person for any period, the Consolidated
EBITDA of such Person for such period, plus Consolidated Lease Expense of such
Person for such period.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of the Borrowers and their Subsidiaries for such
period minus the aggregate amount actually paid by the Borrowers and their
Subsidiaries in cash during such period on account of Capital Expenditures to
(b) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense of the Borrowers and their
Subsidiaries for such period, (b) provision for cash income taxes made by the
Borrowers or any of their Subsidiaries on a consolidated basis in respect of
such period, (c) scheduled payments made during such period on
10
account of principal of Indebtedness of the Borrowers or any of their
Subsidiaries (including scheduled principal payments in respect of the Term
Loans) and (d) the aggregate amount, without duplication, of Restricted Payments
made by the Borrowers in accordance with Section 7.6(e).
"Consolidated Interest Expense": of any Person for any period, total
cash interest expense (including that attributable to Capital Lease Obligations)
of such Person and its Subsidiaries for such period with respect to all
outstanding Indebtedness of such Person and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed by such
Person with respect to letters of credit and bankers' acceptance financing and
net costs of such Person under Hedge Agreements in respect of interest rates to
the extent such net costs are allocable to such period in accordance with GAAP);
provided, that for the purposes of determining "Consolidated Interest Expense"
for FQ2 2005, FQ3 2005 and FQ4 2005, Consolidated Interest Expense for the
relevant period shall be deemed to equal Consolidated Interest Expense for such
fiscal quarter (together with, on a cumulative basis, in the case of the latter
two such determinations, each previous fiscal quarter commencing after the
Effective Date) multiplied by 4, 2 and 4/3, respectively.
"Consolidated Lease Expense": for any period, the aggregate amount of
fixed and contingent rentals payable by the Borrowers and their Subsidiaries for
such period with respect to leases of real and personal property, determined on
a consolidated basis in accordance with GAAP, provided, that payments in respect
of Capital Lease Obligations shall not constitute Consolidated Lease Expense.
"Consolidated Leverage Ratio": as at the last day of any period of
four consecutive fiscal quarters of the Borrowers, the ratio of (a) Consolidated
Total Debt on such day to (b) Consolidated EBITDA of the Borrowers and their
Subsidiaries for such period.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the Borrowers and their
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of a Borrower or
is merged into or consolidated with a Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of a Borrower) in
which a Borrower or any of its Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by such Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of a Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Total Debt": at any date, the aggregate principal amount
of all Indebtedness of the Borrowers and their Subsidiaries (excluding all
obligations of such Persons, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit or similar facilities) at such
date, determined on a consolidated basis in accordance with GAAP.
11
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets of the Borrowers on such date less (b) Consolidated
Current Liabilities of the Borrowers on such date.
"Continuing Directors": the directors of Holdings on the Effective
Date and each other director of Holdings, if, in each case, such other
director's nomination for election to the board of directors of Holdings is
recommended by at least 60% of the then Continuing Directors or such other
director receives the vote of the Permitted Investors in his or her election by
the shareholders of Holdings.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": as to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person and (b) is organized by such Person primarily
for the purpose of making equity or debt investments in one or more companies.
For purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Delek US Dividend": the payment of a dividend on or about the
Effective Date by MAPCO Express to Delek US Holdings, Inc. in an aggregate
amount not exceeding $25,000,000 less an amount equal to the amount deposited by
MAPCO Express in an escrow account on the Effective Date, if any, pursuant to
Section 5.1(i).
"Deposit Accounts": as defined in the Guarantee and Collateral
Agreement.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof; and
the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of a Borrower organized under
the laws of any jurisdiction within the United States of America.
"ECF Percentage": with respect to any fiscal year of the Borrowers,
75%; provided, that, the ECF Percentage shall be 50% if the Consolidated
Leverage Ratio as of the last day of such fiscal year is not greater than 2.5 to
1.0.
"Effective Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied, which date shall be not later than
April 28, 2005.
12
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local, municipal
or other Governmental Authority, regulating, relating to or imposing liability
or standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations pursuant to or
required under any applicable Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Escrow Agreement": the Escrow Agreement, dated as of the date hereof,
between MAPCO Express, the Administrative Agent and Fifth Third Bank, as escrow
agent, substantially in the form of Exhibit K, as amended supplemented or
otherwise modified from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate
(without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
13
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrowers, the
difference, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) the amount of all non-cash charges (including
depreciation and amortization) deducted in arriving at such Consolidated Net
Income, (iii) the amount of the decrease, if any, in Consolidated Working
Capital for such fiscal year, (iv) the aggregate net amount of non-cash loss on
the Disposition of Property by the Borrowers and their Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent deducted in arriving at such Consolidated Net Income and (v) the
net increase during such fiscal year (if any) in deferred tax accounts of the
Borrowers minus (b) the sum, without duplication, of (i) the amount of all
non-cash credits included in arriving at such Consolidated Net Income, (ii) the
aggregate amount actually paid by the Borrowers and their Subsidiaries in cash
during such fiscal year on account of Capital Expenditures (minus the principal
amount of Indebtedness incurred in connection with such expenditures and minus
the amount of any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all prepayments of
Revolving Credit Loans during such fiscal year to the extent accompanying
permanent optional reductions of the Revolving Credit Commitments and all
optional prepayments of the Term Loans during such fiscal year, (iv) the
aggregate amount of all regularly scheduled principal payments of Funded Debt
(including, without limitation, the Term Loans) of the Borrowers and their
Subsidiaries made during such fiscal year (other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) the amount of the increase, if any, in
Consolidated Working Capital for such fiscal year, (vi) the aggregate net amount
of non-cash gain on the Disposition of Property by the Borrowers and their
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income, and (vii) the net decrease during such fiscal year (if
any) in deferred tax accounts of the Borrowers.
"Excess Cash Flow Application Date": as defined in Section 2.10(e).
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of
which either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would,
in the good faith judgment of a Borrower, result in adverse tax consequences to
such Borrower.
"Existing Agents": as defined in the recitals hereto.
"Existing Credit Facilities": as defined in the recitals hereto.
"Existing Issuing Lender": Bank Leumi USA, as issuer of the Existing
Letters of Credit.
14
"Existing Lender": as defined in the recitals hereto.
"Existing Letters of Credit": the letters of credit described in Annex
A.
"Existing Loans": as defined in the recitals hereto.
"Existing Mortgages": the collective reference to each existing deed
of trust and mortgage noted on Schedule 1.1 A, in each case, as amended prior to
the date hereof, delivered pursuant to either of the Existing Credit Facilities
in respect of certain of the Mortgaged Properties.
"Existing Revolving Credit Loans": as defined in the recitals hereto.
"Existing Term Loans": as defined in the recitals hereto.
"Facility": each of (a) the Term Loan Commitments and the Term Loans
made thereunder (the "Term Loan Facility") and (b) the Revolving Credit
Commitments and the extensions of credit made thereunder (the "Revolving Credit
Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of a Borrower that is not a
Domestic Subsidiary.
"FQ1", "FQ2", "FQ3", and "FQ4": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of the Borrowers (e.g., FQ4 2005 means the
first fiscal quarter of the Borrowers' 2005 fiscal year, which ends March 31,
2005).
"Funded Debt": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section 1.1.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrowers and the
Lenders.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative
15
functions of or pertaining to government, any securities exchange and any
self-regulatory organization (including the National Association of Insurance
Commissioners).
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrowers and each Subsidiary
Guarantor, substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency 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 owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrowers in good
faith.
"Hedge Agreements": all interest rate or currency swaps, caps or
collar agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the Borrowers or their Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Holdings": Delek US Holdings, Inc., a Delaware corporation.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
16
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations of such Person, (f)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit, surety bond or similar facilities,
(g) all obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of such Person,
(h) all Guarantee Obligations of such Person in respect of obligations of the
kind referred to in clauses (a) through (g) above, (i) all obligations of the
kind referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Hedge
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness expressly provide that such Person is
not liable therefor.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to ▇▇▇ at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or shorter, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan (other than any Revolving Credit Loan that is a Base Rate
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by a Borrower in its notice of
17
borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by such Borrower by irrevocable
notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then
current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless 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 immediately preceding
Business Day;
(2) any Interest Period for any Revolving Loan that would otherwise
extend beyond the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date;
(3) any Interest Period for any Term Loan that would otherwise extend
beyond the date final payment is due on the Term Loans shall end on
such date; and
(4) any Interest Period 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.
"Investments": as defined in Section 7.8.
"Issuing Lender": the Existing Issuing Lender and any Revolving Credit
Lender from time to time designated by the Borrowers as an Issuing Lender with
the consent of such Revolving Credit Lender and the Administrative Agent.
"L/C Commitment": $16,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such letter of Credit.
18
"La ▇▇▇▇▇▇ Affiliate": Delek Refining Ltd., a Texas limited
partnership and a Wholly Owned Subsidiary of Holdings.
"La ▇▇▇▇▇▇ Credit Facility": the credit facility provided by financial
institutions to the La ▇▇▇▇▇▇ Affiliate and Delek Pipeline Texas, Inc., the
proceeds of which will be used by the La ▇▇▇▇▇▇ Affiliate and Delek Pipeline
Texas, Inc. to acquire the La ▇▇▇▇▇▇ refinery located in Tyler, Texas.
"La ▇▇▇▇▇▇ Management Agreement": the services agreement to be entered
into between the La ▇▇▇▇▇▇ Affiliate and MAPCO Express concurrently with the
acquisition of the La ▇▇▇▇▇▇ refinery located in Tyler, Texas by the La ▇▇▇▇▇▇
Affiliate and Delek Pipeline Texas, Inc. in form and substance reasonably
satisfactory to the Administrative Agent, as amended, supplemented or otherwise
modified from time to time in accordance with Section 7.15.
"La ▇▇▇▇▇▇ Management Fee": the quarterly management fee paid to MAPCO
Express by the La ▇▇▇▇▇▇ Affiliate pursuant to the La ▇▇▇▇▇▇ Management
Agreement.
"▇▇▇▇▇▇ Entity": any of ▇▇▇▇▇▇ Commercial Paper Inc. or any of its
affiliates (including Syndicated Loan Funding Trust).
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit I, to be executed and delivered
by such Lender on the Effective Date as provided in Section 10.17.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Subordination Agreement, the Escrow Agreement, the Applications and the Notes.
"Loan Parties": the Borrowers and each Subsidiary of a Borrower that
is a party to a Loan Document.
"MFC Intercompany Debt": as defined in Section 7.2(f).
"McLane Distribution Service Agreement': the Distribution Services
Agreement, dated as of January 1, 2005, among MAPCO Express and ▇▇▇▇▇▇ Grocery
Distribution, as amended, supplemented or otherwise modified from time to time.
19
"Majority Facility Lenders": with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the Term Loans or
the Total Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of the Revolving Credit Facility, prior to any
termination of the Revolving Credit Commitments, the holders of more than 50% of
the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"MAPCO Express": as defined in the preamble hereto.
"MAPCO Family": as defined in the preamble hereto.
"Material Adverse Effect": a material adverse effect on (a) the
Transactions, (b) the business, assets, property, operations, condition
(financial or otherwise) or prospects of the Borrowers and their Subsidiaries
taken as a whole or (c) the validity or enforceability of this Agreement or any
of the other Loan Documents or the rights or remedies of the Agents or the
Lenders hereunder or thereunder.
"Material Environmental Amount": an amount or amounts payable by the
Borrowers and/or any of their Subsidiaries, in the aggregate in excess of
$1,500,000, for: costs to comply with any Environmental Law; costs of any
investigation, and any remediation, of any Material of Environmental Concern;
and compensatory damages (including, without limitation damages to natural
resources), punitive damages, fines, and penalties pursuant to any Environmental
Law.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or materials of any kind,
whether or not any such substance or material is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.
"Mortgage Amendment": each of the amendment and restatements of any
Existing Mortgage executed and delivered by any Loan Party, substantially in the
form of Exhibit D-3 (with such changes thereto as shall be advisable under the
law of the jurisdiction in which such Mortgage Amendment is to be recorded, as
the Administrative Agent on or before the Effective Date shall reasonably
determine is necessary to maintain the priority of the first mortgage Lien
encumbering the relevant Mortgaged Property).
"Mortgage Assignments": each of the assignments of any Existing
Mortgage executed and delivered by the Existing Agents or the relevant Loan
Party, as applicable, substantially in the form of Exhibit D-2 (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such Mortgage Assignment is to be recorded, as the Administrative Agent on or
before the Effective Date shall reasonably determine is necessary to maintain
the priority of the first mortgage Lien encumbering the relevant Mortgaged
Property).
20
"Mortgaged Properties": the real properties listed on Schedule 1.1A
and any real property as to which a Mortgage is granted pursuant to Section
6.10, in each case, as to which the Administrative Agent for the benefit of the
Secured Parties shall be granted a Lien pursuant to one or more Mortgages.
"Mortgages": each of the Existing Mortgages (as modified by the
related Mortgage Amendment) and each of the other mortgages and deeds of trust
made by any Loan Party in favor of, or for the benefit of, the Administrative
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit D (with such changes thereto as shall be advisable under the law of the
jurisdiction in which such mortgage or deed of trust is to be recorded), as the
same may be amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset which is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the
incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith and (c) in connection with any
Purchase Price Refund, the cash amount thereof, net of any expenses incurred in
the collection thereof.
"Non-Excluded Taxes": as defined in Section 2.18(b).
"Non-U.S. Lender": as defined in Section 2.18(f).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to a Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of the
Borrowers to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit,
21
any Specified Hedge Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrowers pursuant hereto) or otherwise; provided, that (i) obligations of the
Borrowers or any Subsidiary under any Specified Hedge Agreement shall be secured
and guaranteed pursuant to the Security Documents only to the extent that, and
for so long as, the other Obligations are so secured and guaranteed and (ii) any
release of Collateral or Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrowers and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Investors": the collective reference to Delek Group and its
Control Investment Affiliates.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which a Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Premcor Agreement": the RPC Agreement General Terms and Conditions,
dated as of May 30, 2001, among MAPCO Express and ▇▇▇▇▇▇▇▇ Refining & Marketing,
LLC, as amended, supplemented or otherwise modified from time to time.
22
"Pricing Grid": the table set forth below.
Applicable Margin for Base Applicable Margin for
Rate Loans Eurodollar Loans
-------------------------------- --------------------------------
Revolving Credit Revolving Credit
Consolidated Leverage Ratio Facility Term Facility Facility Term Facility
--------------------------------- ---------------- ------------- ---------------- -------------
> 3.50 to 1.00 1.25% 1.75% 2.25% 2.75%
- 3.50 to 1.00 and > 3.00 to 1.00 1.00% 1.50% 2.00% 2.50%
- 3.00 to 1.00 0.75% 1.50% 1.75% 2.50%
For the purposes of the Pricing Grid, changes in the Applicable Margin
resulting from changes in the Consolidated Leverage Ratio shall become effective
on each date (each, an "Adjustment Date") that is three Business Days after the
date on which financial statements are delivered to the Lenders pursuant to
Section 6.1 and shall remain in effect until the next change to be effected
pursuant to this paragraph. If any financial statements referred to above are
not delivered within the time periods specified in Section 6.1, then, until the
date that is three Business Days after the date on which such financial
statements are delivered, the highest rate set forth in each column of the
Pricing Grid shall apply. In addition, at all times while an Event of Default
shall have occurred and be continuing, the highest rate set forth in each column
of the Pricing Grid shall apply. Each determination of the Consolidated Leverage
Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the
determination thereof pursuant to Section 7.1.
"Pro Forma Balance Sheet": as defined in Section 4.1 (a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Purchase Price Refund": any amount received by a Borrower or any
Subsidiary as a result of a purchase price adjustment or similar event in
connection with any acquisition of Property by such Borrower or any Subsidiary.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of a Borrower or any of its Subsidiaries.
"Transactions": as defined in the recitals hereto.
23
"Register": as defined in Section 10.6(c).
"Regulation H": Regulation H of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrowers to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by a Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans and the Revolving Credit Loans pursuant to Section 2.10(c) as a result of
the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or
Recovery Event in respect of which the Borrowers have delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer of a Borrower stating that no Default or Event of Default has occurred
and is continuing and that such Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale, Purchase Price Refund or Recovery Event to
acquire or repair assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire assets
useful in the related Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event, provided that, such date shall be extended, if the relevant
Borrower or any of its Subsidiaries shall have entered into a definitive
agreement to acquire or fund the construction or acquisition of assets (other
than inventory) useful in such Borrower's or a Subsidiary's business, or to make
capital improvements to such assets (including leased assets) prior to, or
within twelve months after, such Reinvestment Event, to the date which is
eighteen months after such Reinvestment Event and (b) the date on which the
relevant Borrower shall have determined not to, or shall have otherwise ceased
to, acquire or repair assets useful in such Borrower's business with all or any
portion of the relevant Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (x) invests
in commercial loans and (y) is managed or advised by the same investment advisor
as such Lender, by such Lender or an Affiliate of such Lender.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
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"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Effective Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans then outstanding and (ii)
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"Responsible Officer": with respect to any Borrower, the chief
executive officer, president, chief financial officer or the treasurer of such
Borrower, but in any event, with respect to financial matters, the chief
financial officer or the treasurer of such Borrower.
"Restricted Payments": as defined in Section 7.6.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in Letters
of Credit, in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading "Revolving Credit Commitment" opposite such Lender's
name on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the
case may be, in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original aggregate amount of the Total Revolving Credit
Commitments is $40,000,000.
"Revolving Credit Commitment Period": the period from and including
the Effective Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.6.
25
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes of the Total Revolving Extensions of Credit then
outstanding).
"Revolving Credit Termination Date": April 28, 2010.
"Revolving Extensions of Credit": as to any Revolving Credit Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding and (b) such
Lender's Revolving Credit Percentage of the L/C Obligations then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous Governmental Authority).
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any Property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Hedge Agreement": any Hedge Agreement entered into by a
Borrower or any Subsidiary Guarantor and any Qualified Counterparty.
26
"Subordination Agreement": the Debt Subordination Agreement to be
executed and delivered by Holdings, MAPCO Family and the Administrative Agent,
substantially in the form of Exhibit L.
"Subordinated Debt Documentation": the Subordination Agreement and the
documentation evidencing the subordinated Indebtedness of the Borrowers to
Holdings described in Sections 5.1(h), as amended, supplemented or otherwise
modified from time to time in accordance with Section 7.15.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrowers.
"Subsidiary Guarantor": each Subsidiary of the Borrowers that is a
party to the Guarantee and Collateral Agreement.
"Syndication Agent": as defined in the preamble hereto.
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of April
28, 2005, among Holdings and its direct and indirect wholly-owned Subsidiaries
which are corporations, as amended, supplemented or otherwise modified from time
to time in accordance with Section 7.15.
"Term Loan": as defined in Section 2.1.
"Term Loan Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrowers hereunder in a principal
amount not to exceed the amount set forth under the heading "Term Loan
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Term Loan Commitments is $165,000,000.
"Term Loan Facility": as defined in the definition of "Facility" in
this Section 1.1.
"Term Loan Lender": each Lender that has a Term Loan Commitment or is
the holder of a Term Loan.
"Term Loan Percentage": as to any Term Loan Lender at any time, the
percentage which such Lender's Term Loan Commitment then constitutes of the
aggregate Term Loan Commitments (or, at any time after the Effective Date, the
percentage which the aggregate
27
principal amount of such Lender's Term Loan then outstanding constitutes of the
aggregate principal amount of the Term Loans then outstanding).
"Term Note": as defined in Section 2.6(e).
"Test Period": the period beginning on the Effective Date and ending
on the date of the La ▇▇▇▇▇▇ Management Agreement.
"Title Insurance Company": as defined in Section 5.l(u).
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders
outstanding at such time.
"Transaction": the collective reference to the transactions described
in the recitals hereto.
"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of a Borrower.
"▇▇▇▇▇▇▇▇▇▇ Note": the $2,000,000 promissory note made by Holdings in
favor of MAPCO Express, dated as of March 26, 2004, as such note has been
amended, supplemented or otherwise modified prior to the date hereof.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrowers and their Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
28
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section 7.1 and
the calculation of the Consolidated Leverage Ratio for purposes of determining
the Applicable Margin shall be calculated to the same number of decimal places
as the relevant ratios are expressed in and shall be rounded upward if the
number in the decimal place immediately following the last calculated decimal
place is five or greater. For example, if the relevant ratio is to be calculated
to the hundredth decimal place and the calculation of the ratio is 5.126, the
ratio will be rounded up to 5.13.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. As described in the Recitals to this
Agreement, (i) on the Effective Date, LCPI will purchase the Existing Term
Loans, (ii) the Existing Credit Facilities will be amended and restated in their
entirety by this Agreement and (iii) the Existing Term Loans will become and be
outstanding as term loans hereunder. In addition, on the Effective Date, LCPI,
as the only Term Loan Lender party hereto on the Effective Date, will make
additional term loans to one or both of the Borrowers (as specified by the
Borrowers in the Borrowing Notice delivered pursuant to Section 2.2) in an
aggregate principal amount not exceeding $14,575,000 (such additional term loans
made by LCPI on the Effective Date, together with the Existing Term Loans
purchased by LCPI on the Effective Date, collectively, the "Term Loans"). The
Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the relevant Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.11. The Borrowers expressly acknowledge that
the Existing Term Loans, as amended and restated hereby, constitute Term Loans
hereunder from and after the Effective Date and that the Term Loans are not
subject to any defense, set-off or counterclaim which may at any time be
available to or be asserted by the Borrower or any other Person against any
Existing Lender (each of which defenses, set-off and counterclaim are hereby
waived). The aggregate principal amount of the Term Loans on the Effective Date
corresponding to Existing Term Loans originally made (i) to MAPCO Express is
$125,000,000 and (ii) to MAPCO Family is $40,000,000.
2.2 Effective Date Procedure for Term Loans. The Borrowers shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time, one Business Day prior to the anticipated Effective Date) specifying (i)
the date that will be the Effective Date and (ii) the amount of the additional
Term Loans to be made to each Borrower on the Effective Date. The Term Loans
made on the Effective Date, and the Existing Term Loans that become Term Loans
on the Effective Date, shall initially be Base Rate Loans, and no Term Loan may
be converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the date which is 60 days after the Effective Date.
Upon receipt of such Borrowing Notice the Administrative Agent shall promptly
notify LCPI thereof. Not later than 12:00 Noon, New York City time, on the
Effective Date LCPI shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Term Loan
or Term Loans to be made by LCPI on the Effective Date. The Administrative Agent
shall make available to the Borrowers the aggregate of the amounts made
available to the Administrative
29
Agent by LCPI, in like funds as received by the Administrative Agent in
accordance with the Borrowing Notice.
2.3 Repayment of Term Loans. The Term Loan of each Term Loan Lender
shall mature in 24 consecutive quarterly installments, commencing on September
30, 2005, each of which shall be in an amount equal to such Lender's Term Loan
Percentage multiplied by the percentage set forth below opposite such
installment of the aggregate principal amount of Term Loans made on the
Effective Date:
Installment Percentage
----------- ----------
September 30, 2005 0.25%
December 31, 2005 0.25%
March 31, 2006 0.25%
June 30, 2006 0.25%
September 30, 2006 0.25%
December 31, 2006 0.25%
March 31, 2007 0.25%
June 30, 2007 0.25%
September 30, 2007 0.25%
December 31, 2007 0.25%
March 31, 2008 0.25%
June 30, 2008 0.25%
September 30, 2008 0.25%
December 31, 2008 0.25%
March 31, 2009 0.25%
June 30, 2009 0.25%
September 30, 2009 0.25%
December 31, 2009 0.25%
March 31, 2010 0.25%
June 30, 2010 0.25%
September 30, 2010 0.25%
December 31, 2010 0.25%
March 31, 2011 0.25%
April 28, 2011 94.25%
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to the Borrowers from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrowers may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and
30
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate
Loans, as determined by the relevant Borrower and notified to the Administrative
Agent in accordance with Sections 2.5 and 2.11, provided that no Revolving
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
(b) The Existing Revolving Credit Loans acquired by each Revolving
Credit Lender on the Effective Date shall constitute Revolving Credit Loans
owing to such Revolving Credit Lender hereunder. The Borrower expressly
acknowledges that the Existing Revolving Credit Loans constitute Revolving
Credit Loans hereunder from and after the Effective Date and that such Revolving
Credit Loans are not subject to any defense, set-off or counterclaim which may
at any time be available to or be asserted by the Borrower or any other Person
against any Existing Lender (each of which defenses, set-off and counterclaim
are hereby waived).
(c) The Borrowers shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. Each Borrower may borrow
under the Revolving Credit Commitments on any Business Day during the Revolving
Credit Commitment Period, provided that such Borrower shall deliver to the
Administrative Agent a Borrowing Notice (which Borrowing Notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans). Any Revolving Credit Loans made on the Effective Date
shall initially be Base Rate Loans, and no Revolving Credit Loan may be made as,
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the date which is 60 days after the Effective Date.
Each borrowing of Revolving Credit Loans under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or
a whole multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $3,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such Borrowing Notice from a Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make its Revolving Credit Percentage of the
amount of each borrowing of Revolving Credit Loans available to the
Administrative Agent for the account of such Borrower at the Funding Office
prior to 12:00 Noon, New York City time, on the Borrowing Date requested by such
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the relevant Borrower by the
Administrative Agent in like funds as received by the Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally jointly and severally promises to pay to the Administrative
Agent for the account of the appropriate Revolving Credit Lender or Term Loan
Lender, as the case may be, (i) the then unpaid principal amount of each
Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit
Termination Date (or on such earlier date on which the Loans become due and
payable pursuant to Section 8) and (ii) the principal amount of each Term Loan
of such Term Loan Lender in installments according to the amortization schedule
set forth in Section 2.3
31
(or on such earlier date on which the Loans become due and payable pursuant to
Section 8). Each Borrower hereby further jointly and severally agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrowers, shall
maintain the Register pursuant to Section 10.6(c), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrowers to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrowers and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrowers to repay (with applicable interest) the Loans made
to the Borrowers by such Lender in accordance with the terms of this Agreement.
(e) Each Borrower agrees that, upon the request to the Administrative
Agent by any Lender, such Borrower will promptly execute and deliver to such
Lender a promissory note of the Borrower evidencing any Term Loans or Revolving
Credit Loans, as the case may be, of such Lender, substantially in the forms of
Exhibit G-l or G-2, respectively (a "Term Note" or "Revolving Credit Note",
respectively), with appropriate insertions as to date and principal amount;
provided, that delivery of Notes shall not be a condition precedent to the
occurrence of the Effective Date or the making of the Loans or issuance of
Letters of Credit on the Effective Date.
2.7 Commitment Fees, etc. (a) The Borrowers jointly and severally
agree to pay to the Administrative Agent for the account of each Revolving
Credit Lender a commitment fee for the period from and including the Effective
Date to the last day of the Revolving Credit Commitment Period, computed at the
Commitment Fee Rate on the average daily amount of the Available Revolving
Credit Commitment of such Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Credit Termination Date, commencing on the first
of such dates to occur after the date hereof.
(b) The Borrowers jointly and severally agree to pay to the
Administrative Agent the fees in the amounts and on the dates from time to time
agreed to in writing by the Borrowers and the Administrative Agent.
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2.8 Termination or Reduction of Revolving Credit Commitments. The
Borrowers shall have the right, upon not less than three Business Days' notice
to the Administrative Agent, to terminate the Revolving Credit Commitments or,
from time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a
whole multiple thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
2.9 Optional Prepayments. The Borrowers may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty
(except as otherwise provided herein), upon irrevocable notice delivered to the
Administrative Agent no later than 12:00 Noon, New York City time, three
Business Days prior thereto in the case of Eurodollar Loans and no later than
12:00 Noon, New York City time, one Business Day prior thereto in the case of
Base Rate Loans, which notice shall specify the date and amount of such
prepayment, whether such prepayment is of Term Loans or Revolving Credit Loans,
and whether such prepayment is of Eurodollar Loans or Base Rate Loans; provided,
that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.19. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans that are Base Rate Loans) accrued interest to such date
on the amount prepaid. Partial prepayments of Term Loans and Revolving Credit
Loans shall be in an aggregate principal amount of $500,000 or a whole multiple
thereof.
2.10 Mandatory Prepayments. (a) Unless the Required Prepayment Lenders
shall otherwise agree, if any Indebtedness shall be incurred by the Borrowers or
any of their Subsidiaries (excluding any Indebtedness incurred in accordance
with Section 7.2 as in effect on the date of this Agreement), then on the date
of such incurrence, the Term Loans and the Revolving Credit Loans (without a
corresponding reduction of the Revolving Credit Commitments) shall be prepaid
and/or the outstanding Letters of Credit shall be cash collateralized, by an
amount equal to the amount of the Net Cash Proceeds of such issuance or
incurrence, as set forth in Section 2.10(e). The provisions of this Section do
not constitute a consent to the incurrence of any Indebtedness by the Borrowers
or any of their Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
any Capital Stock shall be issued by the Borrowers or any of their Subsidiaries
(other than in connection with a capital contribution by Holdings to the Capital
Stock of the Borrowers or any of their respective Subsidiaries), then on the
date of such issuance, the Term Loans and Revolving Credit Loans (without a
corresponding reduction of the Revolving Credit Commitments) shall be prepaid,
and/or the outstanding Letters of Credit shall be cash collateralized, by an
amount equal to 50% of the amount of the Net Cash Proceeds of such issuance, as
set forth in Section 2.10(e). The provisions of this Section do not constitute a
consent to the issuance of any Capital Stock by any entity whose Capital Stock
is pledged pursuant to the Guarantee and Collateral Agreement.
33
(c) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date the Borrowers or any of their Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale, Purchase Price Refund or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof, on the date
of receipt by a Borrower or such Subsidiary of such Net Cash Proceeds, the Term
Loans and the Revolving Credit Loans (without a corresponding reduction of the
Revolving Credit Commitments) shall be prepaid, and/or the outstanding Letters
of Credit shall be cash collateralized, by an amount equal to the amount of such
Net Cash Proceeds, as set forth in Section 2.10(e); provided, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset
Sales and Recovery Events that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $2,500,000 in any fiscal year
of the Borrowers and (ii) on each Reinvestment Prepayment Date the Term Loans
and Revolving Credit Loans (without a corresponding reduction of the Revolving
Credit Commitments) shall be prepaid, and/or the outstanding Letters of Credit
shall be cash collateralized, by an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event, as set forth in Section
2.10(e). The provisions of this Section do not constitute a consent to the
consummation of any Disposition not permitted by Section 7.5.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if,
for any fiscal year of the Borrowers commencing with the fiscal year ending
December 31, 2005, there shall be Excess Cash Flow, then, on the relevant Excess
Cash Flow Application Date, the Term Loans and the Revolving Credit Loans
(without a corresponding reduction of the Revolving Credit Commitment) shall be
prepaid, and/or the outstanding Letters of Credit shall be cash collateralized,
by an amount equal to the ECF Percentage of such Excess Cash Flow, as set forth
in Section 2.10(e). Each such prepayment and commitment reduction shall be made
on a date (an "Excess Cash Flow Application Date") no later than five days after
the earlier of (i) the date on which the financial statements of the Borrowers
referred to in Section 6.1(a), for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(e) Amounts to be applied in connection with prepayments made pursuant
to this Section shall be applied, first, to the prepayment of the Term Loans,
second, to the prepayment of the Revolving Credit Loans and, third, to replace
outstanding Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative Agent for the benefit of
the Secured Parties on terms and conditions satisfactory to the Administrative
Agent.
2.11 Conversion and Continuation Options. (a) The Borrowers may elect
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may be made
only on the last day of an Interest Period with respect thereto. The Borrowers
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a particular
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that
34
is one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) The Borrowers may elect to continue any Eurodollar Loan as such
upon the expiration of the then current Interest Period with respect thereto by
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loan, provided
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has, or the Majority Facility Lenders in respect of such Facility have,
determined in its or their sole discretion not to permit such continuations or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if a Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $3,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than five Eurodollar Tranches shall be outstanding at any one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Base Rate in effect for such day
plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) (to the extent legally permitted) shall
bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate
35
then applicable to Base Rate Loans under the Revolving Credit Facility plus 2%),
in each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well as before
judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrowers and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrowers and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to the
Borrowers a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate
36
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall any Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrowers from the Lenders hereunder, each assignment by LCPI of Loans to
Lenders hereunder on the Effective Date, each payment by the Borrowers on
account of any commitment fee or Letter of Credit fee, and any reduction of the
Commitments of the Lenders, shall be made pro rata according to the respective
Term Loan Percentages or Revolving Credit Percentages, as the case may be, of
the relevant Lenders. Each payment of interest in respect of the Loans and each
payment in respect of fees payable hereunder shall be applied to the amounts of
such obligations owing to the Lenders pro rata according to the respective
amounts then due and owing to the Lenders.
(b) Each payment (including each prepayment) on account of principal
of the Term Loans outstanding under any Term Loan Facility shall be allocated
among the Term Loan Lenders holding such Term Loans pro rata based on the
principal amount of such Term Loans held by such Term Loan Lenders, and shall be
applied to the installments of such Term Loans pro rata based on the remaining
outstanding principal amount of such installments. Amounts prepaid on account of
the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by a Borrower on account
of principal of the Revolving Credit Loans shall be made pro rata according to
the respective outstanding principal amounts of the Revolving Credit Loans then
held by the Revolving Credit Lenders. Each payment in respect of Reimbursement
Obligations in respect of any Letter of Credit shall be made to the Issuing
Lender that issued such Letter of Credit.
(d) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
Rate Loans under such Facility and, second, to Eurodollar Loans under such
Facility. Each payment of the Loans (except in the case of Revolving Credit
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such payment on the amount paid.
(e) All payments (including prepayments) to be made by the Borrowers
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the relevant Lenders, at the Payment Office, in Dollars and in
immediately available funds. Any payment made by the Borrowers after 12:00 Noon,
New York City time, on any Business Day shall be deemed to have been on the next
following Business Day. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of
37
principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the greater of (i) the Federal Funds
Effective Rate and (ii) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing made
available by the Administrative Agent to the relevant Borrower is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrowers.
(g) Unless the Administrative Agent shall have been notified in
writing by the Borrowers prior to the date of any payment due to be made by the
Borrowers hereunder that the Borrowers will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrowers are
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by the Borrowers within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrowers.
(h) Upon receipt by the Administrative Agent of payments on behalf of
Lenders, the Administrative Agent shall promptly distribute such payments to the
Lender or Lenders entitled thereto, in like funds as received by the
Administrative Agent.
2.17 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of
38
credit by, or any other acquisition of funds by, any office of such
Lender that is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(ii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrowers shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrowers (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrowers (with a copy to the Administrative
Agent) of a written request therefor, the Borrowers shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrowers (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrowers pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Taxes. (a) All payments made by the Borrowers under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes, franchise taxes (imposed in lieu of net
income taxes) and branch profits taxes imposed on any Agent or any Lender as a
result of a present or former connection between such Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent's or such Lender's having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or any Other Taxes are required to be withheld from any
amounts payable to any Agent or any Lender
39
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrowers shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d), (e) or (f) of this Section, (ii) that are
attributable to the certifications made in the forms delivered by such Lender
pursuant to (d), (e) or (f) of this Section being untrue or inaccurate on the
date delivered in any material respect or (iii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrowers with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by a
Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for the account of the Administrative Agent or Lender, as
the case may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. If a Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrowers shall indemnify the Agents and the
Lenders for any incremental taxes, interest or penalties that may become payable
by any Agent or any Lender as a result of any such failure. Notwithstanding
anything to the contrary in this Section 2.18(c), the Borrowers shall not be
obligated to indemnify any Agent or any Lender for any portion of such
incremental taxes, interest or penalties accruing on such Non-Excluded Taxes or
Other Taxes to the extent such liability is attributable to a failure or delay
by the Agent or such Lender, as applicable, in making demand for such
Non-Excluded Taxes or Other Taxes. The agreements in this Section shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrowers and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN claiming eligibility
of such Non-U.S. Lender for benefits of an income tax treaty to which the United
States is a party or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest" a statement
substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent
versions thereof or successors thereto properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrowers under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In
40
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrowers at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrowers (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this Section 2.18(d), a Non-U.S. Lender shall not be required
to deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) Upon the Borrower's reasonable request, each Lender that is a
"United States person" as defined in Section 7701(a)(30) of the Code shall
deliver to the Borrower and the Agent two copies of U.S. Internal Revenue
Service Form W-9 (or applicable successor form).
(f) A Lender (or Transferee) that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
a Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrowers (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrowers, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate, provided that such Lender
(or Transferee) is legally entitled to complete, execute and deliver such
documentation and in such Lender's (or Transferee's) reasonable judgment such
completion, execution or submission would not materially prejudice the legal
position of such Lender (or Transferee).
(g) If the Agent or a Lender determines, in its discretion, that it
has received a refund of any Non-Excluded Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section 2.18, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.18 with respect to
the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) by the Agent or such Lender in the event the Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
2.19 Indemnity. Each Borrower agrees to indemnify each Lender for, and
to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by a Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by a Borrower in making any prepayment
after such Borrower has given a notice thereof in accordance with the provisions
of this Agreement or (c) the making of a prepayment or conversion of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect
thereto. Such indemnification may
41
include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrowers by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrowers shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.17, 2.18(b) or
2.20 with respect to such Lender, it will, if requested by the Borrowers, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.17, 2.18(b) or 2.20.
2.22 Replacement of Lenders under Certain Circumstances. The Borrower
shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to Section 2.17 or 2.18 or gives a notice of illegality
pursuant to Section 2.20 or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.21 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.17 or 2.18 or to eliminate the illegality referred
to in such notice of illegality given pursuant to Section 2.20, (iv) the
replacement financial institution shall purchase, at par, all Loans and other
amounts owing to such replaced Lender on or prior to the date of replacement,
(v) the Borrower shall be
42
liable to such replaced Lender under Section 2.19 (as though Section 2.19 were
applicable) if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 2.17 or 2.18,
as the case may be, in respect of any period prior to the date on which such
replacement shall be consummated, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Prior to the Effective Date, the Existing
Issuing Lender has issued the Existing Letters of Credit which, from and after
the Effective Date, shall constitute Letters of Credit hereunder. Subject to the
terms and conditions hereof, each Issuing Lender, in reliance on the agreements
of the other Revolving Credit Lenders set forth in Section 3.4(a), agrees to
issue letters of credit (the letters of credit issued on and after the Effective
Date pursuant to this Section 3, together with the Existing Letters of Credit,
collectively, the "Letters of Credit") for the account of the Borrowers on any
Business Day during the Revolving Credit Commitment Period in such form as may
be approved from time to time by such Issuing Lender; provided, that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Revolving Credit Commitments would
be less than zero. Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date; provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. Each Borrower may from
time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Concurrently with the delivery of an Application to
an Issuing Lender, the relevant Borrower shall deliver a copy thereof to the
Administrative Agent. Upon receipt of any Application, an Issuing Lender will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the relevant
43
Borrower (but in no event shall any Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto). Promptly after issuance by an Issuing Lender
of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter
of Credit to the relevant Borrower. Each Issuing Lender shall promptly give
notice to the Administrative Agent of the issuance of each Letter of Credit
issued by such Issuing Lender (including the face amount thereof), and shall
provide a copy of such Letter of Credit to the Administrative Agent as soon as
possible after the date of issuance.
3.3 Fees and Other Charges. (a) The Borrowers will pay a fee on the
aggregate drawable amount of all outstanding Letters of Credit at a per annum
rate equal to 1.50%, shared ratably among the Revolving Credit Lenders in
accordance with their respective Revolving Credit Percentages and payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. In
addition, the Borrowers shall pay to the relevant Issuing Lender for its own
account a fronting fee on the aggregate drawable amount of all outstanding
Letters of Credit issued by it equal to a percentage to be agreed upon between
the relevant Borrower and such Issuing Lender, payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrowers shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in each Issuing Lender's obligations
and rights under each Letter of Credit issued by such Issuing Lender hereunder
and the amount of each draft paid by such Issuing Lender thereunder (including
any interest payable with respect thereto pursuant to Section 3.5). Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit issued by such Issuing
Lender for which such Issuing Lender is not reimbursed in full by the Borrowers
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Administrative Agent for the account of such Issuing Lender upon demand
at such Issuing Lender's address for notices specified herein (and thereafter
the Administrative Agent shall promptly pay to such Issuing Lender) an amount
equal to such L/C Participant's Revolving Credit Percentage of the amount of
such draft, or any part thereof, that is not so reimbursed (including any
interest payable with respect thereto pursuant to Section 3.5). Each L/C
Participant's obligation to pay such amount shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such L/C Participant may
have against the Issuing Lender, the Borrowers or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of a Default or an Event
of Default or the failure to satisfy any of the other conditions specified in
Section 5, (iii) any adverse change in the condition (financial or otherwise) of
the Borrowers or any other Loan Party, (iv) any breach of this Agreement or any
44
other Loan Document by the Borrowers, any other Loan Party or any other L/C
Participant or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(b) If any amount (a "Participation Amount") required to be paid by
any L/C Participant to an Issuing Lender pursuant to Section 3.4(a) in respect
of any unreimbursed portion of any payment made by such Issuing Lender under any
Letter of Credit is not paid to such Issuing Lender within three Business Days
after the date such payment is due, such Issuing Lender shall so notify the
Administrative Agent, which shall promptly notify the L/C Participants, and each
L/C Participant shall pay to the Administrative Agent, for the account of such
Issuing Lender, on demand (and thereafter the Administrative Agent shall
promptly pay to such Issuing Lender) an amount equal to the product of (i) such
Participation Amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the
date on which such payment is immediately available to such Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any Participation
Amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is
not made available to the Administrative Agent for the account of the relevant
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Administrative Agent on behalf of such Issuing Lender
shall be entitled to recover from such L/C Participant, on demand, such
Participation Amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Facility. A
certificate of the Administrative Agent submitted on behalf of an Issuing Lender
to any L/C Participant with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from the Administrative Agent any
L/C Participant's pro rata share of such payment in accordance with Section
3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrowers or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to the Administrative
Agent for the account of such L/C Participant (and thereafter the Administrative
Agent will promptly distribute to such L/C Participant) its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to the Administrative Agent for the account
of such Issuing Lender (and thereafter the Administrative Agent shall promptly
return to such Issuing Lender) the portion thereof previously distributed by
such Issuing Lender.
3.5 Reimbursement Obligation of the Borrowers. Each Borrower jointly
and severally agrees to reimburse each Issuing Lender, on each date on which
such Issuing Lender notifies the Borrowers of the date and amount of a draft
presented under any Letter of Credit and paid by such Issuing Lender, for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by such Issuing Lender in connection with such payment (the
amounts described in the foregoing clauses (a) and (b) in respect of any
drawing, collectively, the "Payment Amount"). Each such payment shall be made to
such Issuing Lender at its address for notices specified herein in lawful money
of the United States of America and in
45
immediately available funds. Interest shall be payable on each Payment Amount
from the date of the applicable drawing until payment in full at the rate set
forth in (i) until the second Business Day following the date of the applicable
drawing, Section 2.13(b) and (ii) thereafter, Section 2.13(c). Each drawing
under any Letter of Credit shall (unless an event of the type described in
clause (i) or (ii) of Section 8(f) shall have occurred and be continuing with
respect to the Borrowers, in which case the procedures specified in Section 3.4
for funding by L/C Participants shall apply) constitute a request by the related
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5 of
Base Rate Loans in the amount of such drawing. The Borrowing Date with respect
to such borrowing shall be the first date on which a borrowing of Revolving
Credit Loans could be made, pursuant to Section 2.5, if the Administrative Agent
had received a notice of such borrowing at the time the Administrative Agent
receives notice from the relevant Issuing Lender of such drawing under such
Letter of Credit.
3.6 Obligations Absolute. Each Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrowers may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. Each Borrower also agrees with each
Issuing Lender that such Issuing Lender shall not be responsible for, and such
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected by
the validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrowers and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrowers against any beneficiary of such Letter
of Credit or any such transferee. No Issuing Lender shall be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Issuing Lender. Each Borrower agrees
that any action taken or omitted by an Issuing Lender under or in connection
with any Letter of Credit issued by it or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards or care specified in the Uniform Commercial Code of the State
of New York, shall be binding on such Borrower and shall not result in any
liability of such Issuing Lender to such Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrowers and the Administrative Agent of the date and amount
thereof. The responsibility of the relevant Issuing Lender to the Borrowers in
connection with any draft presented for payment under any Letter of Credit, in
addition to any payment obligation expressly provided for in such Letter of
Credit issued by such Issuing Lender, shall be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment appear on their face to be in conformity with
such Letter of Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans and issue or participate in the Letters of Credit, each
Borrower hereby jointly and severally represents and warrants to each Agent and
each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrowers and their consolidated Subsidiaries as at
December 31, 2004 (including the notes thereto) (the "Pro Forma Balance Sheet"),
copies of which have heretofore been furnished to each Lender, has been prepared
giving effect (as if such events had occurred on such date) to (i) the
consummation of the Transactions and the payment of the Delek US Dividend, (ii)
the Loans to be made on the Effective Date and the use of proceeds thereof and
(iii) the payment of estimated fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrowers as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated combined financial position
of the Borrowers and their consolidated Subsidiaries as at December 31, 2004,
assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of each of MAPCO Express
and its consolidated Subsidiaries and MAPCO Family and its consolidated
Subsidiaries as at December 31, 2003 and December 31, 2004, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Ernst & Young LLP, copies of which have heretofore been furnished to each
Lender, present fairly the consolidated financial condition of MAPCO Express and
its consolidated Subsidiaries and MAPCO Family and its consolidated
Subsidiaries, respectively, as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Borrowers and their Subsidiaries do
not have any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 2004 to and
including the date hereof there has been no Disposition by the Borrowers and
their Subsidiaries of any material part of their business or Property.
4.2 No Change. Since December 31, 2004 there has been no development
or event that has had or would reasonably be expected to have a Material Adverse
Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrowers
and their Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other organization 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 except to the
47
extent the failure to so qualify would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of each Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of each Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. Subject
to Schedule 4.4, no consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents, except (i) consents, authorizations, filings and notices that
have been obtained or made and are in full force and effect and (ii) the filings
referred to in Section 4.19. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
material Requirement of Law or any Contractual Obligation of any Borrower or any
of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower or any of its Subsidiaries
would reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrowers, threatened by or against any Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that would reasonably be expected to have a Material
Adverse Effect.
4.7 No Default. Neither of the Borrowers nor any of their Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that would reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
48
4.8 Ownership of Property; Liens. Except as described on Schedule 4.8,
each of the Borrowers and their Subsidiaries has title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien except as permitted by Section 7.3.
4.9 Intellectual Property. Each of the Borrowers and each of their
Subsidiaries owns, or is licensed to use, all intellectual property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any intellectual property or the validity or effectiveness of any intellectual
property, nor does any Borrower know of any valid basis for any such claim. The
use of intellectual property by the Borrowers and their Subsidiaries does not,
to their knowledge after due inquiry, infringe on the rights of any Person in
any material respect.
4.10 Taxes. Each of the Borrowers and each of their Subsidiaries has
filed or caused to be filed all federal and state income tax returns and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other material taxes, fees or other charges imposed
on it or any of its Property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrowers or their Subsidiaries, as
the case may be); and no tax Lien has been filed, and, to the knowledge of the
Borrowers, no claim is being asserted, with respect to any such tax, fee or
other charge (other than Liens for current taxes not yet due and payable).
4.11 Federal Regulations. No part of the proceeds of any loans, and no
other extensions of credit hereunder, will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
or for any purpose that violates the provisions of the Regulations of the Board.
If requested by any Lender or the Administrative Agent, the Borrowers will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-l
referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes
against the Borrowers or any of their Subsidiaries pending or, to the knowledge
of any Borrower, threatened that (individually or in the aggregate) would
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrowers and their Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable requirement
of law dealing with such matters that (individually or in the aggregate) would
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrowers or any of their Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) would reasonably be
expected to have a Material Adverse Effect if not paid have been paid or accrued
as a liability on the books of the relevant Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or
49
deemed made with respect to any Single Employer Plan, and each Single Employer
Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has occurred, and
no Lien in favor of the PBGC or a Plan has arisen, during such five-year period
on the assets of a Borrower or any Commonly Controlled Entity. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither of the Borrowers nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or would reasonably be expected to result in a material liability
under ERISA, and neither of the Borrowers nor any Commonly Controlled Entity
would become subject to any material liability under ERISA if a Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in reorganization or insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrowers at the date hereof. Schedule
4.15 sets forth as of the Effective Date the name and jurisdiction of
incorporation of each Subsidiary and, as to each Subsidiary, the percentage of
each class of Capital Stock owned by each Loan Party.
(b) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to
employees or directors and directors' qualifying shares) of any nature relating
to any Capital Stock of the Borrowers or any of their Subsidiaries.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used to
finance the Transactions, the Delek US Dividend and to pay related fees and
expenses. The proceeds of the Revolving Credit Loans and the Letters of Credit
shall be used for general corporate purposes; provided that, up to $10,000,000
of Revolving Credit Loans may be borrowed on the Effective Date to finance a
portion of the Transactions, the Delek US Dividend and to pay related fees and
expenses.
4.17 Environmental Matters. Subject to Schedule 4.17, other than
exceptions to any of the following that would not, individually or in the
aggregate, reasonably be expected to result in the payment of a Material
Environmental Amount (after giving effect to any insurance coverage or any third
party indemnity as to which the third party indemnitor has acknowledged
coverage):
(a) Each Borrower and its Subsidiaries: (i) are, and within the period
of all applicable statutes of limitation have been, in compliance with all
applicable
50
Environmental Laws; (ii) hold all Environmental Permits (each of which is
in full force and effect) required for any of their current or intended
operations or for any property owned, leased, or otherwise operated by any
of them; (iii) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental
Permits; and (iv) reasonably believe that: each of their Environmental
Permits will be timely renewed and complied with, without material expense;
any additional Environmental Permits that may be required of any of them
will be timely obtained and complied with, without material expense; and
compliance with any Environmental Law that is or is expected to become
applicable to any of them will be timely attained and maintained, without
material expense.
(b) Materials of environmental concern are not present at, on, under,
in, or about any real property now or formerly owned, leased or operated by
any Borrower or any of its Subsidiaries, or at any other location
(including, without limitation, any location to which Materials of
Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which would reasonably be expected to (i)
give rise to liability of the Borrowers or any of their Subsidiaries under
any applicable Environmental Law or otherwise result in costs to the
Borrowers or any of their Subsidiaries, or (ii) interfere with the
Borrowers' or any of their Subsidiaries' continued operations, or (iii)
impair the fair saleable value of any real property owned or leased by the
Borrowers or any of their Subsidiaries (it being understood that
noncompliance with this clause (iii) shall be deemed not to constitute a
breach of this Section 4.17(b)(iii) if such noncompliance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect).
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating
to any Environmental Law to which any Borrower or any of its Subsidiaries
is, or to the knowledge of the Borrowers or any of their Subsidiaries will
be, named as a party that is pending or, to the knowledge of any Borrower
or any of its Subsidiaries, threatened.
(d) Neither of the Borrowers nor any of their Subsidiaries has
received any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act or
any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
(e) Neither of the Borrowers nor any of their Subsidiaries has entered
into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other
agreement, in any judicial, administrative, arbitral, or other forum for
dispute resolution, relating to compliance with or liability under any
Environmental Law.
(f) Neither of the Borrowers nor any of their Subsidiaries has assumed
or retained, by contract or operation of law, any liabilities of any kind,
fixed or contingent, known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
51
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum (as modified or supplemented by additional
information provided to the Lenders), as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not misleading. The
projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrowers to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that would reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Agents and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when any stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements in appropriate form are filed in
the offices specified on Schedule 4.19(a) (which financing statements have been
duly completed and delivered to the Administrative Agent) and such other filings
and actions as are specified on Schedule 3 to the Guarantee and Collateral
Agreement have been completed (all of which filings have been duly completed),
the Guarantee and Collateral Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof (other than Deposit Accounts, to the
extent that there are no control agreements with respect thereto), as security
for the Obligations (as defined in the Guarantee and Collateral Agreement), in
each case prior and superior in right to any other Person (except, in the case
of Collateral other than Pledged Stock, Liens permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof; and each Mortgage shall constitute, or shall continue to constitute, as
applicable, a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in the Mortgaged Properties described
therein and the proceeds thereof, as security for the Obligations (as defined in
the relevant Mortgage), in each case prior and superior in right to any other
Person (other than Persons holding Liens or other encumbrances or rights
permitted by the relevant Mortgage), (i) in the case of the Mortgages to be
executed and delivered on the Effective Date, when such Mortgages
52
and the related fixture filings, if any, are filed in the offices specified on
Schedule 4.19(b), (ii) in the case of any Mortgage to be executed and delivered
pursuant to Section 6.10(b), when such Mortgages and the related fixture
filings, if any, are filed in the recording office designated by the Borrower
and (iii) in the case of the Mortgages executed and delivered prior to the
Effective Date, upon the filing of the Mortgage Assignments and Mortgage
Amendments in the appropriate recording office with respect to such Mortgage.
Schedule 1.1B lists, as of the Effective Date, each parcel of owned real
property and each leasehold interest in real property located in the United
States and held by the Borrowers or any of their Subsidiaries.
4.20 Solvency. Each Loan Party is, and after giving effect to the
Transactions and the Delek US Dividend and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be,
Solvent.
4.21 Regulation H. No Mortgage encumbers improved real property which
is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of 1968
(except any Mortgaged Properties as to which such flood insurance as required by
Regulation H has been obtained and is in full force and effect as required by
this Agreement).
4.22 Certain Documents. The Borrowers have delivered to the
Administrative Agent a complete and correct copy of the ▇▇▇▇▇▇ Distribution
Service Agreement and the Premcor Agreement, including any amendments,
supplements or modifications with respect to any of the foregoing.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The occurrence of the Effective Date
and the agreement of each Lender to make extensions of credit requested to be
made by it hereunder are subject to the satisfaction, on or prior to May 31,
2005, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of each
Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of Holdings, each Borrower and each
Subsidiary of the Borrowers (other than any Excluded Foreign Subsidiary or
any Subsidiary of an Excluded Foreign Subsidiary), (iii) a Mortgage
covering each of the Mortgaged Properties (other than any Mortgaged
Property subject to an Existing Mortgage), executed and delivered by a duly
authorized officer of each party thereto and (iv) a Lender Addendum
executed and delivered by each Lender and accepted by the Borrowers.
(b) Pre-Effective Date Transactions. The transactions described in
fourth, fifth, sixth, seventh and eighth recitals to this Agreement shall
have been consummated.
(c) Capital Structure. (i) The capital structure of each Loan Party
after giving effect to the Transactions and the Delek US Dividend shall be
satisfactory in all respects, including (1) the pro forma ratio of
Consolidated Total Debt of the Borrowers at the Effective Date to the pro
forma Consolidated EBITDA of the Borrowers (as adjusted to
53
give effect to the Transactions, the Delek US Dividend and the Facilities
and calculated in accordance with Regulation S-X) for the four fiscal
quarters most recently ended for which financial statements are available
shall not exceed 4.30 to 1.00 and (2) the sum of (x) the aggregate amount
of cash and Cash Equivalents reflected on the Pro Forma Balance Sheet and
(y) the aggregate amount of the Available Revolving Credit Commitment of
the Lenders (after giving effect to any Revolving Credit Loans to made on
the Effective Date and any Letters of Credit to be issued on the Effective
Date) shall not be less than $20,000,000.
(ii) The Lenders shall be satisfied with the sufficiency of
amounts available under the Revolving Credit Facility to meet the
ongoing working capital needs of the Borrowers and their Subsidiaries
following the Transactions, the Delek US Dividend and the consummation
of the other transactions contemplated hereby.
(d) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of each of MAPCO Express and its consolidated
Subsidiaries and MAPCO Family and its consolidated Subsidiaries for the
2003 and 2004 fiscal years and (iii) unaudited interim consolidated
financial statements of each of MAPCO Express and its consolidated
Subsidiaries and MAPCO Family and its consolidated Subsidiaries for each
quarterly period ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (ii) of this paragraph as
to which such financial statements are available; and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of each
of MAPCO Express and its consolidated Subsidiaries and MAPCO Family and its
consolidated Subsidiaries, as reflected in the financial statements or
projections contained in the Confidential Information Memorandum.
(e) Approvals. All governmental and third party approvals (including
landlords' and other consents) necessary in connection with the continuing
operations of the Borrowers and their Subsidiaries and, subject to Section
5.1(v), the transactions contemplated hereby shall have been obtained and
be in full force and effect.
(f) Related Agreements. The Administrative Agent shall have received
(delivered by a method reasonably satisfactory to the Administrative
Agent), true and correct copies, certified as to authenticity by MAPCO
Express, of (i) the Tax Sharing Agreement, (ii) the McLane Distribution
Service Agreement and the Premcor Agreement and (iii) such other documents
or instruments as may be reasonably requested by the Administrative Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Loan Parties may be a
party.
(g) Termination of the ▇▇▇▇▇▇▇▇▇▇ Note. The Administrative Agent shall
have received reasonably satisfactory evidence that (x) all amounts
outstanding on the Closing Date under the ▇▇▇▇▇▇▇▇▇▇ Note shall have been
paid in full by Holdings with a portion of the proceeds of the Delek US
Dividend, (y) the ▇▇▇▇▇▇▇▇▇▇ Note has been
54
terminated and (z) reasonably satisfactory arrangements shall have been
made for the termination of all Liens granted in connection therewith.
(h) Intercompany Indebtedness. Intercompany Indebtedness of the Loan
Parties outstanding on the Effective Date (including, without limitation,
the MFC Intercompany Debt) shall have been amended on terms and conditions
reasonably satisfactory to the Administrative Agent to (i) permit the
Facilities, (ii) subordinate the obligations of the Loan Parties in respect
of such indebtedness to the Obligations of Loan Parties in respect of the
Loan Documents on terms and conditions reasonably satisfactory to the
Administrative Agent, (iii) provide that no cash payment of principal or
interest with respect to such intercompany Indebtedness shall be payable
prior to the date that is 90 days after the final maturity of the Term
Loans, (iv) extend the final maturity of such intercompany Indebtedness to
a date not earlier than the date that is 90 days after the final maturity
of the Term Loans and (v) release any security interests in the Collateral
granted in connection with such Indebtedness, and the Administrative Agent
shall have received complete and correct copies of any documents executed
in connection therewith. The Administrative Agent shall have received the
Subordination Agreement, executed and delivered by a duly authorized
officer of Holdings and MAPCO Family.
(i) MAPCO Express Escrow. In the event that the closing of the La
▇▇▇▇▇▇ Credit Facility has not occurred or the Administrative Agent has not
received a fully executed copy of the La ▇▇▇▇▇▇ Management Agreement,
certified by a Responsible Officer of MAPCO Express, MAPCO Express shall
have deposited $9,000,000 in an escrow account subject to the Escrow
Agreement and the Administrative Agent shall have received the Escrow
Agreement, executed and delivered by a duly authorized officer of MAPCO
Express and the escrow agent thereunder.
(j) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including reasonable fees, disbursements and other charges of
counsel to the Agents), on or before the Effective Date. All such amounts
will be paid with proceeds of Loans made on the Effective Date and will be
reflected in the funding instructions given by the Borrowers to the
Administrative Agent on or before the Effective Date.
(k) Business Plan. The Lenders shall have received a satisfactory
business plan for fiscal years 2005 through 2011 and a satisfactory written
analysis of the business and prospects of the Borrowers and their
Subsidiaries for the period from the Effective Date through the final
maturity of the Term Loans.
(l) Solvency Analysis. The Lenders shall have received a reasonably
satisfactory solvency analysis certified by the chief financial officer of
the Borrowers which shall document the solvency of the Borrowers and their
Subsidiaries considered as a whole after giving effect to the transactions
contemplated hereby.
(m) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions in which
Uniform Commercial Code financing statement or other filings or
recordations should be made to evidence or perfect
55
security interests in all assets of the Loan Parties in which a security
interest may be created under the Uniform Commercial Code, and such search
shall reveal no liens on any of the assets of the Loan Party, except for
Liens permitted by Section 7.3.
(n) Environmental Matters. The Lenders shall have received a
satisfactory environmental review with respect to the real property owned
or leased by the Borrowers and their Subsidiaries from ▇▇▇▇ Environmental
or Arc Environmental.
(o) Expenses. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Transactions and the Delek US Dividend and the
financing thereof shall not exceed $8,500,000.
(p) Closing Certificate. The Administrative Agent shall have received
a certificate of each Loan Party, dated the Effective Date, substantially
in the form of Exhibit C, with appropriate insertions and attachments.
(q) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel to
the Borrowers and their Subsidiaries, substantially in the form of
Exhibit F; and
(ii) the legal opinion of local counsel in each of Alabama,
Arkansas, Tennessee, Mississippi, Louisiana and Virginia and of such
other special and local counsel as may be required by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require and shall be addressed to the Administrative Agent and
the Lenders.
(r) Pledged Stock; Stock Powers; Acknowledgment and Consent; Pledged
Notes. The Administrative Agent shall have received (i) the certificates
representing the shares of Capital Stock pledged pursuant to the Guarantee
and Collateral Agreement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
pledgor thereof, (ii) an Acknowledgment and Consent, substantially in the
form of Annex II to the Guarantee and Collateral Agreement, duly executed
by any issuer of Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement that is not itself a party to the Guarantee and
Collateral Agreement and (iii) each promissory note pledged pursuant to the
Guarantee and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(s) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
reflect the assignment of Liens from any Existing Agent to the
Administrative Agent or to create in favor of the Administrative Agent, for
the benefit of the Secured Parties, a perfected Lien on the Collateral
described therein, prior
56
and superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.3), shall have been filed, registered or
recorded or shall have been delivered to the Administrative Agent be in
proper form for filing, registration or recordation.
(t) Existing Mortgages. The Administrative Agent shall have received,
with respect to each of the Existing Mortgages, a Mortgage Assignment and a
Mortgage Amendment executed and delivered by a duly authorized officer of
the relevant Loan Party.
(u) Title Insurance; Flood Insurance. (i) Subject to Section 6.12, if
requested by the Administrative Agent, the Administrative Agent shall have
received, and the title insurance company issuing the policy referred to in
clause (ii) below (the "Title Insurance Company") shall have received, maps
or plats of an as-built survey of the sites of the Mortgaged Properties,
dated a date reasonably satisfactory to the Administrative Agent and the
Title Insurance Company by an independent professional licensed land
surveyor reasonably satisfactory to the Administrative Agent and the Title
Insurance Company, which maps or plats and the surveys on which they are
based shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Title Insurance Company and which shall in any
event be sufficient to enable the Title Insurance Company to issue the
title policies referred to below without the standard survey exception and
include therein all survey dependant endorsements reasonably requested by
the Administrative Agent.
(ii) Subject to Section 6.12, the Administrative Agent shall have
received in respect of each Mortgaged Property a mortgagee's title
insurance policy (or policies) or marked up unconditional binder for
such insurance. Each such policy shall (A) be in an amount
satisfactory to the Administrative Agent; (B) be issued at ordinary
rates; (C) insure that the Mortgage insured thereby creates a valid
first Lien on such Mortgaged Property free and clear of all defects
and encumbrances, except as disclosed therein; (D) name the
Administrative Agent for the benefit of the Secured Parties as the
insured thereunder; (E) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain
such endorsements and affirmative coverage as the Administrative Agent
may reasonably request and (G) be issued by title companies
satisfactory to the Administrative Agent (including any such title
companies acting as co-insurers or reinsurers, at the option of the
Administrative Agent). The Administrative Agent shall have received
evidence satisfactory to it that all premiums in respect of each such
policy, all charges for mortgage recording tax, and all related
expenses, if any, have been paid.
(iii) The Administrative Agent shall have received (A) a policy
of flood insurance that (1) covers any parcel of improved real
property that is encumbered by any Mortgage to the extent the
applicable Mortgaged Property is located in an area designated as a
special flood zone hazard by the Secretary of Housing and Urban
Development, (2) is written in an amount not less than the outstanding
principal amount of the indebtedness secured by such Mortgage that is
reasonably
57
allocable to such real property or the maximum limit of coverage made
available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a
term ending not later than the maturity of the indebtedness secured by
such Mortgage or that may be extended to such maturity date and (B)
confirmation that the Borrowers have received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board.
(iv) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in clause (ii) above and a
copy of all other material documents affecting the Mortgaged
Properties.
(v) Appraisals; Leasehold Property Requirements. (i) The
Administrative Agent shall have received satisfactory appraisals of all fee
owned and leasehold properties from a firm reasonably satisfactory to the
Administrative Agent and such appraisals shall demonstrate a minimum value
of at least $205,000,000 for all Mortgaged Property on the Effective Date,
provided that, with respect to such Mortgaged Property consisting of
leasehold interests, (A) the Borrowers have delivered on or prior to the
Closing Date a related lease in recordable form (or a memorandum thereof in
recordable form) (unless under applicable law such recorded instrument is
not necessary in order for the Administrative Agent to have a perfected
Lien on the applicable Mortgaged Property), (B) the applicable landlord
executes and delivers an agreement in favor of the Administrative Agent
which, (x) in the case of the Mortgaged Properties assigned by the Existing
SunTrust Agent (as indicated on Schedule 1.1 A), is substantially in the
form of the landlord agreement executed in connection with the Existing
SunTrust Agreement, and (y) in the case of all other Mortgaged Properties,
an agreement substantially the form attached hereto as Exhibit D-4, in each
case, with such changes thereto as may be reasonably approved by the
Administrative Agent, and (C) a recent survey of the related leased real
property conforming to Section 5.1(u)(i), reasonably satisfactory to the
Administrative Agent (subject, in the case of surveys, to exceptions
consented to by the Administrative Agent in its sole discretion).
(ii) For Mortgaged Property consisting of a leasehold interest
which is not included in paragraph (v)(i) above, the Borrowers shall
have used commercially reasonable efforts to obtain on or prior to the
Effective Date the documents required by Section 5.1(v)(i)(A), (B) and
(C) above, in each case, reasonably satisfactory to the Administrative
Agent.
(w) Ratings. The Borrowers shall have obtained on or prior to the
Effective Date from ▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's
Ratings Group, senior secured debt ratings with respect to the Credit
Facilities and a senior implied debt rating.
(x) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.3 of the Guarantee
and Collateral Agreement.
58
(y) PATRIOT Act. The Lenders shall have received, sufficiently in
advance of the Effective Date, all documentation and other information
required by bank regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including
without limitation the United States PATRIOT Act.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrowers hereunder shall constitute a representation and warranty by the
Borrowers as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Each Borrower hereby jointly and severally agrees that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each
Borrower shall and shall cause each of its Subsidiaries to:
6.l Financial Statements. Furnish to the Administrative Agent and each
Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrowers, a copy of the (i) audited
consolidated balance sheet of each of MAPCO Express and its consolidated
Subsidiaries and MAPCO Family and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and of cash flows for such year, and (ii) an audited combined balance sheet
of the Borrowers and their consolidated Subsidiaries as at the end of such
year and the related audited combined statements of income and of cash
flows for such year, in each case setting forth in comparative form the
figures as of the end of and for the previous year, and reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Ernst & Young LLP or other
independent certified public accountants of nationally recognized standing;
and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrowers, (i) the unaudited consolidated balance sheet of each
of MAPCO Express and its consolidated
59
Subsidiaries and MAPCO Family and its consolidated Subsidiaries as at the
end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, and (ii) an unaudited combined
balance sheet of the Borrowers and their consolidated Subsidiaries as at
the end of such quarter and the related unaudited combined statements of
income and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, in each case, setting forth in each
case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments); and
(c) as soon as available and in any event within 30 days after the end
of each calendar month, a summary report as to the economic terms of each
Hedge Agreement (other than interest rate swaps and other similar
transactions that hedge interest rate risk) to which any Borrower or any of
their Subsidiaries is a party, including obligations of any Borrower or any
of their Subsidiaries under such Hedge Agreement as of the end of such
calendar month;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and each
Lender, or, in the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate (it
being understood that such certificate shall be limited to the items that
independent certified public accountants are permitted to cover in such
certificates pursuant to their professional standards and customs of the
profession);
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer of each
Borrower stating that, to the best of such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in
this Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officers
have obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by the
Borrowers and their Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year
of the Borrowers, as the case may be, and (y) any UCC financing statements
or other filings specified in such Compliance Certificate as being required
to be delivered therewith;
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(c) as soon as available, and in any event no later than 50 days after
the end of each fiscal year of the Borrowers, a detailed combined budget
for the following fiscal year (including a projected combined balance sheet
of the Borrowers and their Subsidiaries as of the end of the following
fiscal year, projected changes in financial position and projected income
and a description of the underlying assumptions applicable thereto), and,
as soon as available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer of each Borrower stating that such
Projections are based on reasonable estimates, information and assumptions
and that such Responsible Officers have no reason to believe that such
Projections are incorrect or misleading in any material respect;
(d) within 50 days after the end of each fiscal quarter of the
Borrowers, a narrative discussion and analysis of the combined financial
condition and results of operations of the Borrowers and their Subsidiaries
for such fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter, as compared to the
portion of the Projections covering such periods and to the comparable
periods of the previous year;
(e) within five days after the same are sent, copies of all financial
statements and reports that a Borrower sends to the holders of any class of
its debt securities or public equity securities and, within five days after
the same are filed, copies of all financial statements and reports that a
Borrower may make to, or file with, the SEC; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrowers or their Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence; Compliance.
(a)(i) Subject to Section 7.4, preserve, renew and keep in full force and effect
its organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, except, in each case, as otherwise permitted by Section 7.4 and
except, in the case of clause (ii) above, to the extent that failure to do so
would not reasonably be expected to have a Material Adverse Effect; and (b)
comply with all Contractual Obligations and Requirements of Law, except to the
extent that failure to comply therewith would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance, (a) Keep all Property and
systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in
61
the same general area by companies engaged in the same or a similar business and
environmental insurance in coverage and amounts reasonably satisfactory to the
Administrative Agent.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities and (b) permit representatives of any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired (but not more than two visits in any calendar year unless an Event of
Default has occurred and is continuing) and to discuss the business, operations,
properties and financial and other condition of the Borrowers and their
Subsidiaries with officers and employees of the Borrowers and their Subsidiaries
and with their independent certified public accountants (such discussions with
the independent certified accountants to be in the presence of an officer of
employee of the Borrowers or their Subsidiaries).
6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of a Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between a Borrower
or any of its Subsidiaries and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding against a Borrower or any of its
Subsidiaries (i) in which the amount involved is $1,000,000 or more and not
covered by insurance, (ii) in which injunctive or similar relief is sought
or (iii) which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within
30 days after any Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien on the
assets of a Borrower or any Commonly Controlled Entity in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or a Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan;
(e) as soon as possible and in any event within 30 days of obtaining
knowledge thereof: (i) any development, event, or condition that,
individually or in the aggregate with other developments, events or
conditions, would reasonably be expected to result in the payment by the
Borrowers and their Subsidiaries, in the aggregate, of a Material
Environmental Amount; and (ii) any notice that any Governmental Authority
may deny any application for an Environmental Permit sought by, or revoke
or refuse to
62
renew any Environmental Permit held by, any Borrower or any of its
Subsidiaries, which denial, revocation or refusal would reasonably be
expected to materially impact any Borrower or any of its Subsidiaries;
(f) any material amendment, modification, supplement or waiver to the
La ▇▇▇▇▇▇ Management Agreement or the Subordinated Debt Documentation; and
(g) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the related Borrower setting forth details of the
occurrence referred to therein and stating what action such Borrower or the
relevant Subsidiary proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects with, and
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and use reasonable efforts to ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under applicable
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
(c) Generate, use, treat, store, release, dispose of, and otherwise
manage Materials of Environmental Concern in a manner that would not reasonably
be expected to result in a material liability to any of the Borrowers or any of
their Subsidiaries or to materially affect any real property owned or leased by
any of them; and use reasonable efforts to prevent any other Person from
generating, using, treating, storing, releasing, disposing of, or otherwise
managing Materials of Environmental Concern in a manner that would reasonably be
expected to result in a material liability to, or materially affect any real
property owned or operated by, any of the Borrowers or any of their
Subsidiaries. Noncompliance with any of the foregoing shall be deemed not to
constitute a breach of this Section 6.8(c); provided that, upon learning of such
noncompliance or suspected noncompliance, the Borrower shall promptly undertake
reasonable efforts to achieve compliance, and provided further that, such
noncompliance and any other noncompliance would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. In the case of the Borrower, (i) within
120 days after the Effective Date, enter into, and thereafter maintain for a
period of not less than three years, Hedge Agreements to the extent necessary to
provide that at least 50% of the aggregate principal amount of the Term Loans is
subject to either a fixed interest rate or interest rate protection for a period
of not less than three years and (ii) not later than one month prior to the
expiration of the Hedge Agreements referred to in the preceding clause (i),
enter into Hedge
63
Agreements to the extent necessary to provide that at least 50% of the aggregate
principal amount of the Term Loans is subject to either a fixed interest rate or
interest rate protection for a period beginning on the expiration date of the
Hedge Agreements referred to in the preceding clause (i) ending on or after
April 28, 2011, in each case, which Hedge Agreements shall have terms and
conditions reasonably satisfactory to the Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any Property
acquired after the Effective Date by any Borrower or any of its Subsidiaries
(other than (x) any real property or any Property described in paragraph (c) of
this Section, (y) vehicles or any Property subject to a Lien expressly permitted
by Section 7.3(g) and (z) Property acquired by an Excluded Foreign Subsidiary)
as to which the Administrative Agent, for the benefit of the Secured Parties,
does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems necessary or advisable
to grant to the Administrative Agent, for the benefit of the Secured Parties, a
security interest in such Property and (ii) take all actions necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in such Property (other
than Deposit Accounts, unless otherwise requested to take such action by the
Administrative Agent, in its sole reasonable discretion), including without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Administrative Agent.
(b) With respect to (i) any fee interest in any real property having
an aggregate appraised value (together with improvements thereof) of at least
$500,000 acquired in one or a series of transactions after the Effective Date by
any Borrower or any of its Subsidiaries (including any such real property owned
by any new Subsidiary acquired after the Effective Date and excluding any such
real property owned by an Excluded Foreign Subsidiary or subject to a Lien
expressly permitted by Section 7.3(g)) or (ii) subject to the related Loan Party
obtaining the required landlord consent (provided that each Loan Party shall use
commercially reasonable efforts to obtain such consent), any leasehold interest
in any real property having an aggregate appraised value of at least $500,000
acquired or leased (including any leasehold property interest owned by any new
Subsidiary acquired after the Effective Date) in one or a series of transactions
after the Effective Date by any Borrower or any of its Subsidiaries, promptly
(1) execute and deliver a first priority Mortgage in favor of the Administrative
Agent, for the benefit of the Secured Parties, covering such real property, (2)
deliver to the Administrative Agent an appraisal of such real property from a
firm reasonably satisfactory to the Administrative Agent, (3) if requested by
the Administrative Agent, provide the Lenders with (x) title and extended
coverage insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents,
waivers or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such Mortgage, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent and (4)
if requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
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(c) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired after the Effective Date (which, for the
purposes of this paragraph, shall include any existing Subsidiary that ceases to
be an Excluded Foreign Subsidiary), by any Borrower or any of its Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by any Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of such Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Secured Parties a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent, and (iv) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Effective Date by any Borrower or any of its Subsidiaries
(other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver
to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent deems necessary or
advisable in order to grant to the Administrative Agent, for the benefit of the
Secured Parties, a perfected first priority security interest in the Capital
Stock of such new Subsidiary that is owned by such Borrower or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in
no event shall more than 65% of the total outstanding Capital Stock of any such
new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to
the Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of such Borrower or such Subsidiary, as the case may be, and
take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Lien of the Administrative Agent
thereon, and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
6.11 Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take such actions, as the Administrative Agent may reasonably
request for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
the Borrowers or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise
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by the Administrative Agent or any Lender of any power, right, privilege or
remedy pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority, the Borrowers will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other
documents and papers that the Administrative Agent or such Lender may be
required to obtain from the Borrowers or any of their Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.
6.12 Post-Effective Date Covenants. (a) Not later than 30 days after
the Effective Date, the Borrowers shall have delivered to the Administrative
Agent, surveys conforming to the requirements of Section 5.1(u)(i) for each of
the Mortgaged Properties described on Schedule 6.12(a).
(b) Not later than 30 days after the Effective Date, the Borrowers
shall have delivered to the Administrative Agent, mortgagee's title insurance
policies conforming to the requirements of Section 5.1(u)(ii) for each of the
Mortgaged Properties described on Schedule 6.12(b).
SECTION 7. NEGATIVE COVENANTS
Each Borrower hereby jointly and severally agrees that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters
of the Borrowers ending with any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
FQ2 2005 - FQ1 2007 4.85 to 1.00
FQ2 2007 - FQ1 2008 4.25 to 1.00
FQ2 2008 - FQ1 2009 3.75 to 1.00
FQ2 2009 - FQ1 2010 3.25 to 1.00
FQ2 2010 and thereafter 2.75 to 1.00
(b) Consolidated Adjusted Interest Coverage Ratio. Permit the
Consolidated Adjusted Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrowers ending with any fiscal quarter
set forth below to be less than the ratio set forth below opposite such
fiscal quarter:
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Consolidated Adjusted Interest
Fiscal Quarter Coverage Ratio
-------------- ------------------------------
FQ2 2005 - FQ1 2007 1.90 to 1.00
FQ2 2007 - FQ1 2008 2.00 to 1.00
FQ2 2008 - FQ1 2009 2.15 to 1.00
FQ2 2009 - FQ1 2010 2.35 to 1.00
FQ2 2010 and thereafter 2.50 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrowers ending with any fiscal quarter set forth below to
be less than the ratio set forth below opposite such fiscal quarter:
Consolidated Fixed Charge
Fiscal Quarter Coverage Ratio
-------------- -------------------------
FQ2 2005 - FQ1 2008 1.20 to 1.00
FQ2 2008 - FQ1 2009 1.25 to 1.00
FQ2 2009 and thereafter 1.30 to 1.00
(d) Consolidated Adjusted Leverage Ratio. Permit the Consolidated
Adjusted Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrowers ending with any fiscal quarter
set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Consolidated Adjusted
Fiscal Quarter Leverage Ratio
-------------- ---------------------
FQ2 2005 - FQ1 2007 5.60 to 1.00
FQ2 2007 - FQ1 2008 5.10 to 1.00
FQ2 2008 - FQ1 2009 4.65 to 1.00
FQ2 2009 - FQ1 2010 4.25 to 1.00
FQ2 2010 and thereafter 3.80 to 1.00
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of any Borrower to the other Borrower or any of their
Subsidiaries and of any Wholly Owned Subsidiary Guarantor to the Borrowers
or any other Subsidiary;
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate
principal amount not to exceed $1,500,000 at any one time outstanding;
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(d) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof or any shortening of
the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by
the Borrowers or any of their Subsidiaries of obligations of any Borrower
or any Subsidiary Guarantor;
(f) Unsecured Indebtedness of MAPCO Family to Holdings (the "MFC
Intercompany Debt") in an aggregate principal amount not exceeding
$11,500,000 at any one time outstanding evidenced, provided that, such
Indebtedness (i) is fully subordinated to the Obligations pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent, (ii) does not require a cash payment of principal or
interest prior to the date that is 90 days after the final maturity of the
Term Loans, and (iii) the final maturity of such Indebtedness is not
earlier than the date that is 90 days after the final maturity of the Term
Loans;
(g) additional unsecured Indebtedness of the Borrowers or any of their
Subsidiaries in an aggregate principal amount (for the Borrowers and all
their Subsidiaries) not to exceed $1,500,000 at any one time outstanding;
and
(h) additional Indebtedness of the Borrowers or any of their
Subsidiaries in an aggregate principal amount (for the Borrowers and all
their Subsidiaries) not to exceed $1,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except
for:
(a) Liens for taxes not yet due or that are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the relevant Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 45 days or that are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
non-monetary encumbrances which (x) with respect to Liens created on or
prior to the Closing Date, do
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not materially detract from the value of the Property subject thereto as
used in the business of the Borrowers or any of their Subsidiaries or do
not materially interfere with the ordinary conduct of the business of the
Borrowers or any of their Subsidiaries, and (y) with respect Liens created
after the Closing Date, are incurred in the ordinary course of business
that do not in any case materially detract from the value of the Property
subject thereto as used in the business of the Borrowers or any of their
Subsidiaries or do not materially interfere with the ordinary conduct of
the business of the Borrowers or any of their Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such
Lien is spread to cover any additional Property after the Effective Date
and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrowers or any of their
Subsidiaries incurred pursuant to Section 7.2(c) to finance the acquisition
of fixed or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any Property other than
the Property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the amount of
Indebtedness initially secured thereby is not less than 80%, or more than
100% of the purchase price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease or a sublessor
under any sublease entered into by the Borrower or any other Subsidiary in
the ordinary course of its business and covering only the assets so leased;
(j) Liens described in Schedule 7.3(j) securing the obligations of the
Borrowers and their Subsidiaries in respect of Hedge Agreements entered
into to hedge against fluctuations in the price of fuel and as otherwise
disclosed to the Administrative Agent, provided that, such Liens shall only
consist of deposits of cash and Cash Equivalents by the Borrowers and their
Subsidiaries in an aggregate amount not exceeding $2,000,000 at any one
time; and
(k) Liens not otherwise permitted by this Section 7.3 so long as
neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair market value (determined, in
the case of each such Lien, as of the date such Lien is incurred) of the
assets subject thereto exceeds (as to the Borrowers and all their
Subsidiaries) $1,000,000 at any one time.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of the Borrowers may be merged or consolidated with
or into a Borrower (provided that a Borrower shall be the continuing or
surviving
69
corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that (i) the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation or (ii) simultaneously with such
transaction, the continuing or surviving corporation shall become a Wholly
Owned Subsidiary Guarantor and the relevant Borrower shall comply with
Section 6.10 in connection therewith);
(b) any Subsidiary of the Borrowers may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to a Borrower or any
Subsidiary Guarantor; and
(c) MAPCO Family may merge with and into MAPCO Express, provided that,
MAPCO Express shall be the continuing or surviving corporation.
7.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to a
Borrower or any Subsidiary Guarantor;
(e) the Disposition of other assets having a fair market value not to
exceed $5,000,000 in the aggregate for any fiscal year of the Borrowers;
and
(f) any Recovery Event, provided, that the requirements of Section
2.10(c) are complied with in connection therewith.
7.6 Limitation on Restricted Payments. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of a Borrower or any Subsidiary, whether now
or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
a Borrower or any Subsidiary, or enter into any derivatives or other transaction
with any financial institution, commodities or stock exchange or clearinghouse
(a "Derivatives Counterparty") obligating any Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of any such Capital Stock (collectively, "Restricted Payments"), except
that:
(a) any Subsidiary of the Borrowers may make Restricted Payments to
the Borrowers or any Subsidiary Guarantor;
70
(b) any Borrower may make Restricted Payments in the form of its
common stock;
(c) the Borrowers may pay dividends to Holdings to permit Holdings to
(i) pay corporate overhead expenses incurred in the ordinary course of
business not to exceed $100,000 in any fiscal year and (ii) subject to the
Tax Sharing Agreement, pay any taxes which are due and payable by Holdings
attributable to the Borrowers and their Subsidiaries as part of a
consolidated group;
(d) the Borrowers may pay to Holdings (i) the Delek US Dividend and
(ii) the amount released to Holdings from the Escrow Agreement on the
Escrow Release Date (as defined in the Escrow Agreement) in accordance with
the terms thereof; and
(e) in addition to Restricted Payments otherwise permitted in this
Section 7.6, on or after July 1, 2007 (i) the Borrowers may pay dividends
to Holdings in any fiscal year of the Borrowers in an aggregate amount for
such fiscal year equal to the lesser of (x) $1,500,000 and (y) the 50% of
Excess Cash Flow for the immediately preceding fiscal year not applied to
the prepayment of the Loans pursuant to Section 2.10(d), provided that,
immediately prior to and after giving effect to such Restricted Payment,
(i) the Consolidated Leverage Ratio is not greater than 2.50 to 1.00 and
(ii) the Consolidated Fixed Charge Coverage Ratio is greater than 1.25 to
1.00, in each case, for the period of four fiscal quarters most recently
ended prior to the date of such Restricted Payment for which financial
statements are available (assuming that the Restricted Payment was made on
the last day of such period).
7.7 Limitation on Capital Expenditures. Make or commit to make any
Capital Expenditure, except:
(a) during any fiscal year of the Borrowers, Capital Expenditures of
the Borrower and its Subsidiaries in an amount not exceeding $12,000,000;
provided, that (i) up to 50% of any such amount referred to above, if not
so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year and (ii) Capital
Expenditures made pursuant to this clause (a) during any fiscal year shall
be deemed made, first, in respect of amounts permitted for such fiscal year
as provided above and second, in respect of amounts carried over from the
prior fiscal year pursuant to subclause (i) above; and
(b) Capital Expenditures made with the proceeds of any Reinvestment
Deferred Amount.
7.8 Limitation on Investments. Make any advance, loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
71
(b) Investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e);
(d) loans and advances to employees of the Borrowers or any of their
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrowers and their Subsidiaries not to exceed
$200,000 at any one time outstanding;
(e) Investments in assets (x) useful in the Borrowers' business made
by the Borrowers or any of their Subsidiaries with the proceeds of any
Reinvestment Deferred Amount and (y) as otherwise permitted by Section 7.7;
(f) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) by the Borrowers or any of their
Subsidiaries in a Borrower or any Person that, prior to such Investment, is
a Subsidiary Guarantor; and
(g) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $5,000,000 during the term
of this Agreement.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than a Borrower
or any Subsidiary Guarantor) unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of business of the Borrowers or
their Subsidiaries, as the case may be, and (c) upon fair and reasonable terms
no less favorable to the Borrowers or their Subsidiaries, as the case may be,
than it would obtain in a comparable arm's length transaction with a Person that
is not an Affiliate.
7.10 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by any Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by such
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of such Borrower or such Subsidiary.
7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of the Borrowers to end on a day other than December 31 or change the Borrowers'
method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of
any Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) leases existing on the date
hereof which are not subject to a Mortgage and leases entered into after the
Closing Date which are not required to be
72
subject to a Mortgage in accordance to Section 6.10(b), in either case, which
require the relevant landlord's approval to mortgage or assign such lease and
(c) any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).
7.13 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, any Borrower or any other Subsidiary, (b) make Investments in any
Borrower or any other Subsidiary or (c) transfer any of its assets to any
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents and (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
7.14 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrowers and their Subsidiaries are engaged on the date of this Agreement or
that are reasonably related thereto.
7.15 Limitation on Amendments to Other Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the La ▇▇▇▇▇▇ Management Agreement, if applicable, in any manner
that would decrease the amounts payable to MAPCO Express thereunder or to
provide that such amounts shall be payable on a subordinated basis to the La
▇▇▇▇▇▇ Credit Facility, (b) amend, supplement or otherwise modify (pursuant to a
waiver or otherwise) the terms and conditions of the Tax Sharing Agreement in
any manner that would increase the amounts payable by the Borrowers thereunder,
(c) amend, supplement or otherwise modify (pursuant to a waiver or otherwise)
the terms and conditions of the Subordinated Debt Documentation in any manner
that would adversely affect the application thereto of the subordination
provisions set forth in the Debt Subordination Agreement among Holdings, MAPCO
Family and the Administrative Agent substantially in the form of Exhibit L, or
(d) otherwise amend, supplement or otherwise modify the terms and conditions of
the La ▇▇▇▇▇▇ Management Agreement, if applicable, the Tax Sharing Agreement or
the Subordinated Debt Documentation, except to the extent that any such
amendment, supplement or modification could not reasonably be expected to have a
Material Adverse Effect.
7.16 Limitation on Hedge Agreements. Enter into any Hedge Agreement
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates,
commodity prices or foreign exchange rates.
7.17 La ▇▇▇▇▇▇ Management Agreement. Enter into any agreement with the
La ▇▇▇▇▇▇ Affiliate in connection with the acquisition by the La ▇▇▇▇▇▇
Affiliate and Delek Pipeline Texas, Inc. of the La ▇▇▇▇▇▇ refinery located in
Tyler, Texas either providing for (i) the payment of an annual management fee in
an aggregate amount less than $1,500,000 or (ii) the subordination of the
management fee referred to in clause (i) to any payment under the La ▇▇▇▇▇▇
73
Credit Facility, provided that, the payment of such fee shall be made in equal
quarterly installments in arrears on March 31, June 30, September 30 and
December 31 of each year.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrowers shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrowers shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof or thereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made or furnished; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.4(a) (with
respect to the Borrowers only), Section 6.7(a) or Section 7, or in Section
5 of the Guarantee and Collateral Agreement (other than Section 5.1 of the
Guarantee and Collateral Agreement); or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) any Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Loans and
Reimbursement Obligations) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to become
subject to a mandatory offer to purchase by the obligor thereunder or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii)
74
of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $1,000,000; or
(f) (i) any Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Borrower
or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in
the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Borrower or any of its Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan, or
any Lien in favor of the PBGC or a Plan shall arise on the assets of a
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) any Borrower or any
Commonly Controlled Entity shall incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
would reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Borrower or any of its Subsidiaries involving for the Borrowers and their
Subsidiaries taken as a whole a liability (not paid or fully covered by
insurance as to which the relevant
75
insurance company has acknowledged coverage) of $1,500,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 30 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason (other
than by reason of the express release thereof pursuant to Section 10.15),
to be in full force and effect, or any Loan Party or any Affiliate of any
Loan Party shall so assert, or any Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of
the express release thereof pursuant to Section 10.15), to be in full force
and effect or any Loan Party or any Affiliate of any Loan Party shall so
assert; or
(k) any Change of Control shall occur; or
(l) the MFC Intercompany Debt shall cease, for any reason, to be
validly subordinated to the Obligations, as provided in the Subordinated
Debt Documentation, or any Loan Party or any Affiliate of any Loan Party
shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrowers declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrowers, declare the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. In the case of all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrowers shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired face amount of
such Letters of Credit. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrowers hereunder and under the other Loan
76
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrowers hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrowers (or such other Person as may be
lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each Lender irrevocably authorizes each Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, 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 any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except to
the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Lenders for any recitals, statements, representations or
warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of any Loan Party
to perform its obligations hereunder or thereunder. The Agents shall not be
under any obligation to any Lender 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 any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by
77
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Loan Parties), independent
accountants and other experts selected by such Agent. The Agents may deem and
treat the payee of any Note as the owner thereof for all purposes unless such
Note shall have been transferred in accordance with Section 10.6 and all actions
required by such Section in connection with such transfer shall have been taken.
Each 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 Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance
with a request of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender or a Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
shall receive such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative 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 in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, 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
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly
78
required to be furnished to the Lenders by the Administrative Agent hereunder,
no Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party that may come into the possession of such
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of each Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), for, and to save each Agent
harmless from and against, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever that may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon ten days' notice to the Lenders and the
Borrowers. If the Administrative Agent shall resign as Administrative Agent
under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to any Borrower shall have occurred and be continuing) be
subject to approval by the Borrowers (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement
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or any holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is ten days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. The Syndication Agent may, at any time, by notice
to the Lenders and the Administrative Agent, resign as Syndication Agent
hereunder, whereupon the duties, rights, obligations and responsibilities of the
Syndication Agent hereunder shall automatically be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the Syndication
Agent, the Administrative Agent or any Lender. After any retiring Agent's
resignation as Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
9.10 Authorization to Release Liens and Guarantees. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to effect any
release of Liens or guarantee obligations contemplated by Section 10.15.
9.11 The Arranger; the Syndication Agent; the Co-Administrative Agent.
Neither the Arranger, the Syndication Agent nor the Co-Administrative Agent, in
their respective capacities as such, shall have any duties or responsibilities,
nor shall any such Person incur any liability, under this Agreement and the
other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Administrative Agent and
each Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents (including amendments and restatements hereof or thereof)
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
may be specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan or Reimbursement Obligation, extend the
scheduled date of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable under this
Agreement (except (x) in connection with the waiver of applicability
of any post-default increase in interest rates (which waiver shall be
effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or
modification of defined terms used in the financial covenants in this
Agreement shall not
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constitute a reduction in the rate of interest or fees for purposes of
this clause (i)) or extend the scheduled date of any payment thereof,
or increase the amount or extend the expiration date of any Commitment
of any Lender, in each case without the consent of each Lender
directly affected thereby;
(ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required Lenders
or Required Prepayment Lenders, consent to the assignment or transfer
by any Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially
all of the Collateral or release all or substantially all of the
Subsidiary Guarantors from their guarantee obligations under the
Guarantee and Collateral Agreement, in each case without the consent
of all the Lenders;
(iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in
Section 5.2 (including, without limitation, the waiver of an existing
Default or Event of Default required to be waived in order for such
extension of credit to be made) without the consent of the Majority
Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without the
consent of all of the Lenders under such Facility;
(v) amend, modify or waive any provision of Section 9, or any
other provision affecting the rights, duties or obligations of any
Agent, without the consent of any Agent directly affected thereby;
(vi) amend, modify or waive any provision of Section 2.16 without
the consent of each Lender directly affected thereby;
(vii) amend, modify or waive any provision of Section 3 without
the consent of each Issuing Lender affected thereby; or
(viii) impose restrictions on assignments and participations that
are more restrictive than, or additional to, those set forth in
Section 10.6 without the consent of each Lender directly affected
thereby.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section; provided, that delivery of an executed
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signature page of any such instrument by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
For the avoidance of doubt, this Agreement and any other Loan Document
may be amended (or amended and restated) with the written consent of the
Required Lenders, the Administrative Agent and each Loan Party to each relevant
Loan Document (x) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof (collectively,
the "Additional Extensions of Credit") to share ratably in the benefits of this
Agreement and the other Loan Documents with the Term Loans and Revolving
Extensions of Credit and the accrued interest and fees in respect thereof and
(y) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders, Required Prepayment Lenders and Majority
Revolving Facility Lenders; provided, however, that no such amendment shall
permit the Additional Extensions of Credit to share ratably with or with
preference to the Loans in the application of mandatory prepayments without the
consent of the Required Prepayment Lenders.
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Borrowers and
the Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing or modification of all outstanding Term Loans
("Refinanced Term Loans") with a replacement "C" term loan tranche hereunder
("Replacement Term Loans"), provided that (a) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (c) the weighted average life to maturity of such Replacement Term Loans
shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or no less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrowers and the Agents, as follows
and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or on Schedule I to the
Lender Addendum to which such Lender is a party or, in the case of a Lender
which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
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MAPCO Express: MAPCO Express, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇, Chief Financial
Officer and Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Fulbright & ▇▇▇▇▇▇▇▇ L.P.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
MAPCO Family: MAPCO Family Centers, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇, Chief Financial
Officer and Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Fulbright & ▇▇▇▇▇▇▇▇ L.P.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Syndication Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Co-Administrative Agent: Bank Leumi USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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The Administrative Agent: ▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Commercial Paper Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Trimont Real Estate Advisors
Marquis Tower Two
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Issuing Lender: As notified by such Issuing Lender to
the Administrative Agent and the
Borrowers
provided that any notice, request or demand to or upon the any Agent, any
Issuing Lender or any Lender shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents 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. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
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10.4 Survival of Representations and Warranties. All representations
and warranties made herein, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. Each Borrower jointly and severally agrees
(a) to pay or reimburse the Agents for all their reasonable out-of-pocket costs
and expenses incurred in connection with the syndication of the Facilities
(other than fees payable to syndicate members) and the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements and other charges of counsel to the
Administrative Agent and the charges of Intralinks, (b) to pay or reimburse each
Lender and the Agents for all their costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any other documents prepared in connection herewith or
therewith, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and disbursements and other charges of in-house
counsel) to each Lender and of counsel to the Agents, (c) to pay, indemnify, or
reimburse each Lender and the Agents for, and hold each Lender and the Agents
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify or
reimburse each Lender, each Agent, their respective affiliates, and their
respective officers, directors, trustees, employees, advisors, agents and
controlling persons (each, an "Indemnitee") for, and hold each Indemnitee
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever incurred by an Indemnitee or asserted against
any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
or thereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds thereof
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Materials of Environmental Concern on or from
any property owned, occupied or operated by the Borrowers or any of their
Subsidiaries, or any violation of, non-compliance with or liability under any
Environmental Laws related in any way to the Borrowers or any of their
Subsidiaries or any or their respective properties, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by any third party or by any Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrowers shall have no obligation hereunder to any Indemnitee with respect
85
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. No Indemnitee shall be liable for any damages arising from the use
by unauthorized persons of Information or other materials sent through
electronic, telecommunications or other information transmission systems that
are intercepted by such persons or for any special, indirect, consequential or
punitive damages in connection with the Facilities. Without limiting the
foregoing, and to the extent permitted by applicable law, each Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution from
the Lenders or any other rights of recovery from the Lenders with respect to all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee,
provided that, such waiver shall not apply if, and to the extent, such claim for
contribution or recovery arises out of the gross negligence or willful
misconduct of such Indemnitee as found by a final nonappealable decision of a
court of competent jurisdiction. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements payable
by the Borrowers pursuant to this Section shall be submitted to the president
and the chief financial officer of each Borrower, at the address of MAPCO
Express and MAPCO Family set forth in Section 10.2, or to such other Person or
address as may be hereafter designated by the Borrowers in a notice to the
Administrative Agent. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, the Agents, all future holders of the Loans and their respective
successors and assigns, except that neither of the Borrowers may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrowers, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would require the consent of all Lenders pursuant to Section 10.1. Each Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
86
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a) as
fully as if such Participant were a Lender hereunder. Each Borrower also agrees
that each Participant shall be entitled to the benefits of Sections 2.17, 2.18
and 2.19 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender; provided
that, in the case of Section 2.18, such Participant shall have complied with the
requirements of said Section (including the requirements of Section 2.18(d) or
Section 2.18(e) as applicable, as though it were a Lender), and provided,
further, that no Participant shall be entitled to receive any greater amount
pursuant to any such Section than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable law
and upon written notice to the Administrative Agent, at any time and from time
to time assign to any Lender or any affiliate, Related Fund or Control
Investment Affiliate thereof or, with the consent of the Borrowers and the
Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Issuing Lender (which, in each case,
shall not be unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by any ▇▇▇▇▇▇ Entity and (y) the consent of the
Borrowers need not be obtained with respect to any assignment of Term Loans), to
an additional bank, financial institution or other entity (an "Assignee") all or
any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee and such Assignor (and, where the consent of the Borrowers, the
Administrative Agent or the Issuing Lender is required pursuant to the foregoing
provisions, by the Borrowers and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided
that no such assignment to an Assignee (other than any Lender or any affiliate
thereof, including any Related Fund) shall be in an aggregate principal amount
of less than $1,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement) and, after giving effect thereto, the
assigning Lender (if it shall retain any commitments or Loans) shall have
commitments and Loans aggregating at least $1,000,000, in each case, unless
otherwise agreed by the Borrowers and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be a party hereto, except as to Section 2.17, 2.18 and 10.5 in
respect of the period prior to such effective date). Notwithstanding any
provision of this Section, the consent of the Borrowers shall not be required
for any assignment that occurs at any time when any Event of Default shall have
occurred and be continuing. For purposes of the minimum assignment amounts set
forth in this paragraph, multiple assignments by two or more Related Funds shall
be aggregated.
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(d) The Administrative Agent shall, on behalf of the Borrowers,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrowers, each Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Notes evidencing
such Loans recorded therein for all purposes of this Agreement. Any assignment
of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrowers marked "canceled". The Register shall be available for
inspection by the Borrowers or any Lender (with respect to any entry relating to
such Lender's Loans) at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 10.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee of $3,500
(treating multiple, simultaneous assignments by or to two or more Related Funds
as a single assignment) (except that no such registration and processing fee
shall be payable (x) in connection with an assignment by or to a ▇▇▇▇▇▇ Entity
or (y) in the case of an Assignee which is already a Lender or is an affiliate
or Related Fund of a Lender or a Person under common management with a Lender),
the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Borrowers. On or prior to such effective date, the
Borrowers, at their own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or
applicable Term Notes, as the case may be, of the assigning Lender) a new
Revolving Credit Note and/or applicable Term Notes, as the case may be, to the
order of such Assignee in an amount equal to the Revolving Credit Commitment
and/or applicable Term Loans, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loans, as the case may be, upon request,
a new Revolving Credit Note and/or Term Notes, as the case may be, to the order
of the Assignor in an amount equal to the Revolving Credit Commitment and/or
applicable Term Loans, as the case may be, retained by it hereunder. Such new
Note or Notes shall be dated the Effective Date and shall otherwise be in the
form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests in Loans and Notes, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
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(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrowers, the option to provide to the
Borrowers all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrowers pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any state thereof. In addition,
notwithstanding anything to the contrary in this Section 10.6(g), any SPC may
(A) with notice to, but without the prior written consent of, the Borrowers and
the Administrative Agent and without paying any processing fee therefor, assign
all or a portion of its interests in any Loans to the Granting Lender, or with
the prior written consent of the Borrowers and the Administrative Agent (which
consent shall not be unreasonably withheld) to any financial institutions
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans, and (B) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC; provided that non-public information with
respect to any Borrower may be disclosed only with such Borrower's consent which
will not be unreasonably withheld. This paragraph (g) may not be amended without
the written consent of any SPC with Loans outstanding at the time of such
proposed amendment.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
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(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrowers,
any such notice being expressly waived by each Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by each Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of any Borrower. Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrowers and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrowers, the Agents, the Arranger and
the Lenders with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the Arranger, any
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York sitting in the Borough of Manhattan, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof;
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(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any fiduciary
relationship with or duty to the Borrowers arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand,
and the Borrowers, on the other hand, in connection herewith or therewith
is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Arranger, the Agents and the Lenders or among the Borrowers and the
Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Arranger, any Agent, any other
Lender or any affiliate of any thereof, (b) to any Participant or Assignee
(each, a "Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its employees, directors, agents, attorneys, accountants and other professional
advisors, (d) to any financial institution that is a direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section), (e) upon the request or demand of any Governmental Authority
having jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) in connection with any litigation or similar proceeding,
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(h) that has been publicly disclosed other than in breach of this Section, (i)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (j) in connection with the exercise of any
remedy hereunder or under any other Loan Document.
10.15 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, upon request of the Borrowers in connection with
any Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its
security interest in any Collateral being Disposed of in such Disposition,
and to release any guarantee obligations under any Loan Document of any
Person being Disposed of in such Disposition, to the extent necessary to
permit consummation of such Disposition in accordance with the Loan
Documents.
(b) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be
outstanding, upon request of the Borrowers, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such
actions as shall be required to release its security interest in all
Collateral, and to release all guarantee obligations under any Loan
Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Specified Hedge Agreements. Any such
release of guarantee obligations shall be deemed subject to the provision
that such guarantee obligations shall be reinstated if after such release
any portion of any payment in respect of the Obligations guaranteed thereby
shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
any Borrower or any Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.
10.16 Accounting Changes. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrowers and the Administrative Agent agree to enter into negotiations
in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Change with the desired result that the criteria for evaluating
the Borrowers' financial condition shall be the same after such Accounting
Change as if such Accounting Change had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrowers, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change"
refers to any change in accounting principles required by the promulgation
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of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
10.17 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent. Execution and delivery by a Lender, LCPI, the Administrative Agent and
the Borrower of a Lender Addendum on the Effective Date shall constitute an
assignment by LCPI to such Lender, and the assumption by such Lender, effective
on the Effective Date, of a portion of the Revolving Credit Commitment equal to
its Revolving Credit Percentage (the "Assumed Revolving Credit Commitment"),
together with its pro rata portion of the Revolving Credit Loans, as applicable,
not exceeding such Lender's Revolving Credit Commitment, whereupon such Lender
shall be a Lender having the Revolving Credit Commitment set forth in such
Lender Addendum with outstanding Loans equal to its Assumed Revolving Credit
Commitment.
10.18 WAIVERS OF JURY TRIAL. EACH BORROWER, THE AGENTS AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.19 Maximum Liability of any Borrower. Anything herein or in any
other Loan Document to the contrary notwithstanding, the maximum liability of
any Borrower hereunder and under the other Loan Documents with respect to (i)
the principal of, and interest on, Loans made to the other Borrower and (ii) L/C
Obligations in respect of Letters of Credit issued for the account of the other
Borrower, and letter of credit fees related thereto, and all other Obligations
of the other Borrower shall in no event exceed the amount which can be
guaranteed by such Borrower under applicable federal and state laws relating to
fraudulent conveyances or transfers or the insolvency of debtors.
10.20 Effect of Amendment and Restatement of the Existing Credit
Facilities. On the Effective Date, each of the Existing Credit Facilities shall
be amended, restated and superseded in its entirety by this Agreement. The
parties hereto acknowledge and agree that (a) this Agreement and the other Loan
Documents, whether executed and delivered in connection herewith or otherwise,
do not constitute a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in each Existing Credit Facility) under the Existing
Credit Facilities as in effect prior to the Effective Date, (b) such
"Obligations" are in all respects continuing (as amended and restated hereby)
with only the terms thereof being modified as provided in this Agreement and (c)
upon the effectiveness of this Agreement all Loans of Lenders outstanding under
the Existing Credit Facilities immediately before the effectiveness of this
Agreement will be converted into Loans hereunder on the terms and conditions set
forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
MAPCO EXPRESS, INC.
By: /s/ Uzi Yemin
------------------------------------
Name: Uzi Yemin
Title: President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
MAPCO FAMILY CENTERS, INC.
By: /s/ Uzi Yemin
------------------------------------
Name: Uzi Yemin
Title: President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇▇▇ BROTHERS INC., as Arranger
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice-President
SUNTRUST BANK, as Syndication Agent
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: VICE PRESIDENT
-1-
BANK LEUMI USA, as Co-Administrative
Agent
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title:
---------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory