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EXHIBIT 4(g)
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(herein called the "Amendment") made as of the 13th day of June, 1995, by and
among ▇▇▇▇▇ Corporation ("Borrower"), Navajo Refining Company ("Navajo"), ▇▇▇▇▇
Petroleum, Inc. ("▇▇▇▇▇ Petroleum"), Navajo Pipeline Co. ("Navajo Pipeline"),
Navajo Holdings, Inc. ("Navajo Holdings"), Lea Refining Company ("Lea"), Navajo
Western Asphalt Company ("Navajo Western"), Montana Refining Company, A
Partnership ("Montana") and Navajo Crude Oil Marketing Company ("Navajo
Crude"), (Navajo, ▇▇▇▇▇ Petroleum, Navajo Pipeline, Navajo Holdings, Lea,
Navajo Western and Navajo Crude collectively referred to herein as
"Guarantors"), NationsBank of Texas, N.A., as Agent ("Agent"), and NationsBank
of Texas, N.A., Banque Paribas, The First National Bank of Boston, and The Bank
of Nova Scotia (collectively, "Lenders"),
W I T N E S S E T H:
WHEREAS, Borrower, Guarantors, Montana, Agent and Lenders have entered
into that certain First Amended and Restated Credit Agreement dated as of July
23, 1993, as amended by that certain First Amendment to First Amended and
Restated Credit Agreement dated as of April 7, 1994 (as so amended, the
"Original Agreement") for the purpose and consideration therein expressed,
whereby Lenders became obligated to make loans to Borrower as therein provided;
and
WHEREAS, Borrower, Guarantors, Montana, Navajo Crude, Agent and
Lenders desire to amend the Original Agreement for the purposes expressed
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement and in
consideration of the loans which may hereafter be made by Lenders to Borrower
and of the letters of credit which may hereafter be issued, extended and
renewed by Lenders for the account of Borrower and for the account of Montana,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the original
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Agreement shall have the same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" shall mean this Second Amendment to First Amended
and Restated Credit Agreement.
"Credit Agreement" shall mean the Original Agreement as
amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. Defined Terms. The definition of "Maturity Date" in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
"Maturity Date. August 1, 1997."
The definition of "Guaranty" in Section 1.1. of the original Agreement
is hereby amended in its entirety to read as follows:
"Guaranty. The Guaranty dated as of July 30, 1991, made by the
Guarantors for the benefit of the Lenders and Agent, as supplemented
by the First Supplement to Guaranty dated as of February 20, 1992, and
the Second Supplement to Guaranty dated as of April 7, 1994, and as
may be further amended, renewed, confirmed, ratified or supplemented
from time to time."
The following definition of "LIFO Ratio" is hereby added to Section
1.1 of the Original Agreement immediately following the definition of "LIFO."
"LIFO Ratio. As of the last day of any Fiscal Quarter, the
ratio of Consolidated LIFO Earnings before Interest and Taxes for the
four complete Fiscal Quarters then ending to Interest Charges for such
period."
The following definition of "Minimum Working Capital Requirements" is
hereby added to Section 1.1 of the Original Agreement immediately following the
definition of "Maximum Rate."
"Minimum Working Capital Requirements. The Minimum Working
Capital Requirements shall be satisfied at any time when Consolidated
Current Assets, minus Consolidated Current Liabilities equals or
exceeds Fifteen Million Dollars ($15,000,000), except that (i) the
minimum working capital Requirements shall be satisfied in each of
year 1994 and year 1995, during the period from and including April 30
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until but excluding the Private Placement Date, only if Consolidated
Current Assets minus Consolidated Current Liabilities equals or exceed
Twenty-One Million Dollars ($21,000,000) and (ii) the Minimum Working
Capital Requirements shall be satisfied in each year commencing 1996,
during that period from and including April 30 until but excluding the
Private Placement Date, only if Consolidated Current Assets minus
Consolidated Current Liabilities equals or exceeds Thirty Million
Dollars ($30,000,000). For purposes of this paragraph, Consolidated
Current Liabilities will be calculated without including any payments
of principal on the notes issued under the Private Placement Agreement
which are required to be repaid within one year from the time of
calculation."
Section 2.2. Investments. Section 7.3(j) of the original
Agreement is hereby amended in its entirety to read as follows:
"(j) Investments other than Investments described in
subsections 7.3(a)-(i) at any time outstanding in an amount not to
exceed in the aggregate at any time the sum of Five Million Dollars
($5,000,000) plus the amount of Distributions which could then be made
pursuant to Section 7.4(b)(iii), without giving effect to clauses
(b)(i) and (ii) of Section 7.4; provided that no such Investment shall
be made unless at the time such Investment is made the Continuing
Performance Level for the immediately preceding Fiscal Quarter has
been achieved."
Section 2.3. Distributions. Section 7.4 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 7.4. Distributions. Borrower shall make no
Distribution unless (i) at the time such Distribution is made, the
LIFO Ratio (calculated as of the last day of the Fiscal Quarter
immediately preceding the Fiscal Quarter in which such Distribution is
made) is equal to or greater than 2.0 to 1.0 and (ii) immediately
after giving effect to any such Distribution, each of the Related
Persons and Montana shall be in compliance with all of its covenants
hereunder and no Default or Event of Default shall have occurred and
be continuing (collectively, the "Distribution Conditions"). If all of
the Distribution Conditions are satisfied, Borrower may make
Distributions as follows:
(a) Borrower may make Distributions in an amount not to
exceed $5,000,000 in the aggregate during any Fiscal Year; and
(b) Borrower may make Distributions in excess of
$5,000,000 during any Fiscal Year so long as (i) the LIFO Ratio
(calculated as of the last day of the Fiscal Quarter immediately
preceding the Fiscal Quarter in which such Distribution is made) is
equal to or greater than 3.5 to 1.0, and (ii) the Minimum Working
Capital Requirements are
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satisfied, and (iii) during any period in which Consolidated FIFO Net
Worth does not equal or exceed Fifty Million Dollars ($50,000,000),
the amount of all Distributions made prior to and on the date of
distribution, when added to the aggregate amount of Investments made
prior to the date of distribution under Section 7.3(j) in excess of
$5,000,000, shall not exceed the sum of 60% of Cumulative Consolidated
Net Income; and during any period in which Consolidated FIFO Net Worth
equals or exceeds Fifty Million Dollars ($50,000,000), the amount of
all Distributions made prior to and on the date of distribution when
added to the aggregate amount of Investments made prior to the date of
distribution under Section 7.3(j) in excess of $5,000,000, shall not
exceed the sum of 75% of Cumulative Consolidated Net Income; provided
that in calculating the amount of Investments under Section 7.3(j) in
excess of $5,000,000 and Distributions for purposes of this subsection
(b) only, the Quarterly Dividend shall be excluded and Distributions
made prior to February 1, 1992 shall be excluded. Nothing herein
contained shall be deemed in any way to restrict or prohibit
Borrower's (x) retirement of any shares of its capital stock in
exchange for, or upon conversion of, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary) of, other
shares of its capital stock, or (y) purchase of its common stock where
(1) the aggregate number of shares purchased from any one Person at
any one time is less than 100 shares, (2) after giving effect to such
purchase, such Person does not own any common stock of Borrower, and
(3) the aggregate payment for all such common stock does not exceed
$300,000 in any fiscal year."
Section 2.4. Working Capital. Section 7.8 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 7.8. Working capital. The Related Persons shall not
permit Consolidated Current Assets, minus Consolidated Current
Liabilities to be less than Ten Million Dollars ($10,000,000) at any
time except that (i) in each of year 1994 and year 1995, during the
period from and including April 30 until but excluding the Private
Placement Date, Consolidated Current Assets minus Consolidated Current
Liabilities shall not be less than Sixteen Million Dollars
($16,000,000) and (ii) in each year commencing 1996, during that
period from and including April 30 until but excluding the Private
Placement Date, Consolidated Current Assets minus Consolidated Current
Liabilities shall not be less than Twenty Five Million Dollars
($25,000,000). For purposes of this Section 7.8, Consolidated Current
Liabilities will be calculated without including any payments of
principal on the notes issued under the Private Placement Agreement
which are required to be repaid within one year from the time of
calculation."
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Section 2.5. Borrower's Working Capital. Section 7.9 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Section 7.9. Borrower's Working Capital. The Related Persons
shall not, at any time, permit Consolidated Current Assets, minus
Consolidated Current Liabilities to be less than Five Million Six
Hundred Thousand Dollars ($5,600,000) except that (i) in each year
commencing 1994, during the period from and including April 30 until
but excluding the Private Placement Date, Consolidated Current Assets
minus Consolidated Current Liabilities shall not be less than Eleven
Million Six Hundred Thousand Dollars ($11,600,000) and (ii) in each
year commencing 1996, during the period from and including April 30
until but excluding the Private Placement Date, Consolidated Current
Assets minus Consolidated Current Liabilities shall not be less than
Twenty Million Six Hundred Thousand Dollars ($20,600,000). For
purposes of this section only, the current assets and current
liabilities of Montana and the Montana General Partners shall be
excluded from the calculation of Consolidated Current Liabilities and
Consolidated Current Assets. For purposes of this Section 7.9,
Consolidated Current Liabilities will be calculated without including
any payments of principal on the notes issued under the Private
Placement Agreement which are required to be repaid within one year
from the time of calculation."
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when, and only when, (i) Agent shall have
received, at Agent's office, a counterpart of this Amendment executed and
delivered by Borrower, each Guarantor, and each Lender, and (ii) Agent shall
have additionally received all of the following documents, each document
(unless otherwise indicated) being dated the date of receipt thereof by Agent,
duly authorized, executed and delivered, and in form and substance satisfactory
to Agent:
(a) Secretary's Certificates. Agent shall have received,
in form and substance satisfactory to Agent, certificates of the
Secretary of Borrower and each Guarantor dated the date of this
Amendment certifying that (i) the persons named as authorized
signatories in prior Secretary's Certificates delivered to Agent (the
"Prior Certificates") are authorized to sign this Amendment, (ii) the
resolutions authorizing the execution of the Loan Documents that were
attached to the Prior Certificates have not been amended, modified or
revoked in any respect and are in full force and effect on the date
hereof and (iii) that the charter documents of Borrower or such
Guarantor attached to the
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Prior Certificates have not been amended, modified or revoked in any
respect and are in full force and effect on the date hereof.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Related Persons. In
order to induce each Lender to enter into this Amendment, Borrower represents
and warrants as to itself and each other Related Person, and each other Related
Person represents and warrants as to itself, to each Lender that:
(a) The representations and warranties contained in
Section 5.1 of the Original Agreement are true and correct at and as
of the time of the effectiveness hereof.
(b) Each of Borrower, each Guarantor and Montana is duly
authorized to execute and deliver this Amendment, and Borrower is and
will continue to be duly authorized to borrow monies and to perform
its obligations under the Credit Agreement. Each of Borrower, each
Guarantor and Montana has duly taken all corporate or partnership
action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of its obligations
hereunder.
(c) The execution and delivery by each of Borrower, each
Guarantor and Montana of this Amendment, the performance by such
Person of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of any of its
organizational documents, or of any material agreement, judgment,
license, order or permit applicable to or binding upon it, or result
in the creation of any lien, charge or encumbrance upon any assets or
properties or any of its assets. Except for those which have been
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with
the execution and delivery by any of Borrower, any Guarantor or
Montana of this Amendment or to consummate the transactions
contemplated hereby.
(d) When duly executed and delivered, this Amendment will
be a legal and binding obligation of Borrower, Guarantors and Montana
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or similar laws of general application relating
to the enforcement of creditors' rights and by equitable principles of
general application.
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ARTICLE V.
MISCELLANEOUS
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Credit Agreement in any Loan Document shall be deemed to be a reference
to the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders under the Credit
Agreement, the Notes, or any other Loan Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes or any other Loan Document. Each
Guarantor hereby consents to the provisions of this Amendment and the
transactions contemplated herein, and hereby ratifies and confirms the
Guaranty, and agrees that its obligations and covenants thereunder are
unimpaired hereby and shall remain in full force and effect.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of each of Borrower, Guarantors and Montana herein
shall survive the execution and delivery of this Amendment and the performance
hereof, including without limitation the making or granting of the Loans, and
shall further survive until all of the obligations are paid in full. All
statements and agreements contained in any certificate or instrument delivered
by Borrower, any Guarantor or Montana hereunder or under the Credit Agreement
to any Lender shall be deemed to constitute representations and warranties by,
and/or agreements and covenants of, such Person under this Amendment and under
the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and
all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.
Section 5.5. Counterparts. This Amendment may be separately executed
in counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OR
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the
date first above written.
▇▇▇▇▇ CORPORATION, a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President, Treasurer and
Controller
NAVAJO REFINING COMPANY, a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
NAVAJO PIPELINE CO., a New Mexico
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
NAVAJO HOLDINGS, INC., a New Mexico
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
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▇▇▇▇▇ PETROLEUM, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
LEA REFINING COMPANY, a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
NAVAJO WESTERN ASPHALT COMPANY, a
New Mexico corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
MONTANA REFINING COMPANY, A
PARTNERSHIP, a Montana general
partnership
By: Navajo Northern, Inc., its
General Partner and a Nevada
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
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NAVAJO CRUDE OIL MARKETING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
NATIONSBANK OF TEXAS, N.A.,
as Agent
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, IV
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▇. ▇▇▇▇▇▇ Markham, IV
Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, IV
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▇. ▇▇▇▇▇▇ Markham, IV
Senior Vice President
BANQUE PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Group Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
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H. ▇▇▇▇▇ ▇▇▇▇▇▇
Director
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▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ A.S. ▇▇▇▇▇▇▇▇▇▇
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A.S. ▇▇▇▇▇▇▇▇▇▇
Assistant Agent
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