EXHIBIT 4.8
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CREDIT AGREEMENT
Dated as of February 9, 2004
among
PETRO STOPPING CENTERS, L.P.,
as the Borrower,
PETRO STOPPING CENTERS HOLDINGS, L.P.,
PETRO HOLDINGS FINANCIAL CORPORATION,
PETRO DISTRIBUTING, INC.,
and
PETRO FINANCIAL CORPORATION,
as the Credit Agreement Guarantors,
▇▇▇▇▇ FARGO BANK, N. A.,
as Administrative Agent, Collateral Agent and L/C Issuer,
and
BANK OF AMERICA, N.A.,
as Syndication Agent and a Lender
and
The Other Lenders Party Hereto
Arranged By:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS...................................1
1.01 Defined Terms.......................................................1
1.02 Other Interpretive Provisions......................................28
1.03 Accounting Terms...................................................29
1.04 Rounding...........................................................29
1.05 References to Agreements and Laws..................................30
1.06 Times of Day.......................................................30
1.07 Letter of Credit Amounts...........................................30
ARTICLE II - THE COMMITMENTS AND CREDIT EXTENSIONS............................30
2.01 Revolving Loans and Term Loan......................................30
2.02 Borrowings, Conversions and Continuations of Loans.................30
2.03 Letters of Credit..................................................31
2.04 [Intentionally omitted.]...........................................38
2.05 Prepayments........................................................39
2.06 Termination or Reduction of Aggregate Revolving Commitments........41
2.07 Repayment of Loans.................................................41
2.08 Interest...........................................................42
2.09 Fees...............................................................42
2.10 Computation of Interest and Fees...................................43
2.11 Evidence of Debt...................................................43
2.12 Payments Generally.................................................44
2.13 Sharing of Payments................................................45
ARTICLE III - TAXES, YIELD PROTECTION AND ILLEGALITY..........................46
3.01 Taxes..............................................................46
3.02 Illegality.........................................................47
3.03 Inability to Determine Rates.......................................47
3.04 Increased Cost and Reduced Return; Capital Adequacy................47
3.05 Funding Losses.....................................................48
3.06 Matters Applicable to all Requests for Compensation................48
3.07 Survival...........................................................48
ARTICLE IV - GUARANTY.........................................................48
4.01 The Guaranty.......................................................48
4.02 Obligations Unconditional..........................................49
4.03 Reinstatement......................................................50
4.04 Certain Additional Waivers.........................................50
4.05 Remedies...........................................................50
4.06 Rights of Contribution.............................................50
4.07 Guarantee of Payment; Continuing Guarantee.........................51
4.08 Benefits of the Guarantee of the Borrower Senior Notes.............52
4.09 Subordination......................................................52
ARTICLE V - CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.........................52
5.01 Conditions of Initial Credit Extension.............................52
5.02 Conditions to all Credit Extensions................................56
ARTICLE VI - REPRESENTATIONS AND WARRANTIES...................................57
6.01 Existence, Qualification and Power.................................57
6.02 Authorization; No Contravention....................................57
6.03 Governmental Authorization; Other Consents.........................57
6.04 Binding Effect.....................................................57
6.05 Financial Statements; No Material Adverse Effect...................57
6.06 Litigation.........................................................58
6.07 No Default.........................................................59
6.08 Ownership of Property; Liens.......................................59
6.09 Environmental Compliance...........................................59
6.10 Insurance..........................................................60
6.11 Taxes..............................................................60
6.12 ERISA Compliance...................................................60
6.13 Subsidiaries.......................................................61
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act................................................61
6.15 Disclosure.........................................................61
6.16 Compliance with Laws...............................................61
6.17 Intellectual Property; Licenses, Etc...............................61
6.18 Solvency, etc......................................................62
6.19 Perfection of Security Interests in the Collateral.................62
6.20 Business Locations.................................................62
6.21 Brokers' Fees......................................................63
6.22 Labor Matters......................................................63
6.23 Representations and Warranties from Senior Notes Indentures........63
ARTICLE VII - AFFIRMATIVE COVENANTS...........................................63
7.01 Financial Statements...............................................63
7.02 Certificates; Other Information....................................64
7.03 Notices............................................................65
7.04 Payment of Obligations.............................................66
7.05 Preservation of Existence, Etc.....................................67
7.06 Maintenance of Properties..........................................67
7.07 Maintenance of Insurance...........................................67
7.08 Compliance with Laws, etc..........................................67
7.09 Books and Records..................................................68
7.10 Inspection Rights, etc.............................................68
7.11 Use of Proceeds....................................................69
7.12 Additional Subsidiaries............................................69
7.13 ERISA Compliance...................................................69
7.14 Liens and Collateral...............................................69
7.15 "Opt In" to Article 8..............................................71
7.16 Cash Management, etc...............................................71
7.17 Further Assurances.................................................72
7.18 Redemption of Borrower Existing Senior Notes.......................72
7.19 Maintenance of Redemption Account..................................72
7.20 Maintenance of Comdata Agreement...................................72
ARTICLE VIII - NEGATIVE COVENANTS.............................................72
8.01 Liens..............................................................73
8.02 Investments........................................................74
8.03 Indebtedness.......................................................75
8.04 Fundamental Changes................................................77
8.05 Dispositions.......................................................77
8.06 Restricted Payments................................................79
8.07 Change in Nature of Business.......................................80
8.08 Transactions with Affiliates and Insiders..........................80
8.09 Burdensome Agreements..............................................80
8.10 Use of Proceeds....................................................81
8.11 Financial Covenants................................................81
8.12 Capital Expenditures...............................................83
8.13 Organization Documents; Fiscal Year; Legal Name, State of
Formation and Form of Entity.......................................83
8.14 Ownership of Subsidiaries; Limitations on Holdings.................83
8.15 Sale Leasebacks....................................................84
8.16 No Prepayment of Indebtedness......................................84
8.17 No Amendments to Certain Documents.................................84
8.18 Inconsistent Agreements............................................85
8.19 Undeveloped Land...................................................85
8.20 Operating Leases...................................................85
ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES...................................85
9.01 Events of Default..................................................85
9.02 Remedies Upon Event of Default.....................................88
9.03 Application of Funds...............................................88
ARTICLE X - AGENTS............................................................89
10.01 Appointment and Authorization of Agents............................89
10.02 Delegation of Duties...............................................90
10.03 Liability of Administrative Agent..................................90
10.04 Reliance by Agents.................................................90
10.05 Notice of Default..................................................91
10.06 Credit Decision; Disclosure of Information by Agents...............91
10.07 Indemnification of Agents..........................................91
10.08 Agents in their Individual Capacities..............................92
10.09 Successor Agents...................................................92
10.10 Administrative Agent May File Proofs of Claim......................93
10.11 Collateral and Guaranty Matters....................................93
10.12 Other Agents; Arrangers and Managers...............................94
10.13 Delivery of Financial Statements and Certain Other
Information to the Lenders.........................................94
ARTICLE XI - MISCELLANEOUS....................................................94
11.01 Amendments, Etc....................................................94
11.02 Notices and Other Communications; Facsimile Copies.................95
11.03 No Waiver; Cumulative Remedies.....................................96
11.04 Attorney Costs, Expenses and Taxes.................................96
11.05 Indemnification by the Borrower....................................97
11.06 Payments Set Aside.................................................97
11.07 Successors and Assigns.............................................98
11.08 Confidentiality...................................................100
11.09 Set-off...........................................................101
11.10 Interest Rate Limitation..........................................101
11.11 Counterparts......................................................102
11.12 Integration.......................................................102
11.13 Survival of Representations and Warranties........................102
11.14 Severability......................................................103
11.15 Tax Forms.........................................................103
11.16 Replacement of Lenders............................................104
11.17 Governing Law.....................................................105
11.18 Waiver of Right to Trial by Jury..................................105
11.19 USA Patriot Act Notice............................................105
11.20 Designation as Senior Debt........................................106
11.21 Entire Agreement..................................................106
11.22 Lien Releases, etc................................................106
SCHEDULES
1.01(a) Unappraised Leasehold Interests
1.01(b) Undeveloped Land
2.01 Commitments and Pro Rata Shares
6.06 Litigation
6.08(a) Designated Real Property - Fee Interests
6.08(b) Designated Real Property - Leasehold Interests
6.10 Insurance
6.13 Subsidiaries
6.17 IP Rights
6.20(a) Locations of Real Property
6.20(b) Locations of Tangible Personal Property
6.20(c) Location of Chief Executive Office
6.20(e) Changes in Name, State of Formation and Structure
8.01 Liens Existing on the Closing Date
8.02 Investments Existing on the Closing Date
8.03 Indebtedness Existing on the Closing Date
8.08 Transactions with Affiliates
11.02 Certain Addresses for Notices
EXHIBITS
A Form of Loan Notice
B-1 Form of Revolving Note
B-2 Form of Term Note
C Form of Compliance Certificate
D Form of Assignment and Assumption
E Form of Joinder Agreement
F Form of Subordination Agreement
CREDIT AGREEMENT
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This CREDIT AGREEMENT is entered into as of February 9, 2004, among PETRO
STOPPING CENTERS, L.P., a Delaware limited partnership (the "Borrower"), PETRO
STOPPING CENTERS HOLDINGS, L.P., a Delaware limited partnership and a limited
partner of the Borrower ("Holdings"), PETRO HOLDINGS FINANCIAL CORPORATION, a
Delaware corporation ("Petro Holdings"), PETRO DISTRIBUTING, INC., a Delaware
corporation and a Subsidiary of the Borrower ("Petro Distributing"), and PETRO
FINANCIAL CORPORATION, a Delaware corporation and a Subsidiary of the Borrower
("Petro Financial"), the Lenders (as defined herein), ▇▇▇▇▇ FARGO BANK, N. A.,
as Administrative Agent, Collateral Agent and L/C Issuer, and BANK OF AMERICA,
N.A., as Syndication Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility and a term loan facility to the Borrower, and the Lenders are willing
to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition", by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.
"Administrative Agent" means ▇▇▇▇▇ Fargo in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent" means the Administrative Agent or the Collateral Agent, and
"Agents" means both the Administrative Agent and the Collateral Agent.
"Agent-Related Persons" means the Administrative Agent, the Collateral
Agent and the Arranger, together with their Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in effect
on the Closing Date is $25,000,000.
"Agreement" means this Credit Agreement, as amended, modified, supplemented
and extended from time to time.
"Applicable Rate" means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 7.02(b):
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Letter of
Credit Fee and
Pricing Consolidated Commitment Eurodollar Rate
Level Leverage Ratio Fee Loans Base Rate Loans
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1 * 3.25:1 0.50% 3.00% 1.50%
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2 ****3.25:1 but *3.75:1 0.50% 3.50% 2.00%
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3 ****3.75:1 but *4.25:1 0.50% 3.75% 2.25%
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4 ****4.25:1 but *4.75:1 0.50% 4.00% 2.50%
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5 ****4.75:1 0.75% 4.25% 2.75%
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* Less than
**** Greater than or equal to
Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 7.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level 5 shall
apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered through and including the date
upon which such Compliance Certificate is delivered, after which date the
Applicable Rate shall be based upon the table above (unless and until
subsequently adjusted). The Applicable Rate in effect from the Closing Date
through the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 7.02(b) for the fiscal quarter
ending March 31, 2004 shall be determined based upon Pricing Level 5.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of (a) one law firm as counsel to the Agents or, if separate
counsel for each Agent is determined by the Agents to be necessary or
appropriate (e.g., due to conflict of interest issues or the like), one law firm
as counsel to each Agent, (b) any law firm engaged by either Agent in connection
with matters relating to its Liens on Real Property and related matters (but not
to exceed one law firm per jurisdiction at any particular time),
and (c) one law firm as counsel to Bank of America relating to services rendered
and expenses and disbursements incurred or advanced, in each case (as to this
clause (c) only) prior to the Closing Date.
"Attributable Indebtedness" means, on any date, (a) in respect of any
Capital Lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a capital lease and (c) in respect of any
Securitization Transaction of any Person, the outstanding principal amount of
such financing, after taking into account reserve accounts and making
appropriate adjustments, reasonably determined by the Borrower in good faith.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries, and the audited balance sheet of Holdings
and its Subsidiaries, for the fiscal year ended December 31, 2002, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for such fiscal year of each of Holdings and its Subsidiaries and
the Borrower and its Subsidiaries, including the notes thereto.
"Availability Period" means, with respect to the Revolving Commitments, the
period from and including the Closing Date to the earliest of (a) the Revolving
Loans Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Bank of America Fee Letter" means the letter agreement, dated December 31,
2003, among the Borrower, Bank of America and the Arranger.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by ▇▇▇▇▇ Fargo as
its "prime rate." The "prime rate" is a rate set by ▇▇▇▇▇ Fargo based upon
various factors including ▇▇▇▇▇ Fargo's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in the "prime rate" announced by ▇▇▇▇▇ Fargo shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Base Rate Revolving Loan" means a Revolving Loan that bears interest based
on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrower Existing Senior Notes" means the Borrower's and Petro Financial's
10 1/2% Senior Notes due 2007 (CUSIP #▇▇▇▇▇▇▇▇▇, ISIN #US715911AB99).
"Borrower Existing Senior Notes Indenture" means, with respect to the
Borrower Existing Senior Notes, the Indenture dated as of January 30, 1997, as
amended and supplemented by the Supplemental Indenture dated July 23, 1999, and
as further amended and supplemented by the Supplemental Indenture dated February
9, 2004, among the Borrower, Petro Financial and U.S. Bank National Association
(successor to State Street Bank and Trust Company), as Trustee, as amended,
modified or supplemented from time to time as may be permitted by this
Agreement.
"Borrower Existing Senior Notes Tender Offer" means the Borrower's and
Petro Financial's offer to purchase the Borrower Existing Senior Notes as
described in the Borrower Existing Senior Notes Tender Offer Documents.
"Borrower Existing Senior Notes Tender Offer Documents" means the Offer to
Purchase and Consent Solicitation Statement of the Borrower and Petro Financial
to Purchase for Cash any and all of their Borrower Existing Senior Notes and
Solicitation of Consents to Proposed Amendments to Related Indenture dated
January 16, 2004 and the accompanying Letter of Transmittal and Consent.
"Borrower Senior Notes" means the Borrower's and Petro Financial's 9.0%
Senior Secured Notes due February 15, 2012 being issued on the Closing Date in
the aggregate principal amount of $225,000,000.
"Borrower Senior Notes Indenture" means, with respect to the Borrower
Senior Notes, the Indenture dated as of February 9, 2004, among the Borrower,
Petro Financial and The Bank of New York, as Trustee, as amended, modified or
supplemented from time to time as may be permitted by this Agreement.
"Borrower Senior Notes Issuance" means the issuance by the Borrower and
Petro Financial of the Borrower Senior Notes on the Closing Date pursuant to the
Borrower Senior Notes Indenture.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Businesses" means, at any time, a collective reference to the businesses
operated by the Borrower and its Subsidiaries at such time.
"Capital Lease" means, as applied to any Person, any lease of any Property
by such Person as lessee which, in accordance with GAAP, is required to be
accounted for as a capital lease on the balance sheet of such Person.
"Capital Stock" means (a) in the case of a corporation, capital stock, (b)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital
stock, (c) in the case of a partnership, partnership interests (whether general
or limited), (d) in the case of a limited liability company, membership
interests, and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"▇▇▇▇▇▇▇▇ Group" means ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and
their respective spouses, lineal descendants, estates and Affiliates, including
Petro (a corporation wholly owned by ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.) and JAJCO II, Inc. (a
corporation wholly owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.).
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Cash Equivalents" means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by ▇▇▇▇▇'▇ and maturing or having an
auction date within six months of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, and (e) Investments, classified in accordance with GAAP
as current assets, in money market mutual funds (as defined by Rule 2(a)-7 of
the Investment Company Act of 1940) registered under the Investment Company Act
of 1940, as amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and which have the highest credit rating
by any two of S&P, ▇▇▇▇▇'▇ and ▇▇▇▇▇ Ratings Services.
"Change of Control" means an event or series of events by which:
(a) the Borrower sells, conveys, transfers or leases (either in one
transaction or a series of related transactions) all or substantially all
of its assets or Property to another Person (other than a sale, conveyance
or transfer by the Borrower solely for the purpose of converting the
Borrower into a corporation); or
(b) (i) Volvo, Mobil and the ▇▇▇▇▇▇▇▇ Group shall at any time,
legally or beneficially, own less than 51% in the aggregate of the
partnership interests or other issued and outstanding Capital Stock of
Holdings, or (ii) the ▇▇▇▇▇▇▇▇ Group shall at any time hold, directly or
indirectly (including as the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the Exchange Act), except that for purposes of
this clause (ii) such person or group shall be deemed to have "beneficial
ownership" of all shares that any such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), a smaller percentage of the Capital Stock of Holdings
than is held, directly or indirectly (including as the "beneficial owner"
(as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act)), by
either (A) any of Volvo or Mobil (individually, and not with the beneficial
ownership attribution of any other Person) or (B) any other "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act); or
(c) a "Change of Control" shall occur as such term is defined in
either of the Senior Notes Indentures; or
(d) after the consummation of an Equity Issuance which constitutes
a public offering, during any period of 24 consecutive months or less, a
majority of the members of the board of directors or other equivalent
governing body of Holdings ceases to be composed of individuals
(i) who were members of that board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to that board
or equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies
or consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more
directors by or on behalf of the board of directors); or
(e) (i) Holdings ceases to own, beneficially or of record, at least
98.7156% of the issued and outstanding Capital Stock of the Borrower or
(ii) Petro, or a successor general partner approved by the Administrative
Agent and the Required Lenders which has executed a Guaranty of the
entirety of the Obligations and pledged its partnership interests in the
Borrower to secure the payment and performance of the Obligations pursuant
to a Guaranty and pledge agreement, respectively, in form and substance
satisfactory to the Administrative Agent and which is an Affiliate of the
Borrower as of the Closing Date and immediately prior to giving effect to
the requirements of this clause (ii), ceases to be the sole general partner
of the Borrower.
"Closing Date" means the date hereof.
"Collateral" means a collective reference to all real and personal Property
with respect to which Liens in favor of either Agent are purported to be granted
pursuant to and in accordance with the terms of the Collateral Documents.
"Collateral Agent" means ▇▇▇▇▇ Fargo in its capacity as collateral agent
under any of the Collateral Documents or other Loan Documents, or any successor
collateral agent.
"Collateral Documents" means a collective reference to the Security
Agreement, the Mortgages, the Control Agreements and such other security
documents as may be executed and delivered by any Loan Party or Petro pursuant
to the terms of Section 7.14.
"Comdata" means Comdata Network, Inc. d/b/a Comdata Corporation, a Maryland
corporation.
"Comdata Agreement" means the Agreement dated as of March 3, 1999, between
Comdata and the Borrower, providing for, among other things, the transfer by the
Borrower to Comdata of certain collection rights with respect to the Subject
Receivables, as amended by the Amendment dated November 19, 2002 and as the same
may be further amended or modified in accordance with this Agreement, or any
replacement or successor agreement of a similar nature which is approved by the
Administrative Agent (which approval shall not be unreasonably withheld).
"Commitment" means, as to each Lender, the Revolving Commitment of such
Lender and the Term Loan Commitment of such Lender.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit C.
"Consolidated Capital Expenditures" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, all capital expenditures, as
determined in accordance with GAAP; provided,
however, that Consolidated Capital Expenditures shall not include (a)
expenditures made with proceeds of any Involuntary Disposition to the extent
such expenditures are used to purchase Property that is the same as or similar
to the Property subject to such Involuntary Disposition, (b) Permitted
Acquisitions, (c) franchise development expenditures to the extent that such
expenditures are reimbursed or recouped through royalties or otherwise within 12
months from the date paid or incurred, as the case may be, or (d) expenditures
in connection with the defense of trademarks, service marks or copyrights.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of:
(a) Consolidated Net Income for such period, plus
(b) the following to the extent deducted in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period, (iii) the
amount of depreciation and amortization expense for such period, all as
determined in accordance with GAAP, (iv) any cash expense incurred in
connection with the Transactions or any merger, acquisition, investment or
financing permitted by this Agreement, (v) any non-cash restructuring or
other type of non-cash charge or reserve, and (vi) any cash expense related
to any Equity Issuance, all as determined in accordance with GAAP, minus
(c) the following to the extent included in calculating such
Consolidated Net Income but not received by the Borrower or any of its
Subsidiaries in cash: Consolidated Net Income attributable to any entity,
other than a Subsidiary of the Borrower, in which the Borrower or any of
its Subsidiaries owns an interest.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b) to (b) Consolidated
Fixed Charges for the period of the four fiscal quarters most recently ended for
which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b).
"Consolidated Fixed Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) the
cash portion of Consolidated Interest Charges for such period, plus (b)
Consolidated Scheduled Funded Debt Payments for such period all as determined in
accordance with GAAP.
"Consolidated Funded Indebtedness" means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated Interest Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of
the Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP
(other than interest paid on the Indebtedness of the Borrower to Comdata arising
under the Comdata Agreement), plus (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP, plus (c) the aggregate
amount of all dividends or distributions paid or made by the Borrower or its
Subsidiaries to Holdings for the purpose of permitting Holdings to pay any
interest, premium payments, debt discount, fees, charges and related expenses of
Holdings in connection with borrowed money (including the Holdings Senior Notes
and the Holdings Existing Senior Notes and
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest of Holdings in accordance
with GAAP.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended for which the Borrower has delivered financial statements pursuant to
Section 7.01(a) or (b).
"Consolidated Net Income" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries, excluding all extraordinary, unusual and nonrecurring items of
income, loss or expense for that period.
"Consolidated Scheduled Funded Debt Payments" means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness, as determined in
accordance with GAAP. For purposes of this definition, "scheduled payments of
principal" (a) shall be deemed to include the Attributable Indebtedness in
respect of Capital Leases and Synthetic Leases and (b) shall not include any
voluntary prepayments or mandatory prepayments required pursuant to Section
2.05.
"Contractual Obligation" means, 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" has the meaning specified in the definition of "Affiliate."
"Control Agreements" means one or more control agreements executed by any
Person to or in favor of either Agent for the purpose of, among other things,
perfecting such Agent's security interest in deposit accounts, investment
property, letter-of-credit rights, electronic chattel paper and/or other
personal property as permitted by the UCC.
"Credit Agreement Guarantors" means each of the Guarantors other than
Petro.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debt Issuance" means the issuance by any Loan Party of any Indebtedness
other than Indebtedness permitted under Section 8.03.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans participations in L/C Obligations required to be funded by
it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to either Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Designated Real Property" means all Real Property other than (a) the
Undeveloped Land and (b) the Unappraised Leasehold Interests.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction and any
disposition in connection with an exchange of Property) of any Property by the
Borrower or any Subsidiary (including the Capital Stock of any Subsidiary),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but (subject to the proviso below) excluding (a) the sale,
lease, license, transfer or other disposition of inventory in the ordinary
course of business of the Borrower and its Subsidiaries, (b) the sale, lease,
license, transfer or other disposition of obsolete or worn out property no
longer used or useful in the conduct of business of the Borrower and its
Subsidiaries, (c) any sale, lease, license, transfer or other disposition of
Property by any Subsidiary of the Borrower to the Borrower or another Subsidiary
of the Borrower, provided that the Loan Parties shall cause to be executed and
delivered such documents, instruments and certificates as either Agent may
request so as to cause the Loan Parties to be in compliance with the terms of
Section 7.14 after giving effect to such transaction, (d) any Involuntary
Disposition by the Borrower or any Subsidiary, (e) any Disposition by the
Borrower or any Subsidiary constituting a Permitted Investment, (f) any sale of
the Undeveloped Land, and (g) the sale of delinquent receivables in the ordinary
course of business in connection with the collection or compromise thereof;
provided, however, that, notwithstanding anything to the contrary contained in
this definition, the term "Disposition" or "Dispose" shall also mean and refer
to each "Asset Sale" as such term is defined in either of the Senior Notes
Indentures.
"Dollar" and "$" mean lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary that is organized under the laws
of any political subdivision of the United States.
"Eligible Assignee" has the meaning specified in Section 11.07(g).
"Environmental Laws" means any and all federal, state, local, foreign and
other applicable statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Issuance" means any issuance by the Borrower, Holdings or Petro
Holdings to any Person of shares of its Capital Stock, other than (a) any
issuance of shares of Capital Stock of the Borrower, Holdings or Petro Holdings
pursuant to the exercise of options or warrants issued to its employees in the
ordinary course of business pursuant to the Stock Option Plan, and (b) to an
employee of the Borrower, Holdings or Petro Holdings in the ordinary course of
business under the Stock Option Plan. The term "Equity Issuance" shall not be
deemed to include any Disposition.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal
Revenue Code for purposes of provisions relating to Section 412 of the Internal
Revenue Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA or the commencement of proceedings by the PBGC to terminate a Pension Plan
or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.
"Eurodollar Base Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars of an
amount equal to the principal amount of such Eurodollar Rate Loan (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are not available, the rate per annum (rounded upward to the next 1/100/th/
of 1%) determined by the Administrative Agent as the rate of interest at
which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate
Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest
Period would be offered by Bank of America's London Branch to major banks
in the London interbank eurodollar market at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to
be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate for
such Eurodollar Rate Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest
Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.01.
"Excess Cash Flow" means, for any period and without duplication, the
positive remainder (if any) of (a) Consolidated EBITDA for such period, minus
(b) the cash portion of Consolidated Interest Charges for such period, minus (c)
federal, state, local and foreign income taxes paid and payable in cash by the
Borrower and its Subsidiaries for such period, minus (d) capital expenditures of
the Borrower and its Subsidiaries made, and permitted to be made in accordance
with this Agreement, in cash for such period, minus (e) Consolidated Scheduled
Funded Debt Payments for such period, minus (f) Restricted Payments of the types
referred to in Section 8.06(e) and clause (i) of Section 8.06(f) made, and
permitted to be made, by the Borrower for such period, minus (g) any cash
expense of the Borrower and its Subsidiaries incurred in connection with the
Transactions or any merger, acquisition, investment or financing permitted by
this Agreement, minus (h) the aggregate amount of voluntary prepayments of the
Term Loan made by the Borrower during such period.
"Excess Land" means each of the parcels of Real Property owned by the
Borrower as of the Closing Date which adjoins a Stopping Center but is not being
utilized by any Stopping Center and is considered excess land by the Borrower
which is not (as of the Closing Date) useful in connection with the business of
any Stopping Center.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Excluded Property" means, with respect to any Loan Party, including any
Person that becomes a Loan Party after the Closing Date as contemplated by
Section 7.12, (a) any owned real or personal Property which is located outside
of the United States unless requested by the Administrative Agent or the
Required Lenders, (b) any personal Property (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (i)
governed by the Uniform Commercial Code or (ii) effected by appropriate evidence
of the Lien being filed in either the United States Copyright Office or the
United States Patent and Trademark Office, unless requested by the
Administrative Agent or the Required Lenders, (c) any Property which, subject to
the terms of Section 8.09, is subject to a Lien permitted under Section 8.01(b)
or (i) pursuant to documents which prohibit such Loan Party from granting any
other Liens in such Property, (d) any lease, license or other contract if the
grant of a Lien in such lease, license or contract in the
manner contemplated by the Loan Documents is prohibited by the terms of such
lease, license or contract, but only to the extent that any such prohibition
could not be rendered ineffective pursuant to the UCC or any other applicable
law (including Debtor Relief Laws) or principles of equity, and (e) the
Borrower's joint venture interest in Petro Travel Plaza, LLC or any other joint
venture in which the Borrower makes an Investment permitted by this Agreement
and as to which the Administrative Agent and the Required Lenders have agreed
not to require a Lien as security for the Obligations; provided, however, that
"Excluded Property" shall not include any such Property described in clause (a),
(b), (c), (d) or (e) as to which the Administrative Agent, with the consent or
at the request of the Required Lenders and after the occurrence of a Default,
has requested, in a written notice to the Borrower, the creation of a Lien as
security for the Obligations.
"Existing Credit Agreement" means that certain Third Amended and Restated
Revolving Credit and Term Loan Agreement dated as of March 30, 2001, among the
Borrower, the lending institutions listed therein, Fleet National Bank, as
agent, and First Union National Bank, as documentation agent, as amended.
"Facilities" means, at any time, a collective reference to the facilities
and real properties owned, leased or operated by the Borrower or any Subsidiary.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to ▇▇▇▇▇ Fargo on such
day on such transactions as determined by the Administrative Agent.
"Fee Letters" means the Bank of Bank of America Fee Letter and the ▇▇▇▇▇
Fargo Fee Letter.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Funded Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all indebtedness for borrowed money, whether current or
long-term (including the Obligations) and all indebtedness or obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or
other similar instruments (other than contingent liabilities of the
Borrower to Comdata arising under the Comdata Agreement);
(b) all purchase money Indebtedness;
(c) the maximum amount available to be drawn under letters of
credit (including standby and commercial letters of credit), bankers'
acceptances, bank guaranties, surety bonds, repurchase agreements and
similar instruments;
(d) all obligations in respect of the deferred purchase price of
Property or services (other than trade accounts payable in the ordinary
course of business);
(e) the Attributable Indebtedness of Capital Leases and Synthetic
Leases;
(f) the Attributable Indebtedness of Securitization Transactions;
(g) all preferred stock or other equity interests providing for
mandatory redemptions, sinking fund or like payments prior to the Term Loan
Maturity Date;
(h) all Funded Indebtedness of others secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed; provided, that the
amount of such Funded Indebtedness shall be limited to the lesser of (A)
the principal amount of such Funded Indebtedness or (B) the fair market
value of the Property which is subject to such Lien;
(i) all Guarantees with respect to Indebtedness of the types
specified in clauses (a) through (h) above of another Person, exclusive of
up to $1,000,000 of the amount of such Guarantees outstanding at any time;
and
(j) all Indebtedness of the types referred to in clauses (a)
through (i) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or joint venturer, except to the extent
that Indebtedness is expressly made non-recourse to such Person.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guaranty" means, collectively, (a) the Guaranty made by the Credit
Agreement Guarantors in favor of the Agents and the Lenders pursuant to Article
IV hereof, (b) the Guaranty dated as of the Closing Date executed by Petro
pursuant to which it Guarantees payment of the Obligations, and (c) each and
every Joinder Agreement or other supplement to any such Guaranty referred to in
clause (a) or (b) above or new or additional guaranty of all or any portion of
the Obligations at any time executed by any Guarantor.
"Guarantors" means Holdings, ▇▇▇▇▇, ▇▇▇▇▇ Holdings, Petro Distributing,
Petro Financial, each other Subsidiary of the Borrower now existing or hereafter
created, organized or acquired and each other Person that joins as a Guarantor
pursuant to Section 7.12 or executes or becomes a party to any other Guaranty as
a guarantor of all or any portion of the Obligations, together with their
successors and permitted assigns.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holdings" has the meaning specified in the introductory paragraph hereto.
"Holdings Existing Senior Notes" means Holdings' and Petro Holdings' Senior
Discount Notes due 2008 (CUSIP #▇▇▇▇▇▇▇▇▇, ISIN #US716446DAE22).
"Holdings Existing Senior Notes Exchange/Tender Offer" means Holdings' and
Petro Holdings' offer to purchase the Holdings Existing Senior Notes or exchange
such notes for the Holdings Senior Notes, as described in the Holdings Existing
Senior Notes Exchange/Tender Offer Documents.
"Holdings Existing Senior Notes Exchange/Tender Offer Documents" means the
Amended Offer and Consent Solicitation with respect to the Holdings Existing
Senior Notes and the Amended Consent Solicitation with respect to the Warrants
(CUSIP #▇▇▇▇▇▇▇▇▇, ISIN #US7164571140) of Petro Warrant Holding Corporation
dated December 10, 2003, as amended by a First Supplement thereto dated January
8, 2004 and a Second Supplement thereto dated January 12, 2004, and the
accompanying Letter of Transmittal and Consent.
"Holdings Existing Senior Notes Indenture" means, with respect to the
Holdings Existing Senior Notes, the Indenture dated as of July 23, 1999, among
Holdings, Petro Holdings and State Street Bank and Trust Company, as Trustee, as
amended and supplemented by the Supplemental Indenture dated February 9, 2004,
among Holdings, Petro Holdings and U.S. Bank National Association, as successor
Trustee to State Street Bank and Trust Company, as amended, modified or
supplemented from time to time as may be permitted by this Agreement.
"Holdings Senior Notes" means Holdings' and Petro Holdings' Senior Third
Secured Notes due February 15, 2014 being issued on the Closing Date in the
aggregate initial accreted value of $44,204,446.08, which notes bear interest at
the rate of 5% per annum through April 30, 2009 and 12.5% per annum thereafter.
"Holdings Senior Notes Indenture" means, with respect to the Holdings
Senior Notes, the Indenture dated as of February 9, 2004, among Holdings, Petro
Holdings and The Bank of New York, as Trustee, as amended, modified or
supplemented from time to time as may be permitted by this Agreement.
"Holdings Senior Notes Issuance" means the issuance by Holdings' and Petro
Holdings' of the Holdings Senior Notes on the Closing Date pursuant to the
Holdings Senior Notes Indenture and the Holdings Senior Notes Exchange/Tender
Offer Documents.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all Funded Indebtedness;
(b) the Swap Termination Value of any Swap Contract;
(c) all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) and (b) above of any other Person; and
(d) all Indebtedness of the types referred to in clauses (a) through
(c) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such
Person is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the last
day of each Interest Period applicable to such Eurodollar Rate Loan and the
Maturity Date applicable to such Loan; provided, however, that if any Interest
Period for a Eurodollar Rate Loan exceeds three months, the respective dates
that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last
Business Day of each March, June, September and December and the Maturity Date
applicable to such Loan.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(a) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(b) 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; and
(c) no Interest Period shall extend beyond the Maturity Date
applicable to such Loan.
"Internal Revenue Code" means the Internal Revenue Code of 1986.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"Involuntary Disposition" means any loss of, damage to or destruction of,
or any condemnation or other taking for public use of, any Property of the
Borrower or any Subsidiary.
"IP Rights" has the meaning set forth in Section 6.17.
"IRS" means the United States Internal Revenue Service.
"ISP98" has the meaning set forth in Section 2.03(h).
"Joinder Agreement" means a joinder agreement substantially in the form of
Exhibit E executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing of Revolving Loans.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means ▇▇▇▇▇ Fargo in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP98, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn.
"Lender" means each of the Persons identified as a "Lender" on the
signature pages hereto and their successors and permitted assigns and, as the
context requires, includes the L/C Issuer.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is 10 days prior to
the Revolving Loans Maturity Date then in effect (or, if such day is not a
Business Day, the next preceding Business Day).
"Letter of Credit Fees" has the meaning specified in Section 2.03(i).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Revolving Commitments and $25,000,000.00. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Term Loan.
"Loan Documents" means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application, each Guaranty, each Joinder Agreement, the
Collateral Documents, each Swap Contract or Treasury Management Agreement
between any Loan Party and any Lender which is permitted by this Agreement, any
post-closing agreement among the Loan Parties, the Administrative Agent and the
Collateral Agent, each Request for Credit Extension, each Compliance
Certificate, the Fee Letters and each other document, instrument or agreement
from time to time executed by or on behalf of any Loan Party or Petro and
delivered (or required to be delivered) in connection with this Agreement.
"Loan Notice" means a notice of (a) a Borrowing of Revolving Loans or the
Term Loan, (b) a conversion of Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Loan Parties" means, collectively, the Borrower and each Credit Agreement
Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of the Borrower or the Borrower and its Subsidiaries taken as a
whole to perform its or their material obligations under any Loan Document to
which it is or they are a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability (i) against any Loan
Party or Petro of any Loan Document to which it is a party or (ii) of any Lien
granted under any Collateral Document in favor of the Collateral Agent on any
material portion of the Collateral.
"Maturity Date" means the Revolving Loans Maturity Date or the Term Loan
Maturity Date, as applicable based upon the context in which such term is used.
"Maximum Rate" means, at any time and with respect to any Lender, the
maximum rate of nonusurious interest under applicable law that such Lender may
charge the Borrower. The Maximum Rate shall be calculated in a manner that takes
into account any and all fees, payments and other charges contracted for,
charged or received in connection with this Agreement and the other Loan
Documents that constitute interest under applicable law. Each change in any
interest rate provided for herein based upon the Maximum Rate resulting from a
change in the Maximum Rate shall take effect without notice to the Borrower or
any other Loan Party or Petro at the time of such change in the Maximum Rate. If
and to the extent (if any) that, notwithstanding Section 11.17 hereof, Texas law
is applicable to the determination of the Maximum Rate under this Agreement or
any other Loan Document, the Agents and the Lenders will utilize the weekly
ceiling from time to time in effect as provided in Chapter 303 of the Texas
Finance Code, as amended. To the extent United States federal law permits the
Agents and/or the Lenders to contract for, charge, take, receive or reserve a
greater amount of interest than under applicable state law, the Agents and the
Lenders will rely on United States federal law instead of such state law for the
purpose of determining the Maximum Rate. Additionally, to the extent permitted
by applicable law now or hereafter in effect, the Agents and/or the Lenders may,
at their option and from time to time, utilize any other method of establishing
the Maximum Rate under applicable law by giving notice, if required, to the
Borrower as provided by any applicable law now or hereafter in effect.
"Mobil" means ExxonMobil Oil Corporation and Mobil Diesel Supply
Corporation.
"Mobil Supply Agreement" means that certain PMPA Motor Fuels Franchise
Agreement dated July 23, 1999, between the Borrower and ExxonMobil Oil
Corporation (as amended, modified or supplemented from time to time).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto.
"Mortgages" means any and all mortgages, deeds of trust, assignments of
rent and/or security agreements (no matter how named or titled) executed by the
Borrower or any of its Subsidiaries to and in favor of the Collateral Agent
which, among other things, ▇▇▇▇▇ ▇ ▇▇▇▇ on Real Property as security for the
Obligations or any portion thereof (as the Collateral Agent may require), as
amended, modified, supplemented and extended from time to time.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Net Cash Proceeds" means the aggregate cash or Cash Equivalents proceeds
received by any Loan Party in respect of any Equity Issuance or Debt Issuance,
or received by the Borrower or any of its Subsidiaries in respect of any
Disposition or Involuntary Disposition, net of (a) direct costs incurred in
connection therewith (including, without limitation, reasonable legal,
accounting and investment banking fees and reasonable sales commissions), (b)
taxes paid or payable as a result thereof and (c) in the case of any
Disposition, the amount necessary to retire any Indebtedness secured by a
Permitted Lien (ranking senior to any Lien of the Collateral Agent) on the
related Property; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash or Cash Equivalents received upon the sale or other
disposition of any
non-cash consideration received by any Loan Party in connection with any Equity
Issuance or Debt Issuance or received by the Borrower or any of its Subsidiaries
in respect of any Disposition or Involuntary Disposition; provided, however,
that, in the event that any consideration for a Disposition or Involuntary
Disposition (which would otherwise constitute Net Cash Proceeds) is required by
arm's length contract to be held in escrow pending determination of whether a
purchase price adjustment will be made, such consideration (or any portion
thereof) shall become Net Cash Proceeds only at such time as it is released to
such Person from escrow.
"New Profit Centers" means any new profit center or operation intended to
create new or expanded revenues acquired, developed or constructed after the
Closing Date on any existing Stopping Center or Petro:Lube.
"Note" or "Notes" means the Revolving Notes and/or the Term Notes,
individually or collectively, as applicable based upon the context in which such
term appears.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party or Petro arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including, without
limitation, the principal amount thereof and all interest and fees accrued
thereon, including, without limitation, all interest and fees that accrue after
the commencement by or against any Loan Party or Petro or any Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. The foregoing shall also include any Swap Contract
and any Treasury Management Agreement between any Loan Party and any Lender
which is not prohibited by this Agreement.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement or regulations (or
equivalent or comparable constitutive documents); and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (a) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (b) with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Participant" has the meaning specified in Section 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the Borrower or
any ERISA Affiliate contributes or has an obligation to contribute, or in the
case of a multiple employer or other plan described in Section 4064(a) of ERISA,
has made contributions at any time during the immediately preceding five plan
years.
"Permitted Acquisitions" means Investments consisting of an Acquisition by
the Borrower or any Subsidiary of the Borrower if (but only if), both
immediately prior to and immediately after giving effect to the consummation of
such Acquisition and on a Pro Forma Basis, the Consolidated Leverage Ratio as of
the most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or 7.01(b) is less than 4.00:1 and each
of the additional requirements is satisfied:
(a) the Property acquired (or the Property of the Person acquired) in
such Acquisition is used or useful in the same or a similar line of
business as the Borrower and its Subsidiaries were engaged in on the
Closing Date (or any reasonable extensions or expansions thereof or
reasonably related thereto);
(b) the Administrative Agent or the Collateral Agent, as required,
shall have received all items in respect of the Capital Stock or Property
acquired in such Acquisition required to be delivered by the terms of
Section 7.12 and/or Section 7.14;
(c) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition;
(d) the Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect to
such Acquisition on a Pro Forma Basis, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11 as of the
most recent fiscal quarter for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or Section 7.01(b);
(e) the representations and warranties made by the Loan Parties or
Petro in any Loan Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after giving
effect thereto) except to the extent such representations and warranties
expressly relate to an earlier date;
(f) if such transaction involves the purchase of an interest in a
partnership between the Borrower (or a Subsidiary of the Borrower) as a
general partner and entities unaffiliated with the Borrower or such
Subsidiary as the other partners, such transaction shall be effected by
having such equity interest acquired by a corporate holding company
directly or indirectly wholly-owned by the Borrower newly formed for the
sole purpose of effecting such transaction;
(g) the aggregate consideration (including cash and non-cash
consideration, any assumption of Indebtedness and any earn-out payments,
but excluding consideration consisting of any Capital Stock of the Borrower
issued to the seller of the Capital Stock or Property acquired in such
Acquisition) paid by the Borrower or any Subsidiary for any such
Acquisition occurring after the Closing Date shall not exceed $5,000,000;
and
(h) the aggregate consideration (including cash and non-cash
consideration and any assumption of Indebtedness, but excluding
consideration consisting of any Capital Stock of the Borrower issued to the
seller of the Capital Stock or Property acquired in such Acquisition) paid
by
the Borrower or any Subsidiary for all such Acquisitions occurring after
the Closing Date shall not exceed $15,000,000 and such consideration paid
or payable does not include any earn-out payments.
"Permitted Investments" means, at any time, Investments by the Borrower and
its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.
"Permitted Liens" means, at any time, Liens in respect of Property of the
Borrower and its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.
"Permitted Tax Distributions" means, for any fiscal year or portion thereof
(the "Tax Year") of any Person in which period such Person is a partnership or
other substantially similar pass-through entity for federal income tax purposes,
distributions to enable the partners or members of such Person to make payments
of federal, state and local income taxes (including estimates thereof) in
respect of the Taxable Income of such partner or member with respect to each
such Tax Year in an aggregate amount equal to the product of (a) the excess of
(i) the sum of the highest marginal federal income tax rate applicable during
such Tax Year to either corporations or individuals and the State Income Tax
Rate over (ii) the product of such federal rate and the State Income Tax Rate
and (b) such partner's or member's Taxable Income for such Tax Year.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Petro" means Petro, Inc., a Texas corporation and the general partner of
the Borrower.
"Petro Distributing" has the meaning specified in the introductory
paragraph hereto.
"Petro Financial" has the meaning specified in the introductory paragraph
hereto.
"Petro Holdings" has the meaning specified in the introductory paragraph
hereto.
"Petro Lube" means a lube, oil and filter, tire and minor mechanical
maintenance express facility for trucks and other heavy duty vehicles.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Internal Revenue Code or Title IV of
ERISA, any ERISA Affiliate.
"Pro Forma Basis" means, for purposes of calculating the Consolidated
Leverage Ratio (including for purposes of determining the Applicable Rate), that
any Disposition or Acquisition, and any Borrowing or other incurrence of
Indebtedness in connection therewith, shall be deemed to have occurred as of the
first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or Section 7.01(b). In connection with the
foregoing:
(a) with respect to any Disposition:
(i) income statement and cash flow statement items (whether
positive or negative) attributable to the Property disposed of shall
be excluded to the extent relating to any period occurring prior to
the date of such transaction, and
(ii) Indebtedness which is retired shall be excluded and deemed
to have been retired as of the first day of the applicable period; and
(b) with respect to any Acquisition:
(i) income statement items attributable to the Person or
Property acquired shall be included to the extent relating to any
period applicable in such calculations to the extent (A) such items
are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance
with any defined terms set forth in Section 1.01 and (B) such items
are supported by financial statements or other information reasonably
satisfactory to the Administrative Agent; and
(ii) any Indebtedness incurred or assumed by the Borrower or any
Subsidiary (including the Person or Property acquired) in connection
with such transaction and any Indebtedness of the Person or Property
acquired which is not retired in connection with such transaction (A)
shall be deemed to have been incurred as of the first day of the
applicable period and (B) if such Indebtedness has a floating or
formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination.
"Pro Forma Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b) after giving effect to the applicable transaction on a
Pro Forma Basis.
"Pro Forma Statements" has the meaning specified in Section 5.01(g).
"Pro Rata Share" means, as to each Lender at any time, (a) with respect to
such Lender's Revolving Commitment at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof, and (b) with respect to such Lender's outstanding
Term Loan at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the principal amount of the Term
Loan held by such Lender at such time and the denominator of which is the
aggregate principal amount of the Term Loan at such time. The initial Pro Rata
Share of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.
"Property" means any interest of any kind in any property or asset, whether
real, personal or mixed, or tangible or intangible.
"Real Property" means any interest (including fee, leasehold or other
interest) of any kind in any real property.
"Redemption Account" means a deposit account of the Borrower maintained
with ▇▇▇▇▇ Fargo containing an amount equal to the Redemption Amount, which
account and all proceeds thereof shall
secure payment of the Obligations pursuant to the security interest granted to
the Collateral Agent under the Security Agreement.
"Redemption Amount" means, as of any date, an amount equal to (a) the
lesser of $22,122,000 or the aggregate principal amount of the Borrower Existing
Senior Notes outstanding immediately after giving effect to Transactions to
occur on the Closing Date minus (b) the aggregate principal amount of the
Borrower Existing Senior Notes which have been repurchased or redeemed as of
such date.
"Register" has the meaning set forth in Section 11.07(c).
"Replacement Asset" means, with respect to any Disposition or Involuntary
Disposition, a Property or asset that is the same or similar to the Property or
asset subject to such Disposition or Involuntary Disposition or any other
Property or asset that is used or will be used in the ordinary course of the
Stopping Center business of the Borrower consistent with past practices.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
"Required Lenders" means, at any time, Lenders holding in the aggregate
more than 66-2/3% of (a) the Revolving Commitments and the outstanding Term Loan
or (b) if the Revolving Commitments have been terminated, the outstanding Loans,
L/C Obligations and participations therein. The Revolving Commitments of, and
the outstanding Term Loan held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, vice
president or chief financial officer of a Loan Party or Petro (as applicable).
Any document delivered hereunder that is signed by a Responsible Officer of a
Loan Party or Petro shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such
Loan Party or Petro, respectively, and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party or Petro,
respectively.
"Restricted Payment" means (a) any dividend or other distribution (whether
in cash, securities or other property) with respect to any Capital Stock of the
Borrower or any Subsidiary of the Borrower (including any such dividend or
distribution paid or payable to any partner, stockholder or other owner of
Capital Stock of the Borrower or any such Subsidiary by reason of its status as
owner of such Capital Stock), or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such Capital Stock or of any option, warrant or other right to acquire
any such Capital Stock and (b) any payment or transfer of money or Property or
assets of the Borrower or any Subsidiary of the Borrower to or for the benefit
of Holdings, Petro, any other owner of the Borrower or any other Affiliate of
the Borrower (other than the Borrower and the Subsidiaries of the Borrower) in
any way with respect to the Capital Stock of the Borrower or any Subsidiary of
the Borrower, including, without limitation, any such payment or transfer in
connection with the purchase, redemption, retirement, acquisition, cancellation
or termination of any of the Holdings Existing Senior Notes, the Holdings Senior
Notes, any other indebtedness, liability or obligation of any such Person or any
Capital Stock issued by any such Person or any interest, premium, debt discount,
fees, charges, expenses, dividends or distributions related to any of the
foregoing.
"Revolving Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01 and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Loans Maturity Date" means February 9, 2007.
"Revolving Note" has the meaning specified in Section 2.11(a).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby the
Borrower or such Subsidiary shall sell or transfer any Property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such Property or other Property that it
intends to use for substantially the same purpose or purposes as the Property
being sold or transferred.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Trade Agreements" means any agreements or contracts, including,
without limitation, the Mobil Supply Agreement, governing the supply of fuel
and/or lubricants to the Borrower by Mobil or any other supplier of fuel and/or
lubricants to the Borrower.
"Secured Trade Debt" means all obligations, liabilities and indebtedness
(including, without limitation, indemnities, fees and interest thereon
(including, without limitation, all interest that accrues after the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of the Borrower at the rate provided for in
the respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding)) owing by the Borrower to Mobil or any other
supplier(s) of fuel and/or lubricants to the Borrower, whether now existing or
hereafter incurred under, arising out of or in connection with, directly or
indirectly, the Secured Trade Agreements (whether or not evidenced by one or
more promissory notes from time to time), including, without limitation, the
Mobil Supply Agreement (so long as Mobil is a "Secured Trade Creditor" as such
term is defined in the Security Agreement) and the due performance and
compliance by the Borrower with all of the terms, conditions and agreements
contained in the Secured Trade Agreements; provided, however, that the aggregate
amount of all such obligations, liabilities and indebtedness which constitute
"Secured Trade Debt" hereunder shall not exceed $15,000,000.00 at any time
outstanding.
"Securitization Transaction" means any financing transaction or series of
financing transactions (including factoring arrangements, but excluding any
transaction involving the transfer of certain credit card accounts receivable
solely for the purpose of facilitating collection thereof on behalf of the
Borrower and for its account) pursuant to which the Borrower or any Subsidiary
may sell, convey or otherwise transfer, or grant a security interest in,
accounts, payments, receivables, rights to future lease payments or residuals or
similar rights to payment to a special purpose subsidiary or affiliate of the
Borrower.
"Security Agreement" means the Security, Collateral Agency and
Intercreditor Agreement dated as of the Closing Date executed by the Borrower,
Holdings, ▇▇▇▇▇, ▇▇▇▇▇ Distributing and Petro Financial to and in favor of the
Collateral Agent and other secured parties, as amended, modified, restated or
supplemented from time to time.
"Senior Notes" means the Borrower Senior Notes and the Holdings Senior
Notes.
"Senior Notes Indentures" means the Borrower Senior Notes Indenture and the
Holdings Senior Notes Indenture.
"Senior Notes Issuances" means the Borrower Senior Notes Issuance and the
Holdings Senior Notes Issuance.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not about
to engage in a business or a transaction, for which such Person's Property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the Property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"State Income Tax Rate" means, with respect to any Person, the weighted
average highest marginal state and local income tax (inclusive of franchise or
other taxes in the nature of income taxes) rates applicable to corporations or
to individuals in any state in which such Person does business as determined in
good faith by the Board of Directors of the Company. The highest applicable
marginal state and local income tax rates of the states from which the Person
derives net income shall be weighted by the ratio of the Person's net income
apportioned to a state by that state to the sum of the Person's net income
apportioned to all states in which such Person is doing business.
"Stock Option Plan" means any reasonable and customary stock option plan
adopted by the Borrower or Holdings in the ordinary course of its business.
"Stopping Centers" means multi-service truck stops, stopping center
facilities or other travel plaza facilities known as "Petro Stopping Centers" or
"Petro: 2" (or such other names as the Borrower may from time to time adopt),
which facilities provide services and amenities to commercial truck drivers
and/or trucking companies as well as other highway motorists and local residents
and which are operated by the Borrower or any of its Subsidiaries.
"Subject Receivables" means those accounts receivable of the Borrower and
its Subsidiaries in which the collection rights with respect thereto have been
transferred or assigned to a Person providing services to facilitate collection
thereof for the account of the Borrower pursuant to the terms of the Comdata
Agreement.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a "Subsidiary" or to
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of Holdings or the
Borrower, as applicable based upon the context in which such term appears.
"Successor Entity" means, with respect to any Loan Party or Petro, an
entity that succeeds to and continues the business of any Loan Party or Petro,
respectively.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including, without
limitation, any fuel price swaps, fuel price caps and fuel price collar or floor
agreements and similar agreements or arrangements designed to protect against or
manage fluctuations in fuel prices and options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any
master agreement, and (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Synthetic Lease" means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement (other
than any operating lease that is part of a Sale and Leaseback Transaction)
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear on
the balance sheet of the obligated Person under GAAP.
"Taxable Income" means, with respect to any partner or member of a Person
that is a partnership or substantially similar pass-through entity for federal
income tax purposes, such partner's allocation of taxable income from such
Person for federal income tax purposes inclusive of each item of taxable gain,
loss, income, and deduction required to be taken into account separately by the
partners or members of such Person and taking into account allocations pursuant
to Section 704(C) of the Internal Revenue Code. The character of each separately
stated item shall be disregarded for purposes of determining Taxable Income;
provided that net capital loss, as defined in Section 1222(10) of the Internal
Revenue Code, shall not be taken into account in determining Taxable Income.
"Term Loan" has the meaning specified in Section 2.01(b).
"Term Loan Commitment" means, as to each Lender, its obligation to make its
portion of the Term Loan to the Borrower pursuant to Section 2.01(b), in the
principal amount set forth opposite such Lender's name on Schedule 2.01. The
aggregate principal amount of the Term Loan Commitments of all of the Lenders as
in effect on the Closing Date is $25,000,000.
"Term Loan Maturity Date" means February 9, 2008.
"Term Note" has the meaning specified in Section 2.11(a).
"Threshold Amount" means $2,000,000.
"Total Revolving Outstandings" means the aggregate Outstanding Amount of
all Revolving Loans and all L/C Obligations.
"Transactions" means (a) the making of the Loans, the issuance of Letters
of Credit, the granting of Liens and the other transactions contemplated by this
Agreement and the other Loan Documents, (b) the Borrower Existing Senior Notes
Tender Offer and the Holdings Existing Senior Notes Exchange/Tender Offer and
the transactions contemplated by the documents relating thereto, and (c) the
Senior Notes Issuances and the other transactions contemplated by the Senior
Notes Indentures.
"Transactions Documents" means (a) the Loan Documents, (b) the Borrower
Existing Senior Notes Tender Offer Documents and the Holdings Existing Senior
Notes Exchange/Tender Offer Documents, (c) the Senior Notes Indentures, and (d)
any and all offering memoranda relating to any of the foregoing referred to in
clauses (b) and (c) preceding or relating to any of the Senior Notes.
"Treasury Management Agreements" means any and all agreements governing the
provision of treasury or cash management services, including, without
limitation, deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.
"Type" means, with respect to any Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York or other relevant jurisdiction whose laws may apply to the
creation or perfection or the effect of nonperfection of the security interests
granted pursuant to the Collateral Documents.
"Unappraised Leasehold Interests" means the leasehold interests in Real
Property of the Borrower described on Schedule 1.01(a) hereto.
"Undeveloped Land" means (a) each of the parcels of Real Property described
on Schedule 1.01(b) hereto and (b) any parcel of Real Property acquired after
the Closing Date if and to the extent permitted by this Agreement, in each case
(i.e., as to each of clauses (a) and (b) preceding) which is vacant land and
does not adjoin a Stopping Center; provided, however, that the aggregate
consideration (including cash and non-cash consideration and any assumption of
Indebtedness) paid or payable to acquire any Real Property referred to in this
clause (b) may not exceed $5,000,000.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Internal Revenue Code
for the applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Volvo" means Volvo Trucks of North America, Inc., a Delaware corporation.
"Voting Stock" means, with respect to any Person, Capital Stock issued by
such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, N. A. and its successors.
"▇▇▇▇▇ Fargo Fee Letter" means the letter agreement, dated January 13,
2004, between the Borrower and ▇▇▇▇▇ Fargo.
"Wholly Owned Subsidiary" means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by the
Borrower.
1.02 Other Interpretive Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic
form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
(e) Any reference to shares of Capital Stock shall mean and include, in
addition to shares, partnership, membership and other equity interests or units
constituting Capital Stock.
(f) Any reference in the Loan Documents to any Loan Party or Petro or a
particular Loan Party or Loan Parties or Petro shall also mean and refer to any
Successor Entity of such Loan Party or Loan Parties or Petro, respectively.
1.03 Accounting Terms.
(a) Except as may be otherwise specifically prescribed herein, all
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease Obligations
or the implied interest component of any Synthetic Lease Obligations shall be
made by the Borrower in accordance with accepted financial practice and
consistent with the terms of such Synthetic Lease Obligations.
(b) If and to the extent that such written summary is not contained in
publicly available reports filed by Holdings or the Borrower with the SEC, the
Borrower will provide a written summary of all material changes in GAAP
applicable to any Loan Party in the preparation of its financial statements
delivered pursuant to this Agreement and in the consistent application thereof
with each annual and quarterly Compliance Certificate delivered in accordance
with Section 7.02(b). If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in
light of such change in GAAP (subject to the approval of the Required Lenders);
provided that (i) no such amendment made solely for such purpose shall require
the payment of any amendment fee by any Loan Party and (ii) until so amended,
(A) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (B) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
(c) Notwithstanding the above, the parties hereto acknowledge and agree
that:
(i) all calculations of the Consolidated Leverage Ratio for
purposes of determining compliance with Section 8.11(a) and determining the
Applicable Rate shall be made on a Pro Forma Basis;
(ii) all calculations of the Consolidated Fixed Charge Coverage
Ratio for purposes of determining compliance with Section 8.11(b) shall be
made on a historical basis (i.e., not on a Pro Forma Basis).
1.04 Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Central time (daylight or standard, as
applicable).
1.07 Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Revolving Loans and Term Loan.
(a) Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Revolving
Loan") to the Borrower in Dollars from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender plus
such Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender's Revolving Commitment. Within the limits of each
Lender's Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01, prepay under Section
2.05 and reborrow under this Section 2.01. Revolving Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein, provided, however,
that all Borrowings of Revolving Loans made on the Closing Date shall be made as
Base Rate Loans.
(b) Term Loan. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make its portion of a term loan (the "Term Loan") to
the Borrower on the Closing Date in an amount not to exceed such Lender's Term
Loan Commitment. Amounts repaid on the Term Loan may not be reborrowed. The Term
Loan may consist of Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof. Except as provided
in Section 2.03(c), each Borrowing of or conversion to Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a Borrowing, a conversion of Loans from one
Type to the other or a continuation of Eurodollar Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of
Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a Borrowing of, conversion to or continuation of Eurodollar Rate Loans
in any such Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and, if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 5.02 (and, if such Borrowing is
the initial Credit Extension, Section 5.01), the Administrative Agent shall make
all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of ▇▇▇▇▇ Fargo with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower; provided, however, that
if, on the date of a Borrowing of Revolving Loans, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, and, second, to the Borrower as
provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders, and the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted to Base Rate
Loans on the last day of the relevant Interest Period for such Eurodollar Rate
Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. The determination of the
Eurodollar Rate by the Administrative Agent shall be conclusive in the absence
of manifest error.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other and all continuations of Loans as the same Type, there
shall not be more than (i) five Interest Periods in effect with respect to
Revolving Loans and (ii) five Interest Periods in effect with respect to the
Term Loan.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit in Dollars and otherwise in
form and substance satisfactory to the L/C Issuer for the account of the
Borrower, and to amend or renew such Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor drafts drawn
under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of the Borrower and
any drawings thereunder; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in any Letter of
Credit if as of the date of such L/C Credit Extension, (1) the Total
Revolving Outstandings would exceed the Aggregate Revolving Commitments,
(2) the aggregate Outstanding Amount of the Revolving Loans of any Lender
plus such Lender's Pro Rata Share of the Outstanding Amount of all L/C
Obligations would exceed such Lender's Revolving Commitment or (3) the
Outstanding Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower
that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the
L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate any
Laws or any policy of the L/C Issuer; or
(E) such Letter of Credit is to be denominated in a currency
other than Dollars.
(iii) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(iv) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(v) The L/C Issuer shall be under no obligation to issue or amend
any Letter of Credit if the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, on or prior to the
Business Day prior to the requested date of issuance or amendment of such
Letter of Credit, that one or more applicable conditions contained in
Article V shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require. In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the L/C Issuer may require. Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of
Credit issuance or amendment as the L/C Issuer or the Administrative Agent
may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender's Pro Rata Share times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for any
such renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C
Issuer to permit the renewal of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such renewal if (A) the
L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of Section 2.03(a)(ii) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before
the day that is two Business Days before the Nonrenewal Notice Date from
the Administrative Agent, any Lender or the Borrower that one or more of
the applicable conditions specified in Section 5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "Honor Date") (or, if the time of such payment
by the L/C Issuer is after 11:00 a.m., promptly after the time of such
payment and, in any event, no later than 3:00 p.m. on the Honor Date), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent in
an amount equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount") and the amount of such
Lender's Pro Rata Share thereof. In such event, the Borrower shall be
deemed to have requested a Borrowing of Base Rate Revolving Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 5.02 (other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account
of the L/C Issuer at the Administrative Agent's Office in an amount equal
to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Revolving Loan to the Borrower in such amount. The Administrative Agent
shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Revolving Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In
such event, each Lender's payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation to
make Revolving Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 5.02 (other than delivery by the Borrower
of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C Issuer
for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, any other Loan Document or any other agreement or
instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower or any other Loan Party or Petro may have at
any time against any beneficiary or any transferee of such Letter of Credit
(or any Person for whom any such beneficiary or any such transferee may be
acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of
Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not comply with
the terms of such Letter of Credit except where such payment constitutes
gross negligence or willful misconduct on the part of the L/C Issuer; or
any payment made by the L/C Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any other Loan Party or Petro, except for any such circumstance
or happening which constitutes gross negligence or willful misconduct on
the part of the L/C Issuer.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other
irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower
shall be conclusively deemed to have waived any such claim against the L/C
Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person or any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person or any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that, anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any Letter of Credit for any reason
remains outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be); provided, however, that the Borrower shall not be obligated to Cash
Collateralize any L/C Borrowing pursuant to clause (i) preceding which was
unable to be refinanced as a Borrowing of Revolving Loans, at a time when all
conditions precedent set forth in Section 5.02 were satisfied, on the date of
such drawing solely because such drawing occurred after 11:00 a.m., so long as
such L/C Borrowing is fully reimbursed or refinanced as a Borrowing of Revolving
Loans on the next succeeding Business Day). For purposes hereof, "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Unless otherwise permitted by the
Administrative Agent, cash collateral shall be maintained in blocked deposit
accounts at ▇▇▇▇▇ Fargo.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrower when a Letter of Credit is issued (including any
such agreement applicable to an Existing Letter of Credit), (i) the rules of the
"International Standby Practices 1998" (or such later version thereof as may be
in effect at the time of issuance) published by the Institute of International
Banking Law & Practice (the "ISP98") shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary
Credits, as most recently published by the International Chamber of Commerce
(the "ICC") at the time of issuance (including the ICC decision published by the
Commission on Banking Technique and Practice on April 6, 1998 regarding the
European single currency (euro)) shall apply to each commercial Letter of
Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share (i) a
Letter of Credit fee for each commercial Letter of Credit equal to the
Applicable Rate times the daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit) and (ii) a Letter of Credit fee for each standby Letter
of Credit equal to the Applicable Rate times the daily maximum amount available
to be drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit) (collectively, the "Letter of Credit
Fees"). Such Letter of Credit Fees shall be computed on a quarterly basis in
arrears and shall be due and payable on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date
and thereafter on demand. If there is any change in the Applicable Rate during
any quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each outstanding Letter of Credit in an amount
equal to the greater of $250 or the daily average amount available to be drawn
under such outstanding Letter of Credit multiplied by 0.25% per annum. Each such
fronting fee shall be due and payable (i) upon issuance of each Letter of Credit
and (ii) quarterly thereafter on the same day of each third month after the date
of issuance commencing with the first such date to occur after the issuance of
such Letter of Credit and continuing on the same day of each third month
thereafter. In addition, the Borrower shall, with respect to each Letter of
Credit issued, pay directly to the L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account or benefit of Subsidiaries inures to the
benefit of the Borrower, and that the Borrower's business derives substantial
benefits from the businesses of such Subsidiaries.
2.04 [Intentionally omitted.]
2.05 Prepayments.
(a) Voluntary Prepayments of Loans. The Borrower may, upon notice from
the Borrower to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans and the Term Loan in whole or in part without
premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to
any date of prepayment of Eurodollar Rate Loans, and (B) on the date of
prepayment of Base Rate Loans; (ii) any such prepayment of Eurodollar Rate Loans
shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof (or, if less, the entire principal amount thereof then
outstanding); (iii) any such prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding) and (iv) any
such prepayment of the Term Loan shall be applied ratably to all then remaining
principal amortization payments thereunder. Each such notice shall specify the
date and amount of such prepayment, whether such prepayment is a prepayment of
the Revolving Loans or the Term Loan and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Loans of the Lenders in accordance with their respective Pro
Rata Shares.
(b) Mandatory Prepayments of Loans.
(i) Aggregate Revolving Commitments; Revolving Loans. If for any
reason the Total Revolving Outstandings at any time exceed the Aggregate
Revolving Commitments then in effect, the Borrower shall immediately prepay
Revolving Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(b)(i) unless, after the prepayment in full of the
Revolving Loans, the Total Revolving Outstandings exceed the Aggregate
Revolving Commitments then in effect. In addition, the Borrower shall
prepay the Revolving Loans by an amount equal to 100% of the Net Cash
Proceeds of each Disposition or Involuntary Disposition referred to in
clause (ii) of Section 2.05(b) if and to the extent that such Net Cash
Proceeds are required to be reinvested in a Replacement Asset in accordance
with such clause (ii), each of which prepayments shall be due and payable
on or before three Business Days after the receipt of any such Net Cash
Proceeds or, if and to the extent that such prepayment would require the
Borrower to compensate the Lenders for any funding losses referred to in
clause (a) of Section 3.05, on the first Business Day on which such
compensation will not be required to be so paid (and each of which
prepayments may be thereafter re-advanced as Revolving Loans, if and to the
extent otherwise permitted by this Agreement, in connection with such
required reinvestments).
(ii) Dispositions and Involuntary Dispositions. The Borrower shall
prepay the Loans and, if and to the extent required by clause (B) of
Section 2.05(b)(vi), Cash Collateralize the L/C Obligations as hereafter
provided in an aggregate amount equal to 100% of the Net Cash Proceeds of
all Dispositions (other than Dispositions permitted under clauses (a), (d),
(e), (f), (g) and (h) of Section 8.05) and Involuntary Dispositions to the
extent (A) such Net Cash Proceeds are not reinvested in a Replacement Asset
(1) in the case of a Disposition, within 180 days of the date of such
Disposition, or (2) in the case of an Involuntary Disposition, within 540
days after the date of such Involuntary Disposition or (B) in the case of
Dispositions (as opposed to Involuntary Dispositions) only, the aggregate
amount of such Net Cash Proceeds of all
Dispositions received by any one or more of the Borrower and its
Subsidiaries shall exceed $4,000,000 in any fiscal year; provided, however,
that, for purposes of clause (b) of Section 8.05, Net Cash Proceeds shall
not include the amount of such proceeds required to purchase the
replacement equipment as required by such clause. Such prepayment shall be
due immediately upon the expiration of the 180 day or 540 day (as
applicable) period set forth in clause (A) preceding (to the extent such
prepayment is required by virtue of such clause (A)) or immediately upon
the receipt of Net Cash Proceeds in excess of $4,000,000 in any fiscal year
(to the extent such prepayment is required by virtue of clause (B)
preceding), as applicable, and shall be applied as set forth in clause (vi)
below.
(iii) Debt Issuances. Immediately upon receipt by any Loan Party of
the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the
Loans and, if and to the extent required by clause (B) of Section
2.05(b)(vi), Cash Collateralize the L/C Obligations as hereafter provided
in an aggregate amount equal to 100% of such Net Cash Proceeds (such
prepayment to be applied as set forth in clause (vi) below), provided,
however, that, with respect to any Debt Issuance or Debt Issuances by
Holdings and/or Petro Holdings, Net Cash Proceeds thereof in an aggregate
amount not to exceed $5,000,000 may be received without the necessity of
any corresponding prepayment pursuant to this clause (iii).
(iv) Equity Issuances. Immediately upon the receipt by any Loan
Party of the Net Cash Proceeds of any Equity Issuance, the Borrower shall
prepay the Loans and, if and to the extent required by clause (B) of
Section 2.05(b)(vi), Cash Collateralize the L/C Obligations in an aggregate
amount equal to 100% of such Net Cash Proceeds (such prepayment to be
applied as set forth in clause (vi) below); provided, however, that, with
respect to any Equity Issuance or Equity Issuances by Holdings and/or Petro
Holdings, Net Cash Proceeds thereof in an aggregate amount not to exceed
$5,000,000 may be received without the necessity of any corresponding
prepayment pursuant to this clause (iv).
(v) Excess Cash Flow. On or before March 31st of each calendar
year, commencing March 31, 2005, the Borrower shall prepay the Loans and,
if and to the extent required by clause (B) of Section 2.05(b)(vi), Cash
Collateralize the L/C Obligations in an aggregate amount equal to 75% of
Excess Cash Flow for the immediately preceding calendar year (such
prepayment to be applied as set forth in clause (vi) below).
(vi) Application of Mandatory Prepayments. All amounts required to
be paid pursuant to this Section 2.05(b) shall be applied as follows:
(A) with respect to all amounts prepaid pursuant to Section
2.05(b)(i), to Revolving Loans and (after all Revolving Loans have
been repaid) to Cash Collateralize L/C Obligations; and
(B) with respect to all amounts prepaid pursuant to Section
2.05(b)(ii), (iii), (iv) and (v), first, to the Term Loan, ratably to
all then remaining principal amortization payments, then (after the
Term Loan has been paid in full) to the Revolving Loans (but without
any reduction in the Aggregate Revolving Commitments except as
provided in Section 2.06(b)) and then (after all Revolving Loans have
been repaid), if a Default has then occurred and is continuing and
the Administrative Agent so requests or if required by Section
2.03(g), to Cash Collateralize L/C Obligations (but without any
reduction in the Aggregate Revolving Commitments except as provided
in Section 2.06(b)).
Within the parameters of the applications set forth above,
prepayments shall be applied first to Base Rate Loans and then to
Eurodollar Rate Loans in direct order of Interest Period maturities.
All prepayments under this Section 2.05(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the
date of prepayment.
2.06 Termination or Reduction of Aggregate Revolving Commitments.
(a) The Borrower may, upon notice from the Borrower to the Administrative
Agent, terminate the Aggregate Revolving Commitments or from time to time
permanently reduce the Aggregate Revolving Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $1,000,000 or any
whole multiple of $100,000 in excess thereof, (iii) the Borrower shall not
terminate or reduce the Aggregate Revolving Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the aggregate Outstanding
Amount of Revolving Loans and L/C Obligations is greater than zero and shall not
reduce the Aggregate Revolving Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the aggregate Outstanding Amount of
Revolving Loans and L/C Obligations would exceed the Aggregate Revolving
Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
Revolving Commitments or the Letter of Credit Sublimit exceeds the amount of the
Aggregate Revolving Commitments, such sublimit shall be automatically reduced by
the amount of such excess.
(b) The Aggregate Revolving Commitments shall be reduced by an amount
equal to the aggregate amount of all Net Cash Proceeds of all Dispositions and
Involuntary Dispositions which are applied, in accordance with clause (B) of
Section 2.05(b)(vi), to the Revolving Loans and/or to Cash Collateralize L/C
Obligations, in each case if and to the extent (but only if and to the extent)
that such reduction of the Aggregate Revolving Commitments is required by the
Borrower Senior Notes Indenture as a condition to permitting such prepayment of
the Revolving Loans and/or Cash Collateralization of L/C Obligations thereunder.
Each such reduction of the Aggregate Revolving Commitments shall occur on the
later to occur of the date upon which the corresponding mandatory prepayment is
required to be made in accordance with Section 2.05(b)(ii) or the initial date
upon which such reduction is required by the Borrower Senior Notes Indenture.
(c) The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments. Any
reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Pro Rata Share. All
commitment fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such
termination.
2.07 Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay to the Lenders on the
Revolving Loans Maturity Date the aggregate principal amount of all Revolving
Loans outstanding on such date.
(b) Term Loan. The Borrower shall repay the outstanding principal amount
of the Term Loan in installments on the dates and in the amounts set forth in
the table below (as such installments may hereafter be adjusted as a result of
prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant
to Section 9.02:
========================================
Principal
Amortization
Payment Dates Payment
----------------------------------------
March 31, 2004 $ 1,250,000.00
----------------------------------------
June 30, 2004 $ 1,250,000.00
----------------------------------------
September 30, 2004 $ 1,250,000.00
----------------------------------------
December 31, 2004 $ 1,250,000.00
----------------------------------------
March 31, 2005 $ 1,500,000.00
----------------------------------------
June 30, 2005 $ 1,500,000.00
----------------------------------------
September 30, 2005 $ 1,500,000.00
----------------------------------------
December 31, 2005 $ 1,500,000.00
----------------------------------------
March 31, 2006 $ 1,750,000.00
----------------------------------------
June 30, 2006 $ 1,750,000.00
----------------------------------------
September 30, 2006 $ 1,750,000.00
----------------------------------------
December 31, 2006 $ 1,750,000.00
----------------------------------------
March 31, 2007 $ 1,750,000.00
----------------------------------------
June 30, 2007 $ 1,750,000.00
----------------------------------------
September 30, 2007 $ 1,750,000.00
----------------------------------------
February 9, 2008 $ 1,750,000.00
========================================
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the sum of (A) the
Eurodollar Rate for such Interest Period plus (B) the Applicable Rate; and (ii)
each Base Rate Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate.
(b) If any principal amount of any Loan or other amount payable by the
Borrower under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, then such amount shall thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand. In addition and in lieu of the otherwise applicable interest rate under
this Agreement, at all times during which an Event of Default has occurred and
is continuing, the principal amount of the Loans and, upon the request of the
Required Lenders (and to the extent of such request) and to the fullest extent
permitted by applicable Laws, any other amount payable by the Borrower under any
Loan Document shall bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in subsections (i) and
(j) of Section 2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent,
for the account of each Lender in accordance with its Pro Rata Share, a
commitment fee equal to the product of (i) the Applicable Rate times (ii) the
actual daily amount by which the Aggregate Revolving Commitments
exceed the sum of (A) the Outstanding Amount of Revolving Loans and (B) the
Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all
times during the Availability Period, including at any time during which one or
more of the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Revolving Loans Maturity Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Other Fees.
(i) The Borrower shall pay to ▇▇▇▇▇ Fargo, for its own account,
fees in the amounts and at the times specified in the ▇▇▇▇▇ Fargo Fee
Letter. The Borrower shall pay to the Arranger and Bank of America, for
their own respective accounts, fees in the amounts and at the times
specified in the Bank of America Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 Computation of Interest and Fees. All computations of interest for
Base Rate Loans when the Base Rate is determined by ▇▇▇▇▇ Fargo's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
fees or interest, as applicable, being paid than if computed on the basis of a
365-day year). Interest shall accrue on each Loan for the day on which the Loan
is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a promissory note, which shall evidence such
Lender's Loans in addition to such accounts or records. Each such promissory
note shall (ii) in the case of Revolving Loans, be in the form of Exhibit B-1 (a
"Revolving Note") and (ii) in the case of the Term Loan, be in the form of
Exhibit B-2 (a "Term Note"). Each Lender may attach schedules to its Note and
endorse thereon the date, Type (if applicable), amount and maturity of its Loans
and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
2.12 Payments Generally.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of principal and L/C
Borrowings then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and L/C Borrowings then due to such
parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such
amount shall constitute such Lender's Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower, and the Borrower shall pay such amount
to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment or to
prejudice any rights which the Administrative Agent or the Borrower may
have against any Lender as a result of any default by such Lender
hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this subsection (d) shall be conclusive, absent
manifest error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit are several and not joint. The failure of
any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 Sharing of Payments. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it, or the
participations in L/C Obligations held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations held
by them, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment in respect of such Loans or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described in
Section 11.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to Section 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by any Loan Party or Petro to or for the account
of either Agent or any Lender under any Loan Document shall be made free and
clear of and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and all liabilities with respect thereto, excluding, in the case of each Agent
and each Lender, taxes imposed on or measured by its overall net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such Agent or
such Lender, as the case may be, is organized or maintains a lending office (all
such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If any Loan Party or Petro shall be required by any Laws to deduct
any Taxes from or in respect of any sum payable under any Loan Document to
either Agent or any Lender, (i) the sum payable shall be increased as necessary
so that, after making all required deductions (including deductions applicable
to additional sums payable under this Section), each of such Agent and such
Lender receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party or Petro, respectively, shall make
such deductions, (iii) such Loan Party or Petro, respectively, shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, such Loan Party or Petro, respectively, shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to either
Agent or any Lender, the Borrower shall also pay to such Agent or to such
Lender, as the case may be, at the time interest is paid, such additional amount
that such Agent or such Lender specifies is necessary to preserve the after-tax
yield (after factoring in all taxes, including taxes imposed on or measured by
net income) that such Agent or such Lender would have received if such Taxes or
Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify each Agent and each Lender for (i)
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by such Agent and such Lender, (ii) amounts payable under Section 3.01(c)
and (iii) any liability (including additions to tax, penalties, interest and
expenses) arising therefrom or with respect thereto, in each case whether or not
such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes a
demand therefor.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
3.03 Inability to Determine Rates. If the Administrative Agent determines
that for any reason adequate and reasonable means do not exist for determining
the Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to the Lenders of funding such Loan,
the Administrative Agent will promptly notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender determines that, as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans or (as the case may
be) issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or any foreign jurisdiction or any
political subdivision of either thereof under the Laws of which such Lender is
organized or has its Lending Office, and (iii) reserve requirements utilized, as
to Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then,
from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then, from time to time upon demand of
such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05 Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the Borrower
pursuant to Section 11.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of either Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Agent or such Lender may use any reasonable
averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may replace such Lender in accordance with Section 11.16.
3.07 Survival. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Revolving Commitments and repayment
of all other Obligations hereunder.
ARTICLE IV
GUARANTY
--------
4.01 The Guaranty. Each of the Credit Agreement Guarantors hereby jointly
and severally and irrevocably guarantees to each Lender, each Affiliate of a
Lender that enters into a Swap Contract or a Treasury Management Agreement and
each Agent, as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in
accordance with the terms thereof. The Credit Agreement Guarantors hereby
further agree that if any of the Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise), the Credit Agreement Guarantors
will, jointly and severally, promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents, Swap Contracts or Treasury Management Agreements,
the obligations of each Credit Agreement Guarantor under this Agreement and the
other Loan Documents shall be limited to an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under
the Debtor Relief Laws or any comparable provisions of any applicable state law.
4.02 Obligations Unconditional. The obligations of the Credit Agreement
Guarantors under Section 4.01 are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents, Swap Contracts or Treasury Management Agreements,
or any other agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or security for any of
the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 4.02 that the obligations of the Credit
Agreement Guarantors hereunder shall be absolute and unconditional under any and
all circumstances. Each Credit Agreement Guarantor agrees that such Guarantor
shall have no right of subrogation, indemnity, reimbursement or contribution
against the Borrower or any other Guarantor for amounts paid under this Article
IV until such time as the Obligations have been paid in full and all Commitments
and outstanding Letters of Credit have expired or terminated. Without limiting
the generality of the foregoing, it is agreed that, to the fullest extent
permitted by law, the occurrence of any one or more of the following shall not
alter or impair the liability of any Credit Agreement Guarantor hereunder, which
shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations shall
be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract or Treasury Management Agreement between any Loan
Party or Petro and any Lender, or any Affiliate of a Lender, or any other
agreement or instrument referred to in the Loan Documents or such Swap Contracts
or Treasury Management Agreements shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or any
of the Obligations shall be modified, supplemented or amended in any respect, or
any right under any of the Loan Documents, any Swap Contract or Treasury
Management Agreement between any Loan Party or Petro and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in the
Loan Documents or such Swap Contracts or Treasury Management Agreements shall be
waived or any other guarantee of any of the Obligations or any security therefor
shall be released, impaired or exchanged in whole or in part or otherwise dealt
with;
(d) any Lien granted to, or in favor of, either Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be
perfected; or
(e) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Credit Agreement Guarantor
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against any Person under
any of the Loan Documents or any Swap Contract or Treasury Management Agreement
between any Loan Party or Petro and any Lender, or any Affiliate of a Lender, or
any other agreement or instrument referred to in the Loan Documents or such Swap
Contracts or Treasury Management Agreement, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
4.03 Reinstatement. The obligations of the Credit Agreement Guarantors
under this Article IV shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of any Person in respect of the
Obligations is rescinded or must be otherwise restored by any holder of any of
the Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Credit Agreement Guarantor agrees that it
will indemnify each Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees and expenses of counsel) incurred
by such Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.04 Certain Additional Waivers. Each Credit Agreement Guarantor agrees
that such Guarantor shall have no right of recourse to security for the
Obligations except through the exercise of rights of subrogation pursuant to
Section 4.02 and through the exercise of rights of contribution pursuant to
Section 4.06, and that all other rights of such recourse are hereby waived.
4.05 Remedies. The Credit Agreement Guarantors agree that, to the fullest
extent permitted by law, as between the Credit Agreement Guarantors, on the one
hand, and the Agents and the Lenders, on the other hand, the Obligations may be
declared to be forthwith due and payable as provided in Section 9.02 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in said Section 9.02) for purposes of Section 4.01 notwithstanding any
stay, injunction or other prohibition preventing such declaration (or preventing
the Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Obligations
being deemed to have become automatically due and payable), the Obligations
(whether or not due and payable by any other Person) shall forthwith become due
and payable by the Credit Agreement Guarantors for purposes of Section 4.01. The
Credit Agreement Guarantors acknowledge and agree that their obligations
hereunder are secured in accordance with the terms of the Collateral Documents
and that the Lenders may exercise their remedies thereunder in accordance with
the terms thereof.
4.06 Rights of Contribution. The Guarantors hereby agree as among
themselves that, if any Guarantor shall make an Excess Payment (as defined
below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's Contribution Share (as
defined below) of such Excess Payment. The payment obligations of any Guarantor
under this Section 4.06 shall be subordinate and subject in right of payment to
the Obligations until such time as the Obligations have been paid in full and
all Commitments and outstanding Letters of Credit have expired or terminated,
and none of the Guarantors shall exercise any right or remedy under this Section
4.06 against any other Guarantor until such Obligations have been paid in full
and all Commitments and outstanding Letters of Credit have expired or
terminated. For purposes of this Section 4.06:
(a) "Excess Payment" shall mean the amount paid by any Guarantor in
excess of its Ratable Share of any Guaranteed Obligations;
(b) "Ratable Share" shall mean, for any Guarantor in respect of any
payment of Obligations, the ratio (expressed as a percentage) as of the date of
such payment of Guaranteed Obligations of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Loan Parties and Petro exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Loan Parties hereunder and of
Petro under the Guaranty executed by it) of all of the Loan Parties and Petro;
provided, however, that, for purposes of calculating the Ratable Shares of the
Guarantors in respect of any payment of Obligations, any Guarantor that became a
Guarantor subsequent to the date of any such payment shall be deemed to have
been a Guarantor on the date of such payment and the financial information for
such Guarantor as of the date such Guarantor became a Guarantor shall be
utilized for such Guarantor in connection with such payment;
(c) "Contribution Share" shall mean, for any Guarantor in respect of any
Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the
aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Loan Parties and Petro other than the maker of such Excess Payment exceeds the
amount of all of the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of the
Loan Parties hereunder and of Petro under the Guaranty executed by it) of the
Loan Parties and Petro other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution Shares of the
Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment; and
(d) "Guaranteed Obligations" shall mean the Obligations guaranteed by the
Credit Agreement Guarantors pursuant to this Article IV or by any other
Guarantor pursuant to any other Guaranty.
This Section 4.06 shall not be deemed to affect any right of subrogation,
indemnity, reimbursement or contribution that any Guarantor may have under Law
against the Borrower in respect of any payment of Guaranteed Obligations;
provided, however, that none of the Guarantors shall exercise any such right
against the Borrower until all Obligations have been paid in full and all
Commitments have expired or terminated. Notwithstanding the foregoing, all
rights of contribution against any Guarantor shall terminate from and after such
time, if ever, that such Guarantor shall be relieved of its obligations in
accordance with Section 10.11.
4.07 Guarantee of Payment; Continuing Guarantee. The guarantee in this
Article IV is a guaranty of payment and not of collection, is a continuing
guarantee and shall apply to all Obligations whenever arising.
4.08 Benefits of the Guarantee of the Borrower Senior Notes. Reference is
made to Article XI of the Borrower Senior Notes Indenture and that certain
Guarantee of the Borrower Senior Notes Indenture executed by Holdings, Petro
Holdings, Petro and Petro Distributing pursuant to which such Guarantors
Guarantee the Borrower Senior Notes and related obligations (collectively, as
the same may be amended, modified, extended, restated or supplemented from time
to time, the "Indenture Guaranty"). In addition to each Credit Agreement
Guarantor's obligations contained elsewhere in this Article IV and in addition
to the rights, powers and remedies available to the Agents and the Lenders
provided elsewhere in this Article IV, each of the Credit Agreement Guarantors
acknowledges and agrees that (a) it shall have the same obligations with respect
to its Guarantee of the Obligations provided pursuant to this Article IV as the
obligations it has with respect to its Indenture Guaranty and (b) the Agents and
the Lenders shall have the same rights, powers and remedies with respect to its
Guarantee of the Obligations provided pursuant to this Article IV as each
"Holder" and the "Trustee" (as such terms are defined in the Borrower Senior
Notes Indenture) have with respect to the Indenture Guarantee, which obligations
referred to in clause (a) preceding and which rights, powers and remedies
referred to in clause (b) preceding are hereby incorporated herein by reference
and made a part of this Article IV, mutatis mutandis, as if set forth herein.
4.09 Subordination. The payment of any amounts due with respect to any
Indebtedness of the Borrower for money borrowed or credit received now or
hereafter owed to any Credit Agreement Guarantor shall be subordinate and
subject in right of payment to the Obligations until such time as the
Obligations have been paid in full and all Commitments and outstanding Letters
of Credit have expired or terminated, and each Credit Agreement Guarantor agrees
that, after the occurrence and during the continuance of any Event of Default,
it shall not exercise any right or remedy under, pursuant to or in connection
with any such Indebtedness until such time as the Obligations have been paid in
full and all Commitments and outstanding Letters of Credit have expired or
terminated. If, notwithstanding the foregoing sentence, after the occurrence and
during the continuance of an Event of Default, any Credit Agreement Guarantor
shall collect, enforce or receive any amounts in respect of such Indebtedness
while any Obligations, Commitments or Letters of Credit are still outstanding,
such amounts shall be collected, enforced and received by such Credit Agreement
Guarantor as trustee for the Administrative Agent and the Lenders and be paid
over to the Administrative Agent, for the benefit of the Lenders, on account of
the Obligations without affecting in any manner the liability of any Credit
Agreement Guarantor under the other provisions of this Article IV.
Notwithstanding anything to the contrary contained in this Section 4.09, any
trade payables between the Borrower and its Subsidiaries shall not be subject to
this Section 4.09.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Initial Credit Extension. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and each of the other Loan Documents (including,
without limitation, the Security Agreement, each of the Mortgages and each of
the Guaranties), each properly executed by a Responsible Officer of the signing
Loan Party or Petro (as applicable) and, in the case of the Security Agreement,
by an authorized officer of each of the trustees of the Senior Notes Indentures
and, in the case of this Agreement, by each Lender.
(b) Payoff Letter. Receipt by the Administrative Agent of a payoff letter
from the administrative agent and all lenders which are parties to the Existing
Credit Agreement, which payoff
letter shall specify the amount of indebtedness owed by the Borrower or any
other Loan Party or Petro to such lenders under the Existing Credit Agreement,
shall release all Liens securing such indebtedness concurrently with the payment
thereof, shall terminate the Existing Credit Agreement concurrently with such
payment and termination of all outstanding letters of credit issued under the
Existing Credit Agreement (which termination of such outstanding letters of
credit shall occur on the Closing Date as a result of the issuance of Letters of
Credit hereunder) and shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent, and (concurrently with the initial
advance of the Loans under this Agreement) repayment in full of all
"Obligations" as such term is defined in the Existing Credit Agreement.
(c) Consummation of Certain Transactions, etc. The Administrative Agent
shall have received (i) a certified copy of each of the Senior Notes Indentures
(in each case including schedules and exhibits), together with all amendments,
modifications, supplements and waivers, all of which shall be in form and
substance satisfactory to the Administrative Agent, (ii) reasonably satisfactory
evidence that the Borrower Existing Senior Notes Tender Offer, the Holdings
Existing Senior Notes Exchange/Tender Offer and the Senior Notes Issuances shall
have been consummated (or contemporaneous with the advances of the initial Loans
hereunder will be consummated) in accordance with the terms of the Borrower
Existing Senior Notes Tender Offer Documents, the Holdings Existing Senior Notes
Exchange/Tender Offer Documents and the Senior Notes Indentures, respectively,
and in compliance in all material respects with applicable law and regulatory
approvals, (iii) reasonably satisfactory evidence that, in connection with the
Borrower Senior Notes Issuance, the Borrower shall have received at least
$225,000,000 in gross cash proceeds, and (iv) amendments to each of the Borrower
Existing Senior Notes Indenture and the Holdings Existing Senior Notes Indenture
which are contemplated by the Borrower Existing Senior Notes Tender Offer
Documents and the Holdings Existing Senior Notes Exchange/Tender Offer
Documents, respectively.
(d) Organization Documents, Resolutions, Etc. Receipt by the
Administrative Agent of the following, each of which shall be originals or
facsimiles (followed promptly by originals), dated as of a recent date before
the Closing Date and in form and substance satisfactory to the Administrative
Agent and its legal counsel:
(i) copies of the Organization Documents of each Loan Party and
Petro certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction of
its incorporation or organization, where applicable, and certified by a
secretary or assistant secretary of such Loan Party or Petro to be true and
correct as of the Closing Date;
(ii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party and Petro as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party or Petro is
a party; and
(iii) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party and Petro is duly
organized or formed, and is validly existing, in good standing and
qualified to engage in business in its state of organization or formation,
the state of its principal place of business and each other jurisdiction
where its ownership, lease or operation of properties or the conduct of its
business requires such qualification.
(e) Opinions of Counsel. Receipt by the Administrative Agent of a
favorable opinion of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan
Parties and Petro, and (ii) local counsel to the Loan Parties in the states of
Arizona, California, Louisiana and Texas with respect to the Real Property
Collateral located therein, in each case addressed to the Administrative Agent
and each Lender, dated as of the Closing Date and in form and substance
satisfactory to the Administrative Agent.
(f) Perfection and Priority of Liens, etc. Receipt by the Agents of the
following:
(i) searches of Uniform Commercial Code filings in the jurisdiction
of formation of each Loan Party and Petro, the jurisdiction of the chief
executive office of each Loan Party and Petro and each jurisdiction where
any material Collateral is located or where a filing would need to be made
in order to perfect the Collateral Agent's security interest in the
Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than Permitted Liens;
(ii) all certificates evidencing any certificated Capital Stock
pledged to the Collateral Agent pursuant to the Collateral Documents,
together with duly executed in blank, undated stock powers attached thereto
(unless, with respect to the pledged Capital Stock of any Foreign
Subsidiary, such stock powers are deemed unnecessary by the Collateral
Agent in its reasonable discretion under the law of the jurisdiction of
incorporation of such Person);
(iii) searches of ownership of, and Liens on, intellectual property of
each Loan Party in the appropriate governmental offices;
(iv) duly executed notices of grant of security interest in the form
required by the Security Agreement as are necessary, in the Collateral
Agent's sole discretion, to perfect the Collateral Agent's security
interest in the intellectual property of the Loan Parties;
(v) in the case of any material personal property Collateral located
at a premises leased by a Loan Party, such estoppel letters, consents and
waivers or subordinations from the landlords on such real property as may
be required by the Collateral Agent consistent with the requirements of
Section 7.14(d);
(vi) with respect to each parcel of the Designated Real Property,
each of the following which shall be in form and substance satisfactory to
the Collateral Agent: (A) a commitment, issued by a title company
satisfactory to the Collateral Agent, to issue a mortgagee's policy of
title insurance insuring the Collateral Agent's Lien on such real Property
created by the Mortgages in an amount equal to the fair market value of
such Property, which commitment shall evidence that no Liens exist on such
real Property other than Permitted Liens, and the Borrower shall have paid
all premiums applicable to such mortgagee's policy of title insurance, (B)
a survey, (C) an environmental report, and (D) evidence that such Real
Property location is covered by insurance of the types and in the amounts
as are required by this Agreement; and
(vii) Control Agreements in form and substance satisfactory to the
Collateral Agent pursuant to which the Collateral Agent obtains a
perfected, first priority security interest in all deposit accounts,
investment property, letter-of-credit rights and/or electronic chattel
paper of the Borrower and its Subsidiaries, except to the extent that such
a Control Agreement is not required in accordance with Section 7.14(g).
(g) Financial Statements. The Administrative Agent shall have received:
(i) unaudited, consolidated financial statements of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries as of and for the fiscal
quarter ended December 31, 2003 (which financial statements shall not be
required to have been reviewed by independent certified public
accountants);
(ii) a pro forma balance sheet and income statement of Holdings and
its Subsidiaries and the Borrower and its Subsidiaries giving effect to the
initial advance of Loans under this Agreement, the Senior Notes Issuances
and the other Transactions contemplated to occur on the Closing Date
(collectively, the "Pro Forma Statements");
(iii) the projections of the Borrower's consolidated and consolidating
financial condition, results of operations and cash flows for the fiscal
years ending December 31, 2004, December 31, 2005, December 31, 2006,
December 31, 2007 and December 31, 2008 (collectively, the "Closing Date
Projections"); and
(iv) such other information relating to the Transactions as the
Administrative Agent may reasonably request.
(h) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2002 in the business, assets, properties,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of Holdings or the Borrower, in each case together with
its Subsidiaries taken as a whole (other than matters publicly disclosed between
December 31, 2002 and the Closing Date).
(i) Consents. All material governmental, shareholder and third party
consents and approvals necessary in connection with the Transactions shall have
been obtained (or appropriate waivers obtained); all such consents and approvals
shall be in full force and effect; and all applicable waiting periods shall have
expired without any action being taken by any authority that could reasonably be
expected to restrain, prevent or impose any material adverse conditions on the
Transactions or that could seek or threaten any of the foregoing.
(j) Judgments; Litigation. There shall not exist (i) any order, decree,
judgment, ruling or injunction which restrains the consummation of the
Transactions in the manner contemplated by the Transactions Documents, or (ii)
any pending or threatened action, suit, investigation or proceeding which is
reasonably likely to be adversely determined and, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(k) Evidence of Insurance. Receipt by the Administrative Agent of copies
of insurance policies or certificates of insurance of the Loan Parties
evidencing liability and casualty insurance meeting the requirements set forth
in the Loan Documents, including, but not limited to, naming the Collateral
Agent as additional insured (in the case of liability insurance) or loss payee
(in the case of casualty or hazard insurance) on behalf of the Lenders.
(l) Closing Certificate. Receipt by the Administrative Agent of a
certificate signed by a Responsible Officer of the Borrower certifying that the
conditions specified in Sections 5.01(h), (i) and (j) and Sections 5.02(a), (b)
and (c) have been satisfied.
(m) Fees. Payment in full of, and receipt by the Administrative Agent and
the Lenders of, any fees required to be paid on or before the Closing Date.
(n) Attorney Costs. Unless waived by the Administrative Agent, the
Borrower shall have paid all Attorney Costs of the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus, if required by the
Administrative Agent, such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).
(o) Secured Trade Debt. The Secured Trade Debt owed to Mobil shall be in
form and substance reasonably satisfactory to the Administrative Agent, and the
Secured Trade Debt shall not be secured by any Lien other than the Lien
evidenced by the Security Agreement.
(p) Other. Receipt by the Agents and the Lenders of such other customary
documents, instruments, agreements and information as reasonably requested by
either Agent or any Lender, including, without limitation, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, environmental matters (including, without
limitation, environmental reports relating to the Real Property Collateral),
material contracts, debt agreements, property ownership, contingent liabilities,
employment agreements, non-compete agreements and management of Holdings, the
Borrower and their respective Subsidiaries.
5.02 Conditions to all Credit Extensions. The obligation of each Lender to
honor any Request for Credit Extension (other than (i) any request for a
conversion of a Eurodollar Rate Loan to a Base Rate Loan or (ii) any request for
an extension of a Eurodollar Rate Loan as, or a conversion of a Base Rate Loan
into, a Eurodollar Rate Loan for an Interest Period of one month) is subject to
the following conditions precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party and Petro contained in Article VI or any other Loan Document, or
which are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct in all material respects on and
as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed
to refer to the most recent statements furnished pursuant to clauses (a) and
(b), respectively, of Section 7.01.
(b) No Default shall exist or would result from such proposed Credit
Extension.
(c) There shall not have been commenced against any Loan Party or Petro
an involuntary case under any applicable Debtor Relief Law, now or hereafter in
effect, or any case, proceeding or other action for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or for the
winding up or liquidation of its affairs, which involuntary case or other case,
proceeding or other action shall remain undismissed.
(d) The Administrative Agent and, if applicable, the L/C Issuer shall
have received a Request for Credit Extension in accordance with the requirements
hereof.
Each Request for Credit Extension (other than (i) any request for a conversion
of a Eurodollar Rate Loan to a Base Rate Loan or (ii) any request for an
extension of a Eurodollar Rate Loan as, or a conversion of a Base Rate Loan
into, a Eurodollar Rate Loan for an Interest Period of one month) submitted by
the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 5.02(a), (b) and (c) have been satisfied on and
as of the date of the applicable Credit Extension.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each of the Loan Parties hereby jointly and severally represents and
warrants to the Agents and the Lenders that:
6.01 Existence, Qualification and Power. Each Loan Party (a) is a
corporation, partnership or limited liability company duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, and (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of (i) any Contractual Obligation to which such Person
is a party if the breach or contravention of such Contractual Obligation could
reasonably be expected to have a Material Adverse Effect or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its Property is subject; (c) result in the creation of
any Lien under any Contractual Obligation (other than the Loan Documents) to
which such Person is a party; or (d) violate any Law (including, without
limitation, Regulation U or Regulation X issued by the FRB).
6.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization or other action by, or notice to or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or (b) the
consummation of the Transactions, other than (i) those that have already been
obtained and are in full force and effect or those that are not material and as
to which the failure to obtain could not have any material adverse effect and
(ii) filings to perfect the Liens created by the Collateral Documents.
6.04 Binding Effect. This Agreement and each other Loan Document has been
duly executed and delivered by each Loan Party that is party thereto. This
Agreement and each other Loan Document constitute the legal, valid and binding
obligations of each Loan Party that is party thereto, enforceable against each
such Loan Party in accordance with their terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Holdings and
its Subsidiaries and the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, commitments and Indebtedness.
(b) The unaudited consolidated financial statements of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries dated December 31, 2003 and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present the financial condition of Holdings and its Subsidiaries and the
Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments;
and (iii) show all material indebtedness and other liabilities, direct or
contingent, of Holdings and its Subsidiaries and the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.
(c) From the date of the Audited Financial Statements to and including
the Closing Date, there has been no Disposition by the Borrower or any
Subsidiary, or any Involuntary Disposition, of any material part of the business
or Property of the Borrower and its Subsidiaries, taken as a whole, and no
purchase or other acquisition by any of them of any business or property
(including any Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Borrower and its Subsidiaries, taken as
a whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.
(d) The Pro Forma Statements and the Closing Date Projections are based
upon reasonable assumptions made known to the Lenders and upon information
believed to be reasonable and reasonably likely to occur and not known to be
incorrect or misleading in any material respect, provided, however, that
projections as to future events are not to be viewed as facts and the actual
results during the period or periods covered by the Closing Date Projections
probably will differ from the projected results, which differences may be
material.
(e) The financial statements delivered pursuant to Section 7.01(a), (b)
and (c) have been prepared in accordance with GAAP (except as may otherwise be
permitted under Section 7.01(a), (b) and (c)) and present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated and,
in the case of consolidating financial statements delivered pursuant thereto,
consolidating, financial condition, results of operations and cash flows of the
Holdings and its Subsidiaries and the Borrower and its Subsidiaries as of such
date and for such periods.
(f) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Loan Parties after due and diligent
investigation, threatened or contemplated (as of the Closing Date), at law, in
equity, in arbitration or before any Governmental Authority, by or against any
Loan Party or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, (b) restrains
the consummation of the Transactions in the manner contemplated by the
Transactions Documents or (c) is reasonably likely to be determined adversely to
any Loan Party and, if determined adversely, could reasonably be expected to
have a
Material Adverse Effect. All actions, suits, proceedings, claims or disputes of
a material nature as to which any Loan Party is involved or subject as of the
Closing Date are described on Schedule 6.06.
6.07 No Default.
(a) No Loan Party is in default under or with respect to any Contractual
Obligation that could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) No Default has occurred and is continuing or would result from the
consummation of the Transactions.
6.08 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has (subject to Dispositions occurring after the Closing Date which
are permitted under Section 8.05) (a) as to Real Property, good record and
marketable title in fee simple to, or valid leasehold interests in, all Real
Property, and (b) as to personal Property, good and marketable title to, or
valid interests, as lessee, in, all personal Property, each case purported to be
owned or, if applicable, leased by it and/or necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Without limiting the generality of the foregoing, as of the
Closing Date, the Borrower and/or its Subsidiary owns good record and marketable
title in fee simple to each of the Designated Real Properties identified on
Schedule 6.08(a) and owns a valid leasehold interest in each of the Designated
Real Properties identified on Schedule 6.08(b), which Schedule 6.08(a) also
specifies which of such Real Properties owned in fee is subject to a lease and,
as to each of such leased Real Properties, the identity of the lessee thereof.
The Property of each Loan Party is subject to no Liens, other than Permitted
Liens.
6.09 Environmental Compliance. Except as could not reasonably be expected
to have a Material Adverse Effect:
(a) Each of the Facilities and all operations at the Facilities are in
compliance with all applicable Environmental Laws, and there is no violation of
any Environmental Law with respect to the Facilities or the Businesses, and
there are no conditions relating to the Facilities or the Businesses that could
give rise to liability under any applicable Environmental Laws.
(b) None of the Facilities contains, or, to the best of the Borrower's
knowledge, has previously contained, any Hazardous Materials at, on or under the
Facilities in amounts or concentrations that constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws.
(c) No Loan Party has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Facilities or the Businesses, nor does any Responsible Officer of any
Loan Party have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from the
Facilities, or generated, treated, stored or disposed of at, on or under any of
the Facilities or any other location, in each case by or on behalf of any Loan
Party in violation of, or in a manner that would be reasonably likely to give
rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Responsible Officers of the Loan Parties,
threatened, under any Environmental Law to which any Loan Party is or will be
named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any Loan Party, the Facilities or the Businesses.
(f) There has been no release or threat of release of Hazardous Materials
at or from the Facilities, or arising from or related to the operations
(including, without limitation, disposal) of any Loan Party in connection with
the Facilities or otherwise in connection with the Businesses, in violation of
or in amounts or in a manner that could give rise to liability under
Environmental Laws.
6.10 Insurance. The properties of each of the Loan Parties are insured
with financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Loan Party operates. The insurance
coverage of the Loan Parties as in effect on the Closing Date is outlined as to
carrier, policy number, expiration date, type, amount and deductibles on
Schedule 6.10.
6.11 Taxes. Each of the Loan Parties has filed all federal, state and
other material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP and, as to state or local
taxes, those in an aggregate amount not to exceed $50,000. There is no actual
or, to the knowledge of any Loan Party, proposed tax assessment against any Loan
Party that, if made, could reasonably be expected to have a Material Adverse
Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS
or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Loan Parties, nothing has
occurred which would prevent, or cause the loss of, such qualification. Each
Loan Party and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Internal Revenue Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section
412 of the Internal Revenue Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Loan Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party or
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan Party or any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of
ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA Affiliate
has engaged in a transaction that could be subject to Sections 4069 or 4212(c)
of ERISA.
6.13 Subsidiaries. Set forth on Schedule 6.13 is a complete and accurate
list, as of the Closing Date, of each Subsidiary of Holdings and/or the
Borrower, together with (a) the number of shares of each class of Capital Stock
outstanding, (b) the number and percentage of outstanding shares of each class
owned (directly or indirectly) by any Loan Party and (c) the number and effect,
if exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of the Borrower and each Subsidiary is validly issued, fully paid
and non-assessable.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) No Loan Party is engaged or will engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.
(b) No Loan Party or any Person Controlling any Loan Party, (i) is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
6.15 Disclosure. Each Loan Party has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No written report, financial statement,
certificate or other information furnished by or on behalf of any Loan Party to
either Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not materially misleading taken as a whole; provided that, with respect to
projected financial information, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
6.16 Compliance with Laws. Each of the Loan Parties is in compliance in
all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its properties, except in such
instances in which (a) such requirement of Law or order, writ, injunction or
decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The execution, delivery and performance by each of the Loan Parties of this
Agreement and the other Loan Documents to which it is or becomes a party do not
and will not result in the termination of or materially adversely effect any
license or permit required to be maintained by any Loan Party in connection with
the operation of its businesses.
6.17 Intellectual Property; Licenses, Etc. Each of the Loan Parties owns,
or possesses the legal right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses, permits and
other intellectual property rights (collectively, "IP Rights") that are
reasonably necessary for the operation of its businesses. Set forth on Schedule
6.17 is a list of all IP Rights registered or pending registration with the
United States Copyright Office or the United States Patent and Trademark Office
and owned by each Loan Party as of the Closing Date. Except for such claims and
infringements that could not reasonably be expected to have a Material Adverse
Effect, no claim has been
asserted and is pending by any Person challenging or questioning the use of any
IP Rights or the validity or effectiveness of any IP Rights, nor does any Loan
Party know of any such claim, and, to the knowledge of the Responsible Officers
of the Loan Parties, neither the use of any IP Rights by any Loan Party nor the
granting of a right or a license in respect of any IP Rights from any Loan Party
infringes on the rights of any Person. As of the Closing Date, none of the IP
Rights owned by any of the Loan Parties is subject to any material licensing
agreement or similar arrangement except as set forth on Schedule 6.17.
6.18 Solvency, etc. On the Closing Date, each of the Loan Parties is
Solvent, and the Loan Parties are Solvent on a consolidated basis. On the
Closing Date, each of the Loan Parties has received reasonably equivalent value
for the Obligations it has incurred, and the Liens it has granted, hereunder and
under the other Loan Documents. As of the Closing Date, the incurrence by each
of the Loan Parties of its Obligations, and the granting by each of the Loan
Parties of such Liens on its Properties, do not result in any fraudulent
transfer or fraudulent conveyance within the meaning of any applicable federal
or state statute or the interpretation thereof or relevant common law. The Loan
Parties and their business operations are closely integrated with one another
into a single, interdependent and collective, common enterprise so that any
benefit received by any one of them from the financial accommodations provided
under this Agreement will be to the direct benefit of the others. The Loan
Parties intend to render services to or for the benefit of each other, to
purchase or sell and supply goods to or from or for the benefit of each other,
to make loans, advances and provide other financial accommodations to or for the
benefit of each other and to provide administrative, marketing, payroll and
management services to or for the benefit of each other (in each case, except as
may be prohibited by this Agreement).
6.19 Perfection of Security Interests in the Collateral. The Collateral
Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are, upon
the filing of UCC financing statements in the appropriate jurisdictions and upon
the taking of possession by either Agent of any such Collateral the security
interests in which may be perfected only by possession, currently perfected
security interests and Liens, prior to all other Liens other than Permitted
Liens, except to the extent that a security interest cannot be perfected therein
by the filing of a financing statement or the taking of possession under the
UCC.
6.20 Business Locations.
(a) Set forth on Schedule 6.20(a) is a list of all Real Property located
in the United States that is owned or leased by any Loan Party as of the Closing
Date.
(b) Set forth on Schedule 6.20(b) is a list of all locations where any
tangible personal property of any Loan Party is located as of the Closing Date
(other than those locations set forth on Schedule 6.20(a)).
(c) Set forth on Schedule 6.20(c) is the location of the chief executive
office of each Loan Party as of the Closing Date.
(d) The exact legal name and state of formation of each Loan Party is as
set forth on the signature pages to this Agreement.
(e) Except as set forth on Schedule 6.20(e), no Loan Party has during the
five years preceding the Closing Date (i) changed its legal name, (ii) changed
its state of formation, or (iii) been party to a merger, consolidation or other
change in structure.
6.21 Brokers' Fees. Except for investment banking or similar fees payable
in connection with the Senior Notes Issuances, no Loan Party has any obligation
to any Person in respect of any finder's, broker's, investment banking or other
similar fee in connection with any of the Transactions.
6.22 Labor Matters. There are no collective bargaining agreements or
Multiemployer Plans covering the employees of any Loan Party as of the Closing
Date and no Loan Party has suffered any strikes, walkouts, work stoppages or
other material labor difficulty within the last five years prior to the Closing
Date.
6.23 Representations and Warranties from Senior Notes Indentures. As of
the Closing Date, each of the representations and warranties made by Holdings
and/or the Borrower in the Senior Notes Indentures is true and correct in all
material respects.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding, each of the Loan Parties jointly and severally
agrees that it shall, and shall cause each Subsidiary to:
7.01 Financial Statements. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower, the consolidated balance sheet of each of
the Holdings and its Subsidiaries and the Borrower and its Subsidiaries and, in
the event that any of the Subsidiaries of the Borrower is an operating company
or owns any material assets or has any material liabilities, the consolidating
balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated and consolidating (if applicable) statements
of income or operations, shareholders' equity and cash flows for such fiscal
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with
GAAP, audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit;
(b) as soon as available, but in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of the Borrower,
the consolidated balance sheet of each of Holdings and its Subsidiaries and the
Borrower and its Subsidiaries and, in the event that any of the Subsidiaries of
the Borrower is an operating company or owns any material assets or has any
material liabilities, the consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
and consolidating (if applicable) statements of income or operations,
shareholders' equity and cash flows for such fiscal quarter and for the portion
of the Borrower's fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year
and, with respect to the Borrower, the comparison of the Borrower's performance
for such period to its projected budget for such period, all in reasonable
detail, and certified by a Responsible Officer of Holdings or the Borrower (as
applicable) as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of Holdings and its Subsidiaries or the
Borrower and its Subsidiaries (as applicable) in accordance with GAAP, subject
only to normal adjustments and the absence of footnotes; and
(c) as soon as available, but in any event within 30 days after the end
of each month, a monthly consolidated balance sheet of each of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries as at the end of such month,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such month and for the portion of the Borrower's
fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding month of the previous fiscal year and the
corresponding portion of the previous fiscal year and, with respect to the
Borrower, the comparison of the Borrower's performance for such period to its
projected budget for such period, all and reasonable detail, and certified by a
Responsible Officer of Holdings or the Borrower (as applicable) as fairly
presenting the financial condition, results of operations, shareholders' equity
and cash flows of Holdings and its Subsidiaries or the Borrower and its
Subsidiaries (as applicable) in accordance with GAAP, subject only to normal
adjustments and the absence of footnotes.
7.02 Certificates; Other Information. Deliver to the Administrative Agent,
in form and detail satisfactory to the Administrative Agent and the Required
Lenders:
(a) concurrently with the delivery of the financial statements referred
to in Section 7.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default as at
the date of such financial statements or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred
to in Sections 7.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower;
(c) as soon as available, but in any event within 30 days after the end
of each fiscal year, the annual business plan and budget of Holdings and its
Subsidiaries and the Borrower and its Subsidiaries containing, among other
things, projected financial statements for each quarter of the next fiscal year,
beginning with the fiscal year ending December 31, 2004;
(d) copies of any detailed audit reports, management letters or other
material reports of substance submitted to the board of directors or equivalent
governing body (or the audit committee of the board of directors or equivalent
governing body) of any Loan Party by independent accountants in connection with
the accounts or books of such Loan Party, or any audit of any of them;
(e) promptly after the same are available, (i) copies of each annual
report, proxy or financial statement or other report or written communication
made available to the public generally, and copies of all annual, regular,
periodic and special reports and registration statements which any Loan Party
may file or be required to file with the SEC under Section 13 or 15(d) of the
Exchange Act or to a holder of any Indebtedness in excess of the Threshold
Amount owed by any Loan Party in its capacity as such a holder and not otherwise
required to be delivered to the Administrative Agent pursuant hereto and (ii)
all reports and written information of a material nature to and from the United
States Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and safety
matters, or any successor agencies or authorities concerning environmental,
health or safety matters;
(f) promptly, such additional information regarding the business,
financial or corporate affairs of any Loan Party, or compliance with the terms
of the Loan Documents, as the Administrative Agent or any Lender may from time
to time reasonably request;
(g) concurrently with the delivery of the financial statements referred
to in Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower identifying in reasonable detail (i) all patents, trademarks, service
marks, trade names and copyrights awarded to or acquired by any Loan Party and
all patent applications, trademark applications, service ▇▇▇▇ applications,
trade name applications and copyright applications submitted by any Loan Party,
(ii) any Real Property acquired by the Borrower or any Subsidiary having (A) in
the case of fee Real Property, a fair market value of $500,000 or more (or less
if a Lien is required to be granted on such Real Property to ensure compliance
with Section 7.14) or (B) in the case of leasehold Real Property, annual rental
of $1,000,000 or more, (iii) each Subsidiary of the Borrower created or
acquired, (iv) any deposit account opened or closed, (v) any investment
property, letter-of-credit right or electronic chattel paper disposed of or
acquired having a fair market value or amount of $50,000 or more (or less if, in
the case of any of the foregoing acquired, a Lien is required to be granted
thereon to ensure compliance with Section 7.14), (vi) any commercial tort claim
arising or acquired in the amount of $100,000 or more, (vii) any new underground
storage tanks located on the Real Property Collateral, in each case since the
date of the last such certificate (or, if it is the first such certificate, the
Closing Date); and
(h) concurrently with the delivery of the financial statements referred
to in Sections 7.01(a), a certificate of a Responsible Officer of the Borrower
attaching the insurance binder or other evidence of insurance for any insurance
coverage of any Loan Party that was renewed, replaced or modified during the
period covered by such financial statements; and
(i) as soon as available, but in any event within 30 days after the end
of each month, a report which summarizes, in reasonable detail, (i) all Subject
Receivables which have been transferred or assigned during the immediately
preceding month and (ii) the aggregate amount of all indebtedness, liabilities
and/or obligations (including, without limitation, contingent obligations) which
are outstanding or owed or owing under the Comdata Agreement.
Documents required to be delivered pursuant to Section 7.01 or Section 7.02 may
be delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents or provides
a link thereto on the Borrower's website on the Internet at the website address
listed on Schedule 11.02, (ii) if delivered by email to the correct email
address of the intended recipient, on which such delivery is received on the
computer of the intended recipient if received on or before 5:00 p.m. on such
date or, if received after 5:00 p.m. on such date, on the next succeeding
Business Day after such receipt, or (iii) on which such documents are posted on
the Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent); provided that: (A) the Borrower shall deliver paper copies of such
documents to the Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (B) the Borrower
shall notify (which may be by facsimile or electronic mail) the Administrative
Agent and each Lender of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies)
of such documents. Except for such Compliance Certificates, the Administrative
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
7.03 Notices.
(a) Promptly (but in any event no later than three Business Days after
the applicable occurrence) notify the Administrative Agent of the occurrence of
any Default.
(b) Promptly (but in no event no later than three Business Days after the
applicable matter or event) notify the Administrative Agent of any matter or
event known to any Loan Party that has resulted or could reasonably be expected
to result in a Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a Contractual Obligation of any Loan Party; (ii) any
dispute, litigation, investigation, proceeding or suspension between any Loan
Party and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting any Loan Party,
including pursuant to any applicable Environmental Laws.
(c) Promptly (but in any event no later than three Business Days after
the applicable occurrence) notify the Administrative Agent of the occurrence of
any ERISA Event.
(d) Promptly (but in any event no later than three Business Days after
the applicable change) notify the Administrative Agent of any material change in
accounting policies or financial reporting practices by any Loan Party.
(e) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which
the Administrative Agent or the Required Lenders reasonably believe has caused
(or could be reasonably expected to cause) the representations and warranties
set forth in Section 6.09 to be untrue in any material respect, the Loan Parties
will furnish or cause to be furnished to the Administrative Agent, at the Loan
Parties' expense, a report of an environmental assessment of reasonable scope,
form and depth (including, where appropriate, invasive soil or groundwater
sampling) by a consultant reasonably acceptable to the Administrative Agent as
to the nature and extent of the presence of any materials of environmental
concern on any Real Properties and as to the compliance by the Loan Parties or
any Subsidiary with Environmental Laws at such Real Properties. If the Loan
Parties fail to deliver such an environmental report within 75 days after
receipt of such written request then the Administrative Agent may arrange for
same, each Loan Party hereby grants to the Administrative Agent and its
representatives access to the Real Properties to reasonably undertake such an
assessment (including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for by the
Administrative Agent pursuant to this provision will be payable by the Loan
Parties on demand and added to the obligations secured by the Collateral
Documents.
Each notice pursuant to this Section 7.03(a) through (e) shall be accompanied by
a statement of a Responsible Officer of the Borrower setting forth details of
the occurrence referred to therein and stating what action any Loan Party has
taken and proposes to take with respect thereto. Each notice pursuant to Section
7.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
7.04 Payment of Obligations. Pay and discharge, at or before maturity or
before they become delinquent, as the case may be, all its material
indebtedness, obligations and liabilities, including (a) all material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the applicable Loan Party, (b) all lawful
claims of a material nature which, if unpaid, would by law become a Lien upon
its property, other than Permitted Liens, and (c) all material Indebtedness, as
and when due and payable, but subject to any subordination provisions contained
in any instrument or agreement evidencing such Indebtedness.
7.05 Preservation of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(b) Preserve, renew and maintain in full force and effect its good
standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05.
(c) Take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct of
its business, except for rights, privileges, permits, licenses and franchises
the loss of which could not, in the aggregate, reasonably be expected to have a
material adverse effect on the business, assets, condition (financial or
otherwise), results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole.
(d) Preserve or renew all of its material registered patents, trademarks,
trade names and service marks, except for patents, trademarks, trade names and
service marks, the loss of which could not, in the aggregate, reasonably be
expected to have a material adverse effect on the business, assets, condition
(financial or otherwise), results of operations or prospects of the Borrower and
its Subsidiaries taken as a whole.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear and Involuntary
Dispositions excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof; and (c) use the standard of care typical in the industry
in the operation and maintenance of its facilities; except, in each case, as
could not reasonably be expected to have a material adverse effect on the
business, assets, condition (financial or otherwise), results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole.
7.07 Maintenance of Insurance. Maintain in full force and effect (a)
insurance (including worker's compensation insurance, liability insurance,
casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where such Loan Party operates and (b) with respect to each of the
Designated Real Properties, insurance thereon in accordance with the terms and
provisions of the Mortgage which creates a Lien thereon; provided, however, that
flood and earthquake coverages under all-risk property insurance shall be
subject to an aggregate limit of not less than the relevant appraised or fair
market value (or, in the event that no appraisal has been obtained and fair
market value is not readily ascertainable, a good faith estimate thereof made by
the Borrower) for all Designated Real Properties (other than the Designated Real
Property located in Corning, California which shall be subject to an aggregate
limit for flood and earthquake coverage of not less than $5,000,000. Without
limiting the generality of the foregoing, the insurance coverage of the Loan
Parties described on Schedule 6.10 shall be deemed to comply with the
requirements of this Section 7.07. The Administrative Agent shall be named as
loss payee or mortgagee, as its interest may appear, and/or additional insured
with respect to any such insurance providing coverage in respect of any
Collateral, and each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent instruments furnished
to the Administrative Agent, that it will give the Administrative Agent 30 days
prior written notice before any such policy or policies shall be altered or
canceled.
7.08 Compliance with Laws, etc. Comply with the requirements of all Laws,
all Contractual Obligations and all orders, writs, injunctions and decrees
applicable to it or to its business or Property, except in such instances in
which (a) such requirement of Law, Contractual Obligation or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted; or (b) the failure to comply therewith could not
reasonably be expected to have a Material Adverse Effect.
7.09 Books and Records. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of any Loan Party; and (b) maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over any Loan Party.
7.10 Inspection Rights, etc..
(a) Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties,
to examine its corporate, partnership or other entity and financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers and
independent public accountants, all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower; provided, however, that
when an Event of Default exists the Administrative Agent or any Lender (or any
of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice. The Loan Parties agree that the Administrative
Agent, and its representatives, may conduct an annual audit of the Collateral,
at the expense of the Loan Parties.
(b) Periodically, upon the request of the Administrative Agent made after
the occurrence and during the continuation of a Default, obtain and deliver to
the Administrative Agent appraisal reports in form and substance and from
appraisers satisfactory to the Administrative Agent (or pay the costs and
expenses of any such appraisals obtained by the Administrative Agent), stating
the then current fair market and orderly liquidation and forced liquidation
values of all or any portion of the equipment or Real Property owned by the
Borrower or any of its Subsidiaries. The determination as to whether to require
appraisals of some or all of the Real Property pursuant to this Section 7.10(b)
shall be made by the Administrative Agent in good faith taking into account
applicable Laws and regulatory requirements, then existing market conditions and
such other factors as the Administrative Agent deems relevant.
(c) Periodically, upon the request of the Administrative Agent made after
the occurrence and during the continuation of a Default or made after a material
release or other material event of environmental concern has occurred with
respect to such Real Property and, in any event, at reasonable times and without
unreasonable interference with the operations of the Borrower, obtain and
delivery to the Administrative Agent one or more environmental assessments or
audits of the Real Properties owned by the Borrower or any of its Subsidiaries
in form and substance satisfactory to the Administrative Agent (or pay the costs
and expenses of any such environmental assessments or audits obtained by the
Administrative Agent), which environmental assessments or audits shall be
prepared by a hydrogeologist, an independent engineer or other qualified
consultant or expert approved by the Administrative Agent, to evaluate or
confirm (i) whether any Hazardous Materials are present in the soil or water at
or on such Real Property and (ii) whether the use and operation of such Real
Property complies with all Environmental Laws, provided, that, at any time prior
to a Default, the Administrative Agent shall give the Borrower prior written
notice of such environmental assessment or audit, such assessment or audit shall
occur during day time business hours and the Administrative Agent or
hydrogeologist, engineer or other consultant or expert shall be accompanied by a
designated officer or director of the Borrower (so long as the Borrower makes a
designated officer or director available at such time). Environmental
assessments or audits may include, without limitation, detailed visual
inspections of such Real Property, including any and all storage areas, storage
tanks, drains, dry ▇▇▇▇▇ and leaching areas, and the taking of
soil samples, surface water samples and ground water samples, as well as such
other investigations or analyses as the Administrative Agent reasonably deems
appropriate. All such environmental assessments or audits shall be conducted and
made at the expense of the Borrower.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions (a) to
finance working capital, capital expenditures and other general corporate
purposes, (b) to refinance existing Indebtedness of the Borrower and its
Subsidiaries and (c) to finance Permitted Acquisitions; provided, however, that
(i) all proceeds of the Term Loan and Revolving Loans made on the Closing Date
shall be used to repay unpaid principal of the loans outstanding under the
Existing Credit Agreement and, notwithstanding anything to the contrary
contained in this Agreement, shall be delivered, via wire transfer in
immediately available funds, directly to Fleet National Bank as administrative
agent under the Existing Credit Agreement, (ii) Letters of Credit will be issued
on the Closing Date in replacement of all outstanding letters of credit issued
under the Existing Credit Agreement and (iii) in no event shall the proceeds of
the Credit Extensions be used in contravention of any Law or of any Loan
Document.
7.12 Additional Subsidiaries. Within 30 days after the acquisition or
formation of any Subsidiary of the Borrower:
(a) notify the Administrative Agent thereof in writing, together with
information relating to such Subsidiary regarding the (i) jurisdiction of
formation, (ii) number of shares of each class of Capital Stock outstanding,
(iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto; and
(b) if such Subsidiary is a Domestic Subsidiary, cause such Person to (i)
become a Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other document as the Administrative Agent shall deem
appropriate for such purpose, and (ii) deliver to the Administrative Agent
documents of the types referred to in Sections 5.01(d) and (f) and, if requested
by the Administrative Agent, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form,
content and scope reasonably satisfactory to the Administrative Agent.
7.13 ERISA Compliance. Do, and cause each of its ERISA Affiliates to do,
each of the following: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Internal Revenue Code and
other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make
all required contributions to any Plan subject to Section 412 of the Internal
Revenue Code.
7.14 Liens and Collateral.
(a) Each of the Borrower and its Subsidiaries will cause all of its owned
or (in the case of leasehold interests in Real Property) leased (whether now
owned or leased or hereafter acquired or leased) Designated Real Property and
all of its owned personal Property (whether now owned or leased or hereafter
acquired or leased), other than Excluded Property, to be subject at all times to
first priority, perfected and, in the case of Designated Real Property, title
insured Liens (to the extent that Liens thereon are required by this Agreement;
which title insurance shall include lender's extended coverage and shall be in
form and substance, and shall contain such endorsements, as the Collateral Agent
may require) in favor of the Collateral Agent securing the Obligations pursuant
to the terms and conditions of the Collateral Documents or, with respect to any
such Property acquired subsequent to the Closing Date, such other additional
security documents as the Collateral Agent shall reasonably request, subject in
any case to Permitted Liens, provided, however, that (i) as to any Designated
Real Property which is not owned by
the Borrower or any of its Subsidiaries but which constitutes a leasehold
interest of the Borrower or any of its Subsidiaries, it shall not constitute a
Default or Event of Default if the Borrower or its Subsidiary (as applicable,
whichever is the lessee), after using its commercially reasonable efforts
(without the requirement of payment of money, except as may be agreed by the
Borrower, or the making of any material concession) to obtain any necessary
consents, is unable to ▇▇▇▇▇ ▇ ▇▇▇▇ on such leased Designated Real Property due
to the failure to obtain any third-party consents necessary to grant such Lien
and (ii) with respect to any parcel of Real Property (other than Undeveloped
Land) acquired by the Borrower or any of its Subsidiaries after the Closing
Date, the Borrower or its Subsidiary (as applicable) shall not be required to
▇▇▇▇▇ ▇ ▇▇▇▇ thereon in favor of the Collateral Agent to secure the Obligations
if (but only if) (A) no Default has occurred and is continuing and (B) the fair
market value of such parcel of Real Property (inclusive of all adjoining parcels
of Real Property acquired by the Borrower or any of its Subsidiaries at or about
the same time) does not exceed $1,000,000 (or, in the case of leased Real
Property, the annual rental payable under the lease of such parcel does not
exceed $1,000,000) and the aggregate fair market value of all Designated Real
Property not subject to such a Lien does not exceed $5,000,000;
(b) Holdings will cause all of the Capital Stock of the Borrower owned by
Holdings (whether now owned or hereafter acquired) to be subject at all times to
Liens in favor of the Collateral Agent securing the Obligations pursuant to the
terms and conditions of the Collateral Documents or, with respect to any such
Property acquired subsequent to the Closing Date, such other additional security
documents as the Collateral Agent shall reasonably request, and at least
98.7156% of the issued and outstanding Capital Stock of the Borrower shall be so
pledged by Holdings at all times;
(c) The Borrower will ensure that all of the Capital Stock of the
Borrower owned by Petro and/or any other general partner of the Borrower
(whether now owned or hereafter acquired) shall be subject at all times to Liens
in favor of the Collateral Agent securing the Obligations pursuant to the terms
and conditions of the Collateral Documents or, with respect to any such Property
acquired subsequent to the Closing Date, such other additional security
documents as the Collateral Agent shall reasonably request, and
(d) Each Loan Party will deliver such other documentation as the
Collateral Agent may reasonably request in connection with the requirements of
this Section, including, without limitation and as applicable, appropriate UCC-1
financing statements, real estate title insurance policies, surveys,
environmental reports, estoppel letters, consents and waivers or subordinations
of landlords, certified resolutions and other organizational and authorizing
documents of such Person, and, in the case of Real Property Collateral and Liens
or any Loan Party for which such an opinion has not been previously issued and,
in either case, only if requested by the Administrative Agent, favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Collateral Agent's Liens thereunder)
and other items of the types required to be delivered pursuant to Section
5.01(f), all in form, content and scope reasonably satisfactory to the
Administrative Agent; provided, however, that estoppel letters, consents and
waivers or subordinations of landlords shall not be required if the Borrower or
its Subsidiary, whichever is the lessee, after using its commercially reasonable
efforts (without the requirement of payment of money, other than the except as
may be agreed by the Borrower, or the making of any material concession) to
obtain any such estoppel letters, consents and waivers or subordinations
otherwise required by this Section 7.14(d), is unable to obtain the same;
(e) Without limiting the generality of Section 7.14(b) or (c) above, the
Borrower and each of its Subsidiaries will cause (i) 100% of the issued and
outstanding Capital Stock of each Domestic Subsidiary and (ii) 65% (or such
greater percentage that, due to a change in an applicable Law after the date
hereof, (A) could not reasonably be expected to cause the undistributed earnings
of such Foreign
Subsidiary as determined for United States federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States parent
and (B) could not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Capital Stock entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued
and outstanding Capital Stock not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the
Borrower or any Domestic Subsidiary to be subject at all times to a first
priority, perfected Lien in favor of the Collateral Agent pursuant to the terms
and conditions of the Collateral Documents or such other security documents as
the Collateral Agent shall reasonably request;
(f) Each of the Borrower and its Subsidiaries will notify the
Administrative Agent in accordance with Section 7.02(g) upon the Borrower's or
such Subsidiary's acquisition of ownership or other interests in certain types
of Properties and will execute and deliver such additional Collateral Documents
or supplements or amendments to existing Collateral Documents as the
Administrative Agent may reasonably request from time to time, together with, in
the case of any newly acquired Real Property, the additional items required to
be delivered in connection with Liens on Real Property as referred to in clause
(vi) of Section 5.01(f) in connection with Designated Real Property existing on
the Closing Date; and
(g) Each of the Borrower and its Subsidiaries will cause Control
Agreements, in form and substance reasonably satisfactory to the Collateral
Agent, to be executed by the appropriate Person or Persons for the purpose of
perfecting the Collateral Agent's security interests in all deposit accounts,
investment property, letter-of-credit rights and electronic chattel paper of the
Borrower and its Subsidiaries at any time in existence; provided, however, that
(i) such Control Agreements relating to deposit accounts shall not be required
to be executed to the extent the same are not required by Section 7.16 and (ii)
such Control Agreements relating to investment property, letter-of-credit rights
and electronic chattel paper shall not be required to be executed to the extent
that the aggregate amount thereof not subject to such Control Agreements does
not exceed $100,000 at any time. In connection with the exercise of its rights
under any Control Agreement, the Collateral Agent agrees with the Borrower and
its Subsidiaries that the Collateral Agent will not issue any order or make any
demand to receive the proceeds of any deposit account, investment property,
letter-of-credit right or electronic chattel paper unless and until an Event of
Default has occurred and is continuing; provided, however, that the Collateral
Agent may in its discretion, at any time during which a Default has occurred and
is continuing, issue such orders or make such demands under any Control
Agreement as it may deem necessary or appropriate to prevent any Loan Party's
disposition or expenditure of any such deposit accounts, investment property,
letter-of-credit rights and electronic chattel paper and all proceeds thereof;
provided, further, however, that the Collateral Agent shall use its reasonable
efforts to notify the Borrower of any such order issued or demand made prior to
the occurrence of an Event of Default substantially concurrently with its
issuance or making of such order or demand, respectively (but failure to do so
shall not affect the validity of any such order or demand or result in any
liability to the Collateral Agent).
7.15 "Opt In" to Article 8. Cause the Borrower and each of its
Subsidiaries which is a limited partnership, general partnership or limited
liability company to, pursuant to its applicable Organization Documents as the
Administrative Agent may reasonably request, (a) "opt in" to Article 8 of the
UCC so that the partnership interests, membership interests or other equity
interests issued by the Borrower or such Subsidiary are treated as a security
for purposes of Articles 8 and 9 of the UCC and (b) ensure that such partnership
interests, membership interests or other equity interests issued by the Borrower
or such Subsidiary are certificated.
7.16 Cash Management, etc. Cause all cash receipts and all payments
constituting proceeds of accounts receivable or other Collateral (other than the
Subject Receivables) to be paid, in the form received, with any appropriate
endorsements, into one or more deposit accounts with ▇▇▇▇▇ Fargo or
another Lender or financial institution and, without limiting the generality of
the foregoing, cause each of the Borrower's general "company" or "corporate"
accounts, other than the Borrower's cash management accounts held with Mellon
Bank, N.A. and its local or regional accounts relating to its Stopping Center
locations, to be maintained with ▇▇▇▇▇ Fargo, each of which deposit accounts
shall be subject to a Control Agreement in form and substance as shall be
satisfactory to the Collateral Agent pursuant to which the Lien of the
Collateral Agent therein and in the proceeds thereof shall be perfected;
provided, however, that (a) the Borrower may, in the ordinary course of its
business and consistent with past practices, continue to deposit cash receipts,
other than the proceeds of accounts receivable, into deposit accounts held with
one or more banks if (but only if) such banks transfer the entirety of the
collected balances in each of such deposit accounts (other than reasonable
amounts deemed adequate by the Borrower in good faith to cover change orders,
returned items and bank fees, in each case associated with such account) on each
Business Day to one or more deposit accounts referred to in this Section above
which are subject to Control Agreements as referred to in this Section above,
(b) such deposit accounts held with such banks as referred to in clause (a)
preceding shall not be required to be subject to such Control Agreements if and
to the extent (but only if and to the extent) that (i) each such bank refuses to
execute such a Control Agreement notwithstanding the Borrower's commercially
reasonable and continued efforts to obtain such a Control Agreement and (ii) the
aggregate amount contained in all deposit accounts which are not subject to such
Control Agreements (exclusive of amounts pledged to or deposited with the
Administrative Agent to Cash Collateralize Letters of Credit as required by this
Agreement) shall not at any time exceed $1,000,000, and (c) any deposit account
containing only proceeds of Subject Receivables may be subject to a control
agreement in favor of Comdata or other applicable Person providing services for
the purpose of facilitating collection of the Subject Receivables on behalf and
for the account of the Borrower, in either case only to the extent required by
the Comdata Agreement.
7.17 Further Assurances. Each of the Loan Parties will cooperate with the
Agents and the Lenders and execute such further agreements, documents and
instruments as either Agent or the Required Lenders shall reasonably request to
carry out to their satisfaction the terms and provisions of this Agreement and
the other Loan Documents and the Transactions contemplated by this Agreement and
the other Loan Documents.
7.18 Redemption of Borrower Existing Senior Notes. The Borrower will, on
or before March 15, 2004, redeem all of the Borrower Existing Senior Notes which
were not tendered pursuant to the Borrower Existing Senior Notes Tender Offer on
or before the Closing Date (the aggregate principal amount of which notes to be
redeemed shall not exceed $20,122,000), which redemption shall be at a price not
to exceed 101.75% of the face amount thereof (the redemption price therefor set
forth in the Borrower Existing Senior Notes Indenture) plus any accrued and
unpaid interest and shall be made pursuant to the terms of the Borrower Existing
Senior Notes Indenture.
7.19 Maintenance of Redemption Account. The Borrower will, unless and
until the Redemption occurs in accordance with Section 7.18, maintain the
Redemption Amount in the Redemption Account.
7.20 Maintenance of Comdata Agreement. The Borrower will maintain the
Comdata Agreement, or a similar agreement relating to a similar amount of
Subject Receivables, in effect.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit shall remain outstanding, each of the
Loan Parties jointly and severally agrees that it shall not, and shall not
permit any Subsidiary to, directly or indirectly:
8.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, other than the following:
(a) (i) Liens covering the Collateral in favor of either Agent for the
benefit of the Lenders granted or created pursuant to any Loan Document
(including, without limitation, the Security Agreement and the Mortgages); (ii)
Liens granted pursuant to the Security Agreement and the Mortgages covering the
Collateral in favor of the trustee under the Borrower Senior Notes Indenture and
in favor of the holders of the Secured Trade Debt securing the Indebtedness
evidenced by the Borrower Senior Notes and the Secured Trade Debt, respectively,
each of which Liens is effectively subordinated, as to priority, to the Liens
referred to in clause (i) preceding in accordance with the Security Agreement,
and (iii) Liens granted pursuant to the Security Agreement covering only the
general and limited partnership interests in the Borrower owned by Holdings and
Petro (and no other Collateral) in favor of the trustee under the Holdings
Senior Notes Indenture securing the Indebtedness evidenced by the Holdings
Senior Notes, each of which Liens is effectively subordinated, as to priority,
to the Liens referred to in clause (i) and clause (ii) preceding in accordance
with the Security Agreement.
(b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that the Property covered thereby is
not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 8.03(b);
(c) Liens (other than Liens imposed under ERISA) for taxes, assessments
or governmental charges or levies not yet due or which are being contested in
good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;
(d) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, repairmen and suppliers and other like Liens imposed by
Law or pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that such Liens secure only amounts not
yet due and payable or, if due and payable, are unfiled and no other action has
been taken to enforce the same or are being contested in good faith by
appropriate proceedings diligently conducted for which adequate reserves
determined in accordance with GAAP have been established;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure Indebtedness permitted in accordance with Section
8.03(l) made in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case (taken as a whole) materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money (or appeal or other
surety bonds relating to such judgments) permitted in accordance with Section
8.03(m);
(i) Liens securing purchase money Indebtedness permitted under Section
8.03(e); provided that (i) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness, (ii) the Indebtedness
secured thereby does not exceed the purchase price of the Property being
acquired and (iii) such Liens attach to such Property concurrently with or
within 90 days after the acquisition thereof;
(j) leases or subleases granted to others in the ordinary course of
business of a Loan Party and not interfering in any material respect with the
business of any Loan Party;
(k) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in
foreign jurisdictions) relating to, leases permitted by this Agreement;
(l) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 8.02;
(m) normal and customary rights of setoff upon deposits of cash in favor
of banks or other depository institutions;
(n) Liens of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection;
(o) Liens of sellers of goods to the Borrower and any of its Subsidiaries
arising under Article 2 of the Uniform Commercial Code or similar provisions of
applicable law in the ordinary course of business, covering only the goods sold
and securing only the unpaid purchase price for such goods and related expenses;
and
(p) Liens in respect of the Subject Receivables (i) in favor of a Person
providing services for the purpose of facilitating collection of the Subject
Receivables on behalf and for the account of the Borrower and (ii) securing only
Indebtedness permitted under Section 8.03(k);
provided, however, that, notwithstanding anything to the contrary contained in
the foregoing clauses (a) through (p), none of the Excluded Property shall be
subject to any Lien referred to in clause (b), (e), (f), (h), (i), (l), (m), (n)
or (p) and none of the Undeveloped Land shall be subject to any Lien referred to
in clause (b), (e), (f), (h), (i), (l), (m), (n) or (p).
8.02 Investments. Make any Investments, except:
(a) Investments held by any Loan Party in the form of cash or Cash
Equivalents;
(b) Investments existing as of the Closing Date and set forth in Schedule
8.02;
(c) Investments consisting of advances or loans to officers, directors
and employees for travel, entertainment, relocation and analogous business
purposes in an aggregate principal amount (including Investments of such type
set forth in Schedule 8.02) not to exceed $1,000,000 at any time outstanding;
(d) Investments consisting of advances or loans to employees for travel,
entertainment, relocation and analogous business purposes made in the ordinary
course of business on terms consistent with past practices of the Borrower in an
aggregate principal amount (including Investments of such type set forth in
Schedule 8.02) not to exceed $1,000,000 at any time outstanding;
(e) Investments by any Loan Party in any Person that is a Subsidiary of
such Loan Party and is a Loan Party prior to giving effect to such Investment;
provided, however, that (i) the aggregate amount of all such Investments made by
the Borrower in its Subsidiaries after the Closing Date, exclusive of
intercompany Indebtedness permitted in accordance with Section 8.03(c), shall
not exceed $1,000,000 without the prior written consent of the Required Lenders
and (ii) each such Subsidiary in which any such Investment is made shall have
executed and delivered a Guaranty to the Administrative Agent and granted a
perfected and first priority Lien (subject only to Permitted Liens) to the
Collateral Agent in its Property as security for the Obligations in accordance
with this Agreement pursuant to Collateral Documents in form and substance
satisfactory to the Collateral Agent.
(f) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(g) Guarantees permitted by Section 8.03;
(h) Permitted Acquisitions; provided, however, that, in the event that
any new Subsidiary is created or acquired as a result of or in connection with
such Permitted Acquisition, such new Subsidiary shall, substantially concurrent
with the consummation of such acquisition, execute and deliver a Guaranty to the
Administrative Agent and granted a perfected and first priority Lien (subject
only to Permitted Liens) to the Collateral Agent in its Property as security for
the Obligations in accordance with this Agreement pursuant to Collateral
Documents in form and substance satisfactory to the Collateral Agent;
(i) Investments in respect of Swap Contracts permitted in accordance with
Section 8.03(d);
(j) Investments by the Borrower or any Subsidiary in connection with
employee deferred compensation programs permitted under applicable Laws and not
otherwise prohibited by this Agreement;
(k) Investments consisting of contributions of Excess Land to joint
ventures of the Borrower in connection with Dispositions permitted in accordance
with Section 8.05(a); and
(l) Investments of a nature not contemplated in the foregoing clauses (a)
through (k) in an amount not to exceed $5,000,000 in the aggregate at any time
outstanding.
8.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.03 and renewals, refinancings and extensions thereof on terms and
conditions taken as a whole which are not less favorable to the applicable
debtor(s)); provided, however, that the amount of such Indebtedness is not
increased at the time of such renewal, refinancing or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such renewal, refinancing
or extension;
(c) (i) Indebtedness of the Borrower to a Subsidiary of the Borrower, or
the Guarantee by a Subsidiary of the Borrower of Indebtedness of the Borrower or
a Subsidiary of the Borrower, if (but only if) such Indebtedness is subordinated
to the Obligations pursuant to the terms of the subordination
agreement attached hereto as Exhibit F and such Indebtedness complies with the
applicable provisions of the Senior Notes Indentures, and (ii) Indebtedness of a
Subsidiary of the Borrower to the Borrower or another Subsidiary of the
Borrower, which Subsidiary incurring such Indebtedness has executed and
delivered a Guaranty to the Administrative Agent and granted a perfected and
first priority Lien (subject only to Permitted Liens) to the Collateral Agent in
its Property as security for the Obligations in accordance with this Agreement
pursuant to Collateral Documents in form and substance satisfactory to the
Collateral Agent, provided that such Indebtedness of a Subsidiary shall be
evidenced by promissory notes, leases or contracts in form an substance
satisfactory to the Administrative Agent which are pledged to the Collateral
Agent to secure the Obligations or evidenced only by open account;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) all
such obligations (other than such obligations which constitute a part of the
Obligations owed to a Lender) shall be unsecured, (ii) such obligations are (or
were) entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view;" and (iii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party;
provided, however, that (A) the aggregate amount of Indebtedness under fuel
price swaps, fuel price caps and fuel price collar or floor agreements and
similar agreements or arrangements designed to protect against or manage
fluctuations in fuel prices shall not exceed $5,000,000 at any time outstanding
and (B) all such fuel price swaps, fuel price caps and fuel price collar or
floor agreements and similar agreements or arrangements referred to in this
proviso must relate to fuel sold in the ordinary course of business of the
Borrower and its Subsidiaries and must be in amounts and on terms consistent
with past practices of the Borrower and its Subsidiaries but may not be for
speculative purposes;
(e) purchase money Indebtedness (including obligations in respect of
Capital Leases or Synthetic Lease Obligations) and Indebtedness in respect of
the deferred purchase price obligations for the purchase of equipment, in each
case hereafter incurred by the Borrower or any of its Subsidiaries to finance
the purchase of fixed assets or equipment, respectively, and renewals,
refinancings and extensions thereof, provided that (i) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed; (ii) no
such Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing; and (iii)
the aggregate principal amount of all such Indebtedness shall not exceed
$5,000,000 at any one time outstanding;
(f) unsecured Indebtedness in an aggregate principal amount (as to all
Loan Parties in the aggregate) not to exceed $1,000,000 at any one time
outstanding, and renewals, refinancings and extensions thereof on terms and
conditions not less favorable to the applicable debtor(s));
(g) unsecured Indebtedness assumed in Permitted Acquisitions in an
aggregate principal amount not to exceed $1,000,000 at any one time outstanding,
and renewals, refinancings and extensions thereof on terms and conditions not
less favorable to the applicable debtor(s);
(h) Guarantees with respect to Indebtedness permitted under clauses (a)
through (g) of this Section 8.03;
(i) Indebtedness of the Borrower evidenced by the Borrower Senior Notes
and Indebtedness of the Subsidiaries of the Borrower pursuant to guaranties of
such Indebtedness evidenced by the Borrower Senior Notes, and Indebtedness of
the Borrower in the aggregate principal amount not to exceed, at any date, the
remainder of (i) the lesser of $20,122,000 or the aggregate principal amount of
the
Borrower Existing Senior Notes outstanding immediately after giving effect to
the Transactions to occur on the Closing Date minus (ii) the aggregate principal
amount of the Borrower Existing Senior Notes which have been repurchased or
redeemed as of such date;
(j) Indebtedness of Holdings evidenced by the Holdings Senior Notes, and
Indebtedness of Holdings in the aggregate principal amount not to exceed, at any
date, the remainder of (i) the lesser of $5,425,000 or the aggregate principal
amount of the Holdings Existing Senior Notes outstanding immediately after
giving effect to the Transactions to occur on the Closing Date minus (ii) the
aggregate principal amount of the Holdings Existing Senior Notes which have been
repurchased or redeemed as of such date;
(k) Indebtedness of the Borrower arising under the Comdata Agreement in
an aggregate amount not to exceed $25,000,000 at any time outstanding;
(l) Indebtedness in respect of performance, surety or appeal bonds
obtained in the ordinary course of the Borrower's business in an aggregate
amount not to exceed $10,000,000 at any time outstanding;
(m) Indebtedness constituting judgments for the payment of money (or
appeal or other surety bonds relating to such judgments) not in excess of the
Threshold Amount (except to the extent covered by independent third-party
insurance as to which the insurer has acknowledged in writing its obligation to
cover), unless any such judgment remains undischarged for a period of more than
30 consecutive days during which execution is not effectively stayed; and
(n) Guarantees issued in the ordinary course of business guaranteeing
Indebtedness in an aggregate amount not to exceed $1,000,000 at anytime
outstanding.
Notwithstanding anything to the contrary contained in this Section 8.03, any
Indebtedness permitted hereby which is subordinated to any of the Obligations
may not be renewed, refinanced or extended except on subordination terms at
least as favorable to the Lenders and no more restrictive on the Loan Parties
than the Indebtedness being renewed, refinanced or extended and in an amount not
less than the amount outstanding at the time of such renewal, refinancing or
extension.
8.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all or any material portion of its assets
(whether now owned or hereafter acquired) to or in favor of any Person; provided
that, notwithstanding the foregoing provisions of this Section 8.04 but subject
to the terms of Sections 7.12 and 7.14 and so long as no Default exists or would
result therefrom, (a) the Borrower may merge or consolidate with any of its
Subsidiaries provided that the Borrower shall be the continuing or surviving
corporation, (b) any Subsidiary of the Borrower may merge or consolidate with
any other Subsidiary of the Borrower, provided that, if such merger or
consolidation involves a Foreign Subsidiary and a Domestic Subsidiary, the
Domestic Subsidiary shall be the continuing or surviving entity; (c) any
Subsidiary of the Borrower may merge with any Person that is not a Loan Party or
Petro in connection with a Disposition permitted under Section 8.05 or a
Permitted Acquisition, (d) any Wholly Owned Subsidiary of the Borrower may
dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a Material
Adverse Effect, and (e) the Borrower and its Subsidiaries may Dispose of Excess
Land or Undeveloped Land in accordance with Section 8.05.
8.05 Dispositions. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of the Excess Land which meet each of the following
requirements: (i) such Disposition of Excess Land has been approved by the
Required Lenders (which approval will be considered in good faith by the
Required Lenders upon the request of the Borrower), (ii) the aggregate fair
market value of all Excess Land Disposed of pursuant to this clause (a) shall
not exceed $10,000,000, and (iii) such Disposition of Excess Land shall not have
any adverse effect on the operations of the adjacent Real Property which
constitutes Collateral (including, without limitation, utility services) or
ingress or egress to or from such adjacent Real Property and shall not otherwise
adversely affect the value or usefulness of such adjacent Real Property;
(b) Dispositions of equipment to the extent that (i) such equipment is
exchanged for credit against the purchase price of similar replacement equipment
or (ii) the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement equipment;
(c) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
(d) Dispositions permitted by Section 8.04;
(e) non-exclusive licenses of IP Rights in the ordinary course of
business and substantially consistent with past practice for terms not exceeding
ten years;
(f) ground leases of Real Property in the ordinary course of business and
consistent with past practices of the Borrower, which leases are to Persons
other than a Subsidiary of the Borrower in pursuant to arms-length transactions
for fair and reasonable value;
(g) transfers or assignments of the Subject Receivables (i) in favor of a
Person providing services for the purpose of facilitating collection of the
Subject Receivables on behalf and for the account of the Borrower and (ii) in
connection with and securing only Indebtedness permitted under Section 8.03(k);
(h) Dispositions of Cash Equivalents in the ordinary course of business;
and
(i) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 8.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and
(ii) the aggregate book value of all property Disposed of in reliance on this
clause (i) in any fiscal year shall not exceed $10,000,000;
provided, however, that any Disposition pursuant to clauses (a) through (i)
shall be made pursuant to an arms-length transaction for fair and reasonable
value and, with respect to each such Disposition which involves total
consideration paid or payable (including, without limitation, the amount of any
Indebtedness assumed) of $500,000 or more, at least 75% of the consideration
paid or payable in connection with each such Disposition shall be payable in
cash. Notwithstanding anything to the contrary contained in this Section 8.05 or
elsewhere in this Agreement, (i) the Borrower and its Subsidiaries shall not be
permitted to Dispose of any assets or Property or take (or omit to take) any
action in connection with any Disposition or engage in any other transaction if
and to the extent that such action (or omission) would require any repayment,
repurchase or redemption (or any mandatory offer to repay, repurchase or redeem)
by Holdings or the Borrower or any of their Subsidiaries of any of the Senior
Notes, the Borrower Existing Senior Notes or the Holdings Existing Senior Notes
prior to the repayment in full of all of the Obligations or would violate any
term or provision of any Senior Notes Indenture (except, with respect to the
Borrower Existing Senior Notes and the Holdings Existing Senior Notes, as may be
required or permitted by this Agreement); (ii) the Borrower shall not directly
or indirectly sell or otherwise Dispose of all or substantially all of its
assets or Property; (iii) neither the Borrower nor any of its Subsidiaries shall
sell or otherwise Dispose of any Capital Stock of any Person which is either the
Borrower or a Guarantor or is an entity the Capital Stock of which is pledged
under the Loan Documents by the Borrower or any Guarantor, except that the
Borrower may sell all Capital Stock of a Subsidiary in connection with or in
lieu of a sale of all of the Property and assets of such Subsidiary which is
permitted in accordance with this Section 8.05; and (iv) any Disposition made by
any Loan Party to another Loan Party or Petro shall be expressly made subject to
the continuation of all then existing Liens affecting the Property or assets
subject to such Disposition in favor of either Agent securing the Obligations or
any portion thereof, and such Liens shall not be released or otherwise affected
by any such Disposition.
8.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Subsidiary of the Borrower may make Restricted Payments to the
Borrower and to wholly-owned Subsidiaries of the Borrower (and, in the case of a
Restricted Payment by a non-wholly-owned Subsidiary of the Borrower, to the
Borrower and any Subsidiary of the Borrower and to each other owner of Capital
Stock or other equity interests of such Subsidiary on a pro rata basis based on
their relative ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of such
Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock or other common equity interests or warrants
or options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
equity interests, provided that all such new shares or other interests must
possess rights and be subject to terms and provisions that, taken as a whole for
each such new share or other interest, are at least as favorable to the Borrower
or its Subsidiary (which ever is the issuer, as applicable) as are the shares or
other interests or warrants or options so purchased, redeemed or otherwise
acquired;
(d) on the Closing Date, the Borrower may distribute up to $56,700,000 of
the proceeds from the Borrower Senior Notes Issuance to Holdings, which amount
shall be used by Holdings to consummate the Holdings Existing Senior Notes
Exchange/Tender Offer and to pay fees and expenses in connection with the
Transactions;
(e) the Borrower may make Permitted Tax Distributions accrued on or after
January 1, 2003, to its Partners;
(f) if (but only if) no Default exists or would exist immediately after
giving effect to such Restricted Payments and any Borrowing or other
Indebtedness that may be incurred in connection therewith, the Borrower may:
(i) make distributions to Holdings in any fiscal year in an
aggregate amount not to exceed the amount of interest that Holdings is
required to pay in cash on the Holdings Senior Notes and the Holdings
Existing Senior Notes which remain outstanding during such fiscal year
solely for the purpose of allowing Holdings to make such interest payments,
provided that (A) no such distribution shall be made prior to five days
before the corresponding interest payment is payable by Holdings, no such
distributions shall be made prior to April 25, 2004 (with respect to the
Holdings Senior Notes) or prior to February 1, 2005 (with respect to the
Holdings Existing Senior Notes) and all proceeds of such distributions are
promptly used by Holdings to make such
interest payments, (B) the aggregate principal amount of the Holdings
Existing Senior Notes as to which such distributions may be made and
interest may be paid shall not exceed $5,420,000, and (C) no distribution
may be made pursuant to this clause (i) with respect to interest accrued
and unpaid on the Holdings Existing Senior Notes being redeemed pursuant to
clause (iii) below;
(ii) make distributions to Holdings in an aggregate amount during any
calendar year not to exceed the lesser of (A) $300,000 or (B) the aggregate
amount of reasonable administrative expenses actually incurred by Holdings
during such calendar year to enable Holdings to pay such administrative
expenses, provided that all proceeds of such distributions are used by
Holdings to pay such administrative expenses; and
(iii) make distributions to Holdings in an amount not to exceed the
sum of (A) the lesser of (1) the aggregate principal amount of the Holdings
Existing Senior Notes which remain outstanding after the Closing Date and
after giving effect to the Transactions contemplated by the Holdings
Existing Senior Notes Exchange/Tender Offer Documents or (2) $5,420,000
plus (B) accrued and unpaid interest thereon to the date of redemption,
solely for the purpose of allowing Holdings to repurchase or redeem such
Holdings Existing Senior Notes, provided that (x) no such distribution
shall be made prior to five days before the corresponding repurchase or
redemption by Holdings or prior to 15 days after Holdings shall have given
the Administrative Agent written notice of its intention to make such
repurchase or redemption and receive such distribution from the Borrower
for such purpose and (y) all proceeds of such distributions are promptly
used by Holdings to make such repurchase or redemption.
8.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the Closing Date or any business reasonably related or
incidental thereto.
8.08 Transactions with Affiliates and Insiders. Except for transactions
with Affiliates entered into on or prior to the Closing Date and described on
Schedule 8.08, enter into or permit to exist any transaction of any kind with
any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms as favorable to the Borrower
or such Subsidiary as would be obtainable by the Borrower or such Subsidiary at
the time in a comparable arm's length transaction with a Person other than an
Affiliate, provided that the foregoing restriction shall not apply to
transactions between or among the Borrower and any of its wholly-owned
Subsidiaries which are on terms more favorable to the Borrower than would be
obtainable by the Borrower at the time in a comparable arm's length transaction
with a Person not an Affiliate or between and among any wholly-owned
Subsidiaries of the Borrower; provided, however, that nothing in this Section
8.08 shall prohibit the Borrower or its Subsidiaries from engaging in the
following transactions: (a) Restricted Payments to the extent permitted by
Section 8.06, (b) the performance of the Borrower's or any Subsidiary's
obligations under any employment contract, collective bargaining agreement,
employee benefit plan, related trust agreement or any other similar arrangement
heretofore or hereafter entered into the ordinary course of business, (c) the
payment of compensation to employees, officers, directors or consultants in the
ordinary course of business, or (d) the maintenance of benefit programs or
arrangements for employees, officers or directors, including, without
limitation, vacation plans, health and life insurance plans, deferred
compensation plans, retirement or savings plans and similar plans, in each case,
in the ordinary course of business and to the extent not otherwise prohibited by
this Agreement.
8.09 Burdensome Agreements. Except as contained in the Senior Notes
Indentures as in effect on the Closing Date, enter into any Contractual
Obligation (other than this Agreement or any other Loan Document) that (a)
limits the ability (i) of any Subsidiary to make Restricted Payments to the
Borrower or any Guarantor or to otherwise transfer property to the Borrower or
any Guarantor, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 8.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.
8.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
8.11 Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
as of the last day of any fiscal quarter of the Borrower to be greater than the
ratio applicable to such date set forth in the table below:
===========================================
Fiscal Quarter Maximum Consolidated
End Leverage Ratio
-------------------------------------------
March 31, 2004 6.25:1
-------------------------------------------
June 30, 2004 6.25:1
-------------------------------------------
September 30, 2004 6.25:1
-------------------------------------------
December 31, 2004 6.25:1
-------------------------------------------
March 31, 2005 6.00:1
-------------------------------------------
June 30, 2005 6.00:1
-------------------------------------------
September 30, 2005 6.00:1
-------------------------------------------
December 31, 2005 5.75:1
-------------------------------------------
March 31, 2006 5.75:1
-------------------------------------------
June 30, 2006 5.50:1
-------------------------------------------
September 30, 2006 5.50:1
-------------------------------------------
December 31, 2006 5.25:1
-------------------------------------------
March 31, 2007 5.25:1
-------------------------------------------
June 30, 2007 5.00:1
-------------------------------------------
September 30, 2007 5.00:1
-------------------------------------------
December 31, 2007 4.75:1
===========================================
(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio as of the last day of any fiscal quarter of the
Borrower to be less than the ratio applicable to such date set forth in the
table below:
===========================================
Minimum Consolidated
Fiscal Quarter Fixed Charge
End Coverage Ratio
-------------------------------------------
March 31, 2004 1.25:1
-------------------------------------------
June 30, 2004 1.25:1
-------------------------------------------
September 30, 2004 1.35:1
-------------------------------------------
December 31, 2004 1.35:1
-------------------------------------------
March 31, 2005 1.35:1
-------------------------------------------
June 30, 2005 1.35:1
-------------------------------------------
September 30, 2005 1.35:1
-------------------------------------------
December 31, 2005 1.40:1
-------------------------------------------
March 31, 2006 1.40:1
-------------------------------------------
June 30, 2006 1.40:1
-------------------------------------------
September 30, 2006 1.40:1
-------------------------------------------
December 31, 2006 1.40:1
-------------------------------------------
March 31, 2007 1.50:1
-------------------------------------------
June 30, 2007 1.50:1
-------------------------------------------
September 30, 2007 1.50:1
-------------------------------------------
December 31, 2007 1.50:1
===========================================
(c) Consolidated EBITDA. Permit the Consolidated EBITDA of the Borrower
and its Subsidiaries for the four fiscal quarters of the Borrower ending on each
date set forth in the table below to be less than the applicable amount set
forth in the table below:
====================================
Minimum
Fiscal Quarter Consolidated
End EBITDA
------------------------------------
March 31, 2004 $ 40,500,000
------------------------------------
June 30, 2004 $ 40,500,000
------------------------------------
September 30, 2004 $ 40,500,000
------------------------------------
December 31, 2004 $ 40,500,000
------------------------------------
March 31, 2005 $ 41,000,000
------------------------------------
June 30, 2005 $ 41,000,000
------------------------------------
September 30, 2005 $ 41,000,000
------------------------------------
December 31, 2005 $ 42,000,000
------------------------------------
March 31, 2006 $ 42,000,000
------------------------------------
June 30, 2006 $ 42,000,000
------------------------------------
September 30, 2006 $ 42,000,000
------------------------------------
December 31, 2006 $ 42,000,000
------------------------------------
March 31, 2007 $ 42,000,000
------------------------------------
June 30, 2007 $ 42,000,000
------------------------------------
September 30, 2007 $ 42,000,000
------------------------------------
December 31, 2007 $ 42,000,000
====================================
8.12 Capital Expenditures. Make or become legally obligated to make any
expenditure which constitutes a Consolidated Capital Expenditure, except for
Consolidated Capital Expenditures in the ordinary course of business not
exceeding, in the aggregate for the Loan Parties during each fiscal year set
forth below, the amount set forth opposite such fiscal year:
-------------------------------
Maximum Amount
of Capital
Fiscal Year Expenditures
-------------------------------
2004 $ 10,000,000
-------------------------------
2005 $ 10,000,000
-------------------------------
2006 $ 8,000,000
-------------------------------
2007 $ 8,000,000
-------------------------------
2008 $ 8,000,000;
-------------------------------
provided, however, that (a) for purposes of calculating the maximum amount of
capital expenditures permitted during any fiscal year in accordance with this
Section 8.12, the amount of capital expenditures made during such fiscal year
with the proceeds of Dispositions that were reinvested in a Replacement Asset
within 180 days of the date of such Disposition and that did not result in the
requirement of a mandatory prepayment pursuant to Section 2.05(b)(ii) shall be
excluded and (b) so long as no Default has occurred and is continuing or would
result from such expenditure, any portion of any amount set forth in the table
above, if not expended in the fiscal year for which it is permitted above, may
be carried over for expenditure in the next following fiscal year (and
Consolidated Capital Expenditures made during any fiscal year shall first be
applied to any carry-forward credit from the prior fiscal year).
8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation
and Form of Entity.
(a) Amend, modify or change its Organization Documents in a manner
adverse to the Lenders.
(b) Change its fiscal year.
(c) Without providing 30 days prior written notice to the Administrative
Agent, change its name, state of formation or form of organization.
8.14 Ownership of Subsidiaries; Limitations on Holdings.
(a) Notwithstanding any other provisions of this Agreement to the
contrary, (i) permit any Person (other than the Borrower or any Wholly Owned
Subsidiary of the Borrower) to own any Capital Stock of any Subsidiary of the
Borrower, except to qualify directors where required by applicable law or to
satisfy other requirements of applicable law with respect to the ownership of
Capital Stock of Foreign Subsidiaries or except in connection with a sale of all
of the Capital Stock of a Subsidiary of the Borrower in accordance with Section
8.05, (ii) permit any Subsidiary of the Borrower to issue or have outstanding
any shares of preferred Capital Stock, (iii) except as permitted by clause (a)
of Section 8.01, create, incur, assume or suffer to exist any Lien on any
Capital Stock of the Borrower or any Subsidiary of the Borrower, (iv) permit any
Subsidiary of the Borrower to be or become a Foreign Subsidiary without the
prior written consent of the Required Lenders, or (v) issue, or permit the
issuance of, any additional partnership interests or other Capital Stock of the
Borrower unless, immediately after giving effect thereto, Holdings owns at least
98.7156% of the issued and outstanding Capital Stock of the Borrower and Petro
(or a successor general partner approved by the Administrative Agent and the
Required Lenders which has executed a Guaranty of the entirety of the
Obligations and pledged its partnership interests in
the Borrower to secure the payment and performance of the Obligations pursuant
to a Guaranty and pledge agreement, respectively, in form and substance
satisfactory to the Administrative Agent and which is an Affiliate of the
Borrower as of the Closing Date and immediately prior to giving effect to the
requirements of this clause (v)) owns all general partnership interests of the
Borrower, all of which Capital Stock of the Borrower (including general
partnership interests) owned by Holdings and Petro (or such successor general
partner) shall be pledged to secure payment and performance of the Obligations
pursuant to a pledge agreement in form and substance satisfactory to the
Administrative Agent.
(b) Permit Holdings, or any of its Subsidiaries other than the Borrower
and its Subsidiaries, to own any material assets or Property or engage in any
business of material nature other than (i) its ownership of Capital Stock of the
Borrower, (ii) its performance of its obligations under the Holdings Senior
Notes Indenture, and (iii) as may be incidental to or reasonably necessary or
appropriate in connection with such ownership and performance referred to in
clauses (i) and (ii), respectively.
8.15 Sale Leasebacks. Enter into any Sale and Leaseback Transaction unless
(a) the consideration received in connection with such Sale and Leaseback
Transaction is at least equal to the fair market value of the Property sold
pursuant to such transaction, (b) if such Sale and Leaseback Transaction results
in a Capital Lease, such Sale and Leaseback Transaction is permitted by Section
8.03(e), (c) if such Sale and Leaseback Transaction does not result in a Capital
Lease, such Sale and Leaseback Transaction is permitted by Section 8.20 and the
underlying lease is for an initial term of no more than ten years (and for
successive renewal terms of no more than the initial term), and (d) no Default
exists at the time of, or would exist immediately after giving effect to, such
Sale and Leaseback Transaction.
8.16 No Prepayment of Indebtedness. Prepay (i.e., make any payment prior
to the date on which such payment is contractually obligated to be made) any
Indebtedness; provided, however, that (a) at any time during which the
Consolidated Leverage Ratio is less than 4.50:1 and the Outstanding Amount of
the Revolving Loans is zero, the Borrower may prepay its Indebtedness with the
portion of its Excess Cash Flow for any fiscal year which is not, or was not,
required to be utilized to prepay the Loans or Cash Collateralize the L/C
Obligations in accordance with Section 2.05(b)(v), (b) Indebtedness which is
permitted to be refinanced in accordance with Section 8.03 may be prepaid as a
result of and in connection with such permitted refinancing, (c) the Borrower
shall redeem the Borrower Existing Senior Notes not tendered pursuant to the
Borrower Existing Senior Notes Tender Offer in accordance with Section 7.18, and
(d) Holdings may repurchase or redeem the Holdings Existing Senior Notes not
exchanged or tendered pursuant to the Holdings Existing Senior Notes
Exchange/Tender Offer.
8.17 No Amendments to Certain Documents. None of the Loan Parties will,
without the prior written consent of the Required Lenders,
(a) amend or permit the amendment of any of the Borrower Senior Notes,
the Borrower Existing Senior Notes, the Borrower Existing Senior Notes Tender
Offer Documents, the Borrower Senior Notes Indenture, the Borrower Existing
Senior Notes Indenture, the Holdings Senior Notes, the Holdings Existing Senior
Notes, the Holdings Existing Senior Notes Exchange/Tender Offer Documents, the
Holdings Senior Notes Indenture or the Holdings Existing Senior Notes Indenture,
except for (i) in the case of the Senior Notes Indentures, amendments thereto
which are permitted to be effected by the trustees thereunder without the
consent of the holders of the Senior Notes issued thereunder and (ii) in the
case of the Borrower Existing Senior Notes Indenture and the Holdings Existing
Senior Notes Indenture, supplements or amendments thereto required pursuant to
clause (iv) of Section 5.01(c) as described in the Borrower Existing Senior
Notes Tender Offer Documents and the Holdings Existing Senior Notes
Exchange/Tender Offer Documents;
(b) amend or permit the amendment of any of the Organizational Documents
of any Loan Party in any manner that could be in conflict with any term or
provision of this Agreement or any other Loan Document or that could reasonably
be expected to be materially adverse to either Agent or any Lender or the rights
or remedies under this Agreement or any other Loan Document; and
(c) amend or permit the amendment of the Comdata Agreement in any manner
which would result in an increase in the credit exposure or obligations of any
Loan Party or any material adverse change (when considered as a whole) in the
economic terms of the transactions contemplated thereby or in the nature of the
transactions contemplated thereby.
8.18 Inconsistent Agreements. None of the Loan Parties will enter into any
agreement containing any provision which would be violated or breached by the
performance by any Loan Party of its indebtedness, liabilities or obligations
hereunder or under any other Loan Documents.
8.19 Undeveloped Land. The Borrower and its Subsidiaries will not own
Undeveloped Land acquired at any time after the Closing Date to the extent that
the value of all such Undeveloped Land (which value shall be determined based
upon the respective purchase price for each Property so acquired) exceeds
$5,000,000 in the aggregate; provided, however, for purposes of this Section
8.19, any Undeveloped Land acquired at any time after the Closing Date with the
proceeds received from a Disposition of Undeveloped Land owned prior to the
Closing Date shall not be included in the valuation for purposes of compliance
with this Section 8.19.
8.20 Operating Leases. The Borrower and its Subsidiaries will not, as
lessee, enter into, permit to exist or renew any rental agreement or lease any
real or personal Property if the annual rental expenses (determined in
accordance with GAAP) and (without duplication) the rental obligations then due
and payable of the Borrower and its Subsidiaries (on a consolidated basis) under
any rental agreements or leases of real or personal Property (other than Capital
Leases) exceeds $10,000,000 in any fiscal year.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party or Petro fails to
pay (i) when and as required to be paid herein, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three days after the same becomes
due, any interest on any Loan or on any L/C Obligation, or any commitment fee or
other fee due hereunder, or (iii) within five days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.03(a), 7.05(a), 7.07,
7.10(a), 7.11, 7.15 or 7.16 or Article VIII; or
(c) Other Defaults. Any Loan Party or Petro fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for (i) in the case of any such covenant or agreement
contained in Section 7.01, 7.02, 7.03 (other than 7.03(a)), 7.05 (other than
7.05(a)), 7.12, 7.14 or 7.17, ten days or (ii) in the case of any such other
covenant or agreement, 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party or Petro herein, in any other Loan Document or
in any document delivered in connection herewith or therewith shall be incorrect
or misleading in any material respect when made or deemed made; or
(e) Cross-Default.
(i) A default or an event of default shall occur under the Borrower
Senior Notes Indenture or the Holdings Senior Notes Indenture or with
respect to the Borrower Senior Notes or the Holdings Senior Notes, or the
Borrower Senior Notes or the Holdings Senior Notes shall be prepaid,
redeemed or repurchased in whole or in part or the holders of the Borrower
Senior Notes or the Holdings Senior Notes shall have the right to require
the Borrower Senior Notes or the Holdings Senior Notes, as the case may be,
to be prepaid, redeemed or purchased in whole or in part;
(ii) any Loan Party or Petro fails to make any payment when due
(after the expiration of any applicable grace period, and whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount;
(iii) any Loan Party or Petro fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, beyond any applicable grace period, or any other event (other than
an Involuntary Disposition which is covered by independent third-party
insurance as to which the insurer does not dispute coverage and which does
not constitute a default) occurs, the effect of which default or other
event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or
redeemed (automatically or otherwise) prior to its stated maturity, any
applicable grace period having expired, or an offer to repurchase, prepay,
defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or
(iv) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination
Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries or Petro institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its Property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or
unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its Property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or Petro
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against any Loan Party or Petro (i) one
or more final judgments or orders for the payment of money in an aggregate
amount exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower or any ERISA Affiliate under Title IV of ERISA to
the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate
fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of the
Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or Petro contests in any manner the validity
or enforceability of any Loan Document or any Lien created or purported to be
created thereunder; or any Loan Party or Petro denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or any action at law, suit or in equity
or other legal proceeding to cancel, revoke or rescind any Loan Document shall
be commenced by or on behalf of any Loan Party or Petro or any owner of its
Capital Stock; or any court or any other Governmental Authority of competent
jurisdiction shall make a determination that, or issue a judgment, order, decree
or ruling to the effect that, any Loan Document is illegal, invalid or
unenforceable in accordance with the terms thereof; or
(k) Change of Control. There occurs any Change of Control; or
(l) Loss or Damages to Collateral, etc. There occurs any material damage
to, or loss, theft or destruction of, any Collateral, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty, which in any such case causes, for more than 30 consecutive days, the
cessation or substantial curtailment of revenue producing activities at any
facility of the Borrower or any of its Subsidiaries if such event or
circumstance is not covered by business interruption insurance and would have a
material adverse effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole; or
(m) Loss, etc. of Licenses or Permits. There occurs any loss, suspension
or revocation of, or failure to renew, any license or permit now held or
hereafter acquired by the Borrower or any of its Subsidiaries if such loss,
suspension, revocation or failure to renew would have a material adverse effect
on the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole; or
(n) Conduct of Business. The Borrower or any of its Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any Governmental
Authority from conducting any part of its business and such order shall continue
in effect for more than 30 days and would have a material adverse effect on the
business, assets or financial condition of the Borrower and its Subsidiaries,
taken as a whole.
9.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent or, if and to the extent that such action
relates to any Lien or Collateral, either of the Agents may, and, at the request
of the Required Lenders, shall, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Loan Party;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in
an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Loan Party or Petro under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of either Agent or any Lender.
9.03 Application of Funds. After the exercise of remedies provided for in
Section 9.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Agents or either of them
in their or its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and
amounts payable under Article III), ratably among them in proportion to the
amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the
Lenders in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, L/C Borrowings and Swap Contracts and Treasury
Management Agreements between any Loan Party and any Lender or Affiliate of
a Lender and to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably
among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE X
AGENTS
10.01 Appointment and Authorization of Agents.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
each Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Loan Document, neither Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall either
Agent have or be deemed to have any fiduciary relationship with any Lender or
participant, 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 either Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to either Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable Law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the terms
"Agent", "Agents" and "Administrative Agent" as used in this Article X and in
the definition of "Agent-Related Person" included the L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to
the L/C Issuer.
(c) Without limiting the generality of the foregoing, each Lender hereby
irrevocably appoints, designates and authorizes the Collateral Agent to act as
collateral agent for and on behalf of such Lender under each of the Collateral
Documents, including, without limitation, the Security Agreement.
10.02 Delegation of Duties. Each Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. Neither
Agent shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
10.03 Liability of Administrative Agent. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or Petro or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by either Agent under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Loan Party or Petro or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant 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 or Petro or any Affiliate thereof.
10.04 Reliance by Agents.
(a) Each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party or Petro), independent
accountants and other experts selected by either Agent. Each Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which 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 or any other Loan
Document in accordance with a request or consent of the Required Lenders (or
such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 Notice of Default. Neither Agent shall be deemed to have knowledge or
notice of the occurrence of any Default, except, as to the Administrative Agent
only, with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless such Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." Each Agent will notify the Lenders of its
receipt of any such notice. Each Agent shall take such action with respect to
such Default as may be directed by the Required Lenders in accordance with
Article IX; provided, however, that unless and until such Agent has received any
such direction, such Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable or in the best interest of the Lenders.
10.06 Credit Decision; Disclosure of Information by Agents. Each Lender
acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by either Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party or Petro or any Affiliate thereof, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to each Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries and Petro, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and the other Loan Parties and Petro hereunder. Each Lender also represents that
it will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties and Petro. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent herein, neither Agent shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or Petro or
any of their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.07 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; provided,
further, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse each Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document or any document
contemplated by or referred to herein, to the extent that such Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this
Section shall survive termination of the Aggregate Revolving Commitments, the
payment of all other Obligations and the resignation of the Agents.
10.08 Agents in their Individual Capacities. ▇▇▇▇▇ Fargo and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with each of the Loan
Parties and Petro and their respective Affiliates as though ▇▇▇▇▇ Fargo were not
the Administrative Agent, the Collateral Agent and the L/C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, ▇▇▇▇▇ Fargo or its Affiliates may receive
information regarding any Loan Party or Petro or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or Petro or such Affiliate) and acknowledge that neither Agent shall
be under any obligation to provide such information to them. With respect to its
Loans, ▇▇▇▇▇ Fargo shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent, the Collateral Agent and the L/C Issuer, and the terms
"Lender" and "Lenders" include ▇▇▇▇▇ Fargo in its individual capacity.
10.09 Successor Agents. Each Agent may resign as Administrative Agent or
Collateral Agent (as applicable) upon 30 days' notice to the Lenders; provided
that any such resignation by ▇▇▇▇▇ Fargo shall also constitute its resignation
as L/C Issuer. If either Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent or
collateral agent (as applicable) for the Lenders, which successor administrative
agent or collateral agent (as applicable) shall be consented to by the Borrower
at all times other than during the existence of an Event of Default (which
consent of the Borrower shall not be unreasonably withheld, conditioned or
delayed). If no successor administrative agent or collateral agent (as
applicable) is appointed prior to the effective date of the resignation of the
Administrative Agent or Collateral Agent, respectively, the Administrative Agent
or Collateral Agent (as applicable) may appoint, after consulting with the
Lenders and the Borrower, a successor administrative agent or collateral agent,
respectively, from among the Lenders. Upon the acceptance of its appointment as
successor administrative agent or collateral agent (as applicable) hereunder,
the Person acting as such successor administrative agent or collateral agent,
respectively, shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and L/C Issuer or Collateral Agent, respectively, and the
respective terms "Administrative Agent" and "L/C Issuer" or "Collateral Agent",
respectively, shall mean such successor administrative agent and Letter of
Credit issuer or collateral agent, respectively, and the retiring Administrative
Agent's or Collateral Agent's, respectively, appointment, powers and duties as
Administrative Agent or Collateral Agent, respectively, shall be terminated and
the retiring L/C Issuer's rights, powers and duties as such shall be terminated,
without any other or further act or deed on the part of such retiring L/C Issuer
or any other Lender, other than the obligation of the successor L/C Issuer to
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit. After any
retiring Administrative Agent's or Collateral Agent's resignation hereunder as
Administrative Agent or Collateral Agent, respectively, the provisions of this
Article X and Sections 11.04 and 11.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent or
Collateral Agent, respectively, under this Agreement. If no successor
administrative agent or collateral agent (as applicable) has accepted
appointment as Administrative Agent or Collateral Agent, respectively, by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's or Collateral Agent's,
respectively, resignation shall nevertheless thereupon become effective and the
Lenders shall 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.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party or Petro, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the Agents
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Agents and their respective agents and
counsel and all other amounts due the Lenders and the Agents under Sections
2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders or the Collateral Agent (as applicable), to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agents and their agents and counsel, and any
other amounts due either Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize any Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize any Agent to vote in respect of the
claim of any Lender in any such proceeding.
10.11 Collateral and Guaranty Matters. The Lenders irrevocably authorize
the Agents, at their option and in their discretion,
(a) to release any Lien on any Collateral granted to or held by any Agent
under any Loan Document (i) upon termination of the Aggregate Revolving
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit, (ii) that is transferred or to be transferred as part of or in
connection with any Disposition permitted hereunder or under any other Loan
Document or any Involuntary Disposition, or (iii) as approved in accordance with
Section 11.01;
(b) to subordinate (or, if requested by the Borrower, release) any Lien
on any Property granted to or held by any Agent under any Loan Document to the
holder of any Lien on such Property that is permitted by Section 8.01(b) or (i);
and
(c) to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by either Agent at any time, the Required Lenders will confirm in
writing such Agent's authority to release or subordinate its interest in
particular types or items of Property, or to release any Guarantor from its
obligations under the Guaranty, pursuant to this Section 10.11.
10.12 Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
manager," "arranger," "lead arranger" or "co-arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
10.13 Delivery of Financial Statements and Certain Other Information to the
Lenders. The Administrative Agent shall deliver to each Lender, in a reasonably
prompt fashion after the Administrative Agent receives such financial statements
or other information from the Borrower, a true and correct copy of (a) all
financial statements delivered to the Administrative Agent pursuant to Section
7.01 and (b) all information delivered to the Administrative Agent pursuant to
Section 7.02 or 7.03, all of which may be delivered to the Lenders by electronic
mail or internet or intranet websites or in such other manner as the
Administrative Agent may desire.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party or Petro therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower or the applicable
Loan Party or Petro, as the case may be, and acknowledged by the Agents, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 5.01(a) without the written
consent of each Lender, except as may be agreed to by the Agents in connection
with any post-closing agreement which has been disclosed or delivered to the
Lenders;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.02) without the written consent of
such Lender (it being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or Event of Default or a
mandatory reduction in Commitments is not considered an extension or increase in
Commitments of any Lender);
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal (including mandatory prepayments required by
Section 2.05), interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby;
(e) change Section 2.13 or Section 9.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender directly affected thereby;
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder without the written
consent of each Lender;
(g) except in connection with a Disposition permitted under Section 8.05,
release all or any material portion of the Collateral without the written
consent of each Lender; or
(h) release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, any of the Guarantors from its or their obligations under the Loan
Documents without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
such Agent in addition to the Lenders required above, affect the rights or
duties of either Agent under this Agreement or any other Loan Document; and
(iii) any Fee Letter may be amended, or rights or privileges thereunder waived,
in a writing executed only by the parties thereto. Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (A) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (B) the Required Lenders shall determine whether or not to allow a Loan
Party or Petro to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of the
Lenders.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed certified or
registered mail, faxed or delivered to the applicable address, facsimile number
or (subject to subsection (c) below) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to any Loan Party or Petro, the Administrative Agent, the
Collateral Agent or the L/C Issuer, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 11.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the Borrower, the Administrative Agent, the Collateral Agent and
the L/C Issuer.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to either Agent and the L/C Issuer pursuant to Article II shall not be effective
until actually received by such Person as set forth above. In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on all Loan Parties
and Petro, the Agents and the Lenders. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Sections 7.01 and
7.02, and to distribute Loan Documents for execution by the parties thereto, and
may not be used for any other purpose.
(d) Reliance by Agents and Lenders. The Agents and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Loan Notices)
purportedly given by or on behalf of the Borrower or any other Loan Party or
Petro even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower or any other Loan Party or
Petro. All telephonic notices to and other communications with either Agent may
be recorded by such Agent, and each of the parties hereto hereby consents to
such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or either
Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse each Agent for all costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs
and costs and expenses in connection with the use of Intralinks, Inc. or other
similar information transmission systems in connection with this Agreement, and
(b) to pay or reimburse each Agent and each Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement or
preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such
costs and expenses incurred during any "workout" or restructuring in respect of
the Obligations and during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by either Agent and the cost of independent public accountants
and other outside experts retained by either Agent or any Lender. All amounts
due under this Section 11.04 shall be payable within ten Business Days after
demand therefor. The agreements in this Section shall survive the termination of
the Aggregate Revolving Commitments and repayment of all other Obligations.
11.05 Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify and hold
harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer 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), (c) any actual or
alleged presence or release of Hazardous Materials on or from any Property
currently or formerly owned or operated by the Borrower, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Agents, the replacement of any Lender, the
termination of the Aggregate Revolving Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
11.06 Payments Set Aside. To the extent that any payment by or on behalf of
any Loan Party or Petro is made to either Agent or any Lender, or either Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by either Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to each Agent upon demand its applicable share of any amount so
recovered from or repaid by such Agent, plus interest thereon from the date of
such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
11.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither the Borrower nor any other Loan Party nor
Petro may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of subsection (b)
of this Section, (ii) by way of participation in accordance with the provisions
of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans (including, for purposes of
this subsection (b), participations in L/C Obligations) at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund (as defined in subsection (g) of this Section) with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $1,000,000, in the case of any assignment in respect of the Revolving
Loans and/or any Revolving Commitment, or $1,000,000, in the case of any
assignment in respect of the Term Loan, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except that
this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate tranches on a non-pro rata basis;
(iii) any assignment of a Revolving Commitment must be approved by the
Administrative Agent and the L/C Issuer unless the Person that is the proposed
assignee is itself a Lender with a Revolving Commitment (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500 (which fee is not payable by the Borrower). Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
11.04 and 11.05 with respect to facts and circumstances occurring prior to the
effective date of such assignment). Upon request, the Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection (b) shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the
Borrower or either Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 11.01 that directly affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 11.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 11.15 as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under any of
its Notes) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent and the L/C Issuer, and
(ii) unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include the Borrower or any of the Borrower's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at any
time ▇▇▇▇▇ Fargo assigns all of its Commitment and Loans pursuant to subsection
(b) above, ▇▇▇▇▇ Fargo may, upon 30 days' notice to the Borrower and the
Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, the Borrower shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no failure by the
Borrower to appoint any such successor shall affect the resignation of ▇▇▇▇▇
Fargo as L/C Issuer. If ▇▇▇▇▇ Fargo resigns as L/C Issuer, it shall retain all
the rights and obligations of the L/C Issuer hereunder with respect to all
Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)).
11.08 Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' partners, directors,
officers, employees and agents, including accountants, legal counsel and other
advisors and representatives (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority purporting to have jurisdiction
over it; (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process; (d) to any other party to this Agreement; (e)
in connection with the exercise of any remedies hereunder or under any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative transaction
relating to obligations of any Loan Party or Petro; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
either Agent or any Lender on a nonconfidential basis from a source other than
the Borrower; or (i) to the National Association of Insurance Commissioners or
any other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates (provided that the identity of any Loan Party or Guarantor or
information that would identify any Loan Party or Guarantor may not be disclosed
pursuant to this clause (i)). In addition, the Agents and the Lenders may
disclose the existence of this Agreement and information about this
Agreement (but not the identity of any Loan Party or Guarantor or information
that would identify any Loan Party or Guarantor) to market data collectors,
similar service providers to the lending industry and service providers to the
Agents and the Lenders in connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments and the Credit
Extensions.
For the purposes of this Section, "Information" means all information received
from any Loan Party relating to any Loan Party or its business, other than any
such information that is available to either Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party; provided that, in
the case of information received from a Loan Party after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Notwithstanding anything herein to the
contrary, "Information" shall not include, and the Borrower, the other Loan
Parties, each Agent, each Lender and the respective Affiliates of each of the
foregoing (and the respective partners, directors, officers, employees, agents,
advisors and other representatives of each of the foregoing and their
Affiliates) may disclose to any and all Persons, without limitation of any kind
(i) any information with respect to the U.S. federal and state income tax
treatment of the transactions contemplated hereby and any facts that may be
relevant to understanding such tax treatment, which facts shall not include for
this purpose the names of the parties or any other Person named herein, or
information that would permit identification of the parties or such other
Persons, or any pricing terms or other nonpublic business or financial
information that is unrelated to such tax treatment or facts, and (ii) all
materials of any kind (including opinions or other tax analyses) relating to
such tax treatment or facts that are provided to any of the Persons referred to
above.
11.09 Set-off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, after obtaining the prior written consent of the Administrative Agent
(which consent shall not be unreasonably withheld, conditioned or delayed), each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower or any other Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not either Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
11.10 Interest Rate Limitation.
(a) Notwithstanding anything to the contrary contained in this Agreement
or any other Loan Document, no interest rate specified in this Agreement or any
other Loan Document or paid or agreed to be paid pursuant to this Agreement or
any other Loan Document shall at any time exceed the Maximum Rate. If at any
time the interest rate otherwise (but for the terms and provisions of this
Section 11.10) contracted for in this Agreement or any other Loan Document (the
"Contract Rate") for any Obligation shall exceed the Maximum Rate, thereby
causing the interest accruing on such Obligation to be limited to the Maximum
Rate, then any subsequent reduction in the Contract Rate for such Obligation
shall not reduce the rate of interest on such Obligation below the Maximum Rate
until the aggregate amount of
interest accrued on such Obligation equals the aggregate amount of interest
which would have accrued on such Obligation if the Contract Rate for such
Obligation had at all times been in effect.
(b) Notwithstanding anything to the contrary contained in this Agreement
or any other Loan Document, none of the terms and provisions of this Agreement
or any other Loan Documents shall ever be construed to create a contract or
obligation to pay interest at a rate in excess of the Maximum Rate; and neither
either Agent nor any Lender shall ever charge, receive, take, collect, reserve
or apply, as interest on the Obligations, any amount in excess of the Maximum
Rate. The parties hereto agree that any interest, charge, fee, expense or other
obligation provided for in this Agreement or in the other Loan Documents which
constitutes interest under applicable law shall be, ipso facto and under any and
all circumstances, limited or reduced to an amount equal to the lesser of (i)
the amount of such interest, charge, fee, expense or other obligation that would
be payable in the absence of this Section 11.10(b) or (ii) an amount which, when
added to all other interest payable under this Agreement and the other Loan
Documents, equals the Maximum Rate. If, notwithstanding the foregoing, either
Agent or any Lender ever contracts for, charges, receives, takes, collects,
reserves or applies as interest any amount in excess of the Maximum Rate, such
amount which would be deemed excessive interest shall be deemed a partial
payment or prepayment of principal of the Obligations and treated hereunder as
such; and if the Obligations, or applicable portions thereof, are paid in full,
any remaining excess shall promptly be paid to the Borrower or other appropriate
Loan Party or Petro. In determining whether the interest paid or payable, under
any specific contingency, exceeds the Maximum Rate, the Borrower, the Agents and
the Lenders shall, to the maximum extent permitted by applicable law, (A)
characterize any nonprincipal payment as an expense, fee or premium rather than
as interest, (B) exclude voluntary prepayments and the effects thereof, and (C)
amortize, prorate, allocate and spread in equal or unequal parts the total
amount of interest throughout the entire contemplated term of the Obligations,
or applicable portions thereof, so that the interest rate does not exceed the
Maximum Rate at any time during the term of the Obligations; provided that, if
the unpaid principal balance is paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, the Agents and/or the
Lenders, as appropriate, shall refund to the Borrower or other appropriate Loan
Party or Petro the amount of such excess and, in such event, the Agents and the
Lenders shall not be subject to any penalties provided by any laws for
contracting for, charging, receiving, taking, collecting, reserving or applying
interest in excess of the Maximum Rate.
11.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.12 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
11.13 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by either Agent or any
Lender or on their behalf and notwithstanding that either Agent or any Lender
may have had notice or knowledge of any Default at the time of any
Credit Extension, and shall continue in full force and effect as long as any
Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.
11.14 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Internal Revenue Code (a "Foreign
Lender") shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Internal Revenue Code (or upon
accepting an assignment of an interest herein), two duly signed completed
copies of either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from, or reduction to zero
of, withholding tax on all payments to be made to such Foreign Lender by
the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Foreign
Lender by the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that such Foreign
Lender is entitled to an exemption from, or reduction to zero of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the
Internal Revenue Code. Thereafter and from time to time, each such Foreign
Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect
of all payments to be made to such Foreign Lender by the Borrower pursuant
to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as
may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make
any deduction or withholding for taxes from amounts payable to such Foreign
Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act for
its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination
of the Administrative Agent (in the reasonable exercise of its discretion),
(A) two duly signed completed copies of the forms or statements required to
be provided by such Lender as set forth above, to establish the portion of
any such sums paid or payable with respect to which such Lender acts for
its own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit with such
form, and any other certificate or statement of exemption required under
the Internal Revenue
Code, to establish that such Lender is not acting for its own account with
respect to a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional amount
to any Foreign Lender under Section 3.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS
Form W-8IMY pursuant to this Section 11.15(a) or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 11.15(a);
provided that if such Lender shall have satisfied the requirement of this
Section 11.15(a) on the date such Lender became a Lender or ceased to act
for its own account with respect to any payment under any of the Loan
Documents, nothing in this Section 11.15(a) shall relieve the Borrower of
its obligation to pay any amounts pursuant to Section 3.01 in the event
that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence
at a subsequent date establishing the fact that such Lender or other Person
for the account of which such Lender receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.
(iv) Each Agent may, without reduction, withhold any Taxes required
to be deducted and withheld from any payment under any of the Loan
Documents with respect to which the Borrower is not required to pay
additional amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Internal
Revenue Code shall deliver to the Administrative Agent two duly signed completed
copies of IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the
Internal Revenue Code, without reduction.
(c) If any Governmental Authority asserts that either Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify such Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to such Agent under this
Section, and costs and expenses (including Attorney Costs) of such Agent. The
obligation of the Lenders under this Section shall survive the termination of
the Aggregate Revolving Commitments, repayment of all other Obligations
hereunder and the resignation of the Agents.
11.16 Replacement of Lenders. Under any circumstances set forth herein
providing that the Borrower shall have the right to replace a Lender as a party
to this Agreement, the Borrower may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitments and outstanding Loans (with the assignment fee to be paid by the
Borrower in such instance) pursuant to Section 11.07(b) to one or more other
Lenders or Eligible Assignees procured by the Borrower; provided, however, that
if the Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to replace all Lenders that
have made similar requests for compensation pursuant to Section 3.01 or 3.04.
Upon the making of any such assignment, the Borrower shall (a) pay in full all
principal, interest, fees and other amounts owing to such Lender through the
date of replacement (including any amounts payable pursuant to Section 3.05),
(b) provide appropriate assurances and indemnities (which may include letters of
credit) to the L/C Issuer as such Lender may reasonably require with respect to
any continuing obligation to fund participation interests in any L/C Obligations
then outstanding, and (c) release such Lender from its obligations under the
Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender's Commitment and outstanding Loans and
participations in L/C Obligations.
11.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE (INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 OF NEW YORK'S GENERAL OBLIGATIONS LAW REGARDING CHOICE OF LAW); PROVIDED
THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF SUCH STATE, OR IN THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS, TEXAS
OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT (DALLAS DIVISION) OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH PARTY HERETO WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
(c) For purposes of Section 11.17(a), the parties hereto acknowledge and
agree that the transactions contemplated by this Agreement bear a reasonable
relation to the State of New York for purposes of Section 35.51(d) of the Texas
Business and Commerce Code.
11.18 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.19 USA Patriot Act Notice. Each Lender and each Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.
11.20 Designation as Senior Debt. All Obligations shall be "Permitted Debt"
and "First Priority Lien Obligations" for purposes of and as defined in each of
the Senior Notes Indentures.
11.21 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
11.22 Lien Releases, etc. The Agents and the Lenders agree to cooperate
with the Borrower and its Subsidiaries in connection with any sale of Collateral
permitted by Section 8.05 by executing and delivering such instruments and
documents (including, without limitation, UCC amendments or partial releases of
financing statements) as may be necessary to release the Liens created by the
Collateral Documents as such Liens relate to such Collateral being sold and
permitted to be sold; provided, however, that neither the Agents nor the Lenders
shall be required to so cooperate or take any such action in connection with the
sale of Collateral as to which the Lien thereon is required to remain in effect.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER:
--------
PETRO STOPPING CENTERS, L.P.,
a Delaware limited partnership
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: C.E.O.
CREDIT AGREEMENT GUARANTORS:
---------------------------
PETRO STOPPING CENTERS HOLDINGS, L.P.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: C.E.O.
PETRO HOLDINGS FINANCIAL CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
PETRO DISTRIBUTING, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
PETRO FINANCIAL CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
AGENTS:
------
▇▇▇▇▇ FARGO BANK, N. A.,
as Administrative Agent and Collateral
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LENDERS:
-------
▇▇▇▇▇ FARGO BANK, N. A.,
as a Lender and L/C Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
ORIX FINANCIAL SERVICES, INC.,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President