Exhibit 10.1


 




 





Published
CUSIP Number:              


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


Dated
as of May 14, 2010


 


among


 


GLOBAL
OPERATING LLC,


GLOBAL
COMPANIES LLC,


GLOBAL
MONTELLO GROUP CORP.


GLEN
HES CORP.


CHELSEA
SANDWICH LLC


GLP
FINANCE CORP.


and


GLOBAL
ENERGY MARKETING LLC


as
the Borrowers,


 


BANK OF
AMERICA, N.A.,


as
Administrative Agent


and


L/C
Issuer,


 


JPMORGAN
CHASE BANK, N.A.


as
Syndication Agent


 


SOCIETE
GENERALE,


STANDARD
CHARTERED BANK,


WELLS
FARGO BANK, N.A., and


RBS
CITIZENS, NATIONAL ASSOCIATION


as
Co-Documentation Agents


 


and


 


The
Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC and JP MORGAN SECURITIES INC.,


as


Joint Lead Arrangers and Joint Book Managers


 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
  39

  
	
  1.03

  	
  Accounting Terms

  	
  39

  
	
  1.04

  	
  Rounding

  	
  40

  
	
  1.05

  	
  Times of Day

  	
  40

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  40

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitment For Loans

  	
  40

  
	
  2.02

  	
  Borrowings, Conversions
  and Continuations of Loans

  	
  41

  
	
  2.03

  	
  Letters of Credit

  	
  43

  
	
  2.04

  	
  Prepayments

  	
  53

  
	
  2.05

  	
  Termination or Reduction
  of Commitments

  	
  53

  
	
  2.06

  	
  Repayment of Loans

  	
  54

  
	
  2.07

  	
  Interest

  	
  54

  
	
  2.08

  	
  Fees

  	
  55

  
	
  2.09

  	
  Computation of Interest
  and Fees; Retroactive Adjustments of Applicable Rate

  	
  56

  
	
  2.10

  	
  Evidence of Debt

  	
  56

  
	
  2.11

  	
  Payments Generally;
  Administrative Agent’s Clawback

  	
  57

  
	
  2.12

  	
  Sharing of Payments by
  Lenders

  	
  59

  
	
  2.13

  	
  Increase in Commitments

  	
  60

  
	
  2.14

  	
  Cash Collateral

  	
  61

  
	
  2.15

  	
  Defaulting Lenders

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  64

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  64

  
	
  3.02

  	
  Illegality

  	
  68

  
	
  3.03

  	
  Inability to Determine
  Rates

  	
  68

  
	
  3.04

  	
  Increased Costs; Reserves
  on Eurodollar Rate Loans

  	
  69

  
	
  3.05

  	
  Compensation for Losses

  	
  70

  
	
  3.06

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
  71

  
	
  3.07

  	
  Survival

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  72

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Initial
  Credit Extension

  	
  72

  
	
  4.02

  	
  Conditions to all Credit
  Extensions

  	
  74

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  74

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence, Qualification
  and Power

  	
  75

  



 


i

















 


	
  5.02

  	
  Authorization; No
  Contravention

  	
  75

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  75

  
	
  5.04

  	
  Binding Effect

  	
  75

  
	
  5.05

  	
  Financial Statements; No
  Material Adverse Effect

  	
  75

  
	
  5.06

  	
  Litigation

  	
  76

  
	
  5.07

  	
  No Default

  	
  76

  
	
  5.08

  	
  Ownership of Property;
  Liens

  	
  76

  
	
  5.09

  	
  Environmental Compliance

  	
  77

  
	
  5.10

  	
  Insurance

  	
  77

  
	
  5.11

  	
  Taxes

  	
  77

  
	
  5.12

  	
  ERISA Compliance

  	
  77

  
	
  5.13

  	
  Subsidiaries; Equity
  Interests

  	
  78

  
	
  5.14

  	
  Margin Regulations;
  Investment Company Act

  	
  78

  
	
  5.15

  	
  Disclosure

  	
  79

  
	
  5.16

  	
  Compliance with Laws

  	
  80

  
	
  5.17

  	
  Taxpayer Identification
  Number

  	
  80

  
	
  5.18

  	
  Intellectual Property;
  Licenses, Etc.

  	
  80

  
	
  5.19

  	
  Absence of Financing
  Statements

  	
  80

  
	
  5.20

  	
  Perfection of Security Interests

  	
  80

  
	
  5.21

  	
  Certain Transactions

  	
  80

  
	
  5.22

  	
  Bank Accounts

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
  81

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
  81

  
	
  6.02

  	
  Certificates; Other
  Information

  	
  82

  
	
  6.03

  	
  Notices

  	
  84

  
	
  6.04

  	
  Payment of Obligations

  	
  85

  
	
  6.05

  	
  Preservation of Existence,
  Etc.

  	
  86

  
	
  6.06

  	
  Maintenance of Properties

  	
  86

  
	
  6.07

  	
  Maintenance of Insurance

  	
  86

  
	
  6.08

  	
  Compliance with Laws

  	
  86

  
	
  6.09

  	
  Books and Records

  	
  86

  
	
  6.10

  	
  Inspection Rights

  	
  87

  
	
  6.11

  	
  Use of Proceeds

  	
  87

  
	
  6.12

  	
  Bank Accounts

  	
  87

  
	
  6.13

  	
  Additional Borrowers

  	
  87

  
	
  6.14

  	
  Senior Debt Status

  	
  88

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
  88

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
  89

  
	
  7.02

  	
  Investments

  	
  90

  
	
  7.03

  	
  Indebtedness

  	
  91

  
	
  7.04

  	
  Fundamental Changes

  	
  92

  
	
  7.05

  	
  Dispositions

  	
  93

  
	
  7.06

  	
  Acquisitions

  	
  93

  



 


ii

















 


	
  7.07

  	
  Restricted Payments

  	
  94

  
	
  7.08

  	
  Change in Nature of
  Business

  	
  95

  
	
  7.09

  	
  Transactions with
  Affiliates

  	
  95

  
	
  7.10

  	
  Burdensome Agreements

  	
  95

  
	
  7.11

  	
  Use of Proceeds

  	
  95

  
	
  7.12

  	
  Compliance with
  Environmental Laws

  	
  96

  
	
  7.13

  	
  Prohibited Commodity
  Transactions

  	
  96

  
	
  7.14

  	
  Loans to Owners, Officers
  or Employees

  	
  96

  
	
  7.15

  	
  Prepayment of Indebtedness

  	
  96

  
	
  7.16

  	
  Bank Accounts

  	
  97

  
	
  7.17

  	
  Amendment to Thru Put

  	
  97

  
	
  7.18

  	
  Financial Covenants

  	
  97

  
	
  7.19

  	
  Capital Expenditures

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
  98

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
  98

  
	
  8.02

  	
  Remedies Upon Event of
  Default

  	
  100

  
	
  8.03

  	
  Application of Funds

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
  102

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and Authority

  	
  102

  
	
  9.02

  	
  Rights as a Lender

  	
  102

  
	
  9.03

  	
  Exculpatory Provisions

  	
  103

  
	
  9.04

  	
  Reliance by Administrative
  Agent

  	
  104

  
	
  9.05

  	
  Delegation of Duties

  	
  104

  
	
  9.06

  	
  Resignation of
  Administrative Agent

  	
  104

  
	
  9.07

  	
  Non-Reliance on
  Administrative Agent and Other Lenders

  	
  105

  
	
  9.08

  	
  No Other Duties, Etc.

  	
  105

  
	
  9.09

  	
  Administrative Agent
  May File Proofs of Claim

  	
  106

  
	
  9.10

  	
  Collateral and Guaranty
  Matters

  	
  106

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
  107

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc.

  	
  107

  
	
  10.02

  	
  Notices; Effectiveness;
  Electronic Communication

  	
  109

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies; Enforcement

  	
  112

  
	
  10.04

  	
  Expenses; Indemnity;
  Damage Waiver

  	
  112

  
	
  10.05

  	
  Payments Set Aside

  	
  114

  
	
  10.06

  	
  Successors and Assigns

  	
  115

  
	
  10.07

  	
  Treatment of Certain
  Information; Confidentiality

  	
  119

  
	
  10.08

  	
  Right of Setoff

  	
  120

  
	
  10.09

  	
  Interest Rate Limitation

  	
  121

  
	
  10.10

  	
  Counterparts; Integration;
  Effectiveness

  	
  121

  
	
  10.11

  	
  Survival of Representations
  and Warranties

  	
  121

  
	
  10.12

  	
  Severability

  	
  122

  
	
  10.13

  	
  Replacement of Lenders

  	
  122

  



 


iii

















 


	
  10.14

  	
  Governing Law;
  Jurisdiction; Etc.

  	
  123

  
	
  10.15

  	
  Waiver of Jury Trial

  	
  123

  
	
  10.16

  	
  No Advisory or Fiduciary
  Responsibility

  	
  124

  
	
  10.17

  	
  Electronic Execution of
  Assignments and Certain Other Documents

  	
  124

  
	
  10.18

  	
  USA PATRIOT Act

  	
  125

  
	
  10.19

  	
  Joint and Several
  Liability

  	
  125

  
	
  10.20

  	
  Transitional Arrangements

  	
  127

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
  S-1

  



 


iv

















 


SCHEDULES


 


	
  1A

  	
  Existing Letters of Credit

  	
   

  
	
  1B

  	
  Major Oil Company
  Receivables

  	
   

  
	
  2.01

  	
  Commitments and Applicable
  Percentages

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  
	
  5.09

  	
  Environmental Matters

  	
   

  
	
  5.12(d)

  	
  ERISA Matters

  	
   

  
	
  5.13

  	
  Subsidiaries; Other Equity
  Investments; Equity Interests in the
  Loan Parties

  	
   

  
	
  7.01

  	
  Existing Liens

  	
   

  
	
  7.02

  	
  Existing Investments

  	
   

  
	
  7.03

  	
  Existing Indebtedness

  	
   

  
	
  7.09

  	
  Transactions with
  Affiliates

  	
   

  
	
  10.02

  	
  Administrative Agent’s
  Office; Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Loan Notice

  	
   

  
	
  B

  	
  Borrowing Base Report

  	
   

  
	
  C

  	
  Product Under Contract LC
  Certificate

  	
   

  
	
  D

  	
  Note

  	
   

  
	
  E

  	
  Compliance Certificate

  	
   

  
	
  F-1

  	
  Assignment and Assumption

  	
   

  
	
  F-2

  	
  Administrative
  Questionnaire

  	
   

  
	
  G

  	
  Guaranty

  	
   

  
	
  H

  	
  Opinion
  Matters

  	
   

  



 


v
















 


AMENDED AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT
(this “Agreement”) is entered into as of May 14, 2010,  among GLOBAL OPERATING
LLC, a Delaware limited liability company (“OLLC”), GLOBAL COMPANIES LLC, a Delaware limited liability
company (“Global”), GLOBAL MONTELLO
GROUP CORP., a Delaware corporation (“Montello”),
GLEN HES CORP., a Delaware
corporation (“Glen Hes”), CHELSEA SANDWICH LLC, a Delaware limited
liability company (“Chelsea LLC”), GLP FINANCE CORP., a Delaware corporation (“Finance”) and GLOBAL
ENERGY MARKETING LLC, a Delaware limited liability company (“GEM”
and, collectively with OLLC, Global, Montello, Glen Hes, Finance and Chelsea,
the “Initial  Borrowers” and each individually, an “Initial
Borrower”), GLOBAL PARTNERS LP,
a Delaware limited partnership (the “MLP”), GLOBAL GP LLC, a Delaware limited liability company (the “GP”
and, collectively with the MLP, the “Guarantors” and each individually,
a “Guarantor”), each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”), BANK OF
AMERICA, N.A., as Administrative Agent and L/C Issuer, JPMORGAN CHASE BANK, N.A. as Syndication Agent and SOCIETE GENERALE, STANDARD CHARTERED BANK, WELLS FARGO BANK, N.A.
and RBS CITIZENS, NATIONAL ASSOCIATION as
Co-Documentation Agents.


 


WHEREAS, pursuant to a Credit
Agreement dated as of October 4, 2005 (as amended from time to time, the “Prior Credit Agreement”) by and among
certain of the Initial Borrowers, certain of the Lenders, the Administrative
Agent and the L/C Issuer, the Lenders party thereto made loans and other
extensions of credit available to certain of the Initial Borrowers for the
purposes set forth therein; and


 


WHEREAS, the Initial
Borrowers have requested to amend and restate the Prior Credit Agreement, and
the Lenders, the Administrative Agent, the L/C Issuer and the Syndication Agent
are willing to amend and restate the Prior Credit Agreement and to continue to
provide financing to the Borrowers (as hereinafter defined) on the terms and
conditions set forth herein;


 


NOW, THEREFORE, the Initial
Borrowers, the Lenders, the Administrative Agent, the L/C Issuer and the
Syndication Agent each agree that on and as of the Closing Date (as hereinafter
defined) the Prior Credit Agreement is hereby amended and restated in its
entirety, and shall remain in full force and effect only as expressly set forth
herein.


 


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:


 


1

















 


“Acceptable Issuer”
means either (a) a Lender or (b) a financial institution having, on
the basis of its latest financial statements, capital, surplus and undivided
profits of at least $1,500,000,000 and having an unenhanced senior unsecured
short-term debt rating of BBB or better by Fitch IBCA or S&P, or Baa2 by
Moody’s, and, in each of (a) and (b), which is acceptable to the
Administrative Agent in its sole discretion.


 


“Accounts Receivable”
means rights of the Borrowers to payment for goods sold, leased or otherwise
marketed in the ordinary course of business, and all rights of the Borrowers to
payment for services rendered in the ordinary course of business and all sums
of money or other proceeds due thereon pursuant to transactions with account
debtors, except for that portion of the sum of money or other proceeds due
thereon that relate to sales, use or property taxes in conjunction with such
transactions that have not otherwise been deducted as an Excise Tax Liability
for purposes of calculating the Borrowing Base, all as recorded on books of
account in accordance with generally accepted accounting principles.


 


“Acquisition Capital Expenditures”
means Capital Expenditures made in connection with the Warex Acquisition or any
Permitted Acquisition.


 


“Administrative Agent” means Bank of
America 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 10.02, or such other address or account as the Administrative
Agent may from time to time notify to the Borrowers and the Lenders.


 


“Administrative Questionnaire” means
an Administrative Questionnaire in substantially the form of Exhibit F-2
or any other form approved 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.


 


“Agency Accounts”
means, collectively, the wholesale lockbox account, the retail lockbox account
and the depository accounts maintained by the Loan Parties with the
Administrative Agent.


 


“Aggregate Commitments” means,
collectively, the Aggregate WC Commitment and the Aggregate Revolver
Commitment.


 


“Aggregate Revolver
Commitment” means the sum of the Revolver Commitments of the Lenders to
make Revolver Loans to the Borrowers.


 


“Aggregate WC Commitment”
means the sum of the WC Commitments of the Lenders to make WC Loans to the
Borrowers and to purchase participations in L/C Obligations, as in effect from
time to time.


 


2

















 


“Agreement” means this Credit
Agreement.


 


“Alliance” means
Alliance Energy LLC, a Massachusetts limited liability company.


 


“Applicable Loan Party”
means (a) from the Closing Date until such time as any Loan Party other
than a Borrower incurs Indebtedness in respect of the Senior Unsecured Notes or
the Subordinated Debt, the Borrowers; and (b) thereafter, all Loan
Parties.


 


“Applicable Percentage” means with
respect to any Lender at any time, the percentage (carried out to the ninth
decimal place) of the Aggregate WC Commitments or the Aggregate Revolver
Commitments, as the case may be, represented by such Lender’s WC Commitment or
Revolver Commitment, as the case may be, at such time, subject, in each case,
to adjustment as provided in Section 2.15.  If the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02 or if the Aggregate WC
Commitments or Aggregate Revolver Commitments, as the case may be, have
expired, then the Applicable Percentage of each Lender shall be determined
based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. 
The initial Applicable Percentage of each Lender for each of the WC
Loans and the Revolver Loans 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.


 


“Applicable Revolver Rate” means, in
respect of the Revolver Loans, (a) from the Closing Date to the date on
which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the fiscal
quarter ended March 31, 2010, the applicable percentage per annum set
forth below under Pricing Level 1, and (b) thereafter,
the applicable percentage per annum set forth below determined by reference to
the Combined Senior Secured Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):


 


	
  Pricing

  Level

  	
   

  	
  Combined

  Senior

  Secured

  Leverage

  Ratio

  	
   

  	
  Applicable

  Revolver

  Rate for

  Base Rate

  Loans (in

  basis

  points)

  	
   

  	
  Applicable

  Revolver Rate

  for Eurodollar

  Rate Loans

  and Cost of

  Funds Rate

  Loans (in

  basis points)

  	
   

  
	
  1

  	
   

  	
  Less than 1.50:1.00

  	
   

  	
  200

  	
   

  	
  300

  	
   

  
	
  2

  	
   

  	
  Greater than or equal to 1.50:1.00

  	
   

  	
  225

  	
   

  	
  325

  	
   

  



 


3

















 


Any increase or decrease
in the Applicable Revolver Rate resulting from a change in the Combined Senior
Secured Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant
to Section 6.02(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such Section,
then, upon the request of the Required Lenders, Pricing Level 2 shall apply in
respect of all the Revolver Loans as of the first Business Day after the date
on which such Compliance Certificate was required to have been delivered and in
each case shall remain in effect until the date on which such Compliance
Certificate is delivered.


 


Notwithstanding
anything to the contrary contained in this definition, the determination of the
Applicable Margin for any period shall be subject to the provisions of Section 2.09(b).


 


“Applicable WC Rate” means, in
respect of the WC Loans, the applicable
percentage per annum set forth below determined by reference to the Utilization
Amount for each Determination Period:


 


	
  Pricing

  Level

  	
   

  	
  Utilization

  Amount

  	
   

  	
  Applicable

  WC Rate

  for Base

  Rate Loans

  (in basis

  points)

  	
   

  	
  Applicable

  WC Rate for

  Eurodollar

  Rate Loans,

  Cost of

  Funds Rate

  Loans and

  Letters of

  Credit (in

  basis points)

  	
   

  
	
  1

  	
   

  	
  Greater than or equal to 75%

  	
   

  	
  200

  	
   

  	
  300

  	
   

  
	
  2

  	
   

  	
  Greater than or equal to 40% but less than 75%

  	
   

  	
  175

  	
   

  	
  275

  	
   

  
	
  3

  	
   

  	
  Less than 40%

  	
   

  	
  150

  	
   

  	
  250

  	
   

  



 


For the period from the
Closing Date until the first Determination Period to occur after the Closing
Date, the applicable percentage per annum set forth above under Pricing Level 2
will be applicable to all WC Loans.


 


“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.


 


4

















 


“Arrangers” means, collectively, Banc
of America  Securities LLC, in its capacity as
joint lead arranger and joint book manager and JP Morgan Securities Inc., in
its capacity as joint lead arranger and joint book manager.


 


“Assignee Group” means two or more
Eligible Assignees that are Affiliates of one another or two or more Approved
Funds managed by the same investment advisor.


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit F-1
or any other form approved by the Administrative Agent.


 


“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, and (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.


 


“Audited Financial Statements” means
the audited consolidated balance sheet of MLP and its Subsidiaries for the
fiscal year ended December 31, 2009, and the
related consolidated statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of MLP and its Subsidiaries, including the
notes thereto.


 


“Availability Period” means the period
from and including the Closing Date to the earliest of (a) the Maturity
Date, (b) the date of termination of the Aggregate Commitments pursuant to
Section 2.05, 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 8.02.


 


“Available Cash” has
the meaning set forth in the Partnership Agreement.


 


“Bank of America” means Bank of
America, N.A. and its successors.


 


“Base Rate”  means for any day a
fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate,”
and (c) the Eurodollar Rate plus 1.00%. 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’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 such prime rate announced by
Bank of America 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.


 


5

















 


“Borrowers” means, collectively, the
Initial Borrowers and any other Person who becomes a Borrower pursuant to Section 6.13 hereof.


 


“Borrower Materials” has the meaning
specified in Section 6.02.


 


“Borrowing” means a
borrowing consisting of simultaneous WC Loans or Revolver Loans, as the case
may be, of the same Type and, in the case of Eurodollar Rate Loans and Cost of
Funds Rate Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.1.


 


“Borrowing Base”
means, at the relevant time of reference thereto, an amount determined by the
Administrative Agent by reference to the most recent Borrowing Base Report
delivered to the Lenders and the Administrative Agent pursuant to Section 6.02(g), which is
equal to the sum of:


 


(a)                                  100% of
Eligible Cash and Cash Equivalents; plus


 


(b)                                 90% of Major
Oil Company Receivables; plus


 


(c)                                  85% of Eligible
Receivables not included in Major Oil Company Receivables; plus


 


(d)                                 85% of Eligible
Margin Deposits; plus


 


(e)                                  85% of Hedged
Eligible Inventory; plus


 


(f)                                    80% of Eligible
Petroleum Inventory; plus


 


(g)                                 80% of Eligible
Exchange Balances (which number can be either negative or positive); plus


 


(h)                                 100% of Paid
but Unexpired Letters of Credit; plus


 


(i)                                     80% of Eligible
Product Under Contract; plus


 


(j)                                     the sum of (i) 80%
of Positive Net Unrealized Forward Contract Positions up to $100,000,000, plus (ii) 70%
of Positive Net Unrealized Forward Contract Positions above $100,000,000 but
below $150,000,000, provided if the Positive Net Unrealized Forward
Contract Positions are above $100,000,000 and the aggregate Counterparty Risk
for any counterparty (including its Affiliates) thereunder exceeds $10,000,000,
then those Positive Net Unrealized Forward Contract Positions representing such
excess shall not be included hereunder (and, for the avoidance doubt, when
determining the amount of the excess to be excluded hereunder, only Positive
Net Unrealized Forward Contract Positions shall be excluded and not any other
item of the Borrowing Base which might be included in the calculation of
Counterparty Risk, including Eligible Accounts Receivable); minus


 


6

















 


(k)                                  100% of the
aggregate amount of Negative Net Unrealized Forward Contract Positions
(provided, for the avoidance of doubt, for purposes of this deduction,
notwithstanding that such amount is a negative number, such amounts shall be
expressed as a positive number and therefore be deducted from the Borrowing
Base); minus


 


(l)                                     100% of the
Swap Termination Value Amount, minus


 


(m)                               100% of the
aggregate amount of Excise Tax Liabilities


 


provided, however, that
notwithstanding anything to the contrary contained in this definition, to the
extent that the amount of any item set forth in (a) through (j) above
is a negative number, 100% of the amount of such item shall be deducted in the
calculation of the Borrowing Base rather than the amount multiplied by the
advance rate attributable to such item had such item been a positive number.


 


“Borrowing Base Report”
means a Borrowing Base Report, signed by any Responsible Officer and in
substantially the form of Exhibit B hereto.


 


“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 that is also a London Banking Day.


 


“Capital Assets”
means fixed assets, both tangible (such as land, buildings, fixtures, machinery
and equipment) and intangible (such as patents, copyrights, trademarks,
franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.


 


“Capital Expenditures”
means amounts paid or indebtedness incurred by any of the Loan Parties in
connection with (a) the purchase or lease by any of the Loan Parties of
Capital Assets that would customarily be required to be capitalized and shown
on the balance sheet of such Person in accordance with generally accepted accounting
principles; or (b) the lease of any assets by any Loan Party as lessee
under any Synthetic Lease to the extent that such assets would have been
Capital Assets had the Synthetic Lease been treated for accounting purposes as
a Capitalized Lease, provided, however, for purposes
of Section 7.19 hereof, any
purchase or lease by any Loan Party of any Capital Assets that would
customarily be required to be capitalized and shown on the balance sheet of
such Person in accordance with GAAP and which were acquired pursuant to a
Permitted Acquisition or was purchased with Indebtedness permitted by Section 7.03(f) shall not be
considered a “Capital Expenditure” thereunder.


 


“Capitalized Leases”
means leases under which any Loan Party is the lessee or obligor, the
discounted future rental payment obligations under which are customarily
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.


 


“Cash” means Dollar
denominated currency in immediately available funds.


 


7

















 


“Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
Administrative Agent or L/C Issuer (as applicable) and the Lenders, as
collateral for L/C Obligations, or obligations of Lenders to fund
participations in respect of either thereof (as the context may require), cash
or deposit account balances or, if the L/C Issuer benefitting from such
collateral shall agree in its sole discretion, other credit support, in each
case pursuant to documentation in form and substance satisfactory to (a) the
Administrative Agent and (b) the L/C Issuer.  “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.


 


“Cash Equivalents”
means, collectively, (a) repurchase agreements and short-term obligations
issued or guaranteed as to principal and interest by the United States of
America and having a maturity of not more than twelve (12) months from the date
of acquisition; (b) short-term certificates of deposit, issued by (i) any
Lender or (ii) any bank organized under the laws of the United States of
America or any state thereof and foreign subsidiaries of such bank, having a
rating of not less than A or its equivalent by S&P or any successor; and (c) commercial
paper or finance company paper of (i) any Lender or any holding company
controlling any Lender or (ii) any other Person that is rated not less
than prime-two or A2 or their equivalents by Moody’s or S&P or their
successors.


 


“Cash Management Agreement” means any
agreement to provide cash management services, including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements.


 


“Cash Management Bank” means any Person that, at the time it
enters into a Cash Management Agreement, is a Lender or an Affiliate of a
Lender, in its capacity as a party to such Cash Management Agreement.


 


“Change in Law” means the occurrence,
after the date of this Agreement, of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive (whether or not
having the force of law) by any Governmental Authority.


 


“Change of Control” means an event or
series of events by which:


 


(a)                                  any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) other than the Original Investors becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or
indirectly, of twenty percent (20%) or more of the 


 


8

















 


equity securities of the GP entitled to vote for members of the board
of directors or equivalent governing body of the GP on a fully-diluted basis
(and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right);


 


(b)                                 during any
period of twelve (12) consecutive months, a majority of the members of the
board of directors or other equivalent governing body of either the MLP or GP,
as the case may be, cease 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);


 


(c)                                  the passage of
thirty days from the date upon which any Person or two or more Persons acting
in concert, other than the Original Investors, shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, results in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management
or policies of MLP, or control over the equity securities of MLP entitled to
vote for members of the board of directors or equivalent governing body of MLP
on a fully-diluted basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option right)
representing twenty percent (20%) or more of the combined voting power of such
securities;


 


(d)                                 the GP ceases
to be the general partner of MLP, or both Eric Slifka and Thomas Hollister
cease to have a full-time senior management position with the GP;


 


(e)                                  MLP shall at
any time, legally or beneficially, own less than 100% of the capital stock of
the Borrowers; or


 


(f)                                    Alfred Slifka,
Richard Slifka and Eric Slifka (or other immediate family members of the
foregoing or related family trusts) shall at any time, legally or beneficially,
own less than 75% of the voting interests of GP as adjusted pursuant to any
stock split, stock dividend or recapitalization or reclassification of the
capital of GP.


 


9
















 


“Closing Date” means the first date
all the conditions precedent in Section 4.01 are satisfied or
waived in accordance with Section 10.01.


 


“Code” means the Internal Revenue Code
of 1986.


 


“Collateral” means
all of the property, rights and interests of the Loan Parties that are or are
intended to be subject to the liens and security interests created by the
Security Documents.


 


“Combined or combined”
means, with reference to any term defined herein, that term as applied to the
accounts of the applicable Loan Party to which it relates, combined or, if
prepared on a consolidated basis, consolidated, in accordance with GAAP.


 


“Combined Current Assets”
means all assets of the Applicable Loan Parties on a combined basis that are
properly classified as current assets in accordance with GAAP, valued on a FIFO
basis


 


“Combined Current
Liabilities” means all liabilities of the Applicable Loan Parties on a
combined basis, maturing on demand or within one (1) year from the date as
of which Combined Current Liabilities are to be determined, and such other
liabilities as may properly be classified as current liabilities in accordance
with GAAP.


 


“Combined EBITDA”
means for any period, for each
Applicable Loan Party and its Subsidiaries on a combined basis, an amount equal
to Combined Net Income for such period plus (a) the following to
the extent deducted in calculating such Combined Net Income: (i) Combined
Total Interest Expense for such period, (ii) the provision for Federal,
state, local and foreign income taxes payable by such Applicable Loan Party and
its Subsidiaries for such period, (iii) depreciation and amortization
expense and (iv) other non-recurring expenses of the Applicable Loan
Parties and their Subsidiaries reducing such Combined Net Income which do not
represent a cash item in such period or any future period and minus (b) the
following to the extent included in calculating such Combined Net Income: (i) Federal,
state, local and foreign income tax credits of the Applicable Loan Parties and
their Subsidiaries for such period, and (ii) all nonrecurring non-cash
items increasing Combined Net Income for such period.  For purposes of calculating Combined EBITDA
for purposes of calculating the Combined Leverage Ratio for any period in which
the Warex Acquisition or a Permitted Acquisition has occurred, Combined EBITDA
shall be adjusted in a manner which is satisfactory to the Administrative Agent
in all respects to give effect to the consummation of the Warex Acquisition or
such Permitted Acquisition, as the case may be, on a pro forma basis as if the
Warex Acquisition or such Permitted Acquisition, as the case may be, had
occurred on the first date of the test period.


 


“Combined Funded Debt”
means as of any date of determination, for the Applicable Loan Parties and
their Subsidiaries on a combined basis, the sum of, without duplication, (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder other than the outstanding
amount of the WC Loans and the L/C Obligations) and all obligations evidenced
by bonds, debentures, notes, loan agreements or other similar instruments, (b) all
purchase money Indebtedness, (c) all direct 


 


10

















 


obligations
arising under letters of credit (including standby and commercial but excluding
any L/C Obligations), bankers’ acceptances, bank guaranties, surety bonds (but
only to the extent the indemnity or other payment obligation thereunder has
actually arisen and is due and payable by the Applicable Loan Parties and/or
their Subsidiaries) 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) Attributable
Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other
than the Applicable Loan Parties or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which any Applicable Loan Party
or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to such Applicable Loan Party or
such Subsidiary.


 


“Combined Funded Senior
Secured Debt” means as of any date of determination, for the Applicable
Loan Parties and their Subsidiaries on a combined basis, (a) Combined
Funded Debt of any Applicable Loan Party secured by Liens on any assets of any
Applicable Loan Party at such time, including Combined Funded Debt under this
Agreement, plus (b) all Combined Funded Debt of any Subsidiary of
an Applicable Loan Party (other than a Subsidiary which is also an Applicable
Loan Party) at such time.  For the
avoidance of doubt, nothing in this definition shall be construed to permit any
Applicable Loan Party or any Subsidiary of any Applicable Loan Party to incur
or permit Liens other than those permitted by Section 7.01.


 


“Combined Interest
Coverage Ratio” means, as at any date of determination, the ratio of (a) Combined
EBITDA for the Reference Period most recently ended to (b) Combined Total
Interest Expense for such Reference Period.


 


“Combined Net Income”
means for any period, for the Applicable Loan Parties and their Subsidiaries on
a combined basis, the net income of the Applicable Loan Parties and their
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.


 


“Combined Senior Secured
Leverage Ratio” means, as at any date of determination, the ratio of (a) Combined
Funded Senior Secured Debt as of such date of determination to (b) Combined
EBITDA for the Reference Period most recently ended.


 


“Combined Total Interest
Expense” means, for any period, for the Applicable Loan Parties and their
Subsidiaries on a combined basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Applicable
Loan Parties and their 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, and (b) the portion of rent expense of the Applicable Loan
Parties and their Subsidiaries with respect to such period under Capitalized
Leases that is treated as interest in accordance with GAAP.  For
purposes of calculating Combined Total Interest Expense for purposes of
calculating the Combined Senior Secured Leverage Ratio and the Combined Total
Leverage Ratio for any period in which a Permitted Acquisition has 


 


11

















 


occurred, Combined Total Interest Expense shall be
adjusted in a manner which is satisfactory to the Administrative Agent in all
respects to give effect to the consummation of such Permitted Acquisition on a
pro forma basis as if such Permitted Acquisition had occurred on the first date
of the test period.


 


“Combined Total Leverage
Ratio” means, as at any date of determination, the ratio of (a) Combined
Funded Debt as of such date of determination to (b) Combined EBITDA for
the Reference Period most recently ended.


 


“Combined Working Capital”
means the excess of Combined Current Assets over Combined Current Liabilities, provided, however, for the purposes of this
definition, (a) all prepaid expenses of the Applicable Loan Parties in
excess of $10,000,000 shall not be considered a Combined Current Asset
hereunder regardless of how such prepaid expenses would otherwise be classified
in accordance with GAAP; (b) any asset of any Applicable Loan Party which
will be subsequently paid or otherwise distributed to such Applicable Loan
Party’s members as a Permitted Distribution shall not be considered a Combined
Current Asset hereunder regardless of how such asset would otherwise be
classified in accordance with GAAP; (c) any asset of any Applicable Loan
Party consisting of an intercompany receivable or other right to payment owing
from another Loan Party or an Affiliate (other than the Account Receivable
owing from Alliance which is included in the computation of Eligible Receivable)
shall not be considered a Combined Current Asset hereunder regardless of how
such asset would otherwise be classified in accordance with GAAP and (d) the
aggregate amount of all WC Loans outstanding hereunder and all Revolver Loans
outstanding hereunder used to fund working capital shall be deemed Combined
Current Liabilities, regardless of how such outstanding amounts would otherwise
be classified in accordance with GAAP.


 


“Commitment” means, as to each Lender,
its obligation to (a) make Loans to the Borrowers 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.


 


“Compliance Certificate” means a
certificate substantially in the form of Exhibit E.


 


“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” 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.


 


12

















 


“Cost of Funds Rate”
means, as of any relevant date of determination, the per annum rate of interest
which the Administrative Agent is required to pay, or is offering to pay, for
wholesale liabilities of like tenor, as the same may be adjusted for reserve
requirements or any other requirements or impositions as may be imposed by
federal, state or local governmental or regulatory authorities or agencies, all
as determined by the Administrative Agent.


 


“Cost of Funds Rate Loan”
means a Loan that bears interest based on
the Cost of Funds Rate.


 


“Counterparty Risk”
means, as it relates to any counterparty to any contract or agreement with any
Loan Party, the aggregate amount of credit risk (including, without limitation,
the aggregate amount such counterparty may owe a Loan Party in its capacity as
an account debtor or in its capacity as a counterparty under any Swap Contract)
owing to the Loan Parties from such counterparty (including all Affiliates
thereof).


 


“Credit Extension” means each of the
following: (a) a Borrowing and (b) an L/C Credit Extension.


 


“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 (a) when
used with respect to Obligations other than Letter of Credit Fees, an interest
rate equal to (i) the Base Rate plus (ii) the Applicable WC
Rate or Applicable Revolver Rate, as applicable, if any, applicable to Base
Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan or a Cost of Funds Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Revolver Rate and Applicable WC Rate, as applicable) otherwise
applicable to such Loan plus 2% per annum, and (b) when used with respect
to Letter of Credit Fees, a rate equal to the Applicable WC Rate plus 2% per
annum.


 


“Defaulting Lender” means, subject to Section 2.15(b),
any Lender that, as determined by the Administrative Agent, (a) has failed
to perform any of its funding obligations hereunder,  including in respect of its Loans or
participations in respect of Letters of Credit, within three Business Days of
the date required to be funded by it hereunder, (b) has notified the
Borrowers or the Administrative Agent that it does not intend to comply with
its funding obligations or has made a public statement to that effect with
respect to its funding obligations hereunder or under other agreements in which
it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent, to confirm in a manner satisfactory
to the Administrative Agent that it will comply with its funding obligations,
or (d) has, or has a 


 


13

















 


direct or indirect parent
company that has, (i) become the subject of a proceeding under any Debtor
Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or a custodian appointed for it,
or (iii) taken any action in furtherance of, or indicated its consent to,
approval of or acquiescence in any such proceeding or appointment; provided
that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority.


 


“Determination Period” means the
period of approximately three months comprised of the date on which the Administrative
Agent receives a Compliance Certificate pursuant to Section 6.02(b) hereof
for a fiscal quarter most recently ended from such date of delivery until the
date on which the Administrative Agent receives the subsequent Compliance
Certificate pursuant to Section 6.02(b) for the next fiscal quarter, with
the Utilization Amount for such period being determined by the Administrative
Agent on the day on which the Administrative Agent receives a Compliance
Certificate pursuant to Section 6.02(b) for the fiscal quarter most
recently ended based on the Utilization Amount for the fiscal quarter
represented in such Compliance Certificate.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property by any Person, 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.


 


“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” means any Person
that meets the requirements to be an assignee under Section 10.06(b)(iii),
and (v) (subject to such consents, if any, as may be required under
Section 10.06(b)(iii)).


 


“Eligible Cash and Cash
Equivalents” means Cash and Cash Equivalents of a Borrower which is subject
to a first priority perfected Lien in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Secured Parties.


 


“Eligible Exchange
Balances” means an amount equal to the aggregate amount of all Exchange
Balances after deducting therefrom each of (a) the value of all such
exchanges for which performance has not been made on the date that such
performance is due, (b) the amount of all discounts, allowances, rebates,
credits and adjustments to such exchanges, (c) the amount billed for or
representing retainage, if any, until all prerequisites to the immediate
payment of retainage have been satisfied, and (d) all such exchanges owing
by any Affiliate of any Borrower, provided that the Loan Parties shall
exclude from Eligible Exchange Balances any Exchange Balance with respect to
which:


 


14

















 


(i)                                     the customer or
trading partner has disputed liability, or made any claim with respect to such
Exchange Balance or with respect to any other Exchange Balance due from such
customer or trading partner to any Borrower other than for a minimal adjustment
in the ordinary course of business and in accordance with regular commercial
practice; or


 


(ii)                                  the customer or
trading partner has filed a petition or other application for relief under any
existing or future law in any jurisdiction relating to bankruptcy, insolvency,
reorganization, or relief of debtors, or any petition or other application for
relief under any existing or future law of any jurisdiction relating to
bankruptcy, insolvency, reorganization, or relief of debtors has been filed
against such customer or trading partner, or the customer or trading partner
has failed, suspended normal business operations, become insolvent, or made a
general assignment for the benefit of creditors or had or suffered a receiver
or a trustee to be appointed for all or a significant portion of its assets or
affairs.


 


“Eligible Inventory”
means, with respect to the Borrowers, at the relevant time of reference
thereto, all Petroleum Products owned by the Borrowers which are held for sale;
provided that Eligible Inventory shall not include any inventory (a) held
on consignment, or not otherwise owned by the Borrowers or of a type no longer
sold by such Borrowers, (b) which has been returned by a customer or is
damaged or subject to any legal encumbrance other than Permitted Liens, (c) which
has been shipped to a customer of the Borrowers regardless of whether such
shipment is on a consignment basis unless such inventory has been shipped to a
customer of the Borrowers for the sole purpose of storing such inventory at a
terminal owned by a customer so long as title to such inventory remains with
the Borrowers, (d) that is
obsolete, unusable or otherwise unavailable for sale, or (e) which
is not subject to a valid, first priority perfected lien and security interest
in favor of the Administrative Agent on behalf of the Lenders.


 


“Eligible Investments”
means the Borrowers’ investments in (a) repurchase agreements permitted by
§9.3(d) hereof; and (b) United States Treasury money market funds
rated AAA by S&P; provided that all
such investments shall be subject to a valid, first priority, perfected lien
and security interest in favor of the Administrative Agent on behalf of the
Lender, and the Borrowers, the Administrative Agent and the applicable account
bank or financial institution shall have executed a control agreement in form
and substance satisfactory to the Administrative Agent.


 


“Eligible Margin Deposits”
means the Borrowers’ net equity in the aggregate amount of all sums deposited
by the Borrowers with investment grade commodities brokers on nationally
recognized exchanges, after deducting therefrom the aggregate amount of all
claims, disputes, contras and offsets (contingent or otherwise) by such brokers
or any other Person against such sums; provided, however, that no
sums deposited into any account with any commodities broker shall be included
in Eligible Margin Deposits unless and until such broker and the applicable
Borrower has executed and delivered to the Administrative Agent a hedging
account 


 


15

















 


assignment
with respect to such account, in form and substance satisfactory to the
Administrative Agent.


 


“Eligible Petroleum
Inventory” means Eligible Inventory not otherwise included in Hedged
Eligible Inventory, valued on a Marked-to-Market Basis.


 


“Eligible Product Under
Contract” means the purchase price of petroleum product contracted for
purchase by a Borrower, which product has not yet been delivered to such
Borrower, and as to which product the Borrowers’ obligation to pay the purchase
price is supported by standby Letters of Credit.


 


“Eligible Receivables”
means, at any time, the aggregate amount of the unpaid portions of all Accounts
Receivable carried on the books of the Borrowers arising in the ordinary course
of business, net of any and all credits, rebates, holdbacks, offsets,
counterclaims, contras or other adjustments or commissions payable to third
parties that are adjustments to such Accounts Receivable (provided, for the
avoidance of doubt, a contra does not include a Negative Net Unrealized Forward
Contract Position for purposes hereof) and net of amounts which would be
subject to a right of setoff or similar claim to the extent a setoff waiver
does not exist or is not enforced as to such Account Receivable, and which
Accounts Receivable:


 


(a)                                  are originally
due within thirty (30) days of the date on which such Account Receivable
arises, and are not more than sixty (60) days past due, or, with respect to
Accounts Receivable from a federal, state, or local governmental entity or
public utility, are originally due within sixty (60) days and are not more than
thirty (30) days past due;


 


(b)                                 in the case of
Accounts Receivable which are trade receivables, that are supported by letters
of credit issued or confirmed by Acceptable Issuers, which letters of credit
authorize the Borrowers to draw time drafts under such letters of credit for
the amount of the related trade receivables, for periods not to exceed one
hundred and eighty (180) days from the respective invoice dates of the
underlying trade receivables;


 


(c)                                  constitute the
valid, binding and legally enforceable obligation of the obligor thereon, and
are not subordinate to any other claim against such obligor;


 


(d)                                 are owned by
the Borrowers free and clear of all liens, security interests or encumbrances
whatsoever, other than those in favor of the Administrative Agent, on behalf of
the Lenders and are subject to a valid, first priority, perfected lien and
security interest in favor of the Administrative Agent, on behalf of the
Administrative Agent and the Lenders;


 


(e)                                  are not the
subject of a return, rejection, loss of or damage to the goods or petroleum
product, the sale of which gave rise to the account receivable, or any request
for credit, rebate, offset, counterclaim, holdback or adjustment, any
commission payable to third parties or any other dispute with the obligor on
such Accounts Receivable;


 


(f)                                    if the Obligor
on any such Account Receivable is an Affiliate, such Affiliate is Alliance and
such Account Receivable was generated in the ordinary course of business, in a 


 


16

















 


fair
and reasonable transaction no less favorable to the Borrowers than would be a
similar transaction conducted at arm’s-length with an obligor which was not an
Affiliate and, the aggregate amount of all Accounts Receivable owing from
Alliance shall not exceed $10,000,000 in the aggregate at any time;


 


(g)                                 are not
Accounts Receivable from an obligor which is insolvent or which has filed a
petition for relief under any existing or future law in any jurisdiction
relating to bankruptcy, insolvency, reorganization or relief of debtors, made a
general assignment for the benefit of creditors, had filed against it any
petition or other application for relief under any existing or future law in
any jurisdiction relating to bankruptcy, insolvency, reorganization or relief
of debtors, failed, suspended business operations, become insolvent, called a
meeting of its creditors for the purpose of obtaining any financial concession
or accommodation, or had or suffered a receiver or a trustee to be appointed
for all or a significant portion of its assets or affairs, provided, however, the Borrowers shall be
permitted to include such Accounts Receivable from such obligors if (1) the
Borrowers and the Administrative Agent reasonably determine such obligor is
creditworthy; and (2) the applicable Borrower has been granted a
superpriority lien over the assets of such obligor pursuant to an order issued
by the bankruptcy court having jurisdiction over such obligor;


 


(h)                                 have been
invoiced and are currently due and payable or relate to Inventory which has
been sold and will be invoiced within five (5) Business Days other than
Inventory sold to any of International Paper Company or another Investment
Grade Applicable Entity, which will be invoiced within 30 days; and


 


(i)                                     are denominated
in Dollars and payable in the United States.


 


For the purpose of this
definition, (i) to the extent that Eligible Receivables owing by any
obligor and its Affiliates, other than Exxon Mobil Corp. (“Exxon”)
exceed fifteen percent (15%) of the aggregate amount of all Eligible
Receivables, or, in the case of Exxon, exceeds twenty percent (20%) of the
aggregate amount of all Eligible Receivables, such excess shall not be included
in the calculation of Eligible Receivables without the prior written consent of
the Required Lenders, or as otherwise provided in the definition of Major Oil
Company Receivables, and (ii) to the extent that the Borrowers,
individually or in the aggregate, are at any time directly or contingently
indebted for any reason to any obligor, the Accounts Receivable owing to the
Borrowers by such obligor shall be deemed to be subject to an offset,
counterclaim or contra in the amount of such indebtedness; provided, however,
to the extent that any indebtedness of the Borrowers to any obligor is secured
by a Letter of Credit, the portion of the indebtedness so secured (not to
exceed the amount available for drawing under the Letter of Credit) shall not
be deemed to be an offset, counterclaim or contra with respect to the accounts
receivable of such obligor owing to the Borrowers.


 


“Environmental Laws” means any and all
Federal, state, local, and foreign 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 


 


17

















 


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 any Loan Party or its 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 Interests” means, with respect
to any Person, all of the shares of capital stock of (or other ownership or
profit interests in) such Person, all of the warrants, options or other rights
for the purchase or acquisition from such Person of shares of capital stock of
(or other ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options
for the purchase or acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in such Person
(including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination and, for the avoidance
of doubt, with respect to MLP, shall include, without limitation, all Units,
General Partner Units and Incentive Distribution Rights (as each such term is
defined in the Partnership Agreement).


 


“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 any Loan Party
within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) the withdrawal of any
Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which such entity 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 any Loan Party 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 Pension Plan amendment as a termination under Section 4041
or 4041A of ERISA; (e) the institution by the PBGC of proceedings to
terminate a Pension Plan; (f) any 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; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in
endangered or critical status within the meaning of Sections 430, 431 and 432
of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition
of any liability 


 


18

















 


under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Loan Party or any ERISA Affiliate.


 


“Eurodollar Rate” means:


 


(a)                                  for any
Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or such other commercially available source providing
quotations of BBA LIBOR as may be designated by the Administrative Agent from
time to time) at approximately 11:00 a.m., London time, two London Banking
Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period or, (ii) if such rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent
to be the rate 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 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 11:00 a.m. (London time) two London Banking Days
prior to the commencement of such Interest Period; and


 


(b)                                 for any
interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London
time determined two London Banking Days prior to such date for Dollar deposits
being delivered in the London interbank market for a term of one month
commencing that day or (ii) if such published rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent
to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan
being made or maintained and with a term equal to one month would be offered by
Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.


 


“Eurodollar Rate Loan” means a Loan
that bears interest at a rate based on clause (a) of the definition of “Eurodollar
Rate.”


 


“Event of Default” has the meaning
specified in Section 8.01.


 


“Excise Tax Liabilities”
means all liabilities of the Borrowers in respect of excise taxes imposed on
any Petroleum Product which, as of the relevant date of determination, remain
unpaid.


 


“Exchange Balances”
means an amount equal to the difference between (a) sum of the values of
any and all rights to receive Petroleum Products, to receive payment of money
or to receive other value that any Borrower generates, acquires, possesses or
owns whenever such Borrower trades, lends, borrows or exchanges Petroleum
Products in the ordinary course of business and (b) the sum of the values
of any and all obligations of the Borrowers to deliver 


 


19

















 


Petroleum
Products and to make payments of money not secured by outstanding Letters of
Credit, the value thereof in each case being determined in accordance with the
price or prices set forth in the exchange agreements entered into by such
Borrower with each petroleum supplier or, if no such price is set forth, in
accordance with the then current market value for such petroleum products
determined on a Marked-to-Market Basis, provided, that in calculating
the Exchange Balances, such amounts shall be calculated on a counterparty by
counterparty basis (including Affiliates of any counterparty) and not by
netting amounts among different counterparties; and, provided, further, if the other party to any
such exchange agreement is a Borrower or an Affiliate of a Borrower, such
exchange agreement is a fair and reasonable transaction, no less favorable to
the Borrowers than would be a similar exchange agreement transacted at arm’s-length
with a contract party which was not a Borrower or an Affiliate.  If the amount set forth in clause (a) above
exceeds the amount set forth in clause (b) above, Exchange Balances shall
be expressed as a positive number, and if the amount set forth in clause (b) above
exceeds the amount set forth in clause (a) above, Exchange Balances shall
be expressed as a negative number.


 


“Excluded Taxes” means, with respect
to the Administrative Agent, any Lender, the L/C Issuer or any other recipient
of any payment to be made by or on account of any obligation of the Borrowers
hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), 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 recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable Lending Office
is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrowers are
located, (c) any backup withholding tax that is required by the Code to be
withheld from amounts payable to a Lender that has failed to comply with clause
(A) of Section 3.01(e)(ii), and (d) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrowers
under Section 10.13), any United States  withholding
tax that (i) is required to be imposed on amounts payable to such Foreign
Lender pursuant to the Laws in force at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or (ii) is attributable
to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrowers with respect to such
withholding tax pursuant to Section 3.01(a)(ii) or (c).


 


“Existing Letters of Credit” means
those Letters of Credit identified on Schedule 1A hereto.


 


“FASB ASC” means the Accounting
Standards Codification of the Financial Accounting Standards Board.


 


“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 


 


20

















 


Reserve Bank of New York 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 Bank of America on such day on such
transactions as determined by the Administrative Agent.


 


“Fee Letter” means the letter
agreement, dated on or prior to the date hereof, among the Borrower, the
Administrative Agent and certain of the Arrangers.


 


“FIFO” means the
first-in, first-out method of accounting.


 


“Foreign Lender” means any Lender that
is organized under the Laws of a jurisdiction other than that in which the
Borrowers are resident for tax purposes (including such a Lender when acting in
the capacity of the L/C Issuer).  For
purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.


 


“FRB” means the Board of Governors of
the Federal Reserve System of the United States.


 


“Fronting Exposure” means, at any time
there is a Defaulting Lender, with respect to the L/C Issuer, such Defaulting
Lender’s Applicable Percentage of the outstanding L/C Obligations other than
L/C Obligations as to which such Defaulting Lender’s participation obligation
has been reallocated to other Lenders or Cash Collateralized in accordance with
the terms hereof.


 


“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 activities.


 


“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 or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently
applied.


 


“Governmental Authority” means the
government of the United States or any other nation, or of any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central Bank).


 


“Guarantee” means, as to any Person, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other 


 


21

















 


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 (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien).  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.


 


“Guarantors” has the meaning specified
in the introductory paragraph hereto.


 


“Guaranty” means the Guaranty made by
the Guarantors in favor of the Administrative Agent and the Lenders,
substantially in the form of Exhibit G.


 


“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.


 


“Hedge Bank” means any Person that, at the time it
enters into a Swap Contract permitted under Article VI or VII,
is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Swap Contract.


 


“Hedged
Eligible Inventory” means the future fixed sales price (equal to
the Marked-to-Market Basis determined pursuant to clause (a) of that
definition), net of storage and transportation costs, of Eligible Inventory
which has been (a) hedged on the IntercontinentalExchange, the Chicago
Mercantile Exchange or on the New York Mercantile Exchange or (b) covered
by swap contracts with investment grade companies.


 


“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:


 


22
















 


(a)           all obligations
of such Person for borrowed money and all obligations of such Person evidenced
by bonds, debentures, notes, loan agreements or other similar instruments;


 


(b)           all direct or
contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)           net obligations
of such Person under any Swap Contract;


 


(d)           all obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than
sixty (60) days after the date on which such trade account payable was created);


 


(e)           indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


 


(f)            capital leases
and Synthetic Lease Obligations;


 


(g)           all obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; and


 


(h)           all Guarantees
of such Person in respect of any of the foregoing.


 


For all purposes hereof, the Indebtedness of any
Person shall include the Indebtedness 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 a joint venturer, unless
such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.  The amount of
any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such
date.


 


“Indemnified Taxes” means Taxes other
than Excluded Taxes.


 


“Indemnitees” has the meaning
specified in Section 10.04(b).


 


“Information” has the meaning
specified in Section 10.07.


 


“Initial Borrowers” has the meaning
specified in the introductory paragraph hereto.


 


23

















 


“Intangible Assets” means assets that
are considered to be intangible assets under GAAP, including customer lists,
goodwill, computer software, copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges, unamortized debt discount
and capitalized research and development costs.


 


“Interest Payment Date” means, (a) as
to any Loan other than a Base Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; 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 calendar month and the Maturity
Date.


 


“Interest Period” means (a) 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 7 days, one, two, three or six months thereafter, as
selected by the Borrowers in their Loan Notice; and (b) as to each Cost of
Funds Rate Loan, the period commencing on the date such Cost of Funds Rate Loan
is disbursed or converted to or continued as a Cost of Funds Rate Loan and
ending on the date 7 days thereafter; provided that:


 


(i)            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, in the case of a
Eurodollar Rate Loan, such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business Day;


 


(ii)           any Interest
Period pertaining to a Eurodollar Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the calendar month at the end of such Interest Period; and


 


(iii)          no Interest
Period shall extend beyond the Maturity Date.


 


“Inventory” means any
“inventory” as that term is defined in §9-102(a)(48) of the Uniform Commercial
Code as in effect from time to time in the State of New York, as well as all
inventory which is held for sale or which consists of raw materials or work in
process.


 


“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 or other
securities 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 and any
arrangement pursuant to which the investor Guarantees Indebtedness of such
other Person, or (c) the purchase or other acquisition (in one transaction
or a series of transactions) of assets of another Person that constitute a
business unit.  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.


 


24

















 


“Investment Grade Applicable Entity”
means any Person that has an investment grade rating by each of Moody’s or
S&P and which is approved in writing by the Administrative Agent as an
Investment Grade Applicable Entity.


 


“IP Rights” has the meaning specified
in Section 5.18.


 


“IRS” means the United States Internal
Revenue Service.


 


“ISP” means, with respect to any
Letter of Credit, the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).


 


“Issuer Documents” means with respect
to any Letter of Credit, the Letter of Credit Application, and any other
document, agreement and instrument entered into by the L/C Issuer and the
Borrowers (or any Subsidiary) or in favor of the L/C Issuer and relating to
such Letter of Credit.


 


“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 Applicable Percentage.


 


“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.


 


“L/C Credit Extension” means, with
respect to any Letter of Credit, the issuance thereof or extension of the
expiry date thereof, or the increase of the amount thereof.


 


“L/C Issuer” means Bank of America in
its capacity as issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder or, to the extent consented to in writing by the
Administrative Agent in its sole and absolute discretion (and subject to
whatever limitations as may be imposed by the Administrative Agent at the time
any consent is given), any additional Person which is also a Lender hereunder.


 


“L/C Obligations” means, as at any
date of determination, the aggregate amount available to be drawn under all
outstanding Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. 
For purposes of computing the amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. 
For all purposes of this Agreement, if on 


 


25

















 


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 ISP, such Letter
of Credit shall be deemed to be “outstanding” in the amount so remaining available
to be drawn.


 


“Lender” has the meaning specified in
the introductory paragraph hereto.


 


“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 and shall include the Existing Letters of Credit and
the Product Under Contract LCs.  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 fourteen days prior to the Maturity Date then in effect
(or, if such day is not a Business Day, the next preceding Business Day).


 


“Letter of Credit Fee” has the meaning
specified in Section 2.03(h).


 


“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 in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, 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 Borrowers under Article II in the form of a WC Loan
or a Revolver Loan.


 


“Loan Documents” means this Agreement,
each Note, each Issuer Document, any agreement creating or perfecting rights in
Cash Collateral pursuant to the provisions of Section 2.14 of this
Agreement, the Fee Letter,  and the
Security Documents.


 


“Loan Notice” means a notice of (a) a  Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate  Loans or Cost of Funds Rate Loans, as the
case may be, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit A.


 


“Loan Parties” means, collectively,
the Borrowers and each Guarantor.


 


“Lock Box Accounts”
has the meaning set forth in Section  6.12.


 


26

















 


“London Banking Day” means any day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.


 


“Major Oil Company
Receivables” means, at any time, any of the following types of Eligible
Receivables:


 


(a)           an Eligible Receivable
carried on the books of any Borrower as to which the obligor thereon is (i) either
a Person considered by the Required Lenders in their sole discretion, to be a “major
oil company” at such time or a Person listed on Schedule 1B
hereto, as such schedule may be amended from time to time by the Required
Lenders, in their sole discretion, upon written notice from the Administrative
Agent to the Borrowers; provided, that with respect to any obligor
listed on Schedule 1B hereto, as amended, the aggregate
amount of all Eligible Receivables deemed to be Major Oil Company Receivables
hereunder shall not exceed that amount set forth opposite such obligor’s name
on Schedule 1B hereto, as amended, and provided, further, that no
accounts receivable owing by such obligor in excess of such amount shall be
included in the Borrowing Base as either a Major Oil Company Receivable under
clause (b) of the definition of Borrowing Base or an Eligible Receivable
under clause (c) of the definition of Borrowing Base; and (ii) such
Person’s unenhanced senior unsecured long-term debt is rated investment grade
by either S&P or Moody’s; or


 


(b)           any Eligible Receivable
carried on the books of any Borrower as to which the obligor thereon is a
brokerage or trading firm (i) whose unenhanced senior unsecured short-term
debt is rated investment grade by either S&P or Moody’s or (ii) whose
Eligible Receivable is guaranteed by an entity whose debt is so rated; or


 


(c)           any Eligible Receivable as
to which an Acceptable Issuer has issued an irrevocable documentary or stand-by
letter of credit in the amount of such Eligible Receivable for the benefit of
the Borrower on whose books such Eligible Receivable is carried and on which
such Borrower may draw in the event of a default by such obligor with respect
to such Eligible Receivable, provided, that the Administrative Agent or
any Lender is the Advising Bank (as such term is defined in §5-103(1)(e) of
the Uniform Commercial Code of the State of New York) for such letter of
credit.


 


“Marked-to-Market Basis”
means, at the relevant time of reference thereto, (a) as to the Borrowers’
inventory of petroleum products with respect to which the Borrowers have
existing firm contracts to sell such inventory, the value of such inventory on
a Marked-to-Market Basis shall be the specified price to be paid for such
inventory under such contracts and (b) as to other inventory, the value of
such inventory on a Marked-to-Market Basis shall be the Argus (mid-point) (or
if the Argus publication is not available, another comparable published market
pricing schedule) value for the relevant type of petroleum products at the
storage location where such inventory is held.


 


“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 Loan Parties taken as a whole or the Loan
Parties and their 


 


27

















 


Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Loan Party to
perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.


 


“Maturity Date” means May 14,
2014; provided, however,
that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.


 


“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.


 


“Mortgaged Property”
means any Real Estate which is subject to any Mortgage.


 


“Mortgages” means,
collectively, the several mortgages and/or deeds of trust, dated or to be dated
on or prior to the Closing Date from the applicable Borrower to the
Administrative Agent with respect to the fee interests of the applicable
Borrower in the Real Estate and in form and substance satisfactory to the
Lenders and the Administrative Agent.


 


“Multiemployer Plan” means any
employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which any Loan Party 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.


 


“Multiple Employer Plan” means a Plan
which has two or more contributing sponsors (including any Loan Party or any
ERISA Affiliate) at least two of whom are not under common control, as such a
plan is described in Section 4064 of ERISA.


 


“Natural Gas Transactions”
means those certain transactions entered into by a Loan Party in the ordinary
course of business with one or more natural gas utilities (each, a “Subject Utility”
and collectively, the “Subject Utilities”) pursuant to which
(a) the applicable Loan Party will sell to a Subject Utility, (b) the
applicable Subject Utility will purchase from such Loan Party, certain accounts
receivable owing to such Loan Party from natural gas customers (such
receivables are hereinafter referred to as the “Subject Natural Gas Receivables”)
and, in connection therewith, the applicable Subject Utility
will be responsible for all billing and collection duties and credit and other
risks associated with such Subject Receivables; (c) in connection with the
sale, the applicable Loan Party may grant a security interest to the applicable
Subject Utility in the Subject Natural Gas Receivables (but no other asset of
such Loan Party) and the Subject Utility is expected to perfect its security
interest in such Subject Natural Gas Receivables, and the Administrative Agent
may be required to subordinate any Lien the Administrative Agent has (including
the security interest granted pursuant to the Security Agreement) in such
Subject Natural Gas Receivables.


 


“Negative Net Unrealized
Forward Contract Positions” means the amount by which the Net Unrealized
Forward Contract Position is less than $0.


 


“Net Unrealized Forward
Contract Positions” means as of any date of determination, the aggregate
amount calculated by subtracting (a) the Unrealized Losses on Forward
Contract 


 


28

















 


Positions
on such date, from (b) the Unrealized Profits on Forward Contract
Positions on such date.


 


“Note” means a promissory note made by
the Borrowers in favor of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibit D.


 


“Obligations” means all advances to,
and debts, liabilities, obligations, covenants and duties of, any Loan Party
arising under any Loan Document or otherwise with respect to any Loan, Letter
of Credit, Secured Cash Management Agreements or Secured Hedge Agreement,
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party 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.


 


“Off-Balance Sheet
Liabilities” means, with respect to any Person as of any date of
determination thereof, without duplication and to the extent not included as a
liability on the combined or the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase
facility) (i) the unrecovered investment of purchasers or transferees of
assets so transferred and (ii) any other payment, recourse, repurchase,
hold harmless, indemnity or similar obligation of such Person or any of its
Subsidiaries in respect of assets transferred or payments made in respect
thereof, other than limited recourse provisions that are customary for
transactions of such type and that neither (x) have the effect of limiting
the loss or credit risk of such purchasers or transferees with respect to
payment or performance by the obligors of the assets so transferred nor (y) impair
the characterization of the transaction as a true sale under applicable Laws
(including Debtor Relief Laws); (b) the monetary obligations under any
financing lease or so-called “synthetic,” tax retention or off-balance sheet
lease transaction which, upon the application of any Debtor Relief Law to such
Person or any of its Subsidiaries, would be characterized as indebtedness; (c) the
monetary obligations under any sale and leaseback transaction which does not
create a liability on the combined or consolidated balance sheet of such Person
and its Subsidiaries; or (d) any other monetary obligation arising with
respect to any other transaction which (i) is characterized as
indebtedness for tax purposes but not for accounting purposes in accordance
with GAAP or (ii) is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person and its Subsidiaries (for purposes of this clause (d), any
transaction structured to provide tax deductibility as interest expense of any
dividend, coupon or other periodic payment will be deemed to be the functional
equivalent of a borrowing).


 


“Open Position” means
at the relevant time of reference thereto and with respect to each type of
Petroleum Products held by or to be delivered to the Borrowers and sold by the
Borrowers in the same market, the amount by which (a)(i) the aggregate
number of barrels or therms, as applicable, of Purchased Product exceeds (ii) the
aggregate number of barrels or therms, as applicable, of Product under Contract
for Sale or (b) the amount by which the number of barrels or therms, as
applicable, of Product under Contract for Sale exceeds the 


 


29

















 


number
of barrels or therms, as applicable, of Purchased Product.  For purposes of this definition, the
following rules shall apply:


 


(x)            The Borrowers shall
determine whether the locations at which Purchased Product is to be delivered
to a Borrower and Product Under Contract for Sale is to be sold by such
Borrower constitute the same market; provided that each such
determination shall be commercially reasonable and consistent with industry
practice in computing so-called “long” or “short” trading positions with
respect to petroleum product; and


 


(y)           Product Under Contract for
Sale may only be deducted from Purchased Product if the date of sale by the
Borrowers of such Product under Contract for Sale is within 180 days following
the delivery date to the Borrowers of such Purchased Product.  With respect to each type of petroleum
product and each market, the number of barrels or therms, as applicable, of
Product under Contract for Sale which the Borrowers may not deduct from the
number of barrels or therms, as applicable, of Purchased Product pursuant to
this clause (y) shall be considered to be a separate Open Position for
purposes of calculating the Borrowers’ Open Position in Section  7.13
hereof.


 


“Operating Account”
means the operating account of the Loan Parties located with the Administrative
Agent in which the Loan Parties have granted a first priority perfected
security interest to the Administrative Agent for the benefit of the Administrative
Agent and the Secured Parties.


 


“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; 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.


 


“Original Investors”
means Global Petroleum Corp., a Massachusetts corporation, Larea Holdings LLC,
a Delaware limited liability company, Larea Holdings II LLC, a Delaware limited
liability company, Chelsea Terminal Limited Partnership, a Massachusetts
limited partnership, Sandwich Terminal, L.L.C., a Massachusetts limited
liability company, Montello Oil Corporation, a New Jersey corporation, Richard
Slifka, Alfred Slifka, Eric Slifka and related Slifka family controlled trusts.


 


“Other Taxes” means all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.


 


30

















 


“Outstanding Amount” means (i) 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
Loans occurring on such date; and (ii) 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 by the Borrowers of Unreimbursed Amounts.


 


“Paid But Unexpired
Letters of Credit” means the amounts available for drawing under Letters of
Credit issued to support obligations of the Borrowers if (a) such
obligations, whether arising from the transactions contemplated by such Letters
of Credit, or otherwise, have been fully paid and extinguished by the Borrowers
and there are no existing claims or disputes between the Borrowers and the
beneficiaries of such Letters of Credit which could give rise to additional liability
thereunder and (b) such Letters of Credit are issued for standby purposes
only, but only to the extent that the amounts available for drawing thereunder
do not then support any underlying obligations and (c) such Letters of
Credit have not expired, been returned or otherwise presented to the Agent for
cancellation or been canceled.


 


“Participant” has the meaning
specified in Section 10.06(d).


 


“Partnership Agreement”
means that certain Third Amended and Restated Agreement of Limited Partnership
of Global Partners LP dated December 9, 2009, as the same may be amended,
restated, modified and/or supplemented from time to time.


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


“Pension Act” means the Pension
Protection Act of 2006.


 


“Pension Funding Rules” means the rules of
the Code and ERISA regarding minimum required contributions (including any
installment payment thereof) to Pension Plans and set forth in, with respect to
plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the
Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the
Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension Plan” means any employee
pension benefit plan (including a Multiple Employer Plan or a Multiemployer
Plan) that is maintained or is contributed to by any Loan Party and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the
minimum funding standards under Section 412 of the Code.


 


“Perfection Certificates”
means the Perfection Certificates as defined in the Security Agreements.


 


“Permitted Acquisition”
has the meaning set forth in Section 7.06(c).


 


31
















 


“Permitted Distributions”
means, so long as no Default or Event of Default has occurred and is continuing
or would exist as a result thereof, payments by the MLP to its Unitholders (as
such term is defined in the Partnership Agreement) and holders of the General
Partner Units (as such term is defined in the Partnership Agreement) and
Incentive Distribution Rights (as such term is defined in the Partnership
Agreement) of cash distributions (which, for purposes hereof, shall include
cash payments made by the MLP to repurchase any of its Equity Interests from a
holder thereof) in an aggregate amount not to exceed Available Cash.


 


“Permitted Liens”
means those Liens permitted by Section 7.01.


 


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


 


“Petroleum Product”
means petroleum, refined petroleum products, propane, butane, natural gas and
other energy-related commodities, including, without limitation, blend
components commonly used in the petroleum industry to improve characteristics
of, or meet governmental or customer specifications for, petroleum or refined
petroleum products.


 


“Plan” means any employee benefit plan
within the meaning of Section 3(3) of ERISA (including a Pension
Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which any Loan Party or any ERISA Affiliate is required to
contribute on behalf of any of its employees.


 


“Platform” has the
meaning specified in Section 6.02.


 


“Positive Net Unrealized
Forward Contract Positions” means the amount by which the Net Unrealized
Forward Contract Position exceeds $0.


 


“Product under Contract
for Sale” means barrels of petroleum product or therms of natural gas, as
the case may be, which (a) any Borrower has contracted to sell (whether by
sale of a contract on a commodities exchange or otherwise), and (b) for
which a fixed purchase price has been agreed upon by the purchaser thereof and
the relevant Borrower.


 


“Product Under Contract
LCs” means any Letter of Credit issued by the LC Issuer solely to cover
Eligible Product Under Contract and for which the following conditions have
been met:  (a) any request for the
issuance of a Product Under Contract LC has been accompanied by a certificate
from the Borrowers in substantially the form of Exhibit C
hereto (i) certifying that each such Product Under Contract LC being
requested is solely to cover Eligible Product Under Contract and that such
Letter of Credit is to be considered a Product Under Contract LC; (ii) certifying
and demonstrating that immediately prior to giving effect to the issuance of
all such Product Under Contract LCs being requested on such date there is at
least 5% of Borrowing Base availability and that on a pro forma basis after
giving effect to the issuance of such Product Under Contract LCs (i.e. giving
effect to the usage associated with the issuance of such Product Under Contract
LCs together with the inclusion in the Borrowing Base of such Eligible Product
Under Contract which was covered by such Product Under Contract LCs), there is
at least 5% of 


 


32

















 


Borrowing
Base availability; (b) the Borrowers demonstrate to the satisfaction of
the Administrative Agent that the Borrowers are in compliance on a pro forma
basis with all of the financial covenants set forth in Sections 7.18 and
7.19 of this Agreement both before and after giving effect to the issuance of
such Product Under Contract LC; and (c) the Borrowers demonstrate to the
satisfaction of the Administrative Agent that to the extent the Eligible
Product Under Contract for which such Product Under Contract LC is being issued
were to be included in the Borrowing Base simultaneously with the issuance of
such Product Under Contract LC, the amount of the Borrowing Base would exceed
the Total WC Outstandings (including the maximum drawing amount of all issued
and outstanding Letters of Credit, including the Product Under Contract L/C).


 


“Public Lender” has the meaning
specified in Section 6.02.


 


“Purchased Product”
means barrels of petroleum product and therms of gas which any Borrower holds
in inventory or which any Borrower has contracted to purchase (whether by
purchase of a contract on a commodities exchange or otherwise) (and, which for
the avoidance of doubt includes product in pipelines) and with respect to which
(a) either (i) a fixed purchase price therefor has been agreed upon
by the seller thereof and the relevant Borrower or (ii) the date (the
so-called “Vessel Loading Date”) on which the
cargo has been loaded has occurred and (b) the delivery date therefor is
scheduled to occur within 180 days after the date of calculation.


 


“Real Estate” means
all real property at any time owned or leased (as lessee or sublessee) by any
of the Loan Parties.


 


“Reference Period”
means, as of any date of determination, the period of four (4) consecutive
fiscal quarters of the Loan Parties ending on such date, or if such date is not
a fiscal quarter end date, the period of four (4) consecutive fiscal
quarters most recently ended (in each case treated as a single accounting
period).


 


“Register” has the meaning specified
in Section 10.06(c).


 


“Related Parties” means, with respect
to any Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents, trustees and advisors of such Person and of such Person’s
Affiliates.


 


“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, as of any
date of determination, Lenders having more than fifty percent (50%) of the
Aggregate Commitments or, if the commitment of each Lender to make Loans and
the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, Lenders holding in the aggregate more
than fifty percent 


 


33

















 


(50%) of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations being deemed “held” by such Lender for
purposes of this definition); provided that the Commitment of, and the
portion of the Total Outstandings 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, chief operating officer, chief accounting officer,
president, executive vice president, chief financial officer, treasurer,
assistant treasurer, secretary or controller of a Loan Party.  Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any capital stock or other Equity Interest of any Loan Party or
any Subsidiary, 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 other Equity Interest, or on account of any return of capital
to any Loan Party’s stockholders, partners or members (or the equivalent Person
thereof).


 


“Revolver Commitment”
means , as to each Lender, its obligation to make Revolver Loans to the
Borrowers pursuant to Section 2.01(b), 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.


 


“Revolver Loans” has
the meaning set forth in Section 2.01(b) hereof.


 


“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and
any successor thereto.


 


“SEC” means the Securities and
Exchange Commission, or any Governmental Authority succeeding to any of its
principal functions.


 


“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by
and between any Loan Party and any Cash Management Bank.


 


“Secured Hedge Agreement” means any Swap Contract permitted under Article VI
or VII that is entered into by and between any Loan Party and any Hedge
Bank, provided, however, to the extent the Hedge Bank which
is the counterparty on such Swap Contract is a commodities broker entitled to
have obligations owing to it secured pursuant to Section 7.01(l) hereof, then any such agreement or
arrangement relating thereto shall not be considered a Secured Hedge Agreement
for purposes hereof.


 


34

















 


“Secured Parties” means,
collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge
Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05,
and the other Persons the Obligations owing to which are or are purported to be
secured by the Collateral under the terms of the Security Documents.


 


“Security Agreement”
means that certain Security Agreement dated as of the Closing Date among the
Loan Parties and the Administrative Agent for the benefit of the Administrative
Agent and the Secured Parties and in form and substance satisfactory to the
Lenders and the Administrative Agent.


 


“Security Documents”
means, collectively, the Security Agreement, the Mortgages, the Guarantee and
all other instruments and documents, including without limitation Uniform
Commercial Code financing statements, required to be executed or delivered
pursuant to any Security Document.


 


“Senior Unsecured Notes”
means those certain unsecured notes of a Loan Party issued after the Closing
Date pursuant to an indenture dated the date of issuance of such notes, so long
as (a) the terms, conditions, covenants and defaults applicable to such
notes (including the terms, conditions, covenants and defaults in the indenture
relating thereto) are no more restrictive to the Loan Parties in the aggregate
than the terms, conditions, covenants and defaults contained herein; (b) all
of the Obligations (including, without limitation, the Aggregate WC Commitment
and the Aggregate Revolver Commitment, including after giving effect to any
increases thereunder provided for herein (the “Credit Agreement Obligations”)
plus an amount equal to not less than fifteen percent (15%) of such Credit
Agreement Obligations constitute Indebtedness permitted to be incurred under
such notes and indenture without meeting any test or other criteria (including,
without limitation, an incurrence test); (c) the obligations thereunder
are unsecured; (d) the maturity date thereof is not less than six (6) months
after the Maturity Date; (e) the obligations under such notes and
indenture is not guaranteed by any Person other than a Loan Party; and (f) the
documents and agreements executed in connection with such notes (including,
without limitation, any indenture) shall contain terms and conditions that are
customary for similar transactions.


 


“Subordinated Debt” means any
Indebtedness for borrowed money for which any Loan Party is obligated so long
as (a) the maturity date of such Indebtedness is not less than six (6) months
after the Maturity Date; (b) the terms, conditions, covenants and defaults
applicable to such Indebtedness (including the terms, conditions, covenants and
defaults in any document, agreement or instrument relating thereto) are no more
restrictive to the Loan Parties in the aggregate than the terms, conditions,
covenants and defaults contained herein; (c) such Indebtedness is not
guaranteed by any Person other than a Loan Party; (d) such Indebtedness is
unsecured; (e) such Indebtedness is subordinate, pursuant to then market
standard subordination terms for similar issuances, to the payment and
collection of the Credit Agreement Obligations; (f) all of the Credit
Agreement Obligations plus an amount equal to not less than fifteen percent
(15%) of such Credit Agreement Obligations constitute Indebtedness permitted to
be incurred under such notes and indenture without meeting any test or other 


 


35

















 


criteria (including, without
limitation, an incurrence test) and constitutes “Senior Debt” (or the analogous
term used therein) under such notes and indenture and are entitled to seniority
in the right of payment to the obligations under such notes and indenture; and (g) the
documents and agreements executed in connection with such notes (including,
without limitation, any indenture) shall contain terms and conditions that are
customary for similar transactions.


 


“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 securities or other interests
having ordinary voting power for the election of directors or other governing
body (other than securities or interests 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 a Loan Party.


 


“Supermajority Lenders”
means , as of any date of determination, Lenders having at least sixty six and
two thirds percent (66 2/3%) of the Aggregate Commitments or, if the commitment
of each Lender to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions have been terminated pursuant to Section 8.02,
Lenders holding in the aggregate at least sixty six and two thirds percent (66
2/3%) of the Total Outstandings (with the aggregate amount of each Lender’s
risk participation and funded participation in L/C Obligations being deemed “held”
by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Supermajority Lenders.


 


“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 any 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 


 


36

















 


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
mark-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).


 


“Swap Termination Value Amount” means, as of any relevant date
of determination, the Swap Termination Value of all Swap Contracts which
constitute Loan Documents, provided, to the extent a Loan Party has no
obligation under any Swap Contract as of such date, or is otherwise owed money
from the counterparty thereunder (i.e. is “in the money” thereunder), then the
Swap Termination Value Amount for such Swap Contract as of such date of determination
shall be $0, provided however, notwithstanding the
foregoing, to the extent the Swap Termination Value of a Swap Contract with a
Lender is a positive number (i.e. a Loan Party is “in the money”) and the Swap
Termination Value of another Swap Contract with a different Lender is a
negative number (i.e. a Loan Party is “out of the money”), the Swap Termination
Value Amount shall be the net results of such Swap Termination Values.


 


“Synthetic Lease Obligation” means the
monetary obligation of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement for the use
or possession of property creating obligations that do not appear on the
balance sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).


 


“Taxes” means all present or future
taxes, levies, imposts, duties, deductions, withholdings (including backup
withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Threshold Amount” means $ 5,000,000.


 


“Title Insurance Company”
means Fidelity National Title Insurance Company of New York, or such other
title insurance company acceptable to the Administrative Agent.


 


“Title Policy” means,
in relation to each Mortgaged Property, an ALTA standard form title insurance
policy issued by the Title Insurance Company (with such reinsurance or co-insurance
as the Administrative Agent may require, any such reinsurance to be with direct
access endorsements) in such amount as may be determined by the Administrative
Agent insuring the priority of the Mortgages and the Mortgaged Property and
that the applicable Loan Party holds marketable fee simple title to the
Mortgaged Property, subject only to the encumbrances permitted by such
Mortgages and which shall not contain exceptions for mechanics liens, persons
in occupancy or matters which would be shown by a survey (except as may be
permitted by each such Mortgage), shall not insure over any matter except to
the extent that any such affirmative insurance is acceptable to the
Administrative Agent in its sole discretion, and shall contain such endorsements
and affirmative insurance as the Administrative Agent in its discretion may
require, including but not limited to (a) 


 


37

















 


comprehensive
endorsement, (b) variable rate of interest endorsement and (c) usury
endorsement.


 


“Total Outstandings” means the
aggregate Outstanding Amount of all Loans and all L/C Obligations.


 


“Total Revolver
Outstandings” means the aggregate Outstanding Amount of all Revolver Loans.


 


“Total WC Outstandings”
means the aggregate Outstanding Amount of all WC Loans and all L/C Obligations.


 


“Type” means, with respect to a Loan,
its character as a Base Rate Loan, a Cost of Funds Rate Loan or a Eurodollar
Rate Loan.


 


“United States” and “U.S.” mean
the United States of America.


 


“Unrealized Losses on
Forward Contract Positions” means, as of any date of determination, the
aggregate amount by which (a) the aggregate fair market value determined
on a Marked-To-Market Basis (net of storage and transportation costs) on such
date of Petroleum Product exceeds (b) the amount which the Borrowers’
customers have contractually agreed to pay to such Borrower in consideration of
future deliveries of such Petroleum Product.


 


“Unrealized Profits on
Forward Contract Positions” means, as of any date of determination, the
aggregate amount by which (a) the amount which the Borrowers’ customers
have contractually agreed to pay to such Borrower in consideration of future
deliveries of Petroleum Product pursuant to transactions which are scheduled to
be consummated by not later than the period ending nine (9) months after
such date of determination, exceeds (b) the aggregate fair market value
determined on a Marked-to-Market Basis (net of storage and transportation
costs) on such date of such Petroleum Product.


 


“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).


 


“Utilization Amount” means, during
each applicable Determination Period, the average daily amount of the Total WC
Outstandings divided by the Aggregate WC Commitment during such period.


 


“Warex Acquisition”
means the acquisition by the Borrowers from the Warex Seller of three terminal
facilities in Newburgh, New York for an aggregate purchase price of not more
than $47,500,000 (exclusive of ordinary and customary purchase price
adjustments) pursuant to the terms of the Warex Purchase Agreement.


 


“Warex Purchase Agreement” means that
certain Purchase and Sale Agreement effective August 5, 2009 by and
between the Warex Seller and Global, as the same may be amended.


 


“Warex Seller” means
Warex Terminals Corporation, Inc.


 


38

















 


“WC Commitment”
means, as to each Lender, its obligation to (a) make WC Loans to the
Borrower pursuant to Section 2.01(a) 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.


 


“WC  Loans” has the meaning specified in Section 2.01(a).


 


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 definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “hereto,”
“herein,” “hereof” and “hereunder,” and words of similar
import when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time, and (vi) the
words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


(b)           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.”


 


(c)           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.


 


1.03        Accounting
Terms.  (a)      Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data


 


39

















 


(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, except
as otherwise specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the computation
of any financial covenant) contained herein, Indebtedness of the Borrowers and
their Subsidiaries shall be deemed to be carried at 100% of the outstanding
principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20  on financial liabilities shall be disregarded.


 


(b)           Changes in GAAP.  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 Borrowers or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrowers 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, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrowers
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.


 


1.04        Rounding.  Any financial ratios required to be
maintained by the Borrowers 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        Times
of Day.  Unless otherwise specified,
all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


1.06        Letter
of Credit Amounts.  Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that with respect to any Letter of Credit that, by its
terms or the terms of any Issuer Document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount of such Letter
of Credit shall be deemed to be the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at such time.


 


ARTICLE II.         THE
COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Commitment
For Loans.


 


(a)           Subject to the
terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “WC Loan”) to the Borrowers from time to time,
on any


 


40

















 


Business
Day during the Availability Period, in an aggregate amount not to exceed at any
time outstanding the amount of such Lender’s WC Commitment; provided, however,
that after giving effect to any Borrowing of a WC Loan (i) the Total WC
Outstandings shall not exceed the Aggregate WC Commitment as in effect on such
date (ii) the Total WC Outstandings other than the maximum drawing amount
of any issued and outstanding Product Under Contract LC shall not exceed the
Borrowing Base at such time, and (iii) the aggregate Outstanding Amount of
the WC Loans of any Lender, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all L/C Obligations shall not exceed such Lender’s WC
Commitment.  Within the limits of each
Lender’s WC Commitment, and subject to the other terms and conditions hereof,
the Borrowers may borrow under this Section 2.01(a), prepay under Section 2.04,
and reborrow under this Section 2.01(a).  WC Loans may be Base Rate Loans, Cost of
Funds Rate Loans or Eurodollar Rate Loans, as further provided herein.  The proceeds of any WC Loan shall be used to
finance the working capital needs of the Borrowers, including financing of
Capital Expenditures other than Acquisition Capital Expenditures.


 


(b)           Subject to the
terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Revolver Loan”) to the Borrowers 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
Revolver Commitment; provided, however, that after giving effect
to any Borrowing of a Revolver Loan, (i) the Total Revolver Outstandings
shall not exceed the Aggregate Revolver Commitment as in effect on such date,
and (ii) the aggregate Outstanding Amount of the Revolver Loans of any
Lender shall not exceed such Lender’s Revolver Commitment.  Within the limits of each Lender’s Revolver
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01(b), prepay under Section 2.04,
and reborrow under this Section 2.01(b).  Revolver Loans may be Base Rate Loans, Cost
of Funds Rate Loans or Eurodollar Rate Loans, as further provided herein.  The proceeds of the Revolver Loans shall be
used to fund Permitted Acquisitions, to finance Capital Expenditures and for
general corporate purposes (which, for the avoidance of doubt, can include
working capital needs), provided, however, the aggregate amount
of Revolver Loans used to finance general corporate purposes shall not exceed
$50,000,000 outstanding at any time.


 


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 and Cost of Funds Rate Loans shall be made upon the
Borrowers’ 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
or continuation of Base Rate Loans and Cost of Funds Rate Loans or conversion
of Base Rate Loans or Eurodollar Rate Loans to Cost of Funds Rate Loans.  Each telephonic notice by the Borrowers
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
Borrowers.  Each


 


41
















 


Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Except as provided in Sections
2.03(c), each Borrowing of or conversion to Cost of Funds Rate Loans or
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
Borrowers are requesting a Borrowing, a conversion of Loans from one Type to
the other, or a continuation of Eurodollar Rate Loans or Cost of Funds 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 Borrowers fail to
specify a Type of Loan in a Loan Notice or if the Borrowers fail 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 or Cost of Funds
Rate Loans, as the case may be.  If the
Borrowers request 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 Applicable Percentage of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the
Borrowers, 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 4.02 (and, if such
Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the
Borrowers in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrowers on the books of Bank of America 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 Borrowers; provided, however, that if, on the date
the Loan Notice with respect to such Borrowing is given by the Borrowers, there
are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and second,
shall be made available to the Borrowers as provided above.


 


(c)           Except as
otherwise provided herein, a Eurodollar Rate Loan or a Cost of Funds Rate Loan,
as the case may be,  may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate
Loan or Cost of Funds Rate Loan.  During
the existence of a Default, no Loans may be requested as, converted to or continued
as Eurodollar Rate Loans or Cost of Funds Rate Loans  without the consent of the Required Lenders.


 


(d)           The
Administrative Agent shall promptly notify the Borrowers and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans and
Cost of


 


42

















 


Funds
Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are
outstanding, the Administrative Agent shall notify the Borrower and the Lenders
of any change in Bank of America’s prime rate used in determining the Base Rate
promptly following the public announcement of such change.


 


(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 ten (10) Interest Periods
in effect with respect to Loans.


 


(f)            The Borrowing Base shall be determined as
required pursuant to Section 6.02(f) by the Administrative Agent by reference to the Borrowing Base
Report.


 


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 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 (or, to the extent Section 2.03(a)(ii)(G) has
been complied with, the date which is nine (9) Business Days prior to the
Maturity Date), to issue Letters of Credit for the account of the Borrowers,
and to amend or extend Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drawings under the
Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrowers and any drawings
thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (w) the Total WC
Outstandings shall not exceed the Aggregate WC Commitments, (x) the Total
WC Outstandings other than the maximum drawing amount of any issued and
outstanding Product Under Contract LCs shall not exceed the Borrowing Base; (y) the
aggregate Outstanding Amount of the WC Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender’s WC Commitment, and (z) the Outstanding
Amount of the L/C Obligations for Product Under Contract LCs shall not exceed
$20,000,000.  In addition, the aggregate
face amount of all standby Letters of Credit issued to secure bonding and
performance obligations of the Borrowers shall not exceed at any time
outstanding $10,000,000.  Each request by
the Borrowers for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrowers 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 Borrowers’ ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrowers 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.  All Existing Letters of
Credit shall be deemed to have been issued pursuant hereto, and from and after
the Closing Date shall be subject to and governed by the terms and conditions
hereof.


 


43

















 


(ii)           The L/C Issuer shall not
issue any Letter of Credit, if:


 


(A)          the request for such
issuance, extension or renewal of any Letter of Credit is later than nine (9) Business
Days prior to the Maturity Date;


 


(B)           any Borrower requests a
Letter of Credit be issued for any other purpose than to support purchases of
Petroleum Products or to secure bonding and performance obligations;


 


(C)           any Borrower requests a
standby Letter of Credit which is to be used to support inventory purchases
with an expiry date longer than 180 days from the date of issuance;


 


(D)          any Borrower requests a
standby Letter of Credit which is to be used to secure bonding and performance
obligations with an expiry date longer than 364 days;


 


(E)           any Borrower requests a
documentary Letter of Credit be issued with an expiry date which is later than
the Maturity Date or which has a term longer than ninety (90) days;


 


(F)           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 extension, unless the Required
Lenders have approved such expiry date; or


 


(G)           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 or unless the
Borrowers have provided to the LC Issuer cash collateral for the maximum
drawing amount of such Letter of Credit prior to the Maturity Date.


 


(iii)          The L/C Issuer shall not be
under any 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 the 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 the Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to the 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,


 


44

















 


cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems
material to it;


 


(B)           the issuance of the Letter
of Credit would violate one or more policies of the L/C Issuer applicable to
letters of credit generally;


 


(C)           except as otherwise agreed
by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an
initial stated amount less than $100,000;


 


(D)          the Letter of Credit is to
be denominated in a currency other than Dollars; or


 


(E)           any Lender is at that time a
Defaulting Lender, unless the L/C Issuer has entered into arrangements,
including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in
its sole discretion) with the Borrower or such Lender to eliminate the L/C
Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit
then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which the L/C Issuer has actual or potential Fronting
Exposure, as it may elect in its sole discretion.


 


(iv)          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 the Letter of Credit in its amended form under the terms hereof.


 


(v)           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 the Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of the Letter
of Credit does not accept the proposed amendment to the Letter of Credit.


 


(vi)          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 (A) provided to the Administrative Agent in Article IX
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 Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.


 


(b)           Procedures for
Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.


 


(i)            Each Letter of Credit shall
be issued or amended, as the case may be, upon the request of the Borrowers
delivered to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately


 


45

















 


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 Administrative Agent and the L/C Issuer
may agree in a particular instance in their 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; (G) the purpose and nature of the requested Letter of
Credit; and (H) 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 Borrowers 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, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may require.  In addition, if any Letter of Credit to be
issued is also a Product Under Contract LC, the Borrowers shall have satisfied
the conditions set forth in the definition of Product Under Contract LC.


 


(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 Borrowers
and, if not, the L/C Issuer will provide the Administrative Agent with a copy
thereof.  Unless the L/C Issuer has
received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied,
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 Borrowers 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.  For the avoidance of doubt, the parties
acknowledge and agree that Letters of Credit may, to the extent consented to by
the L/C Issuer, be issued on same day notice and as such to the extent any
Lender determines that one or more applicable conditions contained in Article IV
is not satisfied on any date and as a result would object to the L/C Issuer
issuing a Letter of Credit hereunder, such Lender shall provide such notice to
the L/C Issuer of such fact immediately upon becoming aware thereof.  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


 


46

















 


the product of such Lender’s
Applicable Percentage times the amount of such Letter of Credit.


 


(iii)          If the Borrowers so request
in any applicable Letter of Credit Application, the L/C Issuer may, in its sole
discretion, agree to issue a Letter of Credit that has automatic extension
provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension 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 “Non-Extension
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 Borrowers shall not be
required to make a specific request to the L/C Issuer for any such
extension.  Once an Auto-Extension 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 extension 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 extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of
the provisions of clause (ii) or (iii) of Section 2.04(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrowers that one or more of the
applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such
extension.


 


(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 Borrowers 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 a drawing under such
Letter of Credit, the L/C Issuer shall notify the Borrowers 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”), the Borrowers shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing.  If the
Borrowers fail 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 Applicable Percentage thereof. 
In such event, the Borrowers shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the


 


47

















 


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
Commitments and the conditions set forth in Section 4.02 (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 shall upon any
notice pursuant to Section 2.03(c)(i) make funds available
(and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office
in an amount equal to its Applicable Percentage 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 2.04(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrowers 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
Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, the Borrowers 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
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 Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.


 


(v)           Each Lender’s obligation to
make 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 setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrowers 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 Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrowers of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
joint and several obligation of the Borrowers to reimburse the L/C


 


48

















 


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),
then, without limiting the other provisions of this Agreement, 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 greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing.  If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance
in respect of the relevant L/C Borrowing, as the case may be.  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 Borrowers or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof 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 10.05
(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 Applicable Percentage 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. 
The obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.


 


(e)           Obligations
Absolute.  The joint and several obligation
of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter
of Credit and to repay each L/C 


 


49

















 


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, or any other Loan Document;


 


(ii)           the existence of any claim,
counterclaim, setoff, defense or other right that any Borrower or any
Subsidiary 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 strictly comply with the terms of such Letter of
Credit; 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, any Borrower or any Subsidiary.


 


The Borrowers 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 Borrowers’
instructions or other irregularity, the Borrowers will immediately notify the
L/C Issuer.  The Borrowers 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 Borrowers 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,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee 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


 


50

















 


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 Issuer Document. 
Each 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 Borrowers’ 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, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee 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 Borrowers 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 Borrowers which the Borrowers prove 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)           Applicability
of ISP and UCP.  Unless otherwise expressly agreed
by the L/C Issuer and the Borrowers when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i) the
rules of the ISP 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 at the time of
issuance shall apply to each commercial Letter of Credit.


 


(h)           Letter of
Credit Fees.  The
Borrowers shall pay to the Administrative Agent for the account of each Lender
in accordance with its Applicable Percentage a Letter of Credit fee (the “Letter
of Credit Fee”)  for each
Letter of Credit equal to the Applicable WC Rate times the daily amount
available to be drawn under such Letter of Credit; provided, however,
any Letter of Credit Fees otherwise payable for the account of a Defaulting
Lender with respect to any Letter of Credit as to which such Defaulting Lender
has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to
this Section 2.03 shall be payable, to the maximum extent permitted
by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter
of Credit pursuant to Section 2.15(a)(iv), with the balance of such
fee, if any, payable to the L/C Issuer for its own account.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to


 


51
















 


occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed
on a quarterly basis in arrears.  If
there is any change in the Applicable WC Rate during any quarter, the daily
amount available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable WR Rate separately for each period during such
quarter that such Applicable WC Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(i)            Fronting Fee and Documentary and Processing Charges
Payable to L/C Issuer.  The Borrowers shall pay directly
to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit, at the rate
specified in the Fee Letter, computed on the amount of such Letter of Credit,
and payable upon the issuance thereof, (ii) with respect to any amendment
of a commercial Letter of Credit increasing the amount of such Letter of
Credit, at a rate separately agreed between the Borrowers and the L/C Issuer,
computed on the amount of such increase, and payable upon the effectiveness of
such amendment, and (iii) with respect to each standby Letter of
Credit, at the rate per annum
specified in the Fee Letter, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
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.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrowers shall 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.


 


(j)            Conflict with Issuer Documents.  In the event of any conflict between the
terms hereof and the terms of any Issuer Document, the terms hereof shall
control.


 


(k)           Special Provisions for Product
Under Contract LCs.  The maximum
drawing amount of all issued and outstanding Product Under Contract LCs shall
not exceed $20,000,000 at any time and the Borrowers may request more than one
Product Under Contract LC be issued in a single Business Day.  Notwithstanding anything to the contrary
contained herein, the maximum drawing amount of any Product Under Contract LC
shall not be governed by the Borrowing Base until the date which is the earlier
to occur of (i) two (2) Business Days after the issuance of such
Product Under Contract LC and (ii) delivery to the Administrative Agent by
the Borrowers after the date of issuance of such Product Under Contract LC of
an updated Borrowing Base Report which includes in the Borrowing Base the
Eligible Product Under Contract that such Product Under Contract LC was issued
to cover.  In addition, the Borrowers
shall deliver to the Administrative Agent, within two (2) Business Days
after the issuance of any Product Under Contract LC, a Borrowing Base Report
evidencing that the aggregate amount of all outstanding WC Loans plus
the issued and outstanding amount of all Letters of Credit


 


52

















 


(including
all Product Under Contract LCs) does not exceed the Borrowing Base (or, in the
case of any excess, the Borrowers shall be required to immediately repay any
such excess).  The Borrowers shall not be
permitted to request the issuance of any Product Under Contract LCs if at such
time any other Product Under Contract LCs previously issued (other than a
Product Under Contract LC issued on that same Business Day) remain outstanding
and an updated Borrowing Base Report has not yet been delivered with respect
thereto.


 


2.04        Prepayments.


 


(a)           The Borrowers may, upon notice to the Administrative
Agent, at any time or from time to time voluntarily prepay Loans 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 and Cost of Funds Rate Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof; and (iii) any
prepayment of Base Rate Loans or Cost of Funds Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
or, in each case, if less, the entire principal amount thereof then
outstanding.  Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to
be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of
such Loans.  The Administrative Agent
will promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrowers, the
Borrowers 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 on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Subject to Section 2.15, each
such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Applicable Percentages.


 


(b)           If
for any reason (i) (x) the Total WC Outstandings at any time exceed
the Aggregate WC Commitments then in effect or (y) the Total WC
Outstandings other than the maximum drawing amount of all issued and
outstanding Products under Contract LCs exceed the Borrowing Base at such time,
the Borrowers shall immediately prepay WC Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrowers shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.04 unless after the
prepayment in full of the WC  Loans the
Aggregate WC Outstandings exceed the Aggregate WC Commitments then in effect;
and (ii) the Total Revolver Outstandings at any time exceed the Aggregate
Revolver Commitments then in effect the Borrowers shall immediately prepay
Revolver Loans in an aggregate amount equal to such excess.


 


2.05        Termination or Reduction of Commitments.
 The Borrowers may, upon notice
to the Administrative Agent, terminate the Aggregate Revolver Commitments or
the Aggregate WC Commitments, as the case may be, or from time to time
permanently reduce the Aggregate Revolver Commitments or Aggregate WC
Commitments, as the case may be; provided that (i)


 


53

















 


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 $10,000,000 or any whole multiple of $1,000,000
in excess thereof, (iii) the Borrowers shall not terminate or reduce the
Aggregate Revolver Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the Total Revolver Outstandings would exceed
the Aggregate Revolver Commitments, and (iv) the Borrowers shall not
terminate or reduce the Aggregate WC Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total WC Outstandings
would exceed the Aggregate WC Commitments. 
The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolver Commitment or
Aggregate WC Commitments, as the case may be. 
Any reduction of the Aggregate Revolver Commitment or Aggregate WC
Commitments, as applicable shall be applied to the WC Commitment or Revolver
Commitment of each Lender, as applicable, according to its Applicable
Percentage.  All fees accrued until the effective date of any termination of the
Aggregate Revolver Commitment or Aggregate WC Commitments, as the case may be,
shall be paid on the effective date of such termination.


 


2.06        Repayment of Loans.  The Borrowers shall repay to the Lenders on
the Maturity Date the aggregate principal amount of Loans outstanding on such
date.


 


2.07        Interest.


 


(a)           Subject to the provisions of subsection (c) below, (i) each
WC Loan which is a Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable WC
Rate; (ii) each WC Loan which is a 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 WC Rate; and
(iii) each WC Loan which is a Cost of Funds Rate Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period at a rate
per annum equal to the Cost of Funds Rate for such Interest Period plus
the Applicable WC Rate.


 


(b)           Subject to the provisions of subsection (c) below, (i) each
Revolver Loan which is a Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the
Applicable Revolver Rate; (ii) each Revolver Loan which is a 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 Revolver Rate; and (iii) each Revolver Loan which is a Cost
of Funds Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Cost of Funds
Rate for such Interest Period plus the Applicable Revolver Rate.


 


(c)           (i)            If any
amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or


 


54

















 


otherwise, 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.


 


(ii)           If any amount (other than principal
of any Loan) payable by the Borrowers 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 upon the request of the Required
Lenders, 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.


 


(iii)          Upon the request of the Required Lenders, while any Event of
Default exists, the Borrowers shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


(iv)          Accrued and unpaid interest on past
due amounts (including interest on past due interest) shall be due and payable
upon demand.


 


(d)           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.


 


2.08        Fees.  In addition to certain fees described in
subsections (h) and (i) of Section 2.03:


 


(a)           Commitment Fee.  The Borrowers jointly and
severally shall pay to the Administrative Agent (i) in connection with the
WC Loans, for the account of each Lender in accordance with its Applicable
Percentage of the Aggregate WC 
Commitment, a commitment fee equal to fifty (50) basis points on the
actual daily amount during each calendar month or portion thereof from the
Closing Date to the Maturity Date by which the Aggregate WC Commitment as in
effect on such date minus the Outstanding Amount of L/C Obligations exceeds the
Total WC Outstandings during such calendar month; and (ii) in connection
with the Revolver Loans, for the account of each Lender in accordance with its
Application Percentage of the Aggregate Revolver Commitment, a commitment fee
equal to fifty (50) basis points per annum on the actual daily amount during
each calendar month or portion thereof from the Closing Date to the Maturity
Date by which the Aggregate Revolver Commitment as in effect on such date
exceeds the Total Revolver Outstandings during such calendar month.  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 IV is not met, and shall be due and
payable monthly in arrears on the last Business Day of each calendar month,
commencing with the first such date to occur after the Closing Date, and on the
Maturity Date.


 


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(b)           Other Fees.  (i) The Borrowers shall pay
to Banc of America Securities LLC, in its capacity as an Arranger, and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Fee Letter. 
Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.


 


(ii)           The Borrowers 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.


 


2.09        Computation of
Interest and Fees; Retroactive Adjustments of Applicable Rate. (a)             All
computations of interest for Base Rate Loans (including Base Rate Loans
determined by reference to the Eurodollar 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 2.11(a), bear
interest for one day.  Each determination
by the Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest error.


 


(b)           If,
as a result of any restatement of or other adjustment to the financial
statements of the Borrowers or for any other reason, the Borrowers or the
Lenders determine that (i) the Combined Senior Secured Leverage Ratio as calculated
by the Borrowers as of any applicable date was inaccurate and (ii) a
proper calculation of the Combined Senior Secured Leverage Ratio would have
resulted in higher pricing for such period, the Borrowers shall immediately and
retroactively be obligated to pay to the Administrative Agent for the account
of the applicable Lenders or the L/C Issuer, as the case may be, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrowers under the
Bankruptcy Code of the United States, automatically and without further action
by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to
the excess of the amount of interest and fees that should have been paid for
such period over the amount of interest and fees actually paid for such
period.  This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the
case may be, under Section 2.03(c)(iii), 2.03(h) or 2.07(b) or
under Article VIII.  The
Borrowers’ obligations under this paragraph shall survive the termination of
the Aggregate Commitments and the repayment of all other Obligations hereunder.


 


2.10        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


 


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and each Lender shall be conclusive absent
manifest error of the amount of the Credit Extensions made by the Lenders to
the Borrowers 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 joint and several
obligations of the Borrowers 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 Borrowers
shall execute and deliver to such Lender (through the Administrative Agent) a
Note, which shall evidence such Lender’s Loans in addition to such accounts or
records.  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.


 


2.11        Payments Generally; Administrative Agent’s
Clawback.


 


(a)           General.  All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrowers 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 Applicable Percentage (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. 
If any payment to be made by the Borrowers 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.


 


(b)           (i)  Funding by Lenders; Presumption by
Administrative Agent.  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any
Borrowing of a Base Rate Loan or a Cost of Funds Rate Loan, prior to 12:00 noon
on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the


 


57

















 


Administrative Agent, then the applicable
Lender and the Borrowers severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is
made available to the Borrowers to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower,
the interest rate applicable to Base Rate Loans.  If the Borrowers and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrowers the
amount of such interest paid by the Borrowers for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrowers shall be without
prejudice to any claim the Borrowers may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)           Payments by Borrower; Presumptions
by Administrative Agent.  Unless the
Administrative Agent shall have received notice from the Borrowers prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the L/C Issuer hereunder that the Borrowers will not make such
payment, the Administrative Agent may assume that the Borrowers have made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the L/C Issuer, as the case may be,
the amount due.  In such event, if the
Borrowers have not in fact made such payment, then each of the Lenders or the
L/C Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the L/C
Issuer, in immediately available funds with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


A
notice of the Administrative Agent to any Lender or the Borrowers with respect
to any amount owing under this subsection (b) shall be conclusive, absent
manifest error.


 


(c)           Failure to Satisfy Conditions Precedent.  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 Borrowers by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV
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.


 


58

















 


(d)           Obligations of Lenders Several.  The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and to make payments
pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under Section 10.04(c) 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, to
purchase its participation or to make its payment under Section 10.04(c).


 


(e)           Funding Source. 
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.


 


2.12        Sharing of Payments by Lenders.  If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in L/C Obligations held by it resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in L/C Obligations of
the other Lenders, or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:


 


(i)            if any such participations or
subparticipations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest; and


 


(ii)           the provisions of this Section shall
not be construed to apply to (x) any payment made by or on behalf of the
Borrowers pursuant to and in accordance with the express terms of this
Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the application of Cash Collateral provided for in
Section 2.14, or (z) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or subparticipations in L/C Obligations to any assignee or participant,
other than an assignment to any Loan Party or any Subsidiary or Affiliate
thereof (as to which the provisions of this Section shall apply).


 


Each Loan Party consents to the foregoing
and agrees, to the extent it may effectively do so under applicable law, that
any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Loan Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Loan Party in the amount of such participation.


 


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2.13        Increase in Commitments.


 


(a)           Request for Increase.  Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Borrowers may from time to time, request an increase in the Aggregate WC
Commitments or the Aggregate Revolver Commitments, or both, by an amount (for
all such requests) not exceeding $200,000,000; provided that (i)any such
request shall specify whether such request is for an increase in the Aggregate
WC Commitment, the Aggregate Revolver Commitment or both (and, if both, the
allocation between the two); and (ii) any such request for an increase
shall be in a minimum amount of $5,000,000. 
At the time of sending such notice, the Borrowers (in consultation with
the Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).


 


(b)           Lender Elections to Increase.  Each Lender shall notify the Administrative
Agent within such time period whether or not it agrees to increase its Revolver
Commitment or WC Commitment, as the case may be (and in the case of a request
for an increase in both Commitments, such Lender shall specify whether it is
agreeing to increase both is Revolver Commitment and WC Commitment, or just
one) and, if so, whether by an amount equal to, greater than, or less than its
Applicable Percentage of such requested increase.  Any Lender not responding within such time
period shall be deemed to have declined to increase its applicable Commitment.


 


(c)           Notification by Administrative Agent; Additional
Lenders.  The Administrative Agent
shall notify the Borrowers and each Lender of the Lenders’ responses to each
request made hereunder.  To achieve the full
amount of a requested increase and subject to the approval of the
Administrative Agent and the L/C Issuer (which approvals shall not be
unreasonably withheld), the Borrowers may also invite additional Eligible
Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.


 


(d)           Effective Date and Allocations.  If the Aggregate Revolver Commitments and
Aggregate WC Commitments, as applicable, are increased in accordance with this
Section, the Administrative Agent and the Borrowers shall determine the
effective date (the “Increase Effective Date”) and the final allocation
of such increase.  The Administrative
Agent shall promptly notify the Borrowers and the Lenders of the final allocation
of such increase and the Increase Effective Date.


 


(e)           Conditions to Effectiveness of Increase.  As a condition precedent to such increase,
the Borrowers shall deliver to the Administrative Agent a certificate of each
Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (x) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (y) in the case of the Borrowers,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as


 


60

















 


of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct as of such earlier date,
and except that for purposes of this Section 2.13, the representations
and warranties contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (B) no
Default exists.  The Borrowers shall
prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the Revolver Commitments
and/or WC Commitments, as applicable, under this Section.


 


(f)            Conflicting Provisions.  This Section shall supersede any
provisions in Section 2.12 or 10.01 to the contrary.


 


2.14        Cash Collateral.


 


(a)           Certain Credit Support Events.  Upon the request of the Administrative Agent
or the L/C Issuer (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
L/C Obligation for any reason remains outstanding, the Borrowers shall, in each
case, immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.  At any time that there
shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent or the L/C Issuer, the Borrowers shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all
Fronting Exposure (after giving effect to Section 2.15(a)(iv) and
any Cash Collateral provided by the Defaulting Lender).


 


(b)           Grant of Security Interest.  All Cash Collateral (other than credit
support not constituting funds subject to deposit) shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.  The Borrowers, and to the extent provided by
any Lender, such Lender, hereby grants to (and subjects to the control of) the
Administrative Agent, for the benefit of the Administrative Agent, the L/C
Issuer and the Lenders, and agrees to maintain, a first priority security
interest in all such cash, deposit accounts and all balances therein, and all
other property so provided as collateral pursuant hereto, and in all proceeds
of the foregoing, all as security for the obligations to which such Cash Collateral
may be applied pursuant to Section 2.14(c).  If at any time the Administrative Agent
determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent as herein provided, or that the total
amount of such Cash Collateral is less than the applicable Fronting Exposure
and other obligations secured thereby, the Borrowers or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide
to the Administrative Agent additional Cash Collateral in an amount sufficient
to eliminate such deficiency.


 


(c)           Application.  Notwithstanding anything to the contrary
contained in this Agreement, Cash Collateral provided under any of this Section 2.14
or Sections 2.03, 2.04, 2.15


 


61

















 


or 8.02 in respect of Letters of
Credit shall be held and applied to the satisfaction of the specific L/C
Obligations, obligations to fund participations therein (including, as to Cash
Collateral provided by a Defaulting Lender, any interest accrued on such
obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided
for herein.


 


(d)           Release. 
Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving
rise thereto (including by the termination of Defaulting Lender status of the
applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi)))
or (ii) the Administrative Agent’s good faith determination that there
exists excess Cash Collateral; provided, however, (x) that Cash
Collateral furnished by or on behalf of a Loan Party shall not be released
during the continuance of a Default or Event of Default (and following
application as provided in this Section 2.14 may be otherwise
applied in accordance with Section 8.03), and (y) the Person
providing Cash Collateral and the L/C Issuer may agree that Cash Collateral
shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.


 


2.15        Defaulting Lenders.  Adjustments.  Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent
permitted by applicable Law:


 


(i)            Waivers and Amendments.  That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement
shall be restricted as set forth in Section 10.01.


 


(ii)           Reallocation of Payments.  Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII
or otherwise, and including any amounts made available to the Administrative
Agent by that Defaulting Lender pursuant to Section 10.08), shall
be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by that Defaulting Lender to the L/C Issuer hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer, to be held as Cash Collateral for future funding
obligations of that Defaulting Lender of any participation in any Letter of
Credit; fourth, as the Borrowers may request (so
long as no Default or Event of Default exists), to the funding of any Loan in
respect of which that Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the
Borrowers, to be held in a non-interest bearing deposit account and released
in order to satisfy obligations of that Defaulting Lender to fund Loans
under this Agreement; sixth, to the
payment of any amounts owing to the Lenders or the L/C Issuer as a result of
any judgment of a court of competent jurisdiction obtained by any Lender or the
L/C Issuer against that Defaulting


 


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Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists,
to the payment of any amounts owing to the Borrowers as a result of any
judgment of a court of competent jurisdiction obtained by the Borrowers against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal
amount of any Loans or L/C Borrowings in respect of which that Defaulting
Lender has not fully funded its appropriate share and (y) such Loans or
L/C Borrowings were made at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans
of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis
prior to being applied to the payment of any Loans of, or L/C Borrowings owed
to, that Defaulting Lender.  Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to
post Cash Collateral pursuant to this Section 2.15(a)(ii) shall
be deemed paid to and redirected by that Defaulting Lender, and each Lender
irrevocably consents hereto.


 


(iii)          Certain Fees.  That Defaulting Lender (x) shall not be
entitled to receive any commitment fee pursuant to Section 2.08(a) for
any period during which that Lender is a Defaulting Lender (and the Borrowers
shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender) and (y) shall be
limited in its right to receive Letter of Credit Fees as provided in Section 2.03(h).


 


(iv)          Reallocation of Applicable
Percentages to Reduce Fronting Exposure. 
During any period in which there is a Defaulting Lender, for purposes of
computing the amount of the obligation of each non-Defaulting Lender to
acquire, refinance or fund participations in Letters of Credit pursuant to Sections
2.03, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided,
that, (i) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default or Event of
Default exists; and (ii) the aggregate obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit shall
not exceed the positive difference, if any, of (1) the WC Commitment of
that non-Defaulting Lender minus (2) the aggregate Outstanding
Amount of the WC Loans of that Lender.


 


(b)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent,
and the L/C Issuer agree in writing in their sole discretion that a Defaulting
Lender should no longer be deemed to be a Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of
the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary


 


63

















 


to cause the Loans and funded and unfunded
participations in Letters of Credit to be held on a pro rata basis by the
Lenders in accordance with their Applicable Percentages (without giving effect
to Section 2.15(a)(iv)), whereupon that Lender will cease to be a
Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of
the Borrowers while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties,
no change hereunder from Defaulting Lender to Lender will constitute a waiver
or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.


 


ARTICLE III.        TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments Free of Taxes; Obligation to Withhold; Payments
on Account of Taxes.  (i) Any
and all payments by or on account of any obligation of the Borrowers hereunder
or under any other Loan Document shall to the extent permitted by applicable
Laws be made free and clear of and without reduction or withholding for any
Taxes.  If, however, applicable Laws
require the Borrowers or the Administrative Agent to withhold or deduct any
Tax, such Tax shall be withheld or deducted in accordance with such Laws as
determined by the Borrowers or the Administrative Agent, as the case may be,
upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.


 


(ii)           If the Borrowers or the
Administrative Agent shall be required by the Code to withhold or  deduct any Taxes, including both United States Federal
backup withholding and withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions as are determined
by the Administrative Agent to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Code, and (C) to
the extent that the withholding or deduction is made on account of Indemnified
Taxes or Other Taxes, the sum payable by the Borrowers shall be increased as
necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or L/C Issuer, as the case may
be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.


 


(b)           Payment of Other Taxes by the Borrower.  Without limiting the provisions of subsection
(a) above, the Borrowers shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.


 


(c)           Tax Indemnifications.  (i) Without limiting the provisions of
subsection (a) or (b) above, the Borrowers shall, and do hereby,
indemnify the Administrative Agent, each Lender and the L/C Issuer, and shall
make payment in respect thereof within 10 days after demand


 


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therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
withheld or deducted by the Borrowers or the Administrative Agent or paid by
the Administrative Agent, such Lender or the L/C Issuer, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  The Borrowers shall also, and
do hereby, indemnify the Administrative Agent, and shall make payment in
respect thereof within 10 days after demand therefor, for any amount which a
Lender or the L/C Issuer for any reason fails to pay indefeasibly to the
Administrative Agent as required by clause (ii) of this subsection.  A certificate as to the amount of any such
payment or liability delivered to the Borrowers by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive
absent manifest error.


 


(ii)           Without limiting the provisions of
subsection (a) or (b) above, each Lender and the L/C Issuer shall,
and does hereby, indemnify the Borrowers and the Administrative Agent, and
shall make payment in respect thereof within 10 days after demand therefor,
against any and all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for the Borrowers or  the
Administrative Agent) incurred by or asserted against the Borrowers or the
Administrative Agent by any Governmental Authority as a result of the failure
by such Lender or the L/C Issuer, as the case may be, to deliver, or as a
result of the inaccuracy, inadequacy or deficiency of, any documentation
required to be delivered by such Lender or the L/C Issuer, as the case may be,
to the Borrowers or the Administrative Agent pursuant to subsection (e).  Each Lender and the L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). 
The agreements in this clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any assignment of rights by, or
the replacement of, a Lender or the L/C Issuer, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other
Obligations.


 


(d)           Evidence of Payments.  Upon request by the Borrowers or
the Administrative Agent, as the case may be, after any payment of Taxes by the
Borrowers or by the Administrative Agent to a Governmental Authority as
provided in this Section 3.01, the Borrowers shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower,
as the case may be, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of any return
required by Laws to report such payment or other evidence of such payment
reasonably satisfactory to the Borrowers or the Administrative Agent, as the
case may be.


 


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(e)           Status of Lenders; Tax Documentation.  (i)  Each Lender shall deliver to the
Borrowers and to the Administrative Agent, at the time or times prescribed by
applicable Laws or when reasonably requested by the Borrowers or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable Laws or by the taxing authorities of any jurisdiction
and such other reasonably requested information as will permit the Borrowers or
the Administrative Agent, as the case may be, to determine (A) whether or
not payments made hereunder or under any other Loan Document are subject to
Taxes, (B) if applicable, the required rate of withholding or deduction,
and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such
Lender by the Borrowers pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in the applicable
jurisdiction.


 


(ii)           Without limiting the generality of
the foregoing, if the Borrowers are resident for tax purposes in the United
States,


 


(A)          any Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Borrowers and the Administrative Agent executed originals of
Internal Revenue Service Form W-9 or such other documentation or
information prescribed by applicable Laws or reasonably requested by the
Borrowers or the Administrative Agent as will enable the Borrowers or the
Administrative Agent, as the case may be, to determine whether or not such
Lender is subject to backup withholding or information reporting requirements;
and


 


(B)           each Foreign Lender that is entitled
under the Code or any applicable treaty to an exemption from or reduction of
withholding tax with respect to payments hereunder or under any other Loan
Document shall deliver to the Borrowers and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the request of the Borrowers or the
Administrative Agent, but only if such Foreign Lender is legally entitled to do
so), whichever of the following is applicable:


 


(I)            executed originals of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits of an income
tax treaty to which the United States is a party,


 


(II)           executed originals of Internal
Revenue Service Form W-8ECI,


 


(III)         executed originals of Internal Revenue
Service Form W-8IMY and all required supporting documentation,


 


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(IV)         in the case of a Foreign Lender
claiming the benefits of the exemption for portfolio interest under section 881(c) of
the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the Borrowers within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of  Internal Revenue Service Form W-8BEN, or


 


(V)           executed originals of any other form
prescribed by applicable Laws as a basis for claiming exemption from or a
reduction in United States Federal withholding tax together with such
supplementary documentation as may be prescribed by applicable Laws to permit
the Borrowers or the Administrative Agent to determine the withholding or
deduction required to be made.


 


(iii)          Each Lender shall promptly (A) notify
the Borrowers and the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (B) 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 of any jurisdiction that the Borrowers or the Administrative Agent make
any withholding or deduction for taxes from amounts payable to such Lender.


 


(f)            Treatment of Certain Refunds.  Unless required by applicable Laws, at no
time shall the Administrative Agent have any obligation to file for or
otherwise pursue on behalf of a Lender or the L/C Issuer, or have any
obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld
or deducted from funds paid for the account of such Lender or the L/C Issuer,
as the case may be.  If the
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrowers or with respect to which the
Borrowers have paid additional amounts pursuant to this Section, it shall pay
to the Borrowers an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrowers under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses incurred by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the
amount paid over to the Borrowers (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Lender or the L/C Issuer in the event the Administrative Agent,
such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority.  This subsection
shall not be construed to require the Administrative Agent, any Lender or the
L/C Issuer to make available its tax


 


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returns (or any other information relating to
its taxes that it deems confidential) to the Borrowers or any other Person.


 


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 Loans whose interest is determined by reference to the Eurodollar Rate, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrowers
through the Administrative Agent, (i) any obligation of such Lender to
make or continue Eurodollar Rate Loans or to convert Base Rate Loans or Cost of
Funds Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if
such notice asserts the illegality of such Lender making or maintaining Base
Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base
Rate Loans of such Lender shall, if necessary to avoid such illegality, be
determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate, in each case until such Lender notifies the
Administrative Agent and the Borrowers that the circumstances giving rise to
such determination no longer exist.  Upon
receipt of such notice, (x) the Borrowers 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 or Cost of
Funds Rate Loans (the interest rate on which Base Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate), 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 and (y) if such notice asserts the illegality of
such Lender determining or charging interest rates based upon the Eurodollar
Rate, the Administrative Agent shall during the period of such suspension
compute the Base Rate applicable to such Lender without reference to the
Eurodollar Rate component thereof until the Administrative Agent is advised in
writing by such Lender that it is no longer illegal  for such Lender to determine or charge
interest rates based upon the Eurodollar Rate. 
Upon any such prepayment or conversion, the Borrowers shall also pay
accrued interest on the amount so prepaid or converted.


 


3.03        Inability to Determine Rates.  If the Required Lenders determine that for
any reason in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not
being offered to banks in the London interbank eurodollar market for the
applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or in
connection with an existing or proposed Base Rate Loan, or (c) the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify
the Borrowers and each Lender. 
Thereafter, (x) the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended, and (y) in the event of a


 


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determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the
utilization of the Eurodollar Rate component in determining the Base Rate shall
be suspended, in each case until the Administrative Agent (upon the instruction
of the Required Lenders) revokes such notice. 
Upon receipt of such notice, the Borrowers 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 Costs; Reserves on Eurodollar
Rate Loans.


 


(a)           Increased Costs Generally.  If any Change in Law shall:


 


(i)            impose, modify or deem applicable
any reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e))
or the L/C Issuer;


 


(ii)           subject any Lender or the L/C Issuer
to any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan
made by it, or change the basis of taxation of payments to such Lender or the
L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or


 


(iii)          impose on any Lender or the L/C Issuer
or the London interbank market any other condition, cost or expense affecting
this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of
Credit or participation therein;


 


and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Loan the interest on which is determined by
reference to the Eurodollar Rate (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Borrowers will pay to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


 


(b)           Capital Requirements.  If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the L/C Issuer’s capital or on the
capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or


 


69

















 


participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the L/C Issuer, to a level
below that which such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s or the L/C Issuer’s policies and the policies
of such Lender’s or the L/C Issuer’s holding company with respect to capital
adequacy), then from time to time the Borrowers will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s
holding company for any such reduction suffered.


 


(c)           Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the
L/C Issuer or its holding company, as the case may be, as specified in
subsection (a) or (b) of this Section and delivered to the
Borrowers shall be conclusive absent manifest error.  The Borrowers shall pay such Lender or the
L/C Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)           Delay in Requests. 
Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrowers shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).


 


(e)           Reserves on Eurodollar Rate Loans.  The Borrowers shall pay to each Lender, as
long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as “Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Borrowers shall have received at least 10 days’ prior notice (with a copy
to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.


 


3.05        Compensation for Losses.  Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrowers shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:


 


70

















 


(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 Borrowers
(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 or Cost of Funds
Rate Loans on a day other than the last day of the Interest Period therefor as
a result of a request by the Borrowers pursuant to Section 10.13;


 


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 Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For
purposes of calculating amounts payable by the Borrowers 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 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        Mitigation Obligations; Replacement of
Lenders.


 


(a)           Designation of
a Different Lending Office.  If any Lender requests compensation
under Section 3.04, or the Borrowers are required to pay any
additional amount to any Lender, the
L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such
Lender or the L/C Issuer shall, as applicable, use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01
or 3.04, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section 3.02, as applicable, and (ii) in
each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender or the L/C
Issuer, as the case may be.  The
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any
Lender or the L/C Issuer in
connection with any such designation or assignment.


 


(b)           Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrowers may replace such Lender in accordance with Section 10.13.


 


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3.07        Survival.  All of the Borrowers’ obligations under this Article III
shall survive termination of the Aggregate Commitments, repayment of all other
Obligations hereunder, and resignation of the Administrative Agent.


 


ARTICLE
IV.        CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS


 


4.01        Conditions of Initial Credit Extension.  The obligation of the L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:


 


(a)           The Administrative Agent’s receipt of the following, each
of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date)
and each in form and substance satisfactory to the Administrative Agent and
each of the Lenders:


 


(i)            executed counterparts of this
Agreement and the other Loan Documents, sufficient in number for distribution
to the Administrative Agent, each Lender and the Borrowers;


 


(ii)           a Note executed by the Borrowers in
favor of each Lender requesting a Note;


 


(iii)          such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible Officers
of each Loan Party 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 is a party;


 


(iv)          such documents and certifications as
the Administrative Agent may reasonably require to evidence that each Loan
Party is duly organized or formed, and that each Loan Party is validly
existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;


 


(v)           a favorable opinion of Edward J.
Faneuil, Esq. and Vinson & Elkins LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, as to the
matters set forth in Exhibit H and such other matters concerning
the Loan Parties and the Loan Documents as the Required Lenders may reasonably
request;


 


(vi)          a certificate of a Responsible Officer
of each Loan Party either (A) attaching copies of all consents, licenses
and approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and


 


72

















 


approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals
are so required;


 


(vii)         a certificate signed by a Responsible
Officer of the Borrowers certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied and (B) that
there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;;


 


(viii)        evidence that all insurance required to
be maintained pursuant to the Loan Documents has been obtained and is in
effect;


 


(ix)           a fully executed Perfection
Certificate from each Loan Party and the results of Uniform Commercial Code
searches with respect to the Collateral, indicating no Liens other than
Permitted Liens and otherwise in form and substance satisfactory the
Administrative Agent;


 


(x)            evidence satisfactory to the
Administrative Agent that the real property lease for the terminal located in
Revere, Massachusetts has been extended to a date of not earlier than July 31,
2014;


 


(xi)           an updated environmental summary of
the Real Estate prepared by the Borrowers, in form and substance satisfactory
to the Administrative Agent; and


 


(xii)          such other
assurances, certificates, documents, consents or opinions as the Administrative
Agent, the L/C Issuer or the Required Lenders reasonably may require.


 


(b)           Any fees required to be paid on or before the Closing Date
shall have been paid.


 


(c)           Unless waived by the Administrative Agent, the Borrowers
shall have paid all fees, charges and disbursements of counsel to the
Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements
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 Borrowers and the Administrative Agent).


 


(d)           The Security Documents shall be effective to create in
favor of the Administrative Agent a legal, valid and enforceable first priority
(except for Permitted Liens entitled to priority under applicable law) security
interest in and lien upon the Collateral. 
All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Administrative Agent to protect
and preserve such security interests shall have been duly effected.  The Administrative Agent shall have received
evidence thereof in form and substance satisfactory to the Administrative
Agent.


 


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(e)           The Administrative Agent and each of the Lenders shall
have received from the Borrowers the initial Borrowing Base Report as of April 30,
2010.


 


(f)            The
Administrative Agent and each of the Lenders shall have received the report of
a commercial financial examination of the Borrowers completed in April, 2010.


 


Without
limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
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.


 


4.02        Conditions to all Credit Extensions.  The obligation of each Lender to honor any
Request for Credit Extension (other than a Loan Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans or Cost of Funds Rate Loans, as the case may be) is subject to the
following conditions precedent:


 


(a)           The representations and warranties of the Loan Parties
contained in Article V 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 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 as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsection (a) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01.


 


(b)           No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds thereof.


 


(c)           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 a Loan Notice requesting only a
conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrowers shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE
V.         REPRESENTATIONS AND WARRANTIES


 


The
Loan Parties represent and warrant to the Administrative Agent and the Lenders
that:


 


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5.01        Existence, Qualification and Power.  Each Loan Party and each Subsidiary thereof (a) is duly organized or formed,
validly existing and, as applicable, 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 or lease 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, as applicable, 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.


 


5.02        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, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a
party or affecting such Person or the properties of such Person or any of its
Subsidiaries 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; or (c) violate any Law.


 


5.03        Governmental Authorization; Other
Consents.  Other than
the filings which may be necessary to perfect the Administrative Agent’s Lien
under the Security Documents, 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; (b) the grant by any Loan
Party of the Liens granted by it pursuant to any of the Security Documents; (c) the
perfection or maintenance of the Liens created under any of the Security
Documents (including the first priority nature thereof) or (d) the
exercise by the Administrative Lender or any Lender of its right under the Loan
Documents.


 


5.04        Binding Effect.  This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. 
This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally.


 


5.05        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 the Borrowers and their Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in


 


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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 Borrowers and their Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and
Indebtedness.


 


(b)           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.


 


(c)           The Loan Parties, on a consolidated and consolidating
basis, both before and after giving effect to the transactions contemplated by
this Agreement and the other Loan Documents are Solvent.  For purposes hereof, as to any Person on any
date of determination, Solvent shall mean that on such date (a) the fair
value of the property of such Person exceeds its total liabilities (including
contingent liabilities but without duplication of any underlying liability
related thereto); (b) the present fair saleable value on a going concern
basis of the assets of such Person is not less than the amount required to pay
the probable liability of such Person on its debts as they become absolute and
matured; (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay such debts
and liabilities as they mature; (d) such Person is not engaged, and is not
about to engage, in business or a transaction for which its property would
constitute unreasonably small capital; and (e) such Person is able to pay
its debts and liabilities, contingent obligations and other commitments as they
mature in the ordinary course of business.


 


5.06        Litigation.  There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of any Loan Party after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority,
by or against any Loan Party or any of its Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in Schedule 5.06,  either individually or in the aggregate, if determined
adversely upon reasonable review of the underlying claim, could reasonably be
expected to have a Material Adverse Effect.


 


5.07        No Default.  Neither any Loan Party nor any Subsidiary
thereof 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.  No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.


 


5.08        Ownership of Property; Liens.  Each Loan Party and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property 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.  The property of each Loan Party and its
Subsidiaries is subject to no Liens, other than Permitted Liens.


 


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5.09        Environmental Compliance.  Each Loan Party and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Borrowers have reasonably
concluded that, except as specifically disclosed in Schedule 5.09, such
Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


5.10        Insurance.  The properties of each Loan Party and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of a Loan Party, 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
each Loan Party or the applicable Subsidiary operates.


 


5.11        Taxes.  Each Loan Party and its Subsidiaries have
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.  There is no proposed tax
assessment against any Loan Party or any Subsidiary that would, if made, have a
Material Adverse Effect.  Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.


 


5.12        ERISA Compliance.


 


(a)           Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state
laws.  Each Pension Plan that is intended
to be a qualified plan under Section 401(a) of the Code has received
a favorable determination letter from the Internal Revenue Service to the
effect that the form of such Plan is qualified under Section 401(a) of
the Code and the trust related thereto has been determined by the Internal
Revenue Service to be exempt from federal income tax under Section 501(a) of
the Code, or an application for such a letter is currently being processed by
the Internal Revenue Service.  To the
best knowledge of the Loan Parties, nothing has occurred that would prevent or
cause the loss of such tax-qualified status.


 


(b)           There are no pending or, to the best knowledge of any Loan
Party, 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, and neither any Loan
Party nor any ERISA Affiliate is aware of any fact, event or circumstance that
could reasonably be expected to constitute or result in an ERISA Event with
respect to any Pension Plan; (ii) each Loan Party and


 


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each ERISA Affiliate has met all applicable
requirements under the Pension Funding Rules in respect of each Pension
Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has
been applied for or obtained; (iii) as of the most recent valuation date
for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of
the Code) is 60% or higher and neither any Loan Party nor any ERISA Affiliate
knows of any facts or circumstances that could reasonably be expected to cause
the funding target attainment percentage for any such plan to drop below 60% as
of the most recent valuation date; (iv) neither any Loan Party nor any
ERISA Affiliate has incurred any liability to the PBGC other than for the
payment of premiums, and there are no premium payments which have become due
that are unpaid; (v) neither any Loan Party nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of
ERISA; and (vi) no Pension Plan has been terminated by the plan
administrator thereof nor by the PBGC, and no event or circumstance has
occurred or exists that could reasonably be expected to cause the PBGC to
institute proceedings under Title IV of ERISA to terminate any Pension Plan.


 


(d)           Neither any Loan Party or any ERISA Affiliate maintains or
contributes to, or has any unsatisfied obligation to contribute to, or
liability under, any active or terminated Pension Plan other than (A) on
the Closing Date, those listed on Schedule 5.12(d) hereto
and (B) thereafter, Pension Plans not otherwise prohibited by this
Agreement.


 


5.13        Subsidiaries; Equity Interests.


 


(a)           As of the Closing Date, no Loan Party has any Subsidiaries
other than those specifically disclosed on Part (a) of Schedule 5.13, and all of outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens
other than Liens granted to the Administrative Agent for the benefit of the
Administrative Agent and the Secured Parties under the Security Documents.  The Loan Parties have no equity investments
in any other corporation or entity other than those specifically disclosed in
Part(b) of Schedule 5.13.  
All of the outstanding Equity Interests in each Loan Party have been
validly issued, are fully paid
and nonassessable and, as to each Loan
Party other than MLP are owned by the Persons and in the amounts specified on Part (c) of
Schedule 5.13 free and clear of all Liens other than Liens
granted to the Administrative Agent for the benefit of the Administrative Agent
and the Secured Parties under the Security Documents.  To the extent any Loan Party enters into any
transaction permitted hereunder which requires such Loan Party to modify any
information contained on Schedule 5.13,
then from and after such date, the Loan Parties shall make this representation
as of the date of making such representation with reference to such schedule as
updated in accordance with the terms hereof.


 


(b)           The sole general partner of MLP is GP.


 


5.14        Margin Regulations; Investment Company
Act.


 


(a)           No Loan Party is engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning


 


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of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.


 


(b)           No Loan Party, any Person Controlling a Loan Party, or any
Subsidiary is or is required to be registered as an “investment company” under
the Investment Company Act of 1940.


 


5.15        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 report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished and taken as a whole with all
documents so delivered) 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 misleading; provided
that, with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


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5.16        Compliance with Laws.  Each Loan Party and each Subsidiary thereof
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.


 


5.17        Taxpayer Identification Number.  Each Loan Party’s true and correct U.S.
taxpayer identification number is set forth in the Perfection Certificate of
such Loan Party.


 


5.18        Intellectual Property; Licenses, Etc.  Each Loan Party and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person unless any such conflict could not
reasonably be expected to have a Material Adverse Effect.  To the best knowledge of each Loan Party, no
slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by any Loan
Party or any Subsidiary infringes upon any rights held by any other
Person.  No claim or litigation regarding
any of the foregoing is pending or, to the best knowledge of any Loan Party,
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.


 


5.19        Absence of Financing Statements.  Except with respect to Permitted Liens, there
is no financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records, registry
or other public office that purports to cover, affect or give notice of any
present or possible future Lien on, or security interest in, any assets or
property of any of the Loan Parties or any rights relating thereto.


 


5.20        Perfection of Security Interests.  All filings, assignments, pledges and
deposits of documents or instruments have been made and all other actions have
been taken that are necessary or advisable, under applicable law, to establish
and perfect the Administrative Agent’s security interest in the Collateral.   Except for ordinary course rights of setoff
and withholdings on certain items of Collateral contemplated in the Borrowing
Base, the Collateral and the Administrative Agent’s rights with respect to the
Collateral are not subject to any setoff, claims, withholdings or other
defenses.  The Loan Parties are the
owners of the Collateral free from any Lien and any other claim or demand,
except for Permitted Liens.


 


5.21        Certain Transactions.  None of the officers, directors or employees
of any Loan Party is presently a party to any transaction with such Loan Party
or any other Loan Party (other than for services as employees, officers and
directors and redemption agreements, and loans to owners, officers and
employees to the extent permitted by Section 7.14,
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to


 


80

















 


or from any officer,
director or such employee or, to the knowledge of any Loan Party, any
corporation, partnership, trust or other entity (other than for services as
employees, officers and directors and redemption agreements and loans to
owners, officers and employees, in each case in the ordinary course of business
consistent with past practices) in which any officer, director or any such
employee has a substantial interest or is an officer, director, trustee or
partner.


 


5.22        Bank Accounts.  The Perfection Certificate of each Loan Party
sets forth the account numbers and locations of all securities accounts,
deposit accounts and other bank accounts of each of such Loan Party.


 


ARTICLE
VI.        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, the Loan Parties shall, and shall (except in
the case of the covenants set forth in Sections 6.01, 6.02, and 6.03)
cause each Subsidiary to:


 


6.01        Financial Statements.    Deliver to the Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agent and
the Required Lenders:


 


(a)           as soon as available, but in any event 90 days after the
end of each fiscal year of each Loan Party (or, if earlier, fifteen (15) days
after the date required to be filed with the SEC (without giving effect to any
extension permitted by the SEC)), a combined balance sheet of the Loan Parties
(other than the GP) and their Subsidiaries as at the end of such fiscal year,
and the related combined statements of income or operations, shareholders’ or
members’ 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 applicable Securities Laws 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 45 days after the end of each fiscal quarter of each fiscal year of
the Loan Parties (or, if earlier, five (5) days after the date required to
be filed with the SEC (without giving effect to any extension permitted by the
SEC)), a combined balance sheet of the Loan Parties (other than the GP) and
their Subsidiaries as at the end of such fiscal quarter, and the related
combined statements of income or operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of each such Loan Party’s
fiscal year then ended, each calculated on a FIFO basis and 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, all in reasonable detail, certified by a Responsible Officer of
the Loan Parties as fairly presenting the financial condition, results of
operations, shareholders’ equity and cash flows of each Loan Party (other than
the GP) and its


 


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Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes;


 


(c)           as soon as practicable, but in any
event 45 days after the end of each month of the Loan Parties, unaudited
monthly combined financial reports of the Loan Parties (other than the GP) and
their Subsidiaries for such month and the portion of the fiscal year then ended
(including balance sheet and income reports), each calculated on a FIFO basis
and prepared in accordance with GAAP, together with a certification by a
Responsible Officer that the information contained in such financial reports
fairly presents the combined financial condition of the Loan Parties (other
than the GP) on the date thereof (subject to year-end adjustments);


 


As
to any information contained in materials furnished pursuant to Section 6.02(d),
the Loan Parties shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of the Loan Parties to furnish the information and materials
described in clauses (a) and (b) above at the times specified
therein.  In addition, notwithstanding anything
to the contrary contained in this Section 6.01
or Section 6.02(a) or 6.02(f), if the date for delivery of any
statement required by Section 6.01 or Section 6.02(a) or 6.02(f) shall be due on a day other than
a Business Day, delivery of such statements shall be made on the next following
Business Day.


 


6.02        Certificates; Other Information.  Deliver to the Administrative Agent and each
Lender, 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 Sections 6.01(a) and 6.01(b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Loan Parties (which Compliance
Certificate shall include a report of gross margins and volumes by product for
the fiscal quarter to which it relates, together with any changes in such
amounts from the previous fiscal quarter);


 


(b)           promptly after any request by the Administrative Agent or
any Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of the Loan Parties by independent accountants in
connection with the accounts or books of each Loan Party or any Subsidiary, or
any audit of any of them;


 


(c)           promptly after the same are
available, copies of each annual report, proxy or financial statement or other
material report or communication sent to the equity holders of MLP or GP, and
copies of all annual, regular, periodic and special reports and registration
statements which MLP or GP may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto;


 


(d)           promptly after the
furnishing thereof, copies of any statement or report furnished to any holder
of debt securities of any Loan Party or any Subsidiary thereof pursuant


 


82

















 


to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 6.1 or any other clause of
this Section 6.02;


 


(e)           promptly, and in
any event within five Business Days after receipt thereof by any Loan Party or
any Subsidiary thereof, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such
agency regarding financial or other operational results of any Loan Party or
any Subsidiary thereof;


 


(f)            no later than (i) five
(5) Business Days after the 15th day of each calendar month (or if such
day is not a Business Day, the next subsequent Business Day), or such earlier
time as the Administrative Agent may request, a complete and accurate Borrowing
Base Report setting forth the Borrowing Base as at the close of business on the
15th day of such month (or other date so requested by the Administrative
Agent), and (ii) five (5) Business
Days after the last Business Day of each month (or at such earlier time as the
Administrative Agent may reasonably request), a complete and accurate Borrowing
Base Report as of the close of business on the last Business Day of such month
(or other date so requested by the Administrative Agent), in each case
including a marked-to-market inventory report and a summary report setting
forth in appropriate detail the Borrowers’ computations of its Open Position as
of the date of each Borrowing Base Report by both product and market; provided, however, for purposes of determining
the available amount of WC Loans the Borrowers are permitted to borrow and
Letters of Credit which are subject to the Borrowing Base the Borrowers are
permitted to request pursuant to the Agreement, the Borrowers shall be
permitted at any time to deliver to the Administrative Agent and the Lenders a
more recent Borrowing Base Report than is required to be delivered as described
above, such Borrowing Base Report setting forth the Borrowing Base as at the
close of business of the Business Day such Borrowing Base Report is dated,
which Borrowing Base Report shall include a marked-to-market inventory report
and a summary report setting forth in appropriate detail the Borrowers’
computations of its Open Position as of the date of each Borrowing Base Report
by both product and market;


 


(g)           as soon as practicable, but in any
event within thirty (30) days after the first day of each fiscal year of the
Loan Parties (other than the GP), the annual budget and operating projections
for such fiscal year, including without limitation gross margins and volumes by
product;


 


(h)           as soon as
practicable after adoption and/or implementation thereof, any updates to the
Loan Parties’ risk policy; and


 


(i)            promptly, such additional information regarding the
business, financial or corporate affairs of any Loan Party or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Administrative Agent
or any Lender may from time to time reasonably request.


 


Documents
required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may


 


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be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the applicable Loan Party
posts such documents, or provides a link thereto on such Loan Party’s website
on the Internet at the website address listed on Schedule 10.02; or (ii) on
which such documents are posted on the applicable Loan Party’s behalf on an
Internet or intranet 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: (i) the
Loan Parties shall deliver paper copies of such documents to the Administrative
Agent or any Lender upon its request to the Loan Parties to deliver such paper
copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Loan Parties shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) 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.  The Administrative Agent
shall have no obligation to request the delivery of or to maintain paper copies
of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Loan Parties with any such request
by a Lender for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


The
Loan Parties hereby acknowledge that (a) the Administrative Agent and/or
the Arranger will make available to the Lenders and the L/C Issuer materials
and/or information provided by or on behalf of the Loan Parties hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and (b) certain
of the Lenders (each, a “Public Lender”) may have personnel who do not
wish to receive material non-public information with respect to each Loan Party
or its Affiliates, or the respective securities of any of the foregoing, and
who may be engaged in investment and other market-related activities with
respect to such Persons’ securities. 
Each Loan Party hereby agrees that so long as such Loan Party is the issuer of any outstanding debt or
equity securities that are registered or issued pursuant to a private offering
or is actively contemplating issuing any such securities (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC”, each Loan Party shall be deemed to have
authorized the Administrative Agent, the Arranger, the L/C Issuer and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to such Loan Party or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information.”  Notwithstanding
the foregoing, no Loan Party shall be under an obligation to mark any Borrower
Materials “PUBLIC.”


 


6.03        Notices.  Promptly notify the Administrative Agent and
each Lender:


 


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(a)           of the occurrence of any Default;


 


(b)           of any matter 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 or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting any Loan Party or any
Subsidiary, including pursuant to any applicable Environmental Laws;


 


(c)           of the occurrence of any ERISA Event;


 


(d)           of any material change in
accounting policies or financial reporting practices by any Loan Party or any
Subsidiary, including any determination
by any Loan Party referred to in Section 2.09(b);


 


(e)           of (i) any material
violation of any Environmental Law that such Loan Party reports in writing or
is reportable by such Loan Party in writing (or for which any written report
supplemental to any oral report is made) to any federal, state or local
environmental agency an d (ii) upon becoming aware thereof, of any
material inquiry, proceeding, investigation or any other action pertaining to
any Environmental Law, including a notice from any agency of potential
environmental liability, or any federal, state or local environmental agency or
board, that has the potential to have a Material Adverse Effect;


 


(f)            of any material setoff,
claims (including, with respect to the Real Estate, environmental claims),
withholdings or other defenses to which any of the Collateral, or the Administrative Agent’s rights with respect to the Collateral, are
subject; and


 


(g)           at least ten (10) Business Days
prior to any Loan Party issuing any of the Senior Unsecured Notes or the
Subordinated Debt (together with a copy of drafts of such Senior Unsecured
Notes and indenture relating thereto or drafts of the documents and agreements
expected to govern such Subordinated Debt, as applicable).


 


Each notice pursuant to this Section 6.03 shall be
accompanied by a statement of a Responsible Officer of the applicable Loan
Party setting forth details of the occurrence referred to therein and stating
what action the Loan Parties have taken and propose to take with respect
thereto.  Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


6.04        Payment of Obligations.  Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are either being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by any Loan Party or such Subsidiary
or the nonpayment of which would not give rise to a Lien on any property or
assets of any Loan 


 


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Party or any Subsidiary thereof and could not
reasonably be expected to have a Material Adverse Effect; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.


 


6.05        Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 7.04
or 7.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.


 


6.06        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 excepted; (b) make
all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) use the standard of care typical in the industry
in the operation and maintenance of its facilities.


 


6.07        Maintenance of Insurance.  Maintain with financially sound and reputable
insurance companies not Affiliates of any Loan Party, insurance with respect to
its properties and business (including, without limitation, any business
interruption insurance existing on the Closing Date) against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons  and providing
for not less than 30 days’ prior notice to the Administrative Agent of
termination, lapse or cancellation of such insurance.


 


6.08        Compliance with Laws; Governing
Documents.  Comply (a) with
the provisions of its Organizational Documents; (b) with all agreements
and instruments to which it or any of its properties may be bound and (c) in
all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except
in such instances in which (i) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted; or (ii) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.


 


6.09        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 the Loan Parties and each Subsidiary, as the case may
be, and at all times engage Ernst & Young or other independent
certified public accounts satisfactory to the Administrative Agent as the 


 


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independent certified public accountants of
the Loan Parties and not permit more than thirty (30) days to elapse between
the cessation of such firm’s (or any successor firm’s) engagement as the
independent certified public accountants of the Loan Parties and the
appointment in such capacity of a successor firm as shall be satisfactory to
the Administrative Agent; (b) maintain such books of record and account in
material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over each Loan Party or such
Subsidiary, as the case may be; and (c) maintain copies of inventory
valuation reports used in determining any Marked-to-Market Basis calculations.


 


6.10        Inspection Rights.  Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, 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 Loan Parties 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 Loan Parties at any time during normal
business hours and without advance notice. 
In addition, the Loan Parties shall permit (a) the Administrative
Agent or any of its employees or agents to conduct commercial finance
examinations once per year (or more frequently if a Default or Event of Default
has occurred and is continuing); and (b) at the request of the
Administrative Agent, the Administrative Agent or any of its employees or
agents to conduct a risk examination, in each case all at the Loan Parties’
expense.


 


6.11        Use of Proceeds.  Use the proceeds of (a) WC  Loans solely for working capital purposes
(including posting margin and the financing of Capital Expenditures other than
Acquisition Capital Expenditures) and not in contravention of any Law or of any
Loan Document;  and (b) the Revolver
Loans for general corporate purposes (including payment of Permitted
Distributions and posting margin) and not in contravention of any Law or of any
Loan Document.  The Borrowers will
request Letters of Credit solely to support petroleum product purchases and to
secure bonding and performance obligations.


 


6.12        Accounts.  Continue to maintain a wholesale lock box
account, retail lock box account and depository lock box account with the
Administrative Agent or another Lender (the “Lock Box Accounts”) as well
as an Operating Account with the Administrative Agent, and shall direct the
Administrative Agent or any other Lender which has a Lock Box Account, pursuant
to an agreement in form and substance satisfactory to the Administrative Agent,
to cause all funds held by the Administrative Agent or such Lender, as the case
may be, in the Lock Box Accounts to be transferred automatically and on a daily
basis to the Operating Account.  In
addition, each Loan Party’s deposit accounts and securities accounts shall be
subject to the Administrative Agent’s first priority perfected security
interest therein.


 


6.13        Additional Borrowers; Additional
Collateral.  (a)   Notify
the Administrative Agent at the time that any Person becomes a Subsidiary, and,
promptly thereafter (and in any 


 


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event within thirty (30) days), cause (a) such
Person, if such Person is a Domestic Subsidiary, to become a Borrower hereunder
by executing and delivering to the Administrative Agent a joinder to this
Agreement and the other Loan Documents (including, without limitation, the
Security Documents) or such other document as the Administrative Agent shall
deem appropriate for such purpose (including, without limitation, any document
necessary to grant to the Administrative Agent, for the benefit of the Secured
Parties, a first priority perfected security interest in such Domestic
Subsidiary’s assets), (b) such Person, if such Person is a Domestic
Subsidiary, to deliver to the Administrative Agent documents of the types
referred to in clauses (iii) and (iv) of Section 4.01(a) and
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; (c) Schedule  5.13
hereto to be updated to give effect to any changes resulting from the formation
or acquisition of such new Subsidiary.


 


(b)  Each
Loan Party has granted to the Administrative Agent, for the benefit of the
Administrative Agent and the other Secured Parties, a lien on substantially all
of such Loan Party’s assets as set forth in the Security Documents.  In furtherance of the foregoing, in
connection with property that becomes property owned by a Loan Party after the
Closing Date for which a Lien on such property is required by the terms of the
Security Documents, or if any Loan Property acquires any fee interest in any
Real Estate after the Closing Date and the Required Lenders request a Lien on
such property, the applicable Loan Party shall deliver (A) such
documentation as the Administrative Agent may reasonably deem necessary or
desirable in order to create and perfect and obtain the full benefits of such
Lien, including mortgages, deeds of trust, security agreements, UCC-1 financing
statements, surveys, real estate title insurance policies, certified
resolutions and other organizational and authorizing documents of the grantor
of liens, favorable opinions of the general counsel of the applicable Loan
Party (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent’s Liens thereunder) and other items of
the types required to be delivered pursuant to Section 4.01, all in form, content
and scope reasonably satisfactory to the Administrative Agent, and (B) such
other documentation as the Required Lenders may reasonably deem necessary or
desirable in order to create and perfect and obtain the full benefits of such
Lien.


 


6.14        Senior Debt Status.  The Obligations of the Loan Parties under
this Agreement and each of the other Loan Documents ranks and shall continue to
rank at least (a) senior in priority of payment to all Subordinated Debt
of such Loan Party and (b) pari passu in right of payment to the Senior
Unsecured Notes of such Loan Party and, in the case of the Subordinated Debt is
designated as “Senior Debt” (or the analogous term used in any document
evidencing any such Subordinated Debt ) under all instruments and documents,
now or in the future, relating to all Subordinated Debt.


 


ARTICLE
VII.      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 


 


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outstanding,
the Loan Parties shall not, nor shall it permit any Subsidiary to, directly or
indirectly:


 


7.01        Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:


 


(a)           Liens pursuant to any Loan Document (for the avoidance of
doubt, the parties hereto hereby acknowledge that no Loan Party shall be
permitted to grant any Lien directly to a Hedge Bank to secure any obligations
under any Secured Hedge Agreement or to any Cash Management Bank to secure any
obligations under any Secured Cash Management Agreement);


 


(b)           Liens existing on the date hereof and listed on Schedule
7.01 and any renewals or extensions thereof, provided that (i) the
property covered thereby is not changed, (ii) the amount secured or
benefited thereby is not increased except as contemplated by Section 7.03(c),
(iii) the direct or any contingent obligor with respect thereto is not
changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.03(c);


 


(c)           Liens for taxes 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)           carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days 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;


 


(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 the performance of bids, trade
contracts and leases (other than Indebtedness), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred 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 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 not
constituting an Event of Default under Section 8.01(h);


 


(i)            Liens securing Indebtedness permitted under Section 7.03(f);
provided that (i) such Liens do not at any time encumber any
property other than the property financed by such 


 


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Indebtedness and (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition;


 


(j)            Liens on the Mortgaged Property as and to the extent
permitted by the Mortgages applicable thereto;


 


(k)           Liens granted to a Subject Utility on the Subject Natural
Gas Receivables (and no other assets of a Loan Party) solely in connection with
a Natural Gas Transaction; and


 


(l)            Liens incurred in the ordinary course of business in
favor of commodities brokers on sums on deposit with such broker (but only
those amounts actually on deposit with such broker) to cover for trading
losses/debit balances, broker fees and ordinary course expenses owed to such
broker by the applicable Loan Party.


 


In addition, no Loan Party will (a) enter
into or permit to exist any arrangement or agreement (excluding the Agreement,
the other Loan Documents and any document or agreement relating to the Senior
Unsecured Notes or the Subordinated Debt (the “High
Yield Documents”) so long as such
prohibitions in the High Yield Documents are similar to those prohibitions
found in similar transactions) which directly prohibits such Loan Party from
creating, assuming or incurring any Lien upon its properties, revenues or
assets whether now owned or hereafter acquired or (b) enter into any
agreement, contract or arrangement (excluding the Agreement, the other Loan
Documents and the High Yield Documents so long as such restrictions in the High
Yield Documents are similar to those restrictions found in similar
transactions) restricting the ability of any Subsidiary of a Loan Party to pay
or make dividends or distributions in cash or kind to such Loan Party, to make
loans, advances or other payments of whatsoever nature to such Loan Party, or
to make transfers or distributions of all or any part of its assets to such
Loan Party, in each case other than (i) restrictions on specific assets
which assets are the subject of purchase money security interests to the extent
permitted by Section 7.03(f), and (ii) customary
anti-assignment provisions contained in leases and licensing agreements entered
into by a Loan Party or such Subsidiary in the ordinary course of business.


 


7.02        Investments.  Make any Investments, except:


 


(a)           Investments held by a Loan Party or such Subsidiary in the
form of marketable direct or guaranteed obligations of the United States of
America that mature within one (1) year from the date of purchase by such
Loan Party or Subsidiary;


 


(b)           Investments held by a Loan Party or such Subsidiary in the
form of demand deposits, certificates of deposit, bankers acceptances and time
deposits of any Lender or any other United States bank having total assets in
excess of $1,000,000,000 Dollars;


 


(c)           Investments held by a Loan Party or such Subsidiary in the
form of securities commonly known as “commercial paper” issued by (i) any
Lender or any corporation controlling any Lender; (ii) any other
corporation which is organized and existing under the laws of the United States
of America or any state thereof, if at the time of purchase, such 


 


90

















 


commercial paper has been rated and the ratings
therefore are not less than “P-2” if rated by Moody’s and not less than “A-2”
if rated by S&P;


 


(d)           Investments held by a Loan Party or such Subsidiary in the
form of repurchase agreements secured by any one or more of the foregoing;


 


(e)           advances to officers, directors and employees of a Loan
Party to the extent permitted by Section 7.14 hereof;


 


(f)            Investments of one Loan Party into another Loan Party, so
long as each such Person remains a Loan Party hereunder;


 


(g)           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;


 


(h)           Investments existing on the date hereof and set forth on Schedule 7.02 hereto, and
Guarantees permitted by Section 7.03(d);


 


(i)            Investments of a Loan Party in the form of short-term
Investments in tax-exempt money market funds acceptable to the Administrative
Agent;


 


(j)            Investments consisting of the Warex Acquisition and a
Permitted Acquisition; and


 


(k)           Investments by a Loan Party in a joint venture entity,
provided that the aggregate amount of all such Investments does not exceed
$10,000,000.


 


7.03        Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness under the Loan Documents;


 


(b)           Indebtedness of a Loan Party in respect of the Senior
Unsecured Notes or the Subordinated Notes, and any guarantee obligations of a
Loan Party in respect thereof, provided (i) the aggregate principal
amount of all Senior Unsecured Notes and all Subordinated Debt shall not exceed
$250,000,000; (ii) all of the conditions set forth in the definition of “Senior
Unsecured Notes” or “Subordinated Debt”, as applicable, have been satisfied at
the time of issuance; and (iii) no Default of Event of Default has
occurred and is continuing at the time of issuance of such Senior Unsecured
Notes or Subordinated Debt, as the case may be, or would exist as a result of
such issuance, including, without limitation, with the financial covenants
contained herein after giving effect on a pro forma basis to the incurrence of
such Indebtedness, and any Indebtedness incurred to refinance, renew, extend or
replace such Senior Unsecured Notes or Subordinated Debt, as the case may be,
in whole or in part provided that, with respect to any such refinancing,
renewal, extension or replacement, (a) the weighted average life to
maturity of any such Indebtedness shall not be less than the weighted average
life to maturity 


 


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of then outstanding Credit Agreement
Obligations if any, or the Senior Unsecured Notes or Subordinated Debt, as the
case may be, as in effect on the date of issuance thereof; (b) the
maturity of such Indebtedness shall be no less than six months after the
Maturity Date; (c) the aggregate principal amount of such Indebtedness
shall not exceed the aggregate principal amount of Indebtedness being so
refinanced, renewed, extended or replaced (plus all accrued and unpaid interest
thereon and all applicable fees, expenses and prepayment premiums directly
related thereto; (d) such Indebtedness remains unsecured; and (e) such
Indebtedness meets all of the other criteria set forth in the definition of
Senior Unsecured Notes or Subordinated Debt, as applicable;


 


(c)           Indebtedness outstanding on the date hereof and listed on Schedule
7.03 and any refinancings, refundings, renewals or extensions thereof; provided
that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding,
renewal 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 refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if any)
and subordination (if any), and other material terms taken as a whole, of any
such refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest
rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;


 


(d)           Indebtedness of one Loan Party owing to another Loan
Party, so long as both Persons are Loan Parties hereunder, and, in addition,
Guarantees of a Loan Party in respect of Indebtedness otherwise permitted
hereunder of another Loan Party;


 


(e)           obligations (contingent or otherwise) of the Borrowers or
any Subsidiary existing or arising under any Swap Contract, provided
that (i) 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 (ii) 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; and


 


(f)            Indebtedness in respect of capital leases, Synthetic
Lease Obligations and purchase money obligations for fixed or capital assets
within the limitations set forth in Section 7.01(i);  provided,
however, that the aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed $5,000,000.


 


7.04        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 


 


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substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default exists or would result therefrom:


 


(a)           any Subsidiary or any Borrower may merge with (i) a
Borrower, provided that such Borrower shall be the continuing or
surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Guarantor is merging with another Subsidiary, the Guarantor shall
be the continuing or surviving Person; and


 


(b)           any Subsidiary or any Borrower may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to a
Borrower.


 


7.05        Dispositions.  Make any Disposition or enter into any agreement
to make any Disposition, except:


 


(a)           Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;


 


(b)           Dispositions of inventory in the ordinary course of
business;


 


(c)           Dispositions of equipment or real property to the extent
that (i) such property is exchanged for credit against the purchase price
of similar replacement property, (ii) the proceeds of such Disposition are
reasonably promptly applied to the purchase price of such replacement property
or (iii) the aggregate value of all the equipment or real property
disposed of pursuant to this Section 7.05(c)(iii) does not exceed
$25,000,000 over the life of this Agreement;


 


(d)           Dispositions of property by any Subsidiary or a Borrower
to a Borrower;


 


(e)           Dispositions permitted by Section 7.04; and


 


(f)            Dispositions by a Loan Party of Subject Natural Gas
Receivables to a Subject Utility solely in connection with a Natural Gas
Transaction.


 


provided, however,
that any Disposition pursuant to clauses (a) through (f) shall be for
fair market value.


 


7.06        Acquisitions.  Become a party to any merger or consolidation
or agree to or effect any asset acquisition or stock acquisition, except:


 


(a)           Acquisition of assets in the ordinary course of business,
consistent with past practices and to the extent considered an acquisition,
Investments permitted by Section 7.02 hereof;


 


(b)           (i) Mergers and consolidations permitted by Section 7.04;
and (ii) the
Warex Acquisition, provided, in the case of the Warex Acquisition, only
so long as (1) no Default or Event of Default has occurred and is
continuing or would exist as a result thereof; (2) the board 


 


93

















 


of directors and (if required by applicable law) the shareholders, or
the equivalent thereof of the Loan Parties and of the Warex Seller has approved
such acquisition; (3) the Warex Acquisition is consummated on
substantially the terms set forth in the Warex Purchase Agreement; (4) the
Borrowers have provided the Administrative Agent with prior written notice of
the date of consummation of such Warex Acquisition; (5) the Administrative
Agent shall have ordered, or arranged for the ordering of, an appraisal of the
assets to be acquired in connection with the Warex Acquisition; and (6) the
Warex Acquisition would not subject the Administrative Agent or any Lender to
any additional regulatory or third party approvals in connection with the
exercise of any of its rights or remedies under this Agreement or any other Loan
Document;


 


(c)           Acquisitions of the assets or stock of another Person,
other than the Warex Acquisition, (a “Permitted
Acquisition”), so long as (i) no Default or Event of Default has occurred
and is continuing or would exist as a result thereof; (ii) the Person to
be acquired (or, in the case of an asset acquisition, the assets of such
Person) are in the same or a substantially similar line of business as the Loan
Party making such acquisition; (iii) the Loan Parties have provided the
Administrative Agent with prior written notice of such acquisition, which
notice shall include a reasonably detailed description of such Permitted
Acquisition; (iv) the board of directors and (if required by applicable
law) the shareholders, or the equivalent thereof of each of the applicable Loan
Party or Subsidiary making such acquisition and of the Person to be acquired
has approved such merger, consolidation or acquisition; (v) in the event
of a stock or other similar equity acquisition the Person so acquired shall
become a wholly-owned Subsidiary of a Loan Party and shall comply with the
terms and conditions set forth in Section 6.13; (vi) the business to
be acquired would not subject the Administrative Agent or any Lender to any
additional regulatory or third party approvals in connection with the exercise
of any of its rights and remedies under this Agreement or any other Loan
Document; (vii) the aggregate amount of the purchase price for any single
Permitted Acquisition or series of related Permitted Acquisitions which is
payable in anything other than the equity interests of MLP (and such equity
interests shall have no redemption or repurchase rights prior to a date which
is one (1) year after the Maturity Date and shall not have the ability to
convert into any form of Indebtedness) shall not exceed $40,000,000; and (viii) the
aggregate amount of the purchase price for all Permitted Acquisitions over any
twelve consecutive calendar month period which is payable in anything other
than the equity interests of MLP (and such equity interests shall have no
redemption or repurchase rights prior to a date which is one (1) year
after the Maturity Date and shall not have the ability to convert into any form
of Indebtedness) shall not exceed $75,000,000.


 


7.07        Restricted Payments.  Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or, other than MLP, issue or sell any Equity Interests, except that, so long as
no Default shall have occurred and be continuing at the time of any action
described below or would result therefrom:


 


(a)           each Subsidiary may make Restricted
Payments to a Borrower that owns an Equity Interest in such Subsidiary, ratably
according to their respective holdings of the type of Equity Interest in
respect of which such Restricted Payment is being made;


 


94

















 


(b)           a Loan Party may declare and make
dividend payments or other distributions payable solely in the common stock or
other common Equity Interests of such Person;


 


(c)           the Borrowers shall be permitted to
make Restricted Payments to the MLP in an aggregate amount not to exceed
Available Cash to enable the MLP to make the Permitted Distribution, and the
MLP shall be permitted to use the proceeds thereof to make Restricted Payments
to its Unitholders (as such term is defined in the Partnership Agreement) and
holders of the General Partner Units (as such term is defined in the
Partnership Agreement) and Incentive Distribution Rights (as such term is
defined in the Partnership Agreement) so long as such Restricted Payments
constitute Permitted Distributions.


 


7.08        Change in Nature of Business.  Engage in any material line of business
substantially different from those lines of business conducted by any Loan
Party and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto; provided, that nothing in this Section 7.08
shall prevent any Loan Party from discontinuing the operation of any of its
properties if such discontinuance is, in the judgment of such Loan Party,
desirable in the conduct of its or their business and that do not in the
aggregate materially adversely affect the properties, assets, financial
condition or business of the Loan Parties on a combined basis.


 


7.09        Transactions with Affiliates.  Enter into any transaction of any kind with
any Affiliate of a Loan Party, whether or not in the ordinary course of
business, other than (a) in connection with the agreements set forth on Schedule
7.09 hereto; or (b) on fair and reasonable terms substantially as
favorable to such Loan Party or such Subsidiary as would be obtainable by such
Loan Party or such Subsidiary at the time in a comparable arm’s length
transaction with a Person other than an Affiliate.


 


7.10        Burdensome Agreements.  Enter into any Contractual Obligation
(excluding the Agreement, the other Loan Documents and the High Yield Documents
so long as such provisions in such High Yield Documents are similar to those
provisions found in similar transactions) that (a) limits the ability (i) of
any Subsidiary to make Restricted Payments to any Loan Party or to otherwise
transfer property to any Loan Party, (ii) of any Subsidiary to Guarantee
the Indebtedness of any Loan Party or (iii) of any Loan Party 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 7.03(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.


 


7.11        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.


 


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7.12        Compliance with Environmental Laws.  Conduct any activity in any manner or permit
to exist any activity or condition that would result in any material violation
not covered by insurance by any Loan Party or for which any Loan Party is
liable, of any Environmental Law.


 


7.13        Prohibited Commodity Transactions.  Purchase or sell any commodities futures
contracts, provided, that (a) the Loan Parties may purchase and
sell commodities futures contracts on the IntercontinentalExchange or a
national commodities exchanges for the sale or purchase of petroleum product in
connection with hedging transactions entered into in the ordinary course of the
business of any Loan Party and not for speculative purposes and consistent with
the then current risk policy of the Loan Parties which has been delivered to
the Administrative Agent that are (i) economically appropriate and
consistent with such Loan Party’s business; (ii) used to offset price
risks incidental to such Loan Party’s cash or spot transactions in petroleum
product; (iii) established and liquidated in accordance with sound
commercial practices; and (iv) such purchases and sales are otherwise
conducted in the manner disclosed in the MLP’s most recent annual report filed
prior to the Closing Date, and (b) the Loan Parties may maintain an
aggregate Open Position (calculated by adding the Open Positions of the Loan
Parties for each type of petroleum product and each market and any separate
Open Positions determined pursuant to the last sentence of paragraph (y) of
the definition of “Open Position”) of not more than 500,000 barrels of
petroleum product at any one time.


 


7.14        Loans to Owners, Officers or Employees.  Except as may be prohibited by law, make
loans or advances to any of their respective owners, officers or employees
without the prior written consent of the Administrative Agent and the Required
Lenders, and in no event shall (a) the aggregate principal amount of all
such loans at any time outstanding exceed $2,000,000 (excluding loans secured
by the cash value of life insurance policies) or (b) any such loan have a
term longer than 1 1⁄2 years; provided, that, subject to the restrictions
contained in clauses (a) and (b) above, the Loan Parties may make
loans to their respective directors and employees in amounts not to exceed
$500,000 for any individual loan without the prior written consent of the
Administrative Agent and the Required Lenders and, provided further that
notwithstanding the provisions of this Section 7.14, the Loan
Parties shall be permitted to make loans or advances to their respective
directors and employees in addition to those permitted by this Section 7.14
in an aggregate amount not to exceed $250,000 and with an unlimited term,
without the prior written consent of the Administrative Agent and the Lenders.


 


7.15        Prepayment of Indebtedness.  Make any prepayments in respect of any
Indebtedness, other than (a) prepayments of the Obligations pursuant to
the terms of this Agreement or the other Loan Documents; (b) to the extent
considered a prepayment, any refinancing of Indebtedness permitted under Section 7.03
to the extent the principal amount of such Indebtedness has not been reduced;
and (c) the prepayment of that portion of the obligations owing under the
Senior Unsecured Notes or the Subordinated Notes, as the case may be, in an
aggregate principal amount of not more than 35% of the then outstanding
principal amount of the Senior Unsecured Notes and the Subordinated Debt so
long as (i) no Default or Event of Default has occurred and is continuing
hereunder both immediately prior to 


 


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and after giving effect to any such
prepayment; (ii) such obligations are prepaid solely with the net cash
proceeds received from an issuance of the equity interests of MLP (and such equity interests shall have no
redemption or repurchase rights prior to a date which is one (1) year
after the Maturity Date and shall not have the ability to convert into any form
of Indebtedness); and (iii) the Loan Parties have demonstrated to the
satisfaction of the Agent pro forma compliance with all of its financial
covenants hereunder both before and after giving effect to any such prepayment.


 


7.16        Bank Accounts.  Either
(a) establish any bank account other than those set forth in the
applicable Loan Party’s Perfection Certificate without the Administrative Agent’s
prior written consent; (b) violate directly or indirectly any Lock Box
Agreement or any control agreement in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders with respect to such
account; (c) deposit into any of the payroll accounts set forth in the
applicable Loan Party’s Perfection Certificate any amounts in excess of amounts
necessary to pay current payroll obligations from such accounts; (d) at
any time allow any amount in excess of $150,000 to remain in any of the
accounts identified in the applicable Loan Party’s Perfection Certificate as “petty
cash” accounts; or (e) allow any collected funds (other than nominal
amounts not in excess of $500 and after taking into account any checks which
the Loan Parties may have written and mailed or otherwise tendered to the payee
thereof) to remain in any account which is not with the Administrative Agent
(other than those accounts identified in the applicable Loan Party’s Perfection
Certificate as “petty cash” accounts unless the Administrative Agent or the
Loan Parties have requested that the amounts in such accounts be transferred to
the Lock Box Account or the Operating Account on a weekly or more frequent
basis) at the close of business on the day each week (or other, more frequent
period requested by the Administrative Agent or any Loan Party) on which
amounts in such accounts are to be transferred to the Lock Box Account.


 


7.17        Amendment to Thru Put.  Global will not amend, in any material
respects, the terms and conditions set forth in the thru-put agreement
(including the lease of the real property in Revere, MA) between Global and
Global Petroleum Corp. without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld.


 


7.18        Financial Covenants.


 


(i)            Combined Working Capital.  Permit the Combined Working Capital to be
less than $35,000,000 at any time.


 


(ii)           Minimum EBITDA. 
Permit Combined EBITDA as at the end of each fiscal quarter to be less
than $50,000,000 for the Reference Period ended on such fiscal quarter end
date.


 


(iii)          Combined Interest Coverage Ratio.  Permit the Combined Interest Coverage Ratio
as of the end of any fiscal quarter to be less than 2.00:1.00 for each fiscal
quarter.


 


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(iv)          Combined Senior Secured Leverage Ratio.  Permit the Combined Senior Secured Leverage
Ratio as at the end of any fiscal quarter to be greater than 2.50:1.00.


 


(v)           Combined Total Leverage Ratio.  Permit the Combined Total Leverage Ratio as
at the end of any fiscal quarter to be greater than 3.50:1.00.


 


7.19        Capital Expenditures.  Make or become legally
obligated to make any Capital Expenditures in any fiscal year that exceed, in
the aggregate for all Loan Parties, $20,000,000 for such fiscal year.


 


7.20        Organizational Document.  Amend, restate, supplement
or otherwise modify any of the terms of any Organizational Document in any
manner that could reasonably be expected to adversely and materially affect the
rights of the Lenders under this Agreement or any other Loan Document or their
ability to enforce any provisions of this Agreement or any other Loan Document,
or that could reasonably be expected to have a Material Adverse Effect.


 


ARTICLE
VIII.     EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of Default.  Any of the following shall constitute an
Event of Default:


 


(a)           Non-Payment. 
The Borrowers or any other Loan Party 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 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 (a) Section 2.03(k), 6.02,
6.03, 6.05, 6.10, 6.11,  6.12, 6.13 or
6.14 or Article VII or
any Guarantor fails to perform or observe any term, covenant or agreement
contained in the Guaranty or any Loan Party fails to perform or observe any
term, covenant or agreement contained in any Mortgage or (b) Section 6.01
and, solely with respect to Section 6.01, such failure continues for 10
days; or


 


(c)           Other Defaults. 
Any Loan Party 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 30 days; or


 


(d)           Representations and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of any Loan Party 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) Any Loan Party or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, 


 


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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 (such Indebtedness or Guarantee being hereinafter referred to as the “Cross Default Indebtedness”),
or (B) fails to observe or perform any other agreement or condition
relating to any such Cross Default Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
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 Cross Default Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), 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 (ii) 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 Borrowers 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 Borrowers or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by
the Borrowers 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
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 any Subsidiary
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 any Subsidiary (i) one
or more final judgments or orders for the payment of money in an aggregate
amount (as to all such judgments or orders) 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)


 


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enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of ten (10) 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 any Loan
Party 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) any
Loan Party 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 provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party or any
other Person contests in any manner the validity or enforceability of any
provision of any Loan Document; or any Loan Party denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or


 


(k)           Change of Control. 
There occurs any Change of Control; or


 


(l)            Perfection of Security Interests.  The Administrative Agent’s security
interests, mortgages or liens in a substantial portion of the Collateral shall
cease to be perfected, or shall cease to have the priority contemplated by the
Security Documents, in each case otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Lenders; or


 


(m)          Senior Unsecured Notes and Subordinated Debt.  The holders of all or any part of the Senior
Unsecured Notes or the Subordinated Debt shall accelerate the maturity of all
or any part of the Senior Unsecured Notes or the Subordinated Debt, as the case
may be, except as expressly provided for in this Agreement, the Senior
Unsecured Notes or the Subordinated Debt shall be prepaid, redeemed or
repurchased in whole or in part or an offer to prepay, redeem or repurchase the
Senior Unsecured Notes or the Subordinated Debt in whole or in part shall have
been made or, in the case of the Subordinated Debt, the Credit Agreement
Obligations cease to constitute “Senior Debt” (or the analogous term used under
any agreement, document or instrument evidencing such Subordinated Debt).


 


8.02        Remedies Upon Event of Default.  If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, 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;


 


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(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 the Borrower;


 


(c)           require that the Borrowers Cash Collateralize the L/C
Obligations (in an amount equal to the then Outstanding Amount thereof); and


 


(d)           exercise on behalf of itself, the Lenders and the L/C
Issuer all rights and remedies available to it, the Lenders and the L/C Issuer
under the Loan Documents;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief
with respect to any Borrower 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
Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the
Administrative Agent or any Lender.


 


8.03        Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (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 8.02),
any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.14 and 2.15, 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 fees,
charges and disbursements of counsel to the Administrative Agent and amounts
payable under Article III) payable to the Administrative Agent in
its capacity as such;


 


Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal,
interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III) arising
under the Loan Documents, ratably among them in proportion to the respective
amounts described in this clause Second payable to them;


 


Third, to payment of that portion of the Obligations
constituting accrued and unpaid Letter of Credit Fees and interest on the
Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the
L/C Issuer in proportion to the respective amounts described in this clause Third
payable to them;


 


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Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans,
L/C Borrowings and Obligations then owing under Secured Hedge Agreements and
Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuer,
the Hedge Banks and the Cash Management Banks in proportion to the respective
amounts described in this clause Fourth held by them;


 


Fifth, to the Administrative Agent for the account of the
L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit to the extent not otherwise
Cash Collateralized by the Borrowers pursuant to Sections 2.03 and 2.15;
and


 


Last, the balance, if any, after all of the Obligations
have been indefeasibly paid in full, to the Borrowers or as otherwise required
by Law.


 


Subject
to Sections 2.03(c) and 2.15, amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
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.


 


Notwithstanding
the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash Management Bank or Hedge Bank, as the case may
be.  Each Cash Management Bank or Hedge
Bank not a party to the Credit Agreement that has given the notice contemplated
by the preceding sentence shall, by such notice, be deemed to have acknowledged
and accepted the appointment of the Administrative Agent pursuant to the terms
of Article IX hereof for itself and its Affiliates as if a “Lender”
party hereto.


 


ARTICLE
IX.   ADMINISTRATIVE AGENT


 


9.01        Appointment and Authority.  Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and no Loan Party shall have rights as a third party beneficiary of any
of such provisions.


 


9.02        Rights as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or 


 


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“Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with any Loan Party
or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the
Lenders.


 


9.03        Exculpatory Provisions.  The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


 


(a)           shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


(b)           shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


(c)           shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02)
or (ii) in the absence of its own gross negligence or willful
misconduct.  The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by any Loan Party,
a Lender or the L/C Issuer.


 


The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV  


 


103

















 


or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.


 


9.04        Reliance by Administrative Agent.  The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
the L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrowers), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.


 


9.05        Delegation of Duties.  The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06        Resignation of Administrative Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the
Borrowers.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States.  If no such
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrowers and the Lenders
that no qualifying Person has accepted such appointment, then such resignation
shall nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C
Issuer under any of the Loan Documents, the retiring Administrative 


 


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Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrowers to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrowers and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


(b)           Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer . 
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, (a) such successor shall succeed to and become vested with all
of the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the
retiring L/C Issuer shall be discharged from all of its duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C
Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or 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.


 


9.07        Non-Reliance on Administrative Agent and
Other Lenders.  Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


9.08        No Other Duties, Etc.  Anything herein to the contrary
notwithstanding, none of the Arrangers or the Syndication Agent listed on the
cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.


 


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9.09                        Administrative
Agent May File Proofs of Claim.  In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, 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 any Loan Party)
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, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections
2.03(i) and (j), 2.8 and 10.04) 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
and the L/C Issuer 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 and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.8 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C Issuer to
authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


9.10                        Collateral
and Guaranty Matters.  The Lenders
(including in its
capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C
Issuer irrevocably authorize the Administrative Agent, at its option and in its
discretion,


 


(a)                                  to release any
Lien on any property granted to or held by the Administrative Agent under any
Loan Document (i) upon termination of the Aggregate Commitments and
payment in full of all Obligations (other than (A) contingent
indemnification obligations and (B) obligations and liabilities under
Secured Cash Management Agreements and Secured Hedge Agreements as to which
arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank
shall have been made) and the expiration or termination of all Letters of


 


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Credit (other than Letters of Credit as to
which other arrangements satisfactory to the Administrative Agent and the L/C
Issuer shall have been made), (ii) that is sold or to be sold as part of
or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 10.01, if approved,
authorized or ratified in writing by the Required Lenders or, to the extent
such release is of all or substantially all of the Collateral, all the Lenders
as required by Section 10.01(h);


 


(b)                                 to subordinate
any Lien on any property granted to or held by the Administrative Agent under
any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.01(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 the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative 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 9.10.  In each case as specified in this Section 9.10,
the Administrative Agent will, at the Borrowers’ expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Security Documents or to subordinate
its interest in such item, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.10.


 


9.11                        Secured Cash Management
Agreements and Secured Hedge Agreements.  Except as
otherwise expressly set forth herein or in any of the Security Documents, no
Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03,
any Guaranty or any Collateral by virtue of the provisions hereof or any of the
Security Documents shall have any right to notice of any action or to consent
to, direct or object to any action hereunder or under any other Loan Document
or otherwise in respect of the Collateral (including the release or impairment
of any Collateral) other than in its capacity as a Lender and, in such case,
only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Article IX
to the contrary, the Administrative Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect
to, Obligations arising under Secured Cash Management Agreements and Secured
Hedge Agreements unless the Administrative Agent has received written notice of
such Obligations, together with such supporting documentation as the Administrative
Agent may request, from the applicable Cash Management Bank or Hedge Bank, as
the case may be.


 


ARTICLE
X.                           MISCELLANEOUS


 


10.01                 Amendments,
Etc.  No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent to any
departure by any Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrowers or the 


 


107

















 


applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, 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 4.01(a) without the written
consent of each Lender;


 


(b)                                 extend or
increase the WC Commitment or the Revolver Commitment, as the case may be, of
any Lender (or reinstate any WC Commitment or the Revolver Commitment, as the
case may be, terminated pursuant to Section 8.02) without the
written consent of such Lender;


 


(c)                                  postpone any
date fixed by this Agreement or any other Loan Document for any payment of
principal, 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 (subject to clause (iii) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;


 


(e)                                  change Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;


 


(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)                                 release all or
substantially all of the value of the Guaranty without the written consent of
each Lender, except to the extent the release of any Guarantor is permitted
pursuant to Section 9.10 (in which case such release may be made by
the Administrative Agent acting alone);


 


(h)                                 release the
Administrative Agent’s Lien on all or substantially all of the Collateral
without the written consent of each Lender; or


 


(i)                                     modify any
advance rates or other criteria set forth in the definition of Borrowing Base
or any definition of the component parts of the Borrowing Base without the
written consent of the Supermajority Lenders, or change the definition of “Supermajority
Lenders” 


 


108

















 


without the consent of the Supermajority
Lenders as such term is defined immediately prior to any such amendment to such
definition;


 


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 Issuer Document relating to any Letter of Credit issued
or to be issued by it; (ii) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; and (iii) the 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 (and any
amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely than other affected Lenders shall
require the consent of such Defaulting Lender.


 


Notwithstanding
any provision herein to the contrary, this Agreement may be amended with the
written consent of the Required Lenders, the Administrative Agent and the
Borrowers (i) to add one or more additional revolving credit or term loan
facilities to this Agreement , in each case subject to the limitations in Section 2.15,
and to permit the extensions of credit and all related obligations and
liabilities arising in connection therewith from time to time outstanding to
share ratably (or on a basis subordinated to the existing facilities hereunder)
in the benefits of this Agreement and the other Loan Documents with the
obligations and liabilities from time to time outstanding in respect of the
existing facilities hereunder, and (ii) in connection with the foregoing,
to permit, as deemed appropriate by the Administrative Agent and approved by
the Required Lenders, the Lenders providing such additional credit facilities
to participate in any required vote or action required to be approved by the
Required Lenders or by any other number, percentage or class of Lenders
hereunder.


 


If
any Lender does not consent to a proposed amendment, waiver, consent or release
with respect to any Loan Document that requires the consent of each Lender and
that has been approved by the Required Lenders, the Borrowers may replace such
non-consenting Lender in accordance with Section 10.13; provided  that such amendment, waiver, consent or
release can be effected as a result of the assignment contemplated by such Section (together
with all other such assignments required by the Borrowers to be made pursuant
to this paragraph).


 


10.02      Notices;
Effectiveness; Electronic Communication.


 


(a)           Notices
Generally.  Except in
the case of notices and other communications expressly permitted to be given by
telephone (and except as provided in subsection (b) below), all notices
and other communications provided for herein shall be in writing and shall be 


 


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delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as
follows, 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, the Administrative Agent or the L/C Issuer, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule 10.02; and


 


(ii)                                  if to any other
Lender, to the address, telecopier number, electronic mail address or telephone
number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on
its Administrative Questionnaire then in effect for the delivery of notices
that may contain material non-public information relating to the Borrowers).


 


Notices
and other communications sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices and other communications sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient).  Notices and other communications delivered
through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


(b)                                 Electronic
Communications.  Notices and
other communications to the Lenders and the L/C Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender or the L/C Issuer pursuant to Article II if
such Lender or the L/C Issuer, as applicable, has notified the Administrative
Agent that it is incapable of receiving notices under such Article by
electronic communication.  The
Administrative Agent or any Loan Party may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.


 


Unless
the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


 


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(c)                                  The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to any Loan Party, any Lender, the
L/C Issuer or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of
any Loan Party’s or the Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims,
damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to any Loan Party,
any Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).


 


(d)                                 Change of
Address, Etc.  Each Loan
Party, the Administrative Agent and the L/C Issuer may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. 
Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrowers, the
Administrative Agent and the L/C Issuer. 
In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an
effective address, contact name, telephone number, telecopier number and
electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all
times have selected the “Private Side Information” or similar designation on
the content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state securities
Laws, to make reference to Borrower Materials that are not made available
through the “Public Side Information” portion of the Platform and that may
contain material non-public information with respect to any Loan Party or its
securities for purposes of United States Federal or state securities laws.


 


(e)                                  Reliance by
Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C
Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of a Loan
Party 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.  Each Loan Party shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of 


 


111

















 


each of them from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of such Loan Party.  All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


10.03     No
Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or
the Administrative 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.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuer from exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with
Section 10.08 (subject to the terms of Section 2.12),
or (d) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any
Loan Party under any Debtor Relief Law; and provided, further,
that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall
have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02
and (ii) in addition to the matters set forth in clauses (b), (c) and
(d) of the preceding proviso and subject to Section 2.12, any
Lender may, with the consent of the Required Lenders, enforce any rights and
remedies available to it and as authorized by the Required Lenders.


 


10.04     Expenses; Indemnity; Damage
Waiver.


 


(a)           Costs and
Expenses.  The
Borrowers shall jointly and severally pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
L/C Issuer in 


 


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connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Lender or
the L/C Issuer), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)                                 Indemnification
by the Loan Parties.  The Loan
Parties shall jointly and severally indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee),  incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by any Loan
Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the
consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related
Parties only, the administration of this Agreement and the other Loan Documents
(including in respect of any matters addressed in Section 3.01), (ii) any
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), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by any Loan Party or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrowers or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by any Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a
court of competent jurisdiction.


 


(c)                                  Reimbursement
by Lenders.  To the
extent that any Loan Party for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the L/C
Issuer or such Related Party, as the case may be, such Lender’s 


 


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Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought)
of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) or the L/C Issuer in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.11(d).  Nothing contained in this Section 10.04(c) shall
relieve any Loan Party of any of its obligations hereunder.


 


(d)                                 Waiver of
Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, no Loan Party shall assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof.  No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed to
such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a final
and nonappealable judgment of a court of competent jurisdiction.


 


(e)                                  Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


 


(f)                                    Survival.  The agreements in this Section shall
survive the resignation of the Administrative Agent, the L/C Issuer, the replacement
of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


10.05                  Payments
Set Aside.  To the
extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C
Issuer or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff 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 the Administrative Agent, the L/C
Issuer 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 setoff
had not occurred, and (b) each Lender and the L/C Issuer severally agrees
to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at 


 


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a rate per annum equal to the Federal Funds
Rate from time to time in effect.  The
obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


10.06                   Successors
and Assigns.


 


(a)                                  Successors and
Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
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 Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)                                 Assignments by
Lenders.  Any Lender may at any time
assign to one or more 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 any such assignment
shall be subject to the following conditions:


 


(i)                                     Minimum Amounts.


 


(A)                              in the case of
an assignment of the entire remaining amount of the assigning Lender’s Revolver
Commitment or WC Commitment, as the case may be, and the Revolver Loans or WC
Loans, as the case may be, at the time owing to it under such Revolver
Commitment or WC Commitment, as the case may be, or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)                                in any case not
described in subsection (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender 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 $5,000,000 unless each of the Administrative Agent and, so long


 


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as no Event of Default has
occurred and is continuing, the Borrowers otherwise consent (each such consent
not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.


 


(ii)           Proportionate Amounts.  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, and each Lender assigning all or a portion of its rights and
obligations must do so on a pro rata basis among the two separate facilities
(i.e. there shall not be permitted any non-pro rata assignment of the WC
Commitment and the Revolver Commitment);


 


(iii)          Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:


 


(A)                              the consent of
the Borrowers (such consent not to be unreasonably withheld) shall be required
unless (1) an Event of Default has occurred and is continuing at the time
of such assignment or (2) such assignment is to a Lender, an Affiliate of
a Lender or an Approved Fund; provided that the Borrowers shall be
deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within five (5) Business
Days after having received notice thereof;


 


(B)                                the consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed) shall be required if such assignment is to a Person that is not a
Lender, an Affiliate of such Lender or an Approved Fund with respect to such
Lender; and


 


(C)                                the consent of
the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall
be required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not
then outstanding).


 


(iv)          Assignment and Assumption.  The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee in the amount of $3,500; provided,
however, that the Administrative Agent may, in its sole discretion,
elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.


 


(v)           No Assignment to Certain
Persons.  No such assignment shall be
made (A) to any Loan Party or any Loan Party’s Affiliates or Subsidiaries,
or (B) to any 


 


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Defaulting Lender or any of
its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), or (C) to
a natural person.


 


(vi)          Certain Additional Payments.  In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be
effective unless and until, in addition to the other conditions thereto set
forth herein, the parties to the assignment shall make such additional payments
to the Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment, purchases
by the assignee of participations or subparticipations, or other compensating
actions, including funding, with the consent of the Borrowers and the
Administrative Agent, the applicable pro rata share of Loans previously
requested but not funded by the Defaulting Lender, to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay
and satisfy in full all payment liabilities then owed by such Defaulting Lender
to the Administrative Agent or any Lender hereunder (and interest accrued
thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit in accordance with its
Applicable Percentage.  Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of
any Defaulting Lender hereunder shall become effective under applicable Law
without compliance with the provisions of this paragraph, then the assignee of
such interest shall be deemed to be a Defaulting Lender for all purposes of
this Agreement until such compliance occurs.


 


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 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,
and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Upon
request, the Borrowers (at their 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 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)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers (and such agency being solely for tax
purposes), 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 


 


117

















 


conclusive, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. In addition, the
Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting
Lender.  
The Register shall be available for inspection by the Borrowers and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person, a Defaulting Lender
or a Loan Party or any Loan Party’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
Borrowers, the Administrative Agent, the Lenders and the L/C Issuer 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 10.01 that
affects such Participant.  Subject to
subsection (e) of this Section, each 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 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.14 as though it were
a Lender.


 


(e)           Limitations upon Participant
Rights.  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, unless the
sale of the participation to such Participant is made with the Borrowers’ prior
written consent.  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 Borrowers are notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)            Certain Pledges.  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 its Note, if any) 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 


 


118

















 


from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)           Resignation as L/C Issuer
after Assignment. 
Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitments and Loans pursuant to
subsection (b) above, Bank of America may, upon thirty (30) days’ notice
to the Borrowers and the Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C
Issuer, the Borrowers shall be entitled to appoint from among the Lenders a
successor L/C Issuer hereunder; provided, however, that no
failure by the Borrowers to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer. 
If Bank of America resigns as L/C Issuer, it shall retain all the
rights, powers, privileges and duties 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)).  Upon the appointment of a successor L/C
Issuer, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


10.07      Treatment of Certain Information;
Confidentiality.  Each of the
Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, 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 (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
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 any Eligible Assignee
invited to be a Lender pursuant to Section 2.14(c) or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrowers and its obligations, (g) with the
consent of the Borrowers or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any 


 


119

















 


Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than a
Loan Party.  For purposes of this
Section, “Information” means all information received from any Loan Party or
any Subsidiary relating to any Loan Party or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis
prior to disclosure by a Loan Party or any Subsidiary, provided that, in the
case of information received from a Loan Party or any Subsidiary after the date
hereof, such information is clearly identified 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.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning a Loan Party
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable
Law, including United States Federal and state securities Laws.


 


10.08      Right of Setoff.   (a)             If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender, the L/C Issuer or any such Affiliate to or for the credit or the
account of any Borrower or any other
Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the
L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall
have made any demand under this Agreement or any other Loan Document and
although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are
owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness;
provided, that in the event that any Defaulting Lender shall exercise any such
right of setoff, (x) all amounts so set off shall be paid over immediately
to the Administrative Agent for further application in accordance with the
provisions of Section 2.15 and, pending such payment, shall
be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Administrative Agent and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Borrowers and the Administrative Agent promptly after any such
setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.


 


(b)           The L/C Issuer and each Lender,
in its capacity as a Lender and in its capacity as a Hedge Bank, and each other
Hedge Bank, by its acceptance of the benefits of the Collateral Documents
creating Liens to secure Obligations arising under Secured Hedge Agreements,
agrees that it will not, without the prior written consent of the
Administrative Agent, exercise any right to set off or apply any deposits of
any kind, or any other obligations owing by it to or 


 


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for
the order of any Loan Party, against any Obligations arising under Secured
Hedge Agreements or against any other amounts owed by any Loan Party to such
Lender or against other amounts secured by Liens on Collateral; provided that nothing contained in this Section or
elsewhere in this Agreement shall impair the right of any Hedge Bank to declare
an early termination date in respect of any Secured Hedge Agreement or to
undertake payment or close-out netting or to otherwise setoff trades or
transactions then existing under such Secured Hedge Agreements.


 


10.09      Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum Rate”). 
If the Administrative Agent or any Lender shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be applied to
the principal of the Loans or, if it exceeds such unpaid principal, refunded to
the Borrowers.  In determining whether
the interest contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as
an expense, fee, or premium rather than 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 contemplated term of the Obligations hereunder.


 


10.10      Counterparts; Integration;
Effectiveness.   This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract.  This
Agreement, and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


10.11      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 the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative 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.


 


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10.12      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.  Without limiting the foregoing provisions of
this Section 10.12, if and to the extent that the enforceability of
any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the
Administrative Agent or the L/C Issuer, as applicable, then such provisions
shall be deemed to be in effect only to the extent not so limited.


 


10.13      Replacement of Lenders.   If any Lender requests compensation under Section 3.04,
or if the Borrowers are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender or if any other circumstance exists
hereunder that gives the Borrower the right to replace a Lender as a party
hereto, then the Borrowers may, at their sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that:


 


(a)                                 the Borrowers
shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b);


 


(b)                                such Lender
shall have received payment of an amount equal to 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts);


 


(c)                                 in the case of
any such assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(d)                                such assignment
does not conflict with applicable Laws.


 


A
Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and delegation
cease to apply.


 


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10.14      Governing Law; Jurisdiction; Etc.


 


(a)           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)           SUBMISSION TO JURISDICTION.  EACH BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN MANHATTAN COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN SUCH FEDERAL COURT.  EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER
OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER OF VENUE.  EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT
REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


(d)           SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


10.15      Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY 


 


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(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


10.16      No Advisory or Fiduciary
Responsibility.  In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), each Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent and the Arrangers are
arm’s-length commercial transactions between each Loan Party and its respective Affiliates, on the one
hand, and the Administrative Agent and
the Arrangers, on the other hand, (B) each Loan Party has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) each
Loan Party is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent and each Arranger each is and has been
acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for any Loan Party or any of its Affiliates, or any other
Person and (B) neither the Administrative Agent nor any Arranger has any obligation to any Loan Party or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Administrative Agent
and the Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of a Loan Party and its Affiliates,
and neither the Administrative Agent nor any Arranger has any obligation to
disclose any of such interests to any Loan Party or any of its Affiliates.  To the fullest extent permitted by law, each
Loan Party hereby waives and releases any claims that it may have against the
Administrative Agent and each Arranger with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.


 


10.17      Electronic Execution of
Assignments and Certain Other Documents.   The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption or in any amendment
or other modification hereof (including waivers and consents) shall be deemed
to include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.


 


124
















 


10.18      USA PATRIOT Act.   Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies each Loan Party 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 each Borrower, which information includes
the name and address of each Borrower and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify each
Borrower in accordance with the Act. 
Each Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the Act.


 


10.19      Joint and Several Liability.


 


(i)            Each of the Loan Parties is accepting joint and several
liability hereunder and under the other Loan Documents in consideration of the
financial accommodations to be provided by the Administrative Agent and the
Lenders under this Agreement, for the mutual benefit, directly and indirectly,
of each of the Loan Parties and in consideration of the undertakings of each
other Loan Party to accept joint and several liability for the Obligations


 


(ii)           Each of the Loan Parties, jointly and severally, hereby
irrevocably and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Loan Parties, with
respect to the payment and performance of all of the Obligations (including,
without limitation, any Obligations arising under this Section 10.15), it
being the intention of the parties hereto that all the Obligations shall be the
joint and several Obligations of each of the Loan Parties without preferences
or distinction among them


 


(iii)          If and to the extent that any of the Loan Parties shall
fail to make any payment with respect to any of the Obligations as and when due
or to perform any of the Obligations in accordance with the terms thereof, then
in each such event the other Loan Parties will make such payment with respect
to, or perform, such Obligation


 


(iv)          The Obligations of each of the Loan Parties under the
provisions of this Section 10.19 constitute full recourse Obligations of
each of the Loan Parties enforceable against each such Loan Party to the full
extent of its properties and assets, irrespective of the validity, regularity
or enforceability of this Agreement as against any particular Loan Party.


 


(v)           Except as otherwise expressly provided in this Agreement,
but only to the extent permitted by applicable law, each of the Loan Parties
hereby waives notice of acceptance of its joint and several liability, notice
of any Loans made, or Letter of Credit issued, extended or renewed under this
Agreement, notice of the occurrence of any Event of Default or Default, or of
any demand for any payment under this Agreement, notice of any action at any
time taken or omitted by the Administrative Agent or any Lender under or in
respect of any of the Obligations, to the extent permitted by applicable law,
all demands, notices and other formalities of every kind in connection with
this Agreement and the other Loan Documents.


 


125

















 


Each of the Loan Parties
hereby assents to, and waives notice of, any extension or postponement of the
time for the payment of any of the Obligations, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent or any Lender at any time or times in respect of any Event
of Default or Default by any of the Loan Parties in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement or
any of the other Loan Documents, any and all other indulgences whatsoever by
the Administrative Agent or any Lender in respect of any of the Obligations,
and the taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of the Obligations or the addition,
substitution or release, in whole or in part, of any of the Loan Parties.  Without limiting the generality of the
foregoing, but only to the extent permitted by applicable law, each of the Loan
Parties assents to any other action or delay in acting or failure to act on the
part of the Administrative Agent or any Lender with respect to the failure by
any of the Loan Parties to comply with any of its respective Obligations,
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws,
regulations thereunder, which might, but for the provisions of this Section 10.19,
afford grounds for terminating, discharging or relieving any of the Loan
Parties, in whole or in part, from any of its Obligations under this Section 10.19,
it being the intention of each of the Loan Parties that, so long as any of the
Obligations hereunder remain unsatisfied, the Obligations of such Loan Parties
under this Section 10.19 shall not be discharged except by performance and
then only to the extent of such performance. 
The Obligations of each of the Loan Parties under this Section 10.19
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to any of the Loan Parties, the Administrative Agent or any
Lender.  The joint and several liability
of the Loan Parties hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any
of the Loan Parties, the Administrative Agent or any Lender.


 


(vi)          The provisions of this Section 10.19 are made for the
benefit of the Administrative Agent and the Lenders and their respective
successors and assigns, and may be enforced by any of them from time to time
against any or all of the Loan Parties as often as occasion therefor may arise
and without requirement on the part of the Administrative Agent or any Lender
first to marshall any of its claims or to exercise any of its rights against
any other Loan Party or to exhaust any remedies available to it against any
other Loan Party or to resort to any other source or means of obtaining payment
of any of the Obligations hereunder or to elect any other remedy.  The provisions of this Section 10.19
shall remain in effect until all of the Obligations shall have been paid in
full or otherwise fully satisfied.  If at
any time, any payment, or any part thereof, made in respect of any of the
Obligations, is rescinded or must otherwise be restored or returned by any
Lender upon the insolvency, bankruptcy or reorganization of any of the Loan
Parties, or otherwise, the provisions of this Section 10.20 will forthwith
be reinstated in effect, as though such payment had not been made.


 


(vii)         (i)  Each of the Loan Parties hereby irrevocably
waives, and agrees that it will not enforce, any of its rights of contribution
or subrogation against any other Loan Party with respect to any liability
incurred by such Loan Party hereunder or under any of the other Loan


 


126

















 


Documents, any payments made
by such Loan Party to the Administrative Agent for the accounts of the Lenders
with respect to any of the Obligations or any collateral security
therefor.  Such waiver and agreement is
for the benefit of the other Loan Parties, the Lenders and the Administrative
Agent.  If such waiver and agreement
shall be determined to be unenforceable by a court of competent jurisdiction,
any claim which such Loan Party may have against such other Loan Party with
respect to any payments to the Administrative Agent for the account of the
Lenders hereunder are hereby expressly made subordinate and junior in right of
payment, without limitation as to any increases in the Obligations arising
hereunder, to the prior payment in full of all amounts due and owing by such
other Loan Party to the Administrative Agent and the Lenders and, in the event
of any insolvency, bankruptcy, receivership, liquidation, reorganization or
other similar proceeding under the laws of any jurisdiction relating to such
other Loan Party, its debts or its assets, whether voluntary or involuntary,
all Indebtedness of such other Loan Party owing to the Lenders (“Senior
Indebtedness”) shall be paid in full before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to such
Loan Party therefor.  Each Loan Party
hereby agrees that for so long as any Obligations are outstanding hereunder the
provisions of this Section 10.19(g) may be relied on directly by any
holder of Senior Indebtedness regardless of whether such holder is a party
hereto.


 


(ii)           Notwithstanding the provisions of the
preceding clause (i), each of the Loan Parties shall have and be entitled to (1) all
rights of subrogation otherwise provided by law in respect of any payment such
Loan Party may make or be obligated to make under this Credit Agreement and (2) all
claims (as defined in the Bankruptcy Code) it would have against any of the
other Loan Parties in the absence of the preceding clause (i), and to assert
and enforce the same, in each case on and after, but at no time prior to , the
date (the “Subrogation Trigger Date”) which is one (1) year and five (5) days
after the date on which all the Obligations have been indefeasibly repaid in
full if and only if (A) no Default or Event of Default of the type
described in §§13.1(g) or (h) with respect to the other Loan Parties
has existed at any time on or after the Closing Date to and including the
Subrogation Trigger Date and (B) the existence of the Loan Party’s rights
under this clause (ii) would not make the Loan Party a creditor (as
defined in the Bankruptcy Code) of the other Loan Parties in any insolvency,
bankruptcy, reorganization or similar proceeding commenced on or prior to the
Subrogation Trigger Date.


 


10.20      Transitional Arrangements.  This Agreement shall, on the
Closing Date, supersede the Prior Credit Agreement in its entirety, except as
expressly provided in this Section 10.20. 
On the Closing Date, the rights and obligations of the parties evidenced
by the Prior Credit Agreement shall be evidenced by this Agreement, the “WC
Revolver Loans” as defined in the Prior Credit Agreement shall be converted to
WC Loans as defined herein, the “Revolver Loans” and the “Acquisition Loans” as
defined in the Prior Credit Agreement shall be converted to Revolver Loans as
defined herein and the Lenders party hereto shall, on the Closing Date, make
such allocations among the Lenders as is necessary so that any outstanding
Loans are held by the Lenders in accordance with each such Lender’s Applicable
Percentage.  As soon as reasonably
practicable after its receipt of any Note requested by a Lender hereunder on
the Closing Date, to the extent such Lender was a party to the Prior Credit
Agreement and had a promissory note issued to such Lender under the terms of
the Prior Credit Agreement,


 


127

















 


such Lender will promptly return to the Borrowers,
marked “Substituted” or “Cancelled”, as the case may be, any promissory notes
of the Borrowers held by such Lender pursuant to the Prior Credit Agreement.


 


128

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.


 


	
   

  	
  GLOBAL OPERATING LLC

  
	
   

  	
  By: Global Partners LP, its sole member

  
	
   

  	
  By: Global GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Thomas J. Hollister

  
	
   

  	
      Title:
  COO & CFO

  
	
   

  	
   

  
	
   

  	
  GLOBAL COMPANIES LLC

  
	
   

  	
  By: Global Operating LLC, its sole member

  
	
   

  	
  By: Global Partners LP, its sole member

  
	
   

  	
  By: Global GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Thomas J. Hollister

  
	
   

  	
      Title:
  COO &CFO

  
	
   

  	
   

  
	
   

  	
  GLOBAL MONTELLO GROUP CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Thomas J. Hollister

  
	
   

  	
      Title:
  COO & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHELSEA SANDWICH LLC

  
	
   

  	
  By: Global Operating LLC, its sole member

  
	
   

  	
  By: Global Partners LP, its sole member

  
	
   

  	
  By: Global GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Edward J. Faneuil

  
	
   

  	
      Title:
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLEN HES CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Edward J. Faneuil

  
	
   

  	
      Title:
  Executive Vice President

  



 

















 


	
   

  	
  GLP FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Edward J. Faneuil

  
	
   

  	
      Title:
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  GLOBAL ENERGY MARKETING LLC

  
	
   

  	
  By: Global Operating LLC, its sole member

  
	
   

  	
  By: Global Partners LP, its sole member

  
	
   

  	
  By: Global GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Charles Rudinsky

  
	
   

  	
      Title:
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  GLOBAL PARTNERS LP

  
	
   

  	
  By: Global GP LLC, its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Charles Rudinsky

  
	
   

  	
      Title:
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  GLOBAL GP LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Charles Rudinsky

  
	
   

  	
      Title:
  Executive Vice President

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  \s\
  Christen A. Lacey

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Christen
  A. Lacey

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender
  and L/C

  
	
   

  	
  Issuer

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  \s\
  Anthony W. Kell

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Anthony
  W. Kell

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
  Assistant Vice President

  



 
















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as a Lender and Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\ Thomas G. Williams

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Thomas G. Williams

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  WELLS
  FARGO BANK, N.A., as a Lender and Co-Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Michael Sweeney

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael
  Sweeney

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  SOCIETE
  GENERALE, as a Lender and Co-Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Emmanuel Chesneau

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Emmanuel
  Chesneau

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 

















 


	
   

  	
  STANDARD
  CHARTERED BANK, as a Lender and Co-Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Patricia Doyle

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Patricia
  Doyle

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Robert K. Reddington

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert
  K. Reddington

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Assistant Vice President

  



 

















 


	
   

  	
  RBS
  CITIZENS, NATIONAL ASSOCIATION, as a Lender and
  Co-Documentation Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  \s\
  Marina E. Grossi

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:
  

  	
  Marina
  E. Grossi

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  BNP
  PARIBAS, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Keith Cox

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Keith
  Cox

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Directors

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Jordan Nenoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jordan
  Nenoff

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  COOPERATIEVE
  CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND” NEW YORK
  BRANCH, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\ Brett Delfino

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brett Delfino

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\ Eva Ruskevich

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Eva Ruskevich

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive Director

  



 

















 


	
   

  	
  SOVEREIGN
  BANK (SANTANDER GROUP), as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Robert D. Lanigan

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert
  D. Lanigan

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 

















 


	
   

  	
  CREDIT
  AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Zali Win

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Zali
  Win

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  \s\
  Michel Kermarrec

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michel
  Kermarrec

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  \s\
   Keven D. Smith

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:
  

  	
  Keven
  D. Smith

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 
















 


	
   

  	
  TORONTO DOMINION (NEW YORK)
  LLC, as a 

  Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Debbie I. Brito

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Debbie I. Brito

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Authorized Signatory

  



 

















 


	
   

  	
  RZB FINANCE LLC, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Astrid Wilke

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Astric Wilke

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Pearl Geffers

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Pearl Geffers

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  First Vice President

  



 

















 


	
   

  	
  ROYAL BANK OF CANADA, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Jason S. York

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jason S. York

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Authorized Signatory

  



 

















 


	
   

  	
  RAYMOND JAMES BANK, FSB, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ James M. Armstsrong

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  James M. Armstrong

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  



 

















 


	
   

  	
  BARCLAYS BANK PLC, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ SamYoo

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Sam Yoo

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Assistant Vice President

  



 

















 


	
   

  	
  WEBSTER BANK NATIONAL ASSOCIATION,
  

  as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Richard A. O’Brien

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard A. O’Brien

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  NATIXIS, NEW YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ David Pershad

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David Pershad

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Vincent Lauras

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Vincent Lauras

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Managing Director

  



 

















 


	
   

  	
  DZ
  BANK AG DEUTSCHE ZENTRAL-

  GENOSSENSCHAFTSBANK FRANKFURT AM

  MAIN, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Carlos Lunardini

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Carlos Lunardini

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Nicholas von Pflug

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nicholas von Pflug

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  BRANCH BANKING & TRUST
  COMPANY, as a

  Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Richard L. Keever

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard L. Keever

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice President

  



 

















 


	
   

  	
  SUMITOMO MITSUI BANKING

  CORPORATION, as a Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  \s\ Masakazu Hasegawa

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Masakazu Hasegawa

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  General Manager