UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): October 4, 2005
GLOBAL PARTNERS LP
(Exact name of registrant as specified in its charter)
Delaware |
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001-32593 |
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74-3140887 |
(State or Other Jurisdiction of |
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(Commission |
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(IRS Employer |
Incorporation or organization) |
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File Number) |
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Identification No.) |
P.O. Box 9161
800 South Street
Waltham, Massachusetts 02454-9161
(Address of Principal Executive Offices)
(781) 894-8800
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement
General. On October 4, 2005, Global Partners LP (the Partnership ) closed its initial public offering (the Offering ) of 5,635,000 common units representing limited partner interests of the Partnership (the Common Units ) (including 735,000 Common Units sold upon exercise of the underwriters option to purchase additional Common Units).
Omnibus Agreement. On October 4, 2005, in connection with the Offering, Global Petroleum Corp. ( GPC ), Montello Oil Corporation ( Montello ), Global Revco Dock, L.L.C. ( Revco Dock ), Global Revco Terminal, L.L.C. ( Revco Terminal ), Global South Terminal, L.L.C. ( South Terminal ), Sandwich Terminal, L.L.C. ( Sandwich ), Chelsea Terminal Limited Partnership ( Chelsea LP ), Global GP LLC (the General Partner ), the Partnership, Global Operating LLC ( OLLC and together with its subsidiaries and the Partnership, the Partnership Group ), Alfred A. Slifka, Richard Slifka and Eric Slifka entered into an omnibus agreement (the Omnibus Agreement ). As more fully described in the Partnerships final prospectus (the Prospectus ) dated September 28, 2005 (File No. 333-124755) and filed on September 29, 2005 with the Securities and Exchange Commission (the Commission ) pursuant to Rule 424(b)(4) under the Securities Act of 1933 (the Securities Act ), the Omnibus Agreement addresses the following matters:
the agreement of Alfred A. Slifka, Richard Slifka and Eric Slifka not to compete with the Partnership Group, and to cause their affiliates not to compete with the Partnership Group, under certain circumstances for a period of time; and
the obligation of GPC, Montello, Revco Dock, Revco Terminal, South Terminal, Chelsea LP, Sandwich and the General Partner to indemnify the Partnership Group for certain (a) environmental liabilities and (b) losses attributable to title defects, retained assets and liabilities, income taxes and the post-closing operations of the assets contributed to the Partnership Group.
A copy of the Omnibus Agreement is filed as Exhibit 10.1 to this Form 8-K and is incorporated herein by reference.
Long-Term Incentive Plan. On October 4, 2005, the Global Partners LP Long-Term Incentive Plan (the LTIP ) became effective for employees, consultants and directors of the General Partner and employees and consultants of affiliates of the Partnership who perform services for the Partnership Group. As more fully described in the Prospectus, the LTIP consists of four components: restricted units, phantom units, unit options and unit appreciation rights. The long-term incentive plan will limit the number of units that may be delivered pursuant to awards to 10% of the outstanding units on the effective date of the initial public offering of the units. Units withheld to satisfy exercise prices or tax withholding obligations are available for delivery pursuant to other awards. The LTIP will be administered by the board of directors of the General Partner or the compensation committee thereof, referred to as the plan administrator.
The plan administrator may terminate or amend the LTIP at any time with respect to any units for which a grant has not yet been made. The plan administrator also has the right to alter or amend the LTIP or any part of the LTIP from time to time, including increasing the number of units that may be granted subject to unitholder approval as required by the exchange upon which the Common Units are listed at that time. However, no change in any outstanding grant may be made that would materially reduce the benefits of the participant without the consent of the participant. The LTIP will expire when units are no longer available under the plan for grants or, if earlier, its termination by the plan administrator.
A copy of the LTIP was filed as Exhibit 10.4 to Amendment No. 1 to Form S-1 (File No. 333-124755) for the Partnership filed on July 1, 2005 and is incorporated herein by reference.
GPC Shared Services Agreement. On October 4, 2005, Global Companies LLC ( Global ), Global Montello Group LLC ( GMG ) and Chelsea Sandwich LLC ( Chelsea LLC and together with Global and GMG the Operating Subsidiaries ) and GPC entered into an amended and restated shared services agreement (the GPC Shared Services Agreement ). Pursuant to this agreement, the Operating Subsidiaries provide GPC with certain
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accounting, treasury, legal, information technology, human resources and financial operations support for which GPC pays an amount based upon the cost associated with the provision of such services. In addition, GPC provides the Operating Subsidiaries with certain terminal, environmental and operational support services for which the Operating Subsidiaries pay a fee based on an agreed assessment of the cost associated with the provision of such services.
A copy of the GPC Shared Services Agreement is filed as Exhibit 10.3 to this Form 8-K and is incorporated herein by reference.
Alliance Shared Services Agreement. On October 4, 2005, Alliance Energy Corp. ( Alliance ) and Global entered into an amended and restated shared services agreement (the Alliance Shared Services Agreement ). Pursuant to this agreement, Global provides Alliance with certain accounting, treasury, legal, information technology, human resources and financial operations support for which Alliance pays an amount based upon the cost associated with the provision of such services.
A copy of the Alliance Shared Services Agreement is filed as Exhibit 10.4 to this Form 8-K and is incorporated herein by reference.
Throughput Agreement with GPC. On October 4, 2005, Global, GMG and GPC entered into an amended and restated terminal rental and throughput agreement (the Throughput Agreement ) with respect to a terminal located in Revere, Massachusetts (the Revere Terminal ). The Throughput Agreement provides for more than two million barrels of storage capacity for the Partnership Groups refined petroleum products. The Partnership Group retains the title of all its products stored at the Revere Terminal. The term of this agreement ends on December 31, 2013, and the agreement automatically renews annually unless it is terminated by either party by giving 90 days notice. GPC receives a monthly fee which is adjusted annually according to the Consumer Price Index for the Northeast region and for certain contractual costs. Throughout the term of the Throughput Agreement, Global and GMG have a right of first refusal until September 30, 2014 to purchase or lease the Revere Terminal if GPC desires to sell or lease the Revere Terminal to a third party.
A copy of the Throughput Agreement is filed as Exhibit 10.5 to this Form 8-K and is incorporated herein by reference.
Employment Agreement. On October 4, 2005, the General Partner and Eric Slifka entered into an employment agreement (the Employment Agreement ). Pursuant to the Employment Agreement, Mr. Slifka will serve as the President and Chief Executive Officer of the General Partner. The Employment Agreement provides that Mr. Slifka will have powers and duties and responsibilities that are customary to his position and that are assigned to him by the board of directors of the General Partner in connection with his general management and supervision of the operations of the General Partner. He will report only to the board of directors of the General Partner.
Unless earlier terminated, the Employment Agreement has a term ending on December 31, 2008. The Employment Agreement includes a confidentiality provision, which generally will continue for two years following Mr. Slifkas termination of employment, and is subject to the noncompetition provisions included in the Omnibus Agreement and may be terminated earlier pursuant to the terms of the Employment Agreement. The Employment Agreement provides for an annual base salary of $1,000,000, subject to annual price index increases beginning in 2007. In addition, Mr. Slifka is eligible to receive annual cash bonuses based on (a) the Partnerships results of operations and financial condition for each of 2005 and 2006 and (b) an amount to be determined by the compensation committee of the board of directors of the General Partner for the years after 2005. Mr. Slifka is entitled to participate in the LTIP. He is also entitled to participate in such other benefit plans and programs as the General Partner may provide for its employees in general.
The Employment Agreement may be terminated at any time by either party with proper notice. If Mr. Slifkas employment is terminated without cause or due to the General Partners breach of the Employment Agreement or is constructively terminated, then the General Partner (a) will pay Mr. Slifka his salary through December 31, 2008, any bonus earned and a severance amount equal to 75% of the sum of Mr. Slifkas salary and the average of bonuses earned in the two years preceding the termination date and (b) will provide Mr. Slifka
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benefits through December 31, 2008. Mr. Slifka may elect to forfeit all or a portion of the foregoing amounts and benefits, and in exchange, the period of time in which he is subject to the noncompetition provisions included in the omnibus agreement will be shortened. If Mr. Slifka terminates his employment pursuant to a change of control of the General Partner, then the General Partner will pay Mr. Slifka an additional amount equal to one year of his current salary. Such a change of control will occur when none of Alfred A. Slifka, Richard Slifka, Eric Slifka or any affiliates thereof, individually or in the aggregate, owns a majority of the member interests in the General Partner.
If the agreement has not otherwise terminated, then if, as of December 31, 2008, the General Partner and Mr. Slifka have not agreed that Mr. Slifka will be employed as the General Partners President and Chief Executive Officer beginning January 1, 2009 and have not entered into an agreement effecting the same, then the General Partner will pay Mr. Slifka an amount equal to 75% of the sum of Mr. Slifkas salary and the average of bonuses earned in the two years preceding the termination date.
A copy of the Employment Agreement is filed as Exhibit 10.6 to this Form 8-K and is incorporated herein by reference.
Other Agreements. The description of the Contribution Agreement described below under Item 2.01 is incorporated in this Item 1.01 by reference. A copy of the Contribution Agreement is filed as Exhibit 10.7 to this Form 8-K and is incorporated herein by reference.
The description of the Credit Agreement described below under Item 2.03 is incorporated in this Item 1.01 by reference. A copy of the Credit Agreement is filed as Exhibit 10.8 to this Form 8-K and is incorporated herein by reference.
Relationships . The Partnership was recently formed by affiliates of the Slifka family to own and operate the business that has historically been conducted by Global and its affiliates, Glen Hes Corp., a Delaware corporation, GMG and Chelsea LLC. The General Partner owns a 2% general partner interest and the incentive distribution rights in the Partnership. GPC, Montello, Larea Holdings LLC ( Larea ) and Larea Holdings II LLC ( Larea II ) own a 36%, 49%, 10% and 5%, respectively, ownership interest in the General Partner. In addition, GPC, Montello, Larea, Larea II, Sandwich and Chelsea LP, each an affiliate of the Slifka family, own in the aggregate 7,424 Common Units and 5,642,424 subordinated units representing limited partner interests in the Partnership, representing a combined 49.1% limited partner interest.
Alfred A. Slifka and Richard Slifka, Chairman and Vice Chairman, respectively, of the board of directors of the General Partner, own (a) 100% of the ownership interests in GPC, (b) 72.8% of the ownership interests in Montello, (c) 100% of the ownership interests in Sandwich and (d) 100% of the partner interests in Chelsea LP. The General Partner is controlled by Alfred A. Slifka and Richard Slifka through their beneficial ownership of GPC and Montello. In addition, Alfred A. Slifka and Richard Slifka own 100% of the ownership interests in South Terminal. GPC owns 99% and Montello owns 1% of the ownership interests in each of Revco Dock and Revco Terminal. Alfred A. Slifka and Richard Slifka are brothers.
Eric Slifka, President and Chief Executive Officer and a director of the board of directors of the General Partner, owns 100% of the ownership interests in Larea. Eric Slifka is the son of Alfred A. Slifka. Children of Richard Slifka own 100% of the ownership interests in Larea II.
Alliance is 90% owned by members of the Slifka family. Alfred A. Slifka and Richard Slifka own 30% of Alliance, and they together control another 60% of this entity through voting trusts for the benefit of their six children. In addition, Thomas A. McManmon, Jr., Executive Vice President and Chief Financial Officer of the General Partner, owns 5% of Alliance.
Item 2.01. Completion of Acquisition or Disposition of Assets
Contribution Agreement . In connection with the closing of the Offering, on October 4, 2005, the Operating Subsidiaries became wholly owned subsidiaries of OLLC, pursuant to the contribution, conveyance and assumption agreement (the Contribution Agreement ), dated October 4, 2005, by and among the General Partner,
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the Partnership Group, GPC, Larea, Larea II, Chelsea LP, Sandwich and Montello. Upon the closing of the Offering, the following transactions, among others, occurred pursuant to the Contribution Agreement:
Global distributed approximately $45,250,000 in cash and receivables to GPC, Montello, Larea and Larea II as follows;
GPC received $18,124,424,
Montello received $22,172,500,
Larea received $3,302,051, and
Larea II received $1,651,025;
GPC, Montello, Larea and Larea II conveyed a 36%, 49%, 10% and 5%, respectively, member interest in Global (the Global Interests ) to the General Partner in exchange for a 36%, 49%, 10% and 5%, respectively, member interest in the General Partner;
GMG conveyed all its right, title and interest in certain assets to Global as a capital contribution on behalf of GPC, Montello, Larea and Larea II;
the General Partner conveyed the Global Interests to the Partnership in exchange for (a) general partner units, which represent a continuation of its 2% general partner interest in the Partnership, and (b) the issuance of incentive distribution rights (which represent the right to receive increasing percentages of quarterly distributions in excess of specified amounts);
GPC, Montello, Larea, Larea II, Chelsea LP and Sandwich (the Owners ) conveyed their member interests in the Operating Subsidiaries to the Partnership in exchange for (a) 742,424 Common Units representing a 6.4% limited partner interest in the Partnership, of which (i) GPC received 226,736 Common Units, (ii) Montello received 308,552 Common Units, (iii) Larea received 74,242 Common Units, (iv) Larea II received 37,121 Common Units, (v) Chelsea LP received 94,659 Common Units and (vi) Sandwich received 1,114 Common Units, (b) 5,642,424 Subordinated Units representing a 49.0% limited partner interest in the Partnership, of which (i) GPC received 1,723,196 Subordinated Units, (ii) Montello received 2,344,992 Subordinated Units, (iii) Larea received 564,242 Subordinated Units, (iv) Larea II received 282,121 Subordinated Units, (v) Chelsea LP received 719,409 Subordinated Units and (vi) Sandwich received 8,464 Subordinated Units, and (c) the assumption by the Partnership of a certain term loan of GPC (the GPC Term Loan );
the Partnership conveyed all of its member interests in the Operating Subsidiaries to OLLC as a capital contribution;
the Partnership repaid approximately $51,000,000 of outstanding indebtedness under the GPC Term Loan and contributed its remaining cash of approximately $45,250,000 to OLLC as a capital contribution;
OLLC conveyed approximately $45,250,000 to Global as a capital contribution;
Global conveyed all of its right, title and interest in certain assets to GMG as a capital contribution on behalf of OLLC; and
the Partnership used the net proceeds from the underwriters exercise of their over-allotment option to purchase up to 735,000 Common Units of the Partnership in connection with the Offering to redeem from GPC, Montello, Larea, Larea II, Chelsea LP and Sandwich 224,469 Common Units, 305,466 Common Units, 73,500 Common Units, 36,750 Common Units, 93,712 Common Units and 1,103 Common Units, respectively.
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A copy of the Contribution Agreement is filed as Exhibit 10.7 to this Form 8-K and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
In connection with the closing of the Offering, the General Partner and the Partnership Group entered into a four-year senior secured credit agreement in an aggregate principal amount of up to $400,000,000 (the Credit Agreement ). As more fully described in the Prospectus, the Credit Agreement will be available to fund working capital, make acquisitions and provide payment for general partnership purposes.
There are three facilities under the Credit Agreement:
a working capital revolving credit facility to be used for working capital purposes and letters of credit in the principal amount equal to the lesser of the Partnerships borrowing base and $350,000,000, of which $50,000,000 is available each year only during the period between September 1st and June 30th;
a $35,000,000 acquisition facility to be used for funding acquisitions similar to the Partnerships business line that have a purchase price of $25,000,000 or less or $35,000,000 or less in the aggregate in any 12-month period; and
a $15,000,000 revolving credit facility to be used for general partnership purposes, including payment of distributions to the unitholders.
Indebtedness under the Credit Agreement bears interest, at the Partnerships option, at (a) the base rate equal to the higher of the federal funds rate plus 0.5% and the rate of interest in effect as publicly announced by the administrative agent as its prime rate, (b) the cost of funds rate which the administrative agent is required to pay for wholesale liabilities of like tenor (as adjusted for certain items) plus an applicable margin of 1.00% to 1.75% per annum, depending on which facility is being used or (c) the Eurodollar rate equal to the British Bankers Association LIBOR rate plus an applicable margin of 1.00% to 1.75% per annum, depending on which facility is being used. There is a letter of credit fee of 1.00% per annum or a minimum of $400 for each letter of credit issued. In addition, there is a commitment fee on the unused portion of the Credit Agreement at a rate of 25 basis points per annum. The Credit Agreement matures in 2009. At that time, the Credit Agreement will terminate and all outstanding amounts thereunder will be due and payable, unless the Credit Agreement is amended.
A copy of the Credit Agreement is filed as Exhibit 10.8 to this Form 8-K and is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The description in Item 2.01 above of the issuance by the Partnership on October 4, 2005 in connection with the consummation of the transactions contemplated by the Contribution Agreement of an aggregate of 742,424 Common Units (of which 735,000 Common Units were redeemed with the net proceeds from the underwriters exercise of their over-allotment option) and 5,642,424 Subordinated Units to GPC, Montello, Larea, Larea II, Chelsea LP and Sandwich in exchange for member interests in the Operating Subsidiaries is incorporated herein by reference.
Each Subordinated Unit will convert into one Common Unit at the end of the subordination period. Unless earlier terminated pursuant to the terms of the agreement of limited partnership of the Partnership, the subordination period will extend until the first day of any quarter beginning after September 30, 2010 that the Partnership meets the financial tests set forth in the agreement of limited partnership of the Partnership.
The foregoing transactions were undertaken in reliance upon the exemption from the registration requirements of the Securities Act afforded by Section 4(2).
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Item 5.02. Departure of Directors of Principal Officers; Election of Directors; Appointment of Principal Officers
On October 4, 2005, Messrs. David K. McKown, Robert J. McCool and Kenneth I. Watchmaker were selected to serve as directors of the General Partner. Messrs. McKown, McCool and Watchmaker will serve as the initial members of the conflicts, audit and compensation committees.
There is no arrangement or understanding between each of Messrs. McKown, McCool or Watchmaker and any other persons pursuant to which he was selected as a director. There are no relationships between any of Messrs. McKown, McCool or Watchmaker and the General Partner and the Partnership Group that would require disclosure pursuant to Item 404(a) of Regulation S-K.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.
On October 4, 2005, the Partnership amended and restated its Agreement of Limited Partnership (the Amended Partnership Agreement ) in connection with the closing of the Offering. A description of the Amended Partnership Agreement is contained in the section entitled The Partnership Agreement of the Prospectus and is incorporated herein by reference.
A copy of the Amended Partnership Agreement as adopted is filed as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit
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Description |
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3.1 |
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First Amended and Restated Agreement of Limited Partnership of Global Partners LP |
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10.1 |
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Omnibus Agreement, dated October 4, 2005, by and among Global Petroleum Corp., Montello Oil Corporation, Global Revco Dock, L.L.C., Global Revco Terminal, L.L.C., Global South Terminal, L.L.C., Sandwich Terminal, L.L.C., Chelsea Terminal Limited Partnership, Global GP LLC, Global Partners LP, Global Operating LLC, Alfred A. Slifka, Richard Slifka and Eric Slifka |
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10.2 |
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Global Partners GP Long-Term Incentive Plan effective as of October 4, 2005 (incorporated herein by reference to Exhibit 10.4 to Amendment No. 1 to Form S-1 (File No. 333-124755) for Global Partners LP filed on July 1, 2005). |
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10.3 |
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Amended and Restated Services Agreement, dated October 4, 2005, by and among Global Petroleum Corp., Global Companies LLC, Global Montello Group LLC, and Chelsea Sandwich LLC |
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10.4 |
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Amended and Restated Services Agreement, dated October 4, 2005, by and among Alliance Energy Corp. and Global Companies LLC |
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10.5 |
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Second Amended and Restated Terminal Storage and Throughput Agreement, dated October 4, 2005 by and among Global Petroleum Corp., Global Companies LLC and Global Montello Group LLC |
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10.6 |
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Employment Agreement dated October 4, 2005, by and between Global GP LLC and Eric Slifka |
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10.7 |
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Contribution, Conveyance and Assumption Agreement, dated October 4, 2005, by and among Global GP LLC, Global Partners LP, Global Operating LLC, Global Companies LLC, Global Montello Group LLC, Chelsea Sandwich LLC, Global Petroleum Corp., Larea Holdings LLC, Larea Holdings II LLC, Chelsea Terminal Limited Partnership, Sandwich Terminal, L.L.C. and Montello Oil Corporation |
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Exhibit
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Description |
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10.8 |
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Credit Agreement, dated October 4, 2005, among Global Operating LLC, Global Companies LLC, Global Montello Group LLC, Glen Hes Corp. and Chelsea Sandwich LLC, as borrowers, Global Partners LP and Global GP LLC, as guarantors, each lender from time to time party thereto and Bank of America, N.A., as administrative agent and L/C issuer |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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GLOBAL PARTNERS LP |
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By: |
Global GP LLC, |
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its general partner |
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Dated: October 11, 2005 |
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By: |
/s/ Edward J. Faneuil |
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Executive Vice President, |
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General Counsel and Secretary |
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EXHIBIT INDEX
Exhibit
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Description |
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3.1 |
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First Amended and Restated Agreement of Limited Partnership of Global Partners LP |
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10.1 |
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Omnibus Agreement, dated October 4, 2005, by and among Global Petroleum Corp., Montello Oil Corporation, Global Revco Dock, L.L.C., Global Revco Terminal, L.L.C., Global South Terminal, L.L.C., Sandwich Terminal, L.L.C., Chelsea Terminal Limited Partnership, Global GP LLC, Global Partners LP, Global Operating LLC, Alfred A. Slifka, Richard Slifka and Eric Slifka |
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10.2 |
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Global Partners GP Long-Term Incentive Plan effective as of October 4, 2005 (incorporated herein by reference to Exhibit 10.4 to Amendment No. 1 to Form S-1 (File No. 333-124755) for Global Partners LP filed on July 1, 2005). |
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10.3 |
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Amended and Restated Services Agreement, dated October 4, 2005, by and among Global Petroleum Corp., Global Companies LLC, Global Montello Group LLC, and Chelsea Sandwich LLC |
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10.4 |
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Amended and Restated Services Agreement, dated October 4, 2005, by and among Alliance Energy Corp. and Global Companies LLC |
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10.5 |
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Second Amended and Restated Terminal Storage and Throughput Agreement, dated October 4, 2005 by and among Global Petroleum Corp., Global Companies LLC and Global Montello Group LLC |
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10.6 |
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Employment Agreement dated October 4, 2005, by and between Global GP LLC and Eric Slifka |
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10.7 |
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Contribution, Conveyance and Assumption Agreement, dated October 4, 2005, by and among Global GP LLC, Global Partners LP, Global Operating LLC, Global Companies LLC, Global Montello Group LLC, Chelsea Sandwich LLC, Global Petroleum Corp., Larea Holdings LLC, Larea Holdings II LLC, Chelsea Terminal Limited Partnership, Sandwich Terminal, L.L.C. and Montello Oil Corporation |
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10.8 |
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Credit Agreement, dated October 4, 2005, among Global Operating LLC, Global Companies LLC, Global Montello Group LLC, Glen Hes Corp. and Chelsea Sandwich LLC, as borrowers, Global Partners LP and Global GP LLC, as guarantors, each lender from time to time party thereto and Bank of America, N.A., as administrative agent and L/C issuer |
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Exhibit 3.1
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GLOBAL PARTNERS LP
TABLE OF CONTENTS
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FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF GLOBAL PARTNERS LP
THIS FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF GLOBAL PARTNERS LP dated as of October 4, 2005, is entered into by and between Global GP LLC, a Delaware limited liability company, as the General Partner, and Global Petroleum Corp., a Delaware corporation, as the Organizational Limited Partner, together with any other Persons who become Partners in the Partnership or parties hereto as provided herein. In consideration of the covenants, conditions and agreements contained herein, the parties hereto hereby agree as follows:
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
Acquisition means any transaction in which any Group Member acquires (through an asset acquisition, merger, stock acquisition or other form of investment) control over all or a portion of the assets, properties or business of another Person for the purpose of increasing the operating capacity or revenues of the Partnership Group from the operating capacity or revenues of the Partnership Group existing immediately prior to such transaction.
Additional Book Basis means the portion of any remaining Carrying Value of an Adjusted Property that is attributable to positive adjustments made to such Carrying Value as a result of Book-Up Events. For purposes of determining the extent that Carrying Value constitutes Additional Book Basis:
Additional Book Basis Derivative Items means any Book Basis Derivative Items that are computed with reference to Additional Book Basis. To the extent that the Additional Book Basis attributable to all of the Partnerships Adjusted Property as of the beginning of any taxable period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such period (the Excess Additional Book Basis), the Additional Book Basis Derivative Items for such period shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis Derivative Items determined without regard to this sentence as the Excess Additional Book Basis bears to the Additional Book Basis as of the beginning of such period.
Additional Limited Partner means a Person admitted to the Partnership as a Limited Partner pursuant to Section 10.4 and who is shown as such on the books and records of the Partnership.
Adjusted Capital Account means the Capital Account maintained for each Partner as of the end of each fiscal year of the Partnership, (a) increased by any amounts that such Partner is obligated to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and (b) decreased by (i) the amount of all losses and deductions that, as of the end of such fiscal year, are reasonably expected to be allocated to such Partner in subsequent years under Sections 704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all distributions that, as of the end of such fiscal year, are reasonably expected to be made to such Partner in subsequent years in accordance with the terms of this Agreement or otherwise to the extent they exceed offsetting increases to such Partners Capital Account that are reasonably expected to occur during (or prior to) the year in which such distributions are reasonably expected to be made (other than increases as a result of a minimum gain chargeback pursuant to Section 6.1(d)(i) or 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The Adjusted Capital Account of a Partner in respect of a General Partner Unit, a Common Unit, a Subordinated Unit or an Incentive Distribution Right or any other Partnership Interest shall be the amount that such Adjusted Capital Account would be if such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest was first issued.
Adjusted Operating Surplus means, with respect to any period, Operating Surplus generated with respect to such period (a) less (i) any net increase in Working Capital Borrowings with respect to such period and (ii) any net decrease in cash reserves for Operating Expenditures with respect to such period not relating to an Operating Expenditure made with respect to such period, and (b) plus (i) any net decrease in Working Capital Borrowings with respect to such period, and (ii) any net increase in cash reserves for Operating Expenditures with respect to such period required by any debt instrument for the repayment of principal, interest or premium. Adjusted Operating Surplus does not include that portion of Operating Surplus included in clauses (a)(i) and (a)(ii) of the definition of Operating Surplus.
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Adjusted Property means any property the Carrying Value of which has been adjusted pursuant to Section 5.5(d)(i) or 5.5(d)(ii).
Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
Aggregate Remaining Net Positive Adjustments means, as of the end of any taxable period, the sum of the Remaining Net Positive Adjustments of all the Partners.
Agreed Allocation means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 6.1, including a Curative Allocation (if appropriate to the context in which the term Agreed Allocation is used).
Agreed Value of any Contributed Property means the fair market value of such property or other consideration at the time of contribution as determined by the General Partner. The General Partner shall use such method as it determines to be appropriate to allocate the aggregate Agreed Value of Contributed Properties contributed to the Partnership in a single or integrated transaction among each separate property on a basis proportional to the fair market value of each Contributed Property.
Agreement means this First Amended and Restated Agreement of Limited Partnership of Global Partners LP, as it may be amended, supplemented or restated from time to time.
Assignee means a Non-citizen Assignee or a Person to whom one or more Limited Partner Interests have been transferred in a manner permitted under this Agreement and who has executed and delivered a Transfer Application as required by this Agreement, but who has not been admitted as a Substituted Limited Partner.
Associate means, when used to indicate a relationship with any Person, (a) any corporation or organization of which such Person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any trust or other estate in which such Person has at least a 20% beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same principal residence as such Person.
Available Cash means, with respect to any Quarter ending prior to the Liquidation Date:
(a) the sum of (i) all cash and cash equivalents of the Partnership Group on hand at the end of such Quarter, and (ii) all additional cash and cash equivalents of the Partnership Group on hand on the date of determination of Available Cash with respect to such Quarter resulting from Working Capital Borrowings made subsequent to the end of such Quarter, less
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(b) the amount of any cash reserves established by the General Partner to (i) provide for the proper conduct of the business of the Partnership Group (including reserves for future capital expenditures and for anticipated future credit needs of the Partnership Group) subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which any Group Member is a party or by which it is bound or its assets are subject or (iii) provide funds for distributions under Section 6.4 or 6.5 in respect of any one or more of the next four Quarters; provided , however , that the General Partner may not establish cash reserves pursuant to (iii) above if the effect of such reserves would be that the Partnership is unable to distribute the Minimum Quarterly Distribution on all Common Units, plus any Cumulative Common Unit Arrearage on all Common Units, with respect to such Quarter; and, provided further, that disbursements made by a Group Member or cash reserves established, increased or reduced after the end of such Quarter but on or before the date of determination of Available Cash with respect to such Quarter shall be deemed to have been made, established, increased or reduced, for purposes of determining Available Cash, within such Quarter if the General Partner so determines.
Notwithstanding the foregoing, Available Cash with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.
Board of Directors means, with respect to the Board of Directors of the General Partner, its board of directors or managers, as applicable, if a corporation or limited liability company, or if a limited partnership, the board of directors or board of managers of the general partner of the General Partner.
Book Basis Derivative Items means any item of income, deduction, gain or loss included in the determination of Net Income or Net Loss that is computed with reference to the Carrying Value of an Adjusted Property (e.g., depreciation, depletion, or gain or loss with respect to an Adjusted Property).
Book-Down Event means an event that triggers a negative adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d).
Book-Tax Disparity means with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax purposes as of such date. A Partners share of the Partnerships Book-Tax Disparities in all of its Contributed Property and Adjusted Property will be reflected by the difference between such Partners Capital Account balance as maintained pursuant to Section 5.5 and the hypothetical balance of such Partners Capital Account computed as if it had been maintained strictly in accordance with federal income tax accounting principles.
Book-Up Event means an event that triggers a positive adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d).
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Business Day means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Massachusetts shall not be regarded as a Business Day.
Capital Account means the capital account maintained for a Partner pursuant to Section 5.5. The Capital Account of a Partner in respect of a General Partner Unit, a Common Unit, a Subordinated Unit, an Incentive Distribution Right or any other Partnership Interest shall be the amount that such Capital Account would be if such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such General Partner Unit, Common Unit, Subordinated Unit, Incentive Distribution Right or other Partnership Interest was first issued.
Capital Contribution means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership.
Capital Improvement means any (a) addition or improvement to the capital assets owned by any Group Member or (b) acquisition of existing, or the construction of new, capital assets (including ships, barges, pipelines, terminals, docks, truck racks, tankage and other storage and distribution facilities and related assets), in each case if such addition, improvement, acquisition or construction is made to increase the operating capacity or revenues of the Partnership Group from the operating capacity or revenues of the Partnership Group existing immediately prior to such addition, improvement, acquisition or construction.
Capital Surplus has the meaning assigned to such term in Section 6.3(a).
Carrying Value means (a) with respect to a Contributed Property, the Agreed Value of such property reduced (but not below zero) by all depreciation, amortization and cost recovery deductions charged to the Partners and Assignees Capital Accounts in respect of such Contributed Property, and (b) with respect to any other Partnership property, the adjusted basis of such property for federal income tax purposes, all as of the time of determination. The Carrying Value of any property shall be adjusted from time to time in accordance with Sections 5.5(d)(i) and 5.5(d)(ii) and to reflect changes, additions or other adjustments to the Carrying Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the General Partner.
Cause means a court of competent jurisdiction has entered a final, non-appealable judgment finding the General Partner liable for actual fraud or willful misconduct in its capacity as a general partner of the Partnership.
Certificate means (a) a certificate (i) substantially in the form of Exhibit A to this Agreement, (ii) issued in global form in accordance with the rules and regulations of the Depositary or (iii) in such other form as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more Common Units or (b) a certificate, in such form as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more other Partnership Securities.
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Certificate of Limited Partnership means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Delaware as referenced in Section 7.2, as such Certificate of Limited Partnership may be amended, supplemented or restated from time to time.
Citizenship Certification means a properly completed certificate in such form as may be specified by the General Partner by which an Assignee or a Limited Partner certifies that he (and if he is a nominee holding for the account of another Person, that to the best of his knowledge such other Person) is an Eligible Citizen.
claim (as used in Section 7.12(d)) has the meaning assigned to such term in Section 7.12(d).
Closing Date means the first date on which Common Units are sold by the Partnership to the Underwriters pursuant to the provisions of the Underwriting Agreement.
Closing Price has the meaning assigned to such term in Section 15.1(a).
Code means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.
Combined Interest has the meaning assigned to such term in Section 11.3(a).
Commission means the United States Securities and Exchange Commission.
Common Unit means a Unit representing a fractional part of the Partnership Interests of all Limited Partners and Assignees, and having the rights and obligations specified with respect to Common Units in this Agreement. The term Common Unit does not include a Subordinated Unit prior to its conversion into a Common Unit pursuant to the terms hereof.
Common Unit Arrearage means, with respect to any Common Unit, whenever issued, as to any Quarter within the Subordination Period, the excess, if any, of (a) the Minimum Quarterly Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all Available Cash distributed with respect to a Common Unit in respect of such Quarter pursuant to Section 6.4(a)(i).
Conflicts Committee means a committee of the Board of Directors of the General Partner composed entirely of two or more directors who are not (a) security holders, officers or employees of the General Partner, (b) officers, directors or employees of any Affiliate of the General Partner or (c) holders of any ownership interest in the Partnership Group other than Common Units and who also meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act and the rules and regulations of the Commission thereunder and by the National Securities Exchange on which the Common Units are listed or admitted to trading.
Contributed Property means each property or other asset, in such form as may be permitted by the Delaware Act, but excluding cash, contributed to the Partnership. Once the
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Carrying Value of a Contributed Property is adjusted pursuant to Section 5.5(d), such property shall no longer constitute a Contributed Property, but shall be deemed an Adjusted Property.
Contribution Agreement means that certain Contribution and Conveyance Agreement, dated as of the Closing Date, among the General Partner, the Partnership, the Operating Company and certain other parties, together with the additional conveyance documents and instruments contemplated or referenced thereunder, as such may be amended, supplemented or restated from time to time.
Cumulative Common Unit Arrearage means, with respect to any Common Unit, whenever issued, and as of the end of any Quarter, the excess, if any, of (a) the sum resulting from adding together the Common Unit Arrearage as to an Initial Common Unit for each of the Quarters within the Subordination Period ending on or before the last day of such Quarter over (b) the sum of any distributions theretofore made pursuant to Section 6.4(a)(ii) and the second sentence of Section 6.5 with respect to an Initial Common Unit (including any distributions to be made in respect of the last of such Quarters).
Curative Allocation means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 6.1(d)(xi).
Current Market Price has the meaning assigned to such term in Section 15.1(a).
Delaware Act means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section 17-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.
Departing General Partner means a former General Partner from and after the effective date of any withdrawal or removal of such former General Partner pursuant to Section 11.1 or 11.2.
Depositary means, with respect to any Units issued in global form, The Depository Trust Company and its successors and permitted assigns.
Economic Risk of Loss has the meaning set forth in Treasury Regulation Section 1.752-2(a).
Eligible Citizen means a Person qualified to own interests in real property in jurisdictions in which any Group Member does business or proposes to do business from time to time, and whose status as a Limited Partner or Assignee does not or would not subject such Group Member to a significant risk of cancellation or forfeiture of any of its properties or any interest therein.
Estimated Incremental Quarterly Tax Amount has the meaning assigned to such term in Section 6.9.
Event of Withdrawal has the meaning assigned to such term in Section 11.1(a).
Final Subordinated Units has the meaning assigned to such term in Section 6.1(d)(x).
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First Liquidation Target Amount has the meaning assigned to such term in Section 6.1(c)(i)(D).
First Target Distribution means $0.4625 per Unit per Quarter (or, with respect to the period commencing on the Closing Date and ending on December 31, 2005, it means the product of $0.4625 multiplied by a fraction of which the numerator is the number of days in such period, and of which the denominator is 92), subject to adjustment in accordance with Sections 6.6 and 6.9.
Fully Diluted Basis means, when calculating the number of Outstanding Units for any period, a basis that includes, in addition to the Outstanding Units, all Partnership Securities, options, rights, warrants and appreciation rights relating to an equity interest in the Partnership (a) that are convertible into or exercisable or exchangeable for Units that are senior to or pari passu with the Subordinated Units, (b) whose conversion, exercise or exchange price is less than the Current Market Price on the date of such calculation, (c) that may be converted into or exercised or exchanged for such Units prior to or during the Quarter immediately following the end of the period for which the calculation is being made without the satisfaction of any contingency beyond the control of the holder other than the payment of consideration and the compliance with administrative mechanics applicable to such conversion, exercise or exchange and (d) that were not converted into or exercised or exchanged for such Units during the period for which the calculation is being made; provided , however, that for purposes of determining the number of Outstanding Units on a Fully Diluted Basis when calculating whether the Subordination Period has ended or the Subordinated Units are entitled to convert into Common Units pursuant to Section 5.7, such Partnership Securities, options, rights, warrants and appreciation rights shall be deemed to have been Outstanding Units only for the four Quarters that comprise the last four Quarters of the measurement period; provided , further, that if consideration will be paid to any Group Member in connection with such conversion, exercise or exchange, the number of Units to be included in such calculation shall be that number equal to the difference between (i) the number of Units issuable upon such conversion, exercise or exchange and (ii) the number of Units that such consideration would purchase at the Current Market Price.
General Partner means Global GP LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Partnership as general partner of the Partnership, in its capacity as general partner of the Partnership (except as the context otherwise requires).
General Partner Interest means the ownership interest of the General Partner in the Partnership (in its capacity as a general partner without reference to any Limited Partner Interest held by it), which is evidenced by General Partner Units, and includes any and all benefits to which the General Partner is entitled as provided in this Agreement, together with all obligations of the General Partner to comply with the terms and provisions of this Agreement.
General Partner Unit means a fractional part of the General Partner Interest having the rights and obligations specified with respect to the General Partner Interest. A General Partner Unit is not a Unit.
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Group means a Person that with or through any of its Affiliates or Associates has any contract, arrangement, understanding or relationship for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent solicitation made to 10 or more Persons), exercising investment power or disposing of any Partnership Interests with any other Person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, Partnership Interests.
Group Member means a member of the Partnership Group.
Group Member Agreement means the partnership agreement of any Group Member, other than the Partnership, that is a limited or general partnership, the limited liability company agreement of any Group Member that is a limited liability company, the certificate of incorporation and bylaws or similar organizational documents of any Group Member that is a corporation, the joint venture agreement or similar governing document of any Group Member that is a joint venture and the governing or organizational or similar documents of any other Group Member that is a Person other than a limited or general partnership, limited liability company, corporation or joint venture, as such may be amended, supplemented or restated from time to time.
Holder as used in Section 7.12, has the meaning assigned to such term in Section 7.12(a).
Incentive Distribution Right means a non-voting Limited Partner Interest issued to the General Partner in connection with the transfer of all of its interests in Global Companies LLC to the Partnership pursuant to the Contribution Agreement, which Limited Partner Interest will confer upon the holder thereof only the rights and obligations specifically provided in this Agreement with respect to Incentive Distribution Rights (and no other rights otherwise available to or other obligations of a holder of a Partnership Interest). Notwithstanding anything in this Agreement to the contrary, the holder of an Incentive Distribution Right shall not be entitled to vote such Incentive Distribution Right on any Partnership matter except as may otherwise be required by law.
Incentive Distributions means any amount of cash distributed to the holders of the Incentive Distribution Rights pursuant to Sections 6.4(a)(v), (vi) and (vii) and 6.4(b)(iii), (iv) and (v).
Indemnified Persons has the meaning assigned to such term in Section 7.12(d).
Indemnitee means (a) the General Partner, (b) any Departing General Partner, (c) any Person who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person who is or was a member, partner, director, officer, fiduciary or trustee of any Group Member, the General Partner or any Departing General Partner or any Affiliate of any Group Member, the General Partner or any Departing General Partner, (e) any Person who is or was serving at the request of the General Partner or any Departing General Partner or any Affiliate of the General Partner or any Departing General Partner as an officer, director, member, partner, fiduciary or trustee of another Person; provided that a Person shall not be an Indemnitee by
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reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and (f) any Person the General Partner designates as an Indemnitee for purposes of this Agreement.
Initial Common Units means the Common Units sold in the Initial Offering.
Initial Limited Partners means Chelsea Terminal Limited Partnership, Sandwich Terminal, L.L.C., Global Petroleum Corp., Montello Oil Corporation, Larea Holdings LLC, Larea Holdings II LLC, the General Partner (with respect to the Incentive Distribution Rights received by it pursuant to Section 5.2), and the Underwriters, in each case upon being admitted to the Partnership in accordance with Section 10.1.
Initial Offering means the initial offering and sale of Common Units to the public, as described in the Registration Statement.
Initial Unit Price means (a) with respect to the Common Units and the Subordinated Units, the initial public offering price per Common Unit at which the Underwriters offered the Common Units to the public for sale as set forth on the cover page of the prospectus included as part of the Registration Statement and first issued at or after the time the Registration Statement first became effective or (b) with respect to any other class or series of Units, the price per Unit at which such class or series of Units is initially sold by the Partnership, as determined by the General Partner, in each case adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of Units.
Interim Capital Transactions means the following transactions if they occur prior to the Liquidation Date: (a) borrowings, refinancings or refundings of indebtedness (other than Working Capital Borrowings and other than for items purchased on open account in the ordinary course of business) by any Group Member and sales of debt securities of any Group Member; (b) sales of equity interests of any Group Member (including the Common Units sold to the Underwriters pursuant to the exercise of the Over-Allotment Option); (c) sales or other voluntary or involuntary dispositions of any assets of any Group Member other than (i) sales or other dispositions of inventory, accounts receivable and other assets in the ordinary course of business, and (ii) sales or other dispositions of assets as part of normal retirements or replacements; (d) the termination of interest rate swap agreements; (e) capital contributions; and (f) corporate reorganizations or restructurings.
Issue Price means the price at which a Unit is purchased from the Partnership, after taking into account any sales commission or underwriting discount charged to the Partnership.
Limited Partner means, unless the context otherwise requires, (a) the Organizational Limited Partner prior to its withdrawal from the Partnership, each Initial Limited Partner, each Substituted Limited Partner, each Additional Limited Partner and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3, in each case, in such Persons capacity as a limited partner of the Partnership or (b) solely for purposes of Articles V, VI, VII and IX, each Assignee; provided , however , that when the term Limited Partner is used herein in the context of any vote or other approval, including Articles XIII and XIV, such term shall not, solely for such purpose, include any holder of an Incentive Distribution Right (solely with respect to its Incentive Distribution Rights and not with respect to
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any other Limited Partner Interest held by such Person) except as may otherwise be required by law.
Limited Partner Interest means the ownership interest of a Limited Partner or Assignee in the Partnership, which may be evidenced by Common Units, Subordinated Units, Incentive Distribution Rights or other Partnership Securities or a combination thereof or interest therein, and includes any and all benefits to which such Limited Partner or Assignee is entitled as provided in this Agreement, together with all obligations of such Limited Partner or Assignee to comply with the terms and provisions of this Agreement; provided , however , that when the term Limited Partner Interest is used herein in the context of any vote or other approval, including Articles XIII and XIV, such term shall not, solely for such purpose, include any Incentive Distribution Right except as may otherwise be required by law.
Liquidation Date means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in clauses (a) and (b) of the first sentence of Section 12.2, the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to continue the business of the Partnership has expired without such an election being made, and (b) in the case of any other event giving rise to the dissolution of the Partnership, the date on which such event occurs.
Liquidator means one or more Persons selected by the General Partner to perform the functions described in Section 12.4 as liquidating trustee of the Partnership within the meaning of the Delaware Act.
Merger Agreement has the meaning assigned to such term in Section 14.1.
Minimum Quarterly Distribution means $0.4125 per Unit per Quarter (or with respect to the period commencing on the Closing Date and ending on December 31, 2005, it means the product of $0.4125 multiplied by a fraction of which the numerator is the number of days in such period and of which the denominator is 92), subject to adjustment in accordance with Sections 6.6 and 6.9.
National Securities Exchange means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act, and any successor to such statute, or the Nasdaq National Market or any successor thereto.
Net Agreed Value means, (a) in the case of any Contributed Property, the Agreed Value of such property reduced by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed, and (b) in the case of any property distributed to a Partner or Assignee by the Partnership, the Partnerships Carrying Value of such property (as adjusted pursuant to Section 5.5(d)(ii)) at the time such property is distributed, reduced by any indebtedness either assumed by such Partner or Assignee upon such distribution or to which such property is subject at the time of distribution, in either case, as determined under Section 752 of the Code.
Net Income means, for any taxable year, the excess, if any, of the Partnerships items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year over the Partnerships items of
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loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year. The items included in the calculation of Net Income shall be determined in accordance with Section 5.5(b) and shall not include any items specially allocated under Section 6.1(d); provided , that the determination of the items that have been specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.
Net Loss means, for any taxable year, the excess, if any, of the Partnerships items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year over the Partnerships items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable year. The items included in the calculation of Net Loss shall be determined in accordance with Section 5.5(b) and shall not include any items specially allocated under Section 6.1(d); provided , that the determination of the items that have been specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.
Net Positive Adjustments means, with respect to any Partner, the excess, if any, of the total positive adjustments over the total negative adjustments made to the Capital Account of such Partner pursuant to Book-Up Events and Book-Down Events.
Net Termination Gain means, for any taxable year, the sum, if positive, of all items of income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items included in the determination of Net Termination Gain shall be determined in accordance with Section 5.5(b) and shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
Net Termination Loss means, for any taxable year, the sum, if negative, of all items of income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items included in the determination of Net Termination Loss shall be determined in accordance with Section 5.5(b) and shall not include any items of income, gain or loss specially allocated under Section 6.1(d).
Non-citizen Assignee means a Person whom the General Partner has determined does not constitute an Eligible Citizen and as to whose Partnership Interest the General Partner has become the Substituted Limited Partner, pursuant to Section 4.9.
Nonrecourse Built-in Gain means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Sections 6.2(b)(i)(A), 6.2(b)(ii)(A) and 6.2(b)(iii) if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.
Nonrecourse Deductions means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
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Nonrecourse Liability has the meaning set forth in Treasury Regulation Section 1.752-1(a)(2).
Notice of Election to Purchase has the meaning assigned to such term in Section 15.1(b).
Omnibus Agreement means that certain Omnibus Agreement, dated as of the Closing Date, among the General Partner, the Partnership, the Operating Company and certain other parties thereto, as such may be amended, supplemented or restated from time to time.
Operating Company means Global Operating LLC, a Delaware limited liability company, and any successors thereto.
Operating Expenditures means all Partnership Group expenditures, including, but not limited to, taxes, reimbursements of the General Partner, non-Pro Rata repurchases of Units (other than those made with proceeds of an Interim Capital Transaction), repayment of Working Capital Borrowings, debt service payments and capital expenditures, subject to the following:
(a) payments (including prepayments) of principal of and premium on indebtedness other than Working Capital Borrowings shall not constitute Operating Expenditures; and
(b) Operating Expenditures shall not include (i) capital expenditures made for Acquisitions or for Capital Improvements, (ii) payment of transaction expenses (including taxes) relating to Interim Capital Transactions or (iii) distributions to Partners. Where capital expenditures are made in part for Acquisitions or for Capital Improvements and in part for other purposes, the General Partner, with the concurrence of the Conflicts Committee, shall determine the allocation between the amounts paid for each.
Operating Surplus means, with respect to any period ending prior to the Liquidation Date, on a cumulative basis and without duplication,
(a) the sum of (i) $7.5 million, (ii) all cash and cash equivalents of the Partnership Group on hand as of the close of business on the Closing Date, (iii) all cash receipts of the Partnership Group for the period beginning on the Closing Date and ending on the last day of such period, but excluding cash receipts from Interim Capital Transactions (except to the extent specified in Section 6.5) and (iv) all cash receipts of the Partnership Group (or the Partnerships proportionate share of cash receipts in the case of Subsidiaries that are not wholly owned) after the end of such period but on or before the date of determination of Operating Surplus with respect to such period resulting from Working Capital Borrowings, less
(b) the sum of (i) Operating Expenditures for the period beginning on the Closing Date and ending on the last day of such period and (ii) the amount of cash reserves established by the General Partner to provide funds for future Operating Expenditures; provided , however , that disbursements made (including contributions to a Group Member or disbursements on behalf of a Group Member) or cash reserves established, increased or reduced after the end of such period but on or before the date of determination of Available Cash with respect to such
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period shall be deemed to have been made, established, increased or reduced, for purposes of determining Operating Surplus, within such period if the General Partner so determines.
Notwithstanding the foregoing, Operating Surplus with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.
Opinion of Counsel means a written opinion of counsel (who may be regular counsel to the Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner.
Option Closing Date means the date or dates on which any Common Units are sold by the Partnership to the Underwriters upon exercise of the Over-Allotment Option.
Organizational Limited Partner means Global Petroleum Corp. in its capacity as the organizational limited partner of the Partnership pursuant to this Agreement.
Outstanding means, with respect to Partnership Securities, all Partnership Securities that are issued by the Partnership and reflected as outstanding on the Partnerships books and records as of the date of determination; provided , however , that if at any time any Person or Group (other than the General Partner or its Affiliates) beneficially owns 20% or more of the Outstanding Partnership Securities of any class then Outstanding, all Partnership Securities owned by such Person or Group shall not be voted on any matter and shall not be considered to be Outstanding when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement, except that Units so owned shall be considered to be Outstanding for purposes of Section 11.1(b)(iv) (such Units shall not, however, be treated as a separate class of Partnership Securities for purposes of this Agreement); provided , further, that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Outstanding Partnership Securities of any class then Outstanding directly from the General Partner or its Affiliates, (ii) any Person or Group who acquired 20% or more of the Outstanding Partnership Securities of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 20% or more of any Partnership Securities issued by the Partnership with the prior approval of the Board of Directors.
Over-Allotment Option means the over-allotment option granted to the Underwriters by the Partnership pursuant to the Underwriting Agreement.
Partner Nonrecourse Debt has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).
Partner Nonrecourse Debt Minimum Gain has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).
Partner Nonrecourse Deductions means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.
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Partners means the General Partner and the Limited Partners.
Partnership means Global Partners LP, a Delaware limited partnership.
Partnership Group means the Partnership and its Subsidiaries treated as a single consolidated entity.
Partnership Interest means an interest in the Partnership, which shall include the General Partner Interest and Limited Partner Interests.
Partnership Minimum Gain means that amount determined in accordance with the principles of Treasury Regulation Section 1.704-2(d).
Partnership Security means any class or series of equity interest in the Partnership (but excluding any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership), including Common Units, Subordinated Units, General Partner Units and Incentive Distribution Rights.
Percentage Interest means as of any date of determination (a) as to the General Partner with respect to General Partner Units and as to any Unitholder or Assignee holding Units, the product obtained by multiplying (i) 100% less the percentage applicable to clause (b) by (ii) the quotient obtained by dividing (A) the number of Units held by such Unitholder or Assignee or the number of General Partner Units held by the General Partner, as the case may be, by (B) the total number of all Outstanding Units and all General Partner Units, and (b) as to the holders of other Partnership Securities issued by the Partnership in accordance with Section 5.6, the percentage established as a part of such issuance. The Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero.
Person means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
Per Unit Capital Amount means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any Unit held by a Person other than the General Partner or any Affiliate of the General Partner who holds Units.
Pro Rata means (a) when used with respect to Units or any class thereof, apportioned equally among all designated Units in accordance with their relative Percentage Interests, (b) when used with respect to Partners and Assignees or Record Holders, apportioned among all Partners and Assignees or Record Holders in accordance with their relative Percentage Interests and (c) when used with respect to holders of Incentive Distribution Rights, apportioned equally among all holders of Incentive Distribution Rights in accordance with the relative number or percentage of Incentive Distribution Rights held by each such holder.
Purchase Date means the date determined by the General Partner as the date for purchase of all Outstanding Limited Partner Interests of a certain class (other than Limited Partner Interests owned by the General Partner and its Affiliates) pursuant to Article XV.
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Quarter means, unless the context requires otherwise, a fiscal quarter of the Partnership, or, with respect to the first fiscal quarter of the Partnership after the Closing Date, the period commencing on the Closing Date and ending on December 31, 2005.
Recapture Income means any gain recognized by the Partnership (computed without regard to any adjustment required by Section 734 or Section 743 of the Code) upon the disposition of any property or asset of the Partnership, which gain is characterized as ordinary income because it represents the recapture of deductions previously taken with respect to such property or asset.
Record Date means the date established by the General Partner or otherwise in accordance with this Agreement for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of Partnership action in writing without a meeting or entitled to exercise rights in respect of any lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer.
Record Holder means the Person in whose name a Common Unit is registered on the books of the Transfer Agent as of the opening of business on a particular Business Day, or with respect to other Partnership Interests, the Person in whose name any such other Partnership Interest is registered on the books that the General Partner has caused to be kept as of the opening of business on such Business Day.
Redeemable Interests means any Partnership Interests for which a redemption notice has been given, and has not been withdrawn, pursuant to Section 4.10.
Registration Statement means the Registration Statement on Form S-1 as it has been or as it may be amended or supplemented from time to time, filed by the Partnership with the Commission under the Securities Act to register the offering and sale of the Common Units in the Initial Offering.
Remaining Net Positive Adjustments means as of the end of any taxable period, (i) with respect to the Unitholders holding Common Units or Subordinated Units, the excess of (a) the Net Positive Adjustments of the Unitholders holding Common Units or Subordinated Units as of the end of such period over (b) the sum of those Partners Share of Additional Book Basis Derivative Items for each prior taxable period, (ii) with respect to the General Partner (as holder of the General Partner Units), the excess of (a) the Net Positive Adjustments of the General Partner as of the end of such period over (b) the sum of the General Partners Share of Additional Book Basis Derivative Items with respect to the General Partner Units for each prior taxable period, and (iii) with respect to the holders of Incentive Distribution Rights, the excess of (a) the Net Positive Adjustments of the holders of Incentive Distribution Rights as of the end of such period over (b) the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable period.
Required Allocations means (a) any limitation imposed on any allocation of Net Losses or Net Termination Losses under Section 6.1(b) or 6.1(c)(ii) and (b) any allocation of an item of
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income, gain, loss or deduction pursuant to Section 6.1(d)(i), 6.1(d)(ii), 6.1(d)(iv), 6.1(d)(vii) or 6.1(d)(ix).
Residual Gain or Residual Loss means any item of gain or loss, as the case may be, of the Partnership recognized for federal income tax purposes resulting from a sale, exchange or other disposition of a Contributed Property or Adjusted Property, to the extent such item of gain or loss is not allocated pursuant to Section 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to eliminate Book-Tax Disparities.
Retained Converted Subordinated Unit has the meaning assigned to such term in Section 5.5(c)(ii).
Second Liquidation Target Amount has the meaning assigned to such term in Section 6.1(c)(i)(E).
Second Target Distribution means $0.5375 per Unit per Quarter (or, with respect to the period commencing on the Closing Date and ending on December 31, 2005, it means the product of $0.5375 multiplied by a fraction of which the numerator is equal to the number of days in such period and of which the denominator is 92), subject to adjustment in accordance with Sections 6.6 and 6.9.
Securities Act means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute.
Securities Exchange Act means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute.
Share of Additional Book Basis Derivative Items means in connection with any allocation of Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders holding Common Units or Subordinated Units, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Unitholders Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time, (ii) with respect to the General Partner (as holder of the General Partner Units), the amount that bears the same ratio to such Additional Book Basis Derivative Items as the General Partners Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustment as of that time, and (iii) with respect to the Partners holding Incentive Distribution Rights, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution Rights as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.
Special Approval means approval by a majority of the members of the Conflicts Committee.
Subordinated Unit means a Unit representing a fractional part of the Partnership Interests of all Limited Partners and Assignees and having the rights and obligations specified with respect to Subordinated Units in this Agreement. The term Subordinated Unit does not
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include a Common Unit. A Subordinated Unit that is convertible into a Common Unit shall not constitute a Common Unit until such conversion occurs.
Subordination Period means the period commencing on the Closing Date and ending on the first to occur of the following dates:
(a) the first day of any Quarter beginning after September 30, 2010 in respect of which (i) (A) distributions of Available Cash from Operating Surplus on each of the Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units and the General Partner Units with respect to each of the three consecutive, non-overlapping four-Quarter periods immediately preceding such date equaled or exceeded the sum of the Minimum Quarterly Distribution on all Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units and the General Partner Units during such periods and (B) the Adjusted Operating Surplus for each of the three consecutive, non-overlapping four-Quarter periods immediately preceding such date equaled or exceeded the sum of the Minimum Quarterly Distribution on all of the Common Units, Subordinated Units and any other Units that are senior or equal in right of distribution to the Subordinated Units that were Outstanding during such periods on a Fully Diluted Basis, and the General Partner Units, with respect to each such period and (ii) there are no Cumulative Common Unit Arrearages; and
(b) the date on which the General Partner is removed as general partner of the Partnership upon the requisite vote by holders of Outstanding Units under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal.
Subsidiary means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
Substituted Limited Partner means a Person who is admitted as a Limited Partner to the Partnership pursuant to Section 10.2 in place of and with all the rights of a Limited Partner and who is shown as a Limited Partner on the books and records of the Partnership.
Surviving Business Entity has the meaning assigned to such term in Section 14.2(b).
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Third Liquidation Target Amount has the meaning assigned to such term in Section 6.1(c)(i)(F).
Third Target Distribution means $0.6625 per Unit per Quarter (or, with respect to the period commencing on the Closing Date and ending on December 31, 2005, it means the product of $0.6625 multiplied by a fraction of which the numerator is equal to the number of days in such period and of which the denominator is 92), subject to adjustment in accordance with Sections 6.6 and 6.9.
Trading Day has the meaning assigned to such term in Section 15.1(a).
transfer has the meaning assigned to such term in Section 4.4(a).
Transfer Agent means such bank, trust company or other Person (including the General Partner or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as registrar and transfer agent for the Common Units; provided , that if no Transfer Agent is specifically designated for any other Partnership Securities, the General Partner shall act in such capacity.
Transfer Application means an application and agreement for transfer of Units in the form set forth on the back of a Certificate or in a form substantially to the same effect in a separate instrument.
Underwriter means each Person named as an underwriter in Schedule I to the Underwriting Agreement who purchases Common Units pursuant thereto.
Underwriting Agreement means that certain Underwriting Agreement dated as of September 28, 2005 among the Underwriters, the Partnership, the General Partner, the Operating Company and other parties thereto, providing for the purchase of Common Units by the Underwriters.
Unit means a Partnership Security that is designated as a Unit and shall include Common Units and Subordinated Units but shall not include (i) General Partner Units (or the General Partner Interest represented thereby) or (ii) Incentive Distribution Rights.
Unitholders means the holders of Units.
Unit Majority means, during the Subordination Period, at least a majority of the Outstanding Common Units (excluding Common Units owned by the General Partner and its Affiliates) voting as a class and at least a majority of the Outstanding Subordinated Units voting as a class, and after the end of the Subordination Period, at least a majority of the Outstanding Common Units.
Unpaid MQD has the meaning assigned to such term in Section 6.1(c)(i)(B).
Unrealized Gain attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the fair market value of such property as of such date
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(as determined under Section 5.5(d)) over (b) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date).
Unrealized Loss attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date) over (b) the fair market value of such property as of such date (as determined under Section 5.5(d)).
Unrecovered Initial Unit Price means at any time, with respect to a Unit, the Initial Unit Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of an Initial Common Unit and any distributions of cash (or the Net Agreed Value of any distributions in kind) in connection with the dissolution and liquidation of the Partnership theretofore made in respect of an Initial Common Unit, adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of such Units.
U.S. GAAP means United States generally accepted accounting principles consistently applied.
Withdrawal Opinion of Counsel has the meaning assigned to such term in Section 11.1(b).
Working Capital Borrowings means borrowings used solely for working capital purposes or to pay distributions to Partners made pursuant to a credit facility or other arrangement to the extent such borrowings are required to be reduced to a relatively small amount each year (or for the year in which the Initial Offering is consummated, the 12-month period beginning on the Closing Date) for an economically meaningful period of time.
Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms include, includes, including and words of like import shall be deemed to be followed by the words without limitation; and (d) the terms hereof, herein and hereunder refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
The General Partner and the Organizational Limited Partner have previously formed the Partnership as a limited partnership pursuant to the provisions of the Delaware Act and hereby
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amend and restate the original Agreement of Limited Partnership of Global Partners LP in its entirety. This amendment and restatement shall become effective on the date of this Agreement. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware Act. All Partnership Interests shall constitute personal property of the owner thereof for all purposes.
The name of the Partnership shall be Global Partners LP. The Partnerships business may be conducted under any other name or names as determined by the General Partner, including the name of the General Partner. The words Limited Partnership, L.P., Ltd. or similar words or letters shall be included in the Partnerships name where necessary for the purpose of complying with the laws of any jurisdiction that so requires. The General Partner may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.
Unless and until changed by the General Partner, the registered office of the Partnership in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808-1645, and the registered agent for service of process on the Partnership in the State of Delaware at such registered office shall be Corporation Service Company. The principal office of the Partnership shall be located at 800 South Street, Waltham, Massachusetts 02454 or such other place as the General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner shall determine necessary or appropriate. The address of the General Partner shall be 800 South Street, Waltham, Massachusetts 02454 or such other place as the General Partner may from time to time designate by notice to the Limited Partners.
The purpose and nature of the business to be conducted by the Partnership shall be to engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, and do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Group Member; provided, however , that the General Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity that the General Partner determines would cause the Partnership to be treated as an association taxable as a corporation or otherwise taxable as an entity for federal income tax purposes. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve, and may decline to propose or approve, the conduct by the Partnership of any business free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner or Assignee and, in declining to so propose or approve, shall not be required to act in good faith or
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pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
The Partnership shall be empowered to do any and all acts and things necessary or appropriate for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Partnership.
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Nothing contained in this Section 2.6(a) shall be construed as authorizing the General Partner to amend this Agreement except in accordance with Article XIII or as may be otherwise expressly provided for in this Agreement.
The term of the Partnership commenced upon the filing of the Certificate of Limited Partnership in accordance with the Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of Article XII. The existence of the Partnership as a separate legal entity shall continue until the cancellation of the Certificate of Limited Partnership as provided in the Delaware Act.
Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner or Assignee, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner, one or more of its Affiliates or one or more nominees, as the General Partner may determine. The General Partner hereby declares and warrants that any Partnership assets for which record title is held in the name of the General Partner or one or more of its Affiliates or one or more nominees shall be held by the General Partner or such Affiliate or nominee for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided , however , that the General Partner shall use reasonable efforts to cause
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record title to such assets (other than those assets in respect of which the General Partner determines that the expense and difficulty of conveyancing makes transfer of record title to the Partnership impracticable) to be vested in the Partnership as soon as reasonably practicable; provided , further, that, prior to the withdrawal or removal of the General Partner or as soon thereafter as practicable, the General Partner shall use reasonable efforts to effect the transfer of record title to the Partnership and, prior to any such transfer, will provide for the use of such assets in a manner satisfactory to the General Partner. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which record title to such Partnership assets is held.
The Limited Partners and the Assignees shall have no liability under this Agreement except as expressly provided in this Agreement or the Delaware Act.
No Limited Partner or Assignee, in its capacity as such, shall participate in the operation, management or control (within the meaning of the Delaware Act) of the Partnerships business, transact any business in the Partnerships name or have the power to sign documents for or otherwise bind the Partnership. Any action taken by any Affiliate of the General Partner or any officer, director, employee, manager, member, general partner, agent or trustee of the General Partner or any of its Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee of a Group Member, in its capacity as such, shall not be deemed to be participation in the control of the business of the Partnership by a limited partner of the Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not affect, impair or eliminate the limitations on the liability of the Limited Partners or Assignees under this Agreement.
Subject to the provisions of Section 7.5 and the Omnibus Agreement, which shall continue to be applicable to the Persons referred to therein, regardless of whether such Persons shall also be Limited Partners or Assignees, any Limited Partner or Assignee shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities in direct competition with the Partnership Group. Neither the Partnership nor any of the other Partners or Assignees shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner or Assignee.
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reasonably related to such Limited Partners interest as a Limited Partner in the Partnership, upon reasonable written demand stating the purpose of such demand, and at such Limited Partners own expense:
Upon the Partnerships issuance of Common Units or Subordinated Units to any Person, the Partnership shall issue, upon the request of such Person, one or more Certificates in the name of such Person evidencing the number of such Units being so issued. In addition, (a) upon the General Partners request, the Partnership shall issue to it one or more Certificates in the name of the General Partner evidencing its General Partner Units and (b) upon the request of any Person owning Incentive Distribution Rights or any other Partnership Securities other than Common
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Units or Subordinated Units, the Partnership shall issue to such Person one or more certificates evidencing such Incentive Distribution Rights or other Partnership Securities other than Common Units or Subordinated Units. Certificates shall be executed on behalf of the Partnership by the Chairman of the Board, President or any Executive Vice President, Senior Vice President or Vice President and the Secretary or any Assistant Secretary of the General Partner. No Common Unit Certificate shall be valid for any purpose until it has been countersigned by the Transfer Agent; provided , however , that if the General Partner elects to issue Common Units in global form, the Common Unit Certificates shall be valid upon receipt of a certificate from the Transfer Agent certifying that the Common Units have been duly registered in accordance with the directions of the Partnership. Subject to the requirements of Section 6.7(b), the Partners holding Certificates evidencing Subordinated Units may exchange such Certificates for Certificates evidencing Common Units on or after the date on which such Subordinated Units are converted into Common Units pursuant to the terms of Section 5.7.
If a Limited Partner or Assignee fails to notify the General Partner within a reasonable period of time after he has notice of the loss, destruction or theft of a Certificate, and a transfer of the Limited Partner Interests represented by the Certificate is registered before the Partnership, the General Partner or the Transfer Agent receives such notification, the Limited Partner or Assignee shall be precluded from making any claim against the Partnership, the General Partner or the Transfer Agent for such transfer or for a new Certificate.
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The Partnership shall be entitled to recognize the Record Holder as the Partner or Assignee with respect to any Partnership Interest and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such Partnership Interest on the part of any other Person, regardless of whether the Partnership shall have actual or other notice thereof, except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of any National Securities Exchange on which such Partnership Interests are listed or admitted to trading. Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or in some other representative capacity for another Person in acquiring and/or holding Partnership Interests, as between the Partnership on the one hand, and such other Persons on the other, such representative Person (a) shall be the Partner or Assignee (as the case may be) of record and beneficially, (b) must execute and deliver a Transfer Application and (c) shall be bound by this Agreement and shall have the rights and obligations of a Partner or Assignee (as the case may be) hereunder and as, and to the extent, provided for herein.
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Prior to September 30, 2015, a holder of Incentive Distribution Rights may transfer any or all of the Incentive Distribution Rights held by such holder without any consent of the Unitholders to (a) an Affiliate of such holder (other than an individual) or (b) another Person (other than an individual) in connection with (i) the merger or consolidation of such holder of Incentive Distribution Rights with or into such other Person, (ii) the transfer by such holder of all or substantially all of its assets to such other Person or (iii) the sale of all the ownership interests in such holder. Any other transfer of the Incentive Distribution Rights prior to September 30, 2015 shall require the prior approval of holders of at least a majority of the Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates). On or
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after September 30, 2015, the General Partner or any other holder of Incentive Distribution Rights may transfer any or all of its Incentive Distribution Rights without Unitholder approval. Notwithstanding anything herein to the contrary, no transfer of Incentive Distribution Rights to another Person shall be permitted unless the transferee agrees to be bound by the provisions of this Agreement. The General Partner and any transferee or transferees of the Incentive Distribution Rights may agree in a separate instrument as to the General Partners exercise of its rights with respect to the Incentive Distribution Rights under Section 11.3 hereof.
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF THE PARTNERSHIP THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH
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TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF THE PARTNERSHIP UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE THE PARTNERSHIP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). GLOBAL GP LLC, THE GENERAL PARTNER OF THE PARTNERSHIP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
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Partnership purposes as a purchase by the Partnership from the Non-citizen Assignee of his Limited Partner Interest (representing his right to receive his share of such distribution in kind).
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ownership interests in Chelsea Sandwich LLC in exchange for (A) 1,114 Common Units and (B) 8,464 Subordinated Units; (iv) Global Petroleum Corp. shall contribute to the Partnership, as a Capital Contribution, all of its ownership interests in Global Companies LLC and Global Montello Group LLC in exchange for (A) 226,736 Common Units and (B) 1,723,196 Subordinated Units; (v) Montello Oil Corporation shall contribute to the Partnership, as a Capital Contribution, all of its ownership interests in Global Companies LLC and Global Montello Group LLC in exchange for (A) 308,552 Common Units and (B) 2,344,992 Subordinated Units; (vi) Larea Holdings LLC shall contribute to the Partnership, as a Capital Contribution, all of its ownership interests in Global Companies LLC and Global Montello Group LLC in exchange for (A) 74,242 Common Units and (B) 564,242 Subordinated Units; and (vii) Larea Holdings II LLC shall contribute to the Partnership, as a Capital Contribution, all of its ownership interests in Global Companies LLC and Global Montello Group LLC in exchange for (A) 37,121 Common Units and (B) 282,121 Subordinated Units.
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Common Units held by Chelsea Terminal Limited Partnership, Sandwich Terminal, L.L.C., Global Petroleum Corp., Montello Oil Corporation, Larea Holdings LLC and Larea Holdings II LLC, respectively, equal to the number of Common Units issued to the Underwriters as provided in this Section 5.3(b).
No interest shall be paid by the Partnership on Capital Contributions. No Partner or Assignee shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon termination of the Partnership may be considered as such by law and then only to the extent provided for in this Agreement. Except to the extent expressly provided in this Agreement, no Partner or Assignee shall have priority over any other Partner or Assignee either as to the return of Capital Contributions or as to profits, losses or distributions. Any such return shall be a compromise to which all Partners and Assignees agree within the meaning of Section 17-502(b) of the Delaware Act.
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(ii) Subject to Section 6.7(c), immediately prior to the transfer of a Subordinated Unit or of a Subordinated Unit that has converted into a Common Unit pursuant to Section 5.7 by a holder thereof (other than a transfer to an Affiliate unless the General Partner elects to have this subparagraph 5.5(c)(ii) apply), the Capital Account maintained for such Person with respect to its Subordinated Units or converted Subordinated Units will (A) first, be allocated to the Subordinated Units or converted Subordinated Units to be transferred in an amount equal to the product of (x) the number of such Subordinated Units or converted Subordinated Units to be transferred and (y) the Per Unit Capital Amount for a Common Unit, and (B) second, any remaining balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any Subordinated Units or converted Subordinated Units (Retained Converted Subordinated Units). Following any such allocation, the transferors Capital Account, if any, maintained with respect to the retained Subordinated Units or Retained Converted Subordinated Units, if any, will have a balance equal to the amount allocated under clause (B) hereinabove, and the transferees Capital Account established with respect to the transferred Subordinated Units or converted Subordinated Units will have a balance equal to the amount allocated under clause (A) hereinabove.
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(ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to any actual or deemed distribution to a Partner of any Partnership property (other than a distribution of cash that is not in redemption or retirement of a Partnership Interest), the Capital Accounts of all Partners and the Carrying Value of all Partnership property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized in a sale of such property immediately prior to such distribution for an amount equal to its fair market value, and had been allocated to the Partners, at such time, pursuant to Section 6.1 in the same manner as any item of gain or loss actually recognized during such period would have been allocated. In determining such Unrealized Gain or Unrealized Loss the aggregate cash amount and fair market value of all Partnership assets (including cash or cash equivalents) immediately prior to a distribution shall (A) in the case of an actual distribution that is not made pursuant to Section 12.4 or in the case of a deemed distribution, be determined and allocated in the same manner as that provided in Section 5.5(d)(i) or (B) in the case of a liquidating distribution pursuant to Section 12.4, be determined and allocated by the Liquidator using such method of valuation as it may adopt.
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Securities. The General Partner shall determine the relative rights, powers and duties of the holders of the Units or other Partnership Securities being so issued. The General Partner shall do all things necessary to comply with the Delaware Act and is authorized and directed to do all things that it determines to be necessary or appropriate in connection with any future issuance of Partnership Securities or in connection with the conversion of the General Partner Interest or any Incentive Distribution Rights into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline of any federal, state or other governmental agency or any National Securities Exchange on which the Units or other Partnership Securities are listed or admitted to trading.
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provided, however , that the conversion of Subordinated Units pursuant to this Section 5.7(b) may not occur until at least one year following the end of the last four-Quarter period in respect of which conversion of Subordinated Units pursuant to Section 5.7(a) occurred.
Except as provided in this Section 5.8 and in Section 5.2, no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Partnership Security, whether unissued, held in the treasury or hereafter created. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Partnership Securities to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Partnership Securities.
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All Limited Partner Interests issued pursuant to, and in accordance with the requirements of, this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-607 of the Delaware Act.
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For purposes of maintaining the Capital Accounts and in determining the rights of the Partners among themselves, the Partnerships items of income, gain, loss and deduction (computed in accordance with Section 5.5(b)) shall be allocated among the Partners in each taxable year (or portion thereof) as provided herein below.
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recovery deductions shall be allocated for federal income tax purposes among the Partners as follows:
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deductions, based upon the same applicable rate as if they had purchased a direct interest in the Partnerships property. If the General Partner chooses not to utilize such aggregate method, the General Partner may use any other depreciation and amortization conventions to preserve the uniformity of the intrinsic tax characteristics of any Limited Partner Interests, so long as such conventions would not have a material adverse effect on the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.
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Quarter shall, subject to Section 17-607 of the Delaware Act, be distributed in accordance with this Article VI by the Partnership to the Unitholders and the General Partner as of the Record Date selected by the General Partner. All amounts of Available Cash distributed by the Partnership on any date from any source shall be deemed to be Operating Surplus until the sum of all amounts of Available Cash theretofore distributed by the Partnership to the Unitholders and the General Partner pursuant to Section 6.4 equals the Operating Surplus from the Closing Date through the close of the immediately preceding Quarter. Any remaining amounts of Available Cash distributed by the Partnership on such date shall, except as otherwise provided in Section 6.5, be deemed to be Capital Surplus. All distributions required to be made under this Agreement shall be made subject to Section 17-607 of the Delaware Act.
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provided, however , if the Minimum Quarterly Distribution, the First Target Distribution, the Second Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of Available Cash that is deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(a)(vii).
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provided, however , if the Minimum Quarterly Distribution, the First Target Distribution, the Second Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of Available Cash that is deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(b)(v).
Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 17-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, 100% to the General Partner and the Unitholders in accordance with their respective Percentage Interests, until a hypothetical holder of a Common Unit acquired on the Closing Date has received with respect to such Common Unit, during the period since the Closing Date through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price. Available Cash that is deemed to be Capital Surplus shall then be distributed (a) to the General Partner in accordance with its Percentage Interest and (b) to all Unitholders holding Common Units, their Pro Rata share of a percentage equal to 100% less the General Partners Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4.
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economic and federal income tax characteristics of an Initial Common Unit. In connection with the condition imposed by this Section 6.7(c), the General Partner may take whatever steps are required to provide economic uniformity to the converted Subordinated Units in preparation for a transfer of such converted Subordinated Units, including the application of Sections 5.5(c)(ii), 6.1(d)(x) and 6.7(b); provided , however , that no such steps may be taken that would have a material adverse effect on the Unitholders holding Common Units represented by Common Unit Certificates.
Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Incentive Distribution Rights (a) shall (i) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Articles III and VII and (ii) have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, except as provided by law, (ii) be entitled to any distributions other than as provided in Sections 6.4(a)(v), (vi) and (vii), 6.4(b)(iii), (iv) and (v), and 12.4 or (iii) be allocated items of income, gain, loss or deduction other than as specified in this Article VI.
If legislation is enacted or the interpretation of existing language is modified by a governmental taxing authority so that a Group Member is treated as an association taxable as a corporation or is otherwise subject to an entity-level tax for federal, state or local income tax purposes, then the General Partner shall estimate for each Quarter the Partnership Groups aggregate liability (the Estimated Incremental Quarterly Tax Amount) for all such income taxes that are payable by reason of any such new legislation or interpretation; provided that any difference between such estimate and the actual tax liability for such Quarter that is owed by reason of any such new legislation or interpretation shall be taken into account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarter in which any such difference can be determined. For each such Quarter, the Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution and Third Target Distribution, shall be the product obtained by multiplying (a) the amounts therefor that are set out herein prior to the application of this Section 6.9 times (b) the quotient obtained by dividing (i) Available Cash with respect to such Quarter by (ii) the sum of Available Cash with respect to such Quarter and the Estimated Incremental Quarterly Tax Amount for such Quarter, as determined by the General Partner. For purposes of the foregoing, Available Cash with respect to a Quarter will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarter.
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transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV) shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
The General Partner has caused the Certificate of Limited Partnership to be filed with the Secretary of State of the State of Delaware as required by the Delaware Act. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents that the General Partner determines to be necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware or any other state in which the Partnership may elect to do business or own property. To the extent the General Partner determines such action to be necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all things to maintain the Partnership as a limited partnership (or a partnership or other entity in which the limited partners have limited liability) under the laws of the State of Delaware or of any other state in which the Partnership may elect to do business or own property. Subject to the terms of Section 3.4(a), the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or any amendment thereto to any Limited Partner.
Except as provided in Articles XII and XIV, the General Partner may not sell, exchange or otherwise dispose of all or substantially all of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of related transactions (including by way of merger, consolidation, other combination or sale of ownership interests of the Partnerships Subsidiaries) without the approval of holders of a Unit Majority; provided , however , that this provision shall not preclude or limit the General Partners ability to mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the assets of the Partnership Group and shall not apply to any forced sale of any or all of the assets of the Partnership Group pursuant to the foreclosure of, or other realization upon, any such encumbrance. Without the approval of holders of a Unit Majority, the General Partner shall not, on behalf of the Partnership, except as permitted under Sections 4.6, 11.1 and 11.2, elect or cause the Partnership to elect a successor general partner of the Partnership.
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undertake activities that are ancillary or related thereto (including being a limited partner in the Partnership) and (ii) shall not engage in any business or activity or incur any debts or liabilities except in connection with or incidental to (A) its performance as general partner or managing member, if any, of one or more Group Members or as described in or contemplated by the Registration Statement or (B) the acquiring, owning or disposing of debt or equity securities in any Group Member.
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pursuant to the Underwriting Agreement, the Omnibus Agreement or the Contribution Agreement (other than obligations incurred by the General Partner on behalf of the Partnership). Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification.
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indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
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Group Member Agreement or any other agreement contemplated hereby or otherwise, then the General Partner, or such Affiliates causing it to do so, are entitled to make such determination or to take or decline to take such other action free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner or Assignee, and the General Partner, or such Affiliates causing it to do so, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity. By way of illustration and not of limitation, whenever the phrase, at the option of the General Partner, or some variation of that phrase, is used in this Agreement, it indicates that the General Partner is acting in its individual capacity. For the avoidance of doubt, whenever the General Partner votes or transfers its Units, or refrains from voting or transferring its Units, it shall be acting in its individual capacity.
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The General Partner may cause the Partnership to purchase or otherwise acquire Partnership Securities; provided that, except as permitted pursuant to Section 4.10, the General Partner may not cause any Group Member to purchase Subordinated Units during the Subordination Period. As long as Partnership Securities are held by any Group Member, such Partnership Securities shall not be considered Outstanding for any purpose, except as otherwise provided herein. The General Partner or any Affiliate of the General Partner may also purchase or otherwise acquire and sell or otherwise dispose of Partnership Securities for its own account, subject to the provisions of Articles IV and X.
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file (A) such documents as may be necessary to register or qualify the securities subject to such registration under the securities laws of such states as the Holder shall reasonably request; provided , however , that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business as a foreign corporation or partnership doing business in such jurisdiction solely as a result of such registration, and (B) such documents as may be necessary to apply for listing or to list the Partnership Securities subject to such registration on such National Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Partnership Securities in such states. Except as set forth in Section 7.12(d), all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
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registration, and (B) such documents as may be necessary to apply for listing or to list the Partnership Securities subject to such shelf registration on such National Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Partnership Securities in such states. Except as set forth in Section 7.12(d), all costs and expenses of any such shelf registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
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however , that the Partnership shall not be liable to any Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, such preliminary, summary or final prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Indemnified Person specifically for use in the preparation thereof.
Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner and any officer of the General Partner authorized by the General Partner to act on behalf of and in the name of the Partnership has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or any such officer as if it were the Partnerships sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the General Partner or any such officer in connection with any such dealing. In no event shall any Person dealing with the General Partner or any such officer or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General
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Partner or any such officer or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.
The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnerships business, including all books and records necessary to provide to the Limited Partners any information required to be provided pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in the regular course of its business, including the record of the Record Holders and Assignees of Units or other Partnership Securities, books of account and records of Partnership proceedings, may be kept on, or be in the form of, computer disks, hard drives, punch cards, magnetic tape, photographs, micrographics or any other information storage device; provided , that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be maintained, for financial reporting purposes, on an accrual basis in accordance with U.S. GAAP.
The fiscal year of the Partnership shall be a fiscal year ending December 31.
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which the Units are listed or admitted to trading, or as the General Partner determines to be necessary or appropriate.
The Partnership shall timely file all returns of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and the taxable year or years that it is required by law to adopt, from time to time, as determined in good faith by the General Partner. In the event the Partnership is required to use a taxable year other than a year ending on December 31, the General Partner shall use reasonable efforts to change the taxable year of the Partnership to a year ending on December 31. The tax information reasonably required by Record Holders for federal and state income tax reporting purposes with respect to a taxable year shall be furnished to them within 90 days of the close of the calendar year in which the Partnerships taxable year ends. The classification, realization and recognition of income, gain, losses and deductions and other items shall be on the accrual method of accounting for federal income tax purposes.
Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnerships expense) in connection with all examinations of the Partnerships affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things reasonably required by the General Partner to conduct such proceedings.
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Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that may be required to cause the Partnership and other Group Members to comply with any withholding requirements established under the Code or any other federal, state or local law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income to any Partner or Assignee (including by reason of Section 1446 of the Code), the General Partner may treat the amount withheld as a distribution of cash pursuant to Section 6.3 in the amount of such withholding from such Partner.
Upon the issuance by the Partnership of Common Units, Subordinated Units and Incentive Distribution Rights to the General Partner, Chelsea Terminal Limited Partnership, Sandwich Terminal, L.L.C., Global Petroleum Corp., Montello Oil Corporation, Larea Holdings LLC, Larea Holdings II LLC and the Underwriters as described in Sections 5.2 and 5.3 in connection with the Initial Offering, the General Partner shall admit such parties to the Partnership as Initial Limited Partners in respect of the Common Units, Subordinated Units or Incentive Distribution Rights issued to them.
By transfer of a Limited Partner Interest in accordance with Article IV, the transferor shall be deemed to have given the transferee the right to seek admission as a Substituted Limited Partner subject to the conditions of, and in the manner permitted under, this Agreement. A transferor of a Certificate representing a Limited Partner Interest shall, however, only have the authority to convey to a purchaser or other transferee who does not execute and deliver a Transfer Application (a) the right to negotiate such Certificate to a purchaser or other transferee and (b) the right to transfer the right to request admission as a Substituted Limited Partner to such purchaser or other transferee in respect of the transferred Limited Partner Interests. Each transferee of a Limited Partner Interest (including any nominee holder or an agent acquiring such Limited Partner Interest for the account of another Person) who executes and delivers a Transfer Application shall, by virtue of such execution and delivery, be an Assignee. Such Assignee shall automatically be admitted to the Partnership as a Substituted Limited Partner with respect to the Limited Partner Interests so transferred to such Person at such time as such transfer is recorded in the books and records of the Partnership, and until so recorded, such transferee shall be an Assignee. The General Partner shall periodically, but no less frequently than on the first Business Day of each calendar quarter, cause any unrecorded transfers of Limited Partner Interests with respect to which a duly executed Transfer Application has been received to be recorded in the books and records of the Partnership. An Assignee shall have an interest in the Partnership equivalent to that of a Limited Partner with respect to allocations and distributions,
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including liquidating distributions, of the Partnership. With respect to voting rights attributable to Limited Partner Interests that are held by Assignees, the General Partner shall be deemed to be the Limited Partner with respect thereto and shall, in exercising the voting rights in respect of such Limited Partner Interests on any matter, vote such Limited Partner Interests at the written direction of the Assignee who is the Record Holder of such Limited Partner Interests. If no such written direction is received, such Limited Partner Interests will not be voted. An Assignee shall have no other rights of a Limited Partner.
A successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to all of the General Partner Interest (represented by General Partner Units) pursuant to Section 4.6 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective immediately prior to the withdrawal or removal of the predecessor or transferring General Partner, pursuant to Section 11.1 or 11.2 or the transfer of the General Partner Interest (represented by General Partner Units) pursuant to Section 4.6, provided, however, that no such successor shall be admitted to the Partnership until compliance with the terms of Section 4.6 has occurred and such successor has executed and delivered such other documents or instruments as may be required to effect such admission. Any such successor shall, subject to the terms hereof, carry on the business of the members of the Partnership Group without dissolution.
To effect the admission to the Partnership of any Partner, the General Partner shall take all steps necessary or appropriate under the Delaware Act to amend the records of the Partnership to reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement and, if required by law, the General Partner shall prepare and file
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an amendment to the Certificate of Limited Partnership, and the General Partner may for this purpose, among others, exercise the power of attorney granted pursuant to Section 2.6.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi)(A), (B), (C) or (E) occurs, the withdrawing General Partner shall give notice to the Limited Partners within 30 days after
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such occurrence. The Partners hereby agree that only the Events of Withdrawal described in this Section 11.1 shall result in the withdrawal of the General Partner from the Partnership.
The General Partner may be removed if such removal is approved by the Unitholders holding at least 66 2/3% of the Outstanding Units (including Units held by the General Partner and its Affiliates) voting as a single class. Any such action by such holders for removal of the General Partner must also provide for the election of a successor General Partner by the Unitholders holding a majority of the outstanding Common Units voting as a class and a majority of the outstanding Subordinated Units voting as a class (including Units held by the General Partner and its Affiliates). Such removal shall be effective immediately following the
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admission of a successor General Partner pursuant to Section 10.3. The removal of the General Partner shall also automatically constitute the removal of the General Partner as general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. If a Person is elected as a successor General Partner in accordance with the terms of this Section 11.2, such Person shall, upon admission pursuant to Section 10.3, automatically become a successor general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. The right of the holders of Outstanding Units to remove the General Partner shall not exist or be exercised unless the Partnership has received an opinion opining as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General Partner elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.3.
For purposes of this Section 11.3(a), the fair market value of the Departing General Partners Combined Interest shall be determined by agreement between the Departing General Partner and its successor or, failing agreement within 30 days after the effective date of such Departing General Partners departure, by an independent investment banking firm or other independent expert selected by the Departing General Partner and its successor, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter. If such parties cannot agree upon one independent investment banking firm or other independent
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expert within 45 days after the effective date of such departure, then the Departing General Partner shall designate an independent investment banking firm or other independent expert, the Departing General Partners successor shall designate an independent investment banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert, which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest of the Departing General Partner. In making its determination, such third independent investment banking firm or other independent expert may consider the then current trading price of Units on any National Securities Exchange on which Units are then listed or admitted to trading, the value of the Partnerships assets, the rights and obligations of the Departing General Partner and other factors it may deem relevant.
Notwithstanding any provision of this Agreement, if the General Partner is removed as general partner of the Partnership under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal, (i) the Subordination Period will end and all Outstanding Subordinated Units will immediately and automatically convert into Common Units on a one-for-one basis, (ii) all Cumulative Common Unit Arrearages on the Common Units will be extinguished and (iii) the General Partner will
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have the right to convert its General Partner Interest (represented by General Partner Units) and its Incentive Distribution Rights into Common Units or to receive cash in exchange therefor.
No Limited Partner shall have any right to withdraw from the Partnership; provided , however, that when a transferee of a Limited Partners Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a Limited Partner with respect to the Limited Partner Interest so transferred.
The Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor General Partner is elected pursuant to Section 11.1 or 11.2, the Partnership shall not be dissolved and such successor General Partner shall continue the business of the Partnership. The Partnership shall dissolve, and (subject to Section 12.2) its affairs shall be wound up, upon:
Upon (a) dissolution of the Partnership following an Event of Withdrawal caused by the withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or (iii) and the failure of the Partners to select a successor to such Departing General Partner pursuant to Section 11.1 or 11.2, then within 90 days thereafter, or (b) dissolution of the Partnership upon an event constituting an Event of Withdrawal as defined in Section 11.1(a)(iv), (v) or (vi), then, to the maximum extent permitted by law, within 180 days thereafter, the holders of a Unit Majority may elect to continue the business of the Partnership on the same terms and conditions set forth in this Agreement by appointing as a successor General Partner a Person approved by the holders of a Unit Majority. Unless such an election is made within the applicable time period as set forth
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above, the Partnership shall conduct only activities necessary to wind up its affairs. If such an election is so made, then:
Upon dissolution of the Partnership, unless the business of the Partnership is continued pursuant to Section 12.2, the General Partner shall select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be entitled to receive such compensation for its services as may be approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. The Liquidator (if other than the General Partner) shall agree not to resign at any time without 15 days prior notice and may be removed at any time, with or without cause, by notice of removal approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. Upon dissolution, removal or resignation of the Liquidator, a successor and substitute Liquidator (who shall have and succeed to all rights, powers and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of at least a majority of the Outstanding Common Units and Subordinated Units voting as a single class. The right to approve a successor or substitute Liquidator in the manner provided herein shall be deemed to refer also to any such successor or substitute Liquidator approved in the manner herein provided. Except as expressly provided in this Article XII, the Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all of the powers conferred upon the General Partner under the terms of this Agreement (but subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.3) necessary or appropriate to carry out the duties and functions of the Liquidator hereunder for and during the period of time required to complete the winding up and liquidation of the Partnership as provided for herein.
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The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its liabilities, and otherwise wind up its affairs in such manner and over such period as determined by the Liquidator, subject to Section 17-804 of the Delaware Act and the following:
Upon the completion of the distribution of Partnership cash and property as provided in Section 12.4 in connection with the liquidation of the Partnership, the Certificate of Limited Partnership and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Partnership shall be taken.
The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate, the return of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it being expressly understood that any such return shall be made solely from Partnership assets.
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To the maximum extent permitted by law, each Partner hereby waives any right to partition of the Partnership property.
No Limited Partner shall have any obligation to restore any negative balance in its Capital Account upon liquidation of the Partnership. The General Partner shall be obligated to restore any negative balance in its Capital Account upon liquidation of its interest in the Partnership by the end of the taxable year of the Partnership during which such liquidation occurs, or, if later, within 90 days after the date of such liquidation.
Each Partner agrees that the General Partner, without the approval of any Partner or Assignee, may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect:
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the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;
Except as provided in Sections 13.1 and 13.3, all amendments to this Agreement shall be made in accordance with the following requirements. Amendments to this Agreement may be proposed only by the General Partner; provided, however, that the General Partner shall have no duty or obligation to propose any amendment to this Agreement and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner or Assignee and, in declining to propose an amendment, to the fullest extent permitted by law shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity. A proposed amendment shall be effective
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upon its approval by the General Partner and the holders of a Unit Majority, unless a greater or different percentage is required under this Agreement or by Delaware law. Each proposed amendment that requires the approval of the holders of a specified percentage of Outstanding Units shall be set forth in a writing that contains the text of the proposed amendment. If such an amendment is proposed, the General Partner shall seek the written approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote on such proposed amendment. The General Partner shall notify all Record Holders upon final adoption of any such proposed amendments.
All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the manner provided in this Article XIII. Special meetings of the Limited Partners may be called by the General Partner or by Limited Partners owning 20% or more of the Outstanding Units of the
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class or classes for which a meeting is proposed. Limited Partners shall call a special meeting by delivering to the General Partner one or more requests in writing stating that the signing Limited Partners wish to call a special meeting and indicating the general or specific purposes for which the special meeting is to be called. Within 60 days after receipt of such a call from Limited Partners or within such greater time as may be reasonably necessary for the Partnership to comply with any statutes, rules, regulations, listing agreements or similar requirements governing the holding of a meeting or the solicitation of proxies for use at such a meeting, the General Partner shall send a notice of the meeting to the Limited Partners either directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place determined by the General Partner on a date not less than 10 days nor more than 60 days after the mailing of notice of the meeting. Limited Partners shall not vote on matters that would cause the Limited Partners to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners limited liability under the Delaware Act or the law of any other state in which the Partnership is qualified to do business.
Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes of Units for which a meeting is proposed in writing by mail or other means of written communication in accordance with Section 16.1. The notice shall be deemed to have been given at the time when deposited in the mail or sent by other means of written communication.
For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation, guideline or requirement of such National Securities Exchange shall govern) or (b) in the event that approvals are sought without a meeting, the date by which Limited Partners are requested in writing by the General Partner to give such approvals. If the General Partner does not set a Record Date, then (a) the Record Date for determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners shall be the close of business on the day next preceding the day on which notice is given, and (b) the Record Date for determining the Limited Partners entitled to give approvals without a meeting shall be the date the first written approval is deposited with the Partnership in care of the General Partner in accordance with Section 13.11.
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall be for more than 45 days. At the adjourned meeting, the Partnership may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 45
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days or if a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given in accordance with this Article XIII.
The transactions of any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy. Attendance of a Limited Partner at a meeting shall constitute a waiver of notice of the meeting, except when the Limited Partner attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened; and except that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.
The holders of a majority of the Outstanding Units of the class or classes for which a meeting has been called (including Outstanding Units deemed owned by the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of Limited Partners of such class or classes unless any such action by the Limited Partners requires approval by holders of a greater percentage of such Units, in which case the quorum shall be such greater percentage. At any meeting of the Limited Partners duly called and held in accordance with this Agreement at which a quorum is present, the act of Limited Partners holding Outstanding Units that in the aggregate represent a majority of the Outstanding Units entitled to vote and be present in person or by proxy at such meeting shall be deemed to constitute the act of all Limited Partners, unless a greater or different percentage is required with respect to such action under the provisions of this Agreement, in which case the act of the Limited Partners holding Outstanding Units that in the aggregate represent at least such greater or different percentage shall be required. The Limited Partners present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Limited Partners to leave less than a quorum, if any action taken (other than adjournment) is approved by the required percentage of Outstanding Units specified in this Agreement (including Outstanding Units deemed owned by the General Partner). In the absence of a quorum any meeting of Limited Partners may be adjourned from time to time by the affirmative vote of holders of at least a majority of the Outstanding Units entitled to vote at such meeting (including Outstanding Units deemed owned by the General Partner) represented either in person or by proxy, but no other business may be transacted, except as provided in Section 13.7.
The General Partner shall have full power and authority concerning the manner of conducting any meeting of the Limited Partners or solicitation of approvals in writing, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 13.4, the conduct of voting, the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting. The General Partner shall designate a Person to serve as chairman of any
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meeting and shall further designate a Person to take the minutes of any meeting. All minutes shall be kept with the records of the Partnership maintained by the General Partner. The General Partner may make such other regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Limited Partners or solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.
If authorized by the General Partner, any action that may be taken at a meeting of the Limited Partners may be taken without a meeting if an approval in writing setting forth the action so taken is signed by Limited Partners owning not less than the minimum percentage of the Outstanding Units (including Units deemed owned by the General Partner) that would be necessary to authorize or take such action at a meeting at which all the Limited Partners were present and voted (unless such provision conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation, guideline or requirement of such National Securities Exchange shall govern). Prompt notice of the taking of action without a meeting shall be given to the Limited Partners who have not approved in writing. The General Partner may specify that any written ballot submitted to Limited Partners for the purpose of taking any action without a meeting shall be returned to the Partnership within the time period, which shall be not less than 20 days, specified by the General Partner. If a ballot returned to the Partnership does not vote all of the Units held by the Limited Partners, the Partnership shall be deemed to have failed to receive a ballot for the Units that were not voted. If approval of the taking of any action by the Limited Partners is solicited by any Person other than by or on behalf of the General Partner, the written approvals shall have no force and effect unless and until (a) they are deposited with the Partnership in care of the General Partner, (b) approvals sufficient to take the action proposed are dated as of a date not more than 90 days prior to the date sufficient approvals are deposited with the Partnership and (c) an Opinion of Counsel is delivered to the General Partner to the effect that the exercise of such right and the action proposed to be taken with respect to any particular matter (i) will not cause the Limited Partners to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners limited liability, and (ii) is otherwise permissible under the state statutes then governing the rights, duties and liabilities of the Partnership and the Partners.
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The Partnership may merge or consolidate with or into one or more corporations, limited liability companies, statutory trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited (including a limited liability partnership)), formed under the laws of the State of Delaware or any other state of the United States of America, pursuant to a written agreement of merger or consolidation (Merger Agreement) in accordance with this Article XIV.
Merger or consolidation of the Partnership pursuant to this Article XIV requires the prior consent of the General Partner; provided, however , that, to the fullest extent permitted by law, the General Partner shall have no duty or obligation to consent to any merger or consolidation of the Partnership and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner or Assignee and, in declining to consent to a merger or consolidation, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity. If the General Partner shall determine to consent to the merger or consolidation, the General Partner shall approve the Merger Agreement, which shall set forth:
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cash, property or general or limited partner interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity) which the holders of such interests, securities or rights are to receive in exchange for, or upon conversion of their interests, securities or rights, and (ii) in the case of securities represented by certificates, upon the surrender of such certificates, which cash, property or interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to be delivered;
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Group Member if (i) the General Partner has received an Opinion of Counsel that the conversion, merger or conveyance, as the case may be, would not result in the loss of the limited liability of any Limited Partner or cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent not previously treated as such), (ii) the sole purpose of such conversion, merger or conveyance is to effect a mere change in the legal form of the Partnership into another limited liability entity and (iii) the governing instruments of the new entity provide the Limited Partners and the General Partner with the same rights and obligations as are herein contained.
Upon the required approval by the General Partner and the Unitholders of a Merger Agreement, a certificate of merger shall be executed and filed with the Secretary of State of the State of Delaware in conformity with the requirements of the Delaware Act.
Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation approved in accordance with this Article XIV may (a) effect any amendment to this Agreement or (b) effect the adoption of a new partnership agreement for the Partnership if it is the Surviving Business Entity. Any such amendment or adoption made pursuant to this Section 14.5 shall be effective at the effective time or date of the merger or consolidation.
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such day as determined by the General Partner; and (iii) Trading Day means a day on which the principal National Securities Exchange on which such Limited Partner Interests of any class are listed is open for the transaction of business or, if Limited Partner Interests of a class are not listed on any National Securities Exchange, a day on which banking institutions in New York City generally are open.
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evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the amount described in Section 15.1(a), therefor, without interest thereon.
Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication to the Partner or Assignee at the address described below. Any notice, payment or report to be given or made to a Partner or Assignee hereunder shall be deemed conclusively to have been given or made, and the obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice, payment or report to the Record Holder of such Partnership Securities at his address as shown on the records of the Transfer Agent or as otherwise shown on the records of the Partnership, regardless of any claim of any Person who may have an interest in such Partnership Securities by reason of any assignment or otherwise. An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 16.1 executed by the General Partner, the Transfer Agent or the mailing organization shall be prima facie evidence of the giving or making of such notice, payment or report. If any notice, payment or report addressed to a Record Holder at the address of such Record Holder appearing on the books and records of the Transfer Agent or the Partnership is returned by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver it, such notice, payment or report and any subsequent notices, payments and reports shall be deemed to have been duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of a change in his address) if they are available for the Partner or Assignee at the principal office of the Partnership for a period of one year from the date of the giving or making of such notice, payment or report to the other Partners and Assignees. Any notice to the Partnership shall be deemed given if received by the General Partner at the principal office of the Partnership designated pursuant to Section 2.3. The General Partner may rely and shall be protected in relying on any notice or other document from a Partner, Assignee or other Person if believed by it to be genuine.
The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
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This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership.
No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a Unit, upon accepting the certificate evidencing such Unit or executing and delivering a Transfer Application as herein described, independently of the signature of any other party.
This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or consent of less than all of the Partners, such action may be so taken upon the concurrence of less than all of the Partners and each Partner shall be bound by the results of such action.
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The use of facsimile signatures affixed in the name and on behalf of the transfer agent and registrar of the Partnership on certificates representing Common Units is expressly permitted by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
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GENERAL PARTNER: |
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Edward J. Faneuil |
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Executive Vice President, General Counsel and |
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Secretary |
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ORGANIZATIONAL LIMITED PARTNER: |
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GLOBAL PETROLEUM CORP. |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Secretary |
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LIMITED PARTNERS: |
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All Limited Partners now and hereafter admitted as Limited Partners of the Partnership, pursuant to powers of attorney now and hereafter executed in favor of, and granted and delivered to the General Partner. |
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GLOBAL GP LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Executive
Vice President, General Counsel
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EXHIBIT A
to the First Amended and Restated
Agreement of Limited Partnership of
Global Partners LP
Certificate Evidencing Common Units
Representing Limited Partner Interests in
Global Partners LP
No. |
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Common Units |
In accordance with Section 4.1 of the First Amended and Restated Agreement of Limited Partnership of Global Partners LP, as amended, supplemented or restated from time to time (the Partnership Agreement ), Global Partners LP, a Delaware limited partnership (the Partnership ), hereby certifies that (the Holder ) is the registered owner of Common Units representing limited partner interests in the Partnership (the Common Units ) transferable on the books of the Partnership, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed and accompanied by a properly executed application for transfer of the Common Units represented by this Certificate. The rights, preferences and limitations of the Common Units are set forth in, and this Certificate and the Common Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at, the principal office of the Partnership located at P.O. Box 9161, 800 South Street, Waltham, Massachusetts 02454. Capitalized terms used herein but not defined shall have the meanings given them in the Partnership Agreement.
The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement and (iv) made the waivers and given the consents and approvals contained in the Partnership Agreement.
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF THE PARTNERSHIP THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF THE PARTNERSHIP UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE THE PARTNERSHIP TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS
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AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). GLOBAL GP LLC, THE GENERAL PARTNER OF THE PARTNERSHIP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
This Certificate shall not be valid for any purpose unless it has been countersigned and registered by the Transfer Agent and Registrar.
Dated: |
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Global Partners LP |
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Countersigned and Registered by: |
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Global GP LLC, |
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its General Partner |
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[ Reverse of Certificate ]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as follows according to applicable laws or regulations:
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as tenants in common |
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UNIF GIFT MIN ACT |
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as tenants by the entireties |
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survivorship and not as |
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tenants in common |
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Additional abbreviations, though not in the above list, may also be used.
ASSIGNMENT OF COMMON UNITS
IN
GLOBAL PARTNERS LP
FOR VALUE RECEIVED, hereby assigns, conveys, sells and transfers unto
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(Please print or typewrite name |
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and address of Assignee) |
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identifying number of Assignee) |
Common Units representing limited partner interests evidenced by this Certificate, subject to the Partnership Agreement, and does hereby irrevocably constitute and appoint as its attorney-in-fact with full power of substitution to transfer the same on the books of Global Partners LP.
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NOTE: |
The signature to any endorsement hereon must correspond with the name as written upon the face of this Certificate in every particular, without alteration, enlargement or change. |
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17d-15 |
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No transfer of the Common Units evidenced hereby will be registered on the books of the Partnership, unless the Certificate evidencing the Common Units to be transferred is surrendered for registration or transfer and an Application for Transfer of Common Units has been executed by a transferee either (a) on the form set forth below or (b) on a separate application that the Partnership will furnish on request without charge. A transferor of the Common Units shall have no duty to the transferee with respect to execution of the transfer application in order for such transferee to obtain registration of the transfer of the Common Units.
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APPLICATION FOR TRANSFER OF COMMON UNITS
The undersigned ( Assignee ) hereby applies for transfer to the name of the Assignee of the Common Units evidenced hereby.
The Assignee (a) requests admission as a Substituted Limited Partner and agrees to comply with and be bound by, and hereby executes, the First Amended and Restated Agreement of Limited Partnership of Global Partners LP (the Partnership ), as amended, supplemented or restated to the date hereof (the Partnership Agreement ), (b) represents and warrants that the Assignee has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (c) appoints the General Partner of the Partnership and, if a Liquidator shall be appointed, the Liquidator of the Partnership as the Assignees attorney-in-fact to execute, swear to, acknowledge and file any document, including the Partnership Agreement and any amendment thereto and the Certificate of Limited Partnership of the Partnership and any amendment thereto, necessary or appropriate for the Assignees admission as a Substituted Limited Partner and as a party to the Partnership Agreement, (d) gives the powers of attorney provided for in the Partnership Agreement, and (e) makes the waivers and gives the consents and approvals contained in the Partnership Agreement. Capitalized terms not defined herein have the meanings assigned to such terms in the Partnership Agreement.
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Social Security or other identifying number |
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Signature of Assignee |
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Purchase Price including commissions, if any |
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Name and Address of Assignee |
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If the U.S. Citizen, Resident or Domestic Entity box is checked, the following certification must be completed.
Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the Code ), the Partnership must withhold tax with respect to certain transfers of property if a holder of an interest in the Partnership is a foreign person. To inform the Partnership that no withholding is required with respect to the undersigned interestholders interest in it, the undersigned hereby certifies the following (or, if applicable, certifies the following on behalf of the interestholder).
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Complete Either A or B:
A. Individual Interestholder
1. I am not a non-resident alien for purposes of U.S. income taxation.
2. My U.S. taxpayer identification number (Social Security Number) is .
3. My home address is .
B. Partnership, Corporation or Other Interestholder
1. is not a foreign corporation, foreign partnership, foreign trust (Name of Interestholder) or foreign estate (as those terms are defined in the Code and Treasury Regulations).
2. The interestholders U.S. employer identification number is .
3. The interestholders office address and place of incorporation (if applicable) is .
The interestholder agrees to notify the Partnership within sixty (60) days of the date the interestholder becomes a foreign person.
The interestholder understands that this Certificate may be disclosed to the Internal Revenue Service by the Partnership and that any false statement contained herein could be punishable by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete and, if applicable, I further declare that I have authority to sign this document on behalf of:
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Signature and Date |
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Note: If the Assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee holder or an agent of any of the foregoing, and is holding for the account of any other person, this application should be completed by an officer thereof or, in the case of a broker or dealer, by a registered representative who is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc., or, in the case of any other nominee holder, a person performing a similar function. If the Assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee owner or an agent of any of the foregoing, the above certification as to any person for whom the Assignee will hold the Common Units shall be made to the best of the Assignees knowledge.
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Exhibit 10.1
GLOBAL PARTNERS LP
OMNIBUS AGREEMENT
OMNIBUS AGREEMENT
This Omnibus Agreement (this Agreement ) is entered into on, and effective as of, the Closing Date (as defined herein), and is by and among the parties listed on the signature pages hereof (each a Party and collectively the Parties ).
RECITALS :
1. The Parties desire by their execution of this Agreement to evidence their agreement, as more fully set forth in Article II, with respect to those business opportunities in which the Slifka Persons (as defined herein) will not engage unless the Partnership has declined to engage in any such business opportunity for its own account.
2. The Parties desire by their execution of this Agreement to evidence their agreement, as more fully set forth in Article III, with respect to certain indemnification obligations of the Parties to each other.
In consideration of the premises and the covenants, conditions and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . As used in this Agreement, the following terms shall have the respective meanings set forth below:
Affiliate is defined in the Partnership Agreement.
Agreement is defined in the introduction.
Annual Deductible is defined in Section 3.2.
Assets means all assets conveyed, contributed or otherwise Transferred by the Slifkas and Affiliates thereof to the Partnership Group prior to or on the Closing Date, including any such assets held by a Person whose ownership interests are Transferred by the Slifkas and Affiliates thereof to the Partnership Group prior to or on the Closing Date by means of operation of law or otherwise.
Chelsea means Chelsea Terminal Limited Partnership, a Massachusetts limited partnership.
Closing Date means the date of the closing of the Partnerships initial public offering of Common Units.
Code means Internal Revenue Code of 1986, as amended.
Common Units is defined in the Partnership Agreement.
Conflicts Committee is defined in the Partnership Agreement.
Contribution Agreement means that certain Contribution, Conveyance and Assumption Agreement, dated as of the Closing Date, among GPC, Montello, Chelsea, Sandwich, the General Partner, the Partnership, the OLLC and certain other parties, together with the additional conveyance documents and instruments contemplated or referenced thereunder.
control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of Voting Securities, by contract, or otherwise.
Covered Environmental Losses is defined in Section 3.1.
Environmental Laws means all federal, state, and local laws, statutes, rules, regulations, orders and ordinances, legally enforceable requirements and rules of common law, now or hereafter in effect, relating to protection of the environment including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act and other environmental conservation and protection laws, each as amended from time to time.
General Partner means Global GP LLC, a Delaware limited liability company.
GPC means Global Petroleum Corp., a Massachusetts corporation.
GPC Entities means GPC, Montello, Revco Dock, Revco Terminal, South Terminal, Chelsea and Sandwich.
Hazardous Substance means (a) any substance that is designated, defined or classified as a hazardous waste, hazardous material, pollutant, contaminant or toxic or hazardous substance, or that is otherwise regulated under any Environmental Law, including, without limitation, any hazardous substance as such term is defined under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, and (b) petroleum, petroleum products, crude oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel and other petroleum hydrocarbons whether refined or unrefined and (c) asbestos, whether in a friable or a non-friable condition, and polychlorinated biphenyls.
Indemnified Party means either the Partnership Group or GPC Entities and the General Partner, as the case may be, each in its capacity as a party entitled to indemnification in accordance with Article III.
Indemnifying Party means either the Partnership Group or GPC Entities and the General Partner, as the case may be, each in its capacity as a party from whom indemnification may be required in accordance with Article III.
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Limited Partner is defined in the Partnership Agreement.
Montello means Montello Oil Corporation, a New Jersey corporation.
MTBE Litigation means Town of Duxbury, et al v. Amerada Hess Corp., et al., filed on September 30, 2003 and City of Lowell v. Amerada Hess Corp., et al., filed on December 30, 2004.
OLLC means Global Operating LLC, a Delaware limited liability company.
Other Losses is defined in Section 3.3(a).
Partnership means Global Partners LP, a Delaware limited partnership.
Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of the Closing Date, as such agreement is in effect on the Closing Date, to which reference is hereby made for all purposes of this Agreement. No amendment or modification to the Partnership Agreement subsequent to the Closing Date shall be given effect for the purposes of this Agreement unless consented to by each of the Parties to this Agreement.
Partnership Entities means the General Partner and each member of the Partnership Group.
Partnership Entity means any of the Partnership Entities.
Partnership Group means the Partnership, the OLLC and any Subsidiary of any such Person, treated as a single consolidated entity.
Partnership Group Member means any member of the Partnership Group.
Party and Parties are defined in the introduction to this Agreement.
Person means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
Retained Assets means the assets and investments owned by the Slifkas and any of their Affiliates that were not conveyed, contributed or otherwise Transferred to the Partnership Group pursuant to the Contribution Agreement and other documents relating to the transactions referred to in the Contribution Agreement, including, without limitation, the replacements and natural extensions thereof.
Revco Dock means Global Revco Dock, L.L.C., a Massachusetts limited liability company.
Revco Terminal means Global Revco Terminal, L.L.C., a Massachusetts limited liability company.
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Sandwich is defined in the introduction to this Agreement.
Slifka means any of the Slifkas.
Slifka Person means any of the Slifka Persons.
Slifka Persons means the Slifkas and any Person controlled thereby individually or in the aggregate, directly or indirectly, other than the Partnership Entities.
Slifka Restricted Businesses is defined in Section 2.1.
Slifkas means Alfred A. Slika, Richard Slifka and Eric Slifka.
Slifka Subject Assets is defined in Section 2.2(c).
South Terminal means Global South Terminal, L.L.C., a Massachusetts limited liability company.
Subsidiary means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
Toxic Tort means a claim or cause of action arising from personal injury or property damage incurred by the plaintiff that is alleged to have been caused by exposure to, or contamination by, Hazardous Substances that have been released into the environment by or as a result of the actions or omissions of the defendant.
Transfer including the correlative terms Transferring or Transferred means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by operation of law) of the Assets, any assets, property or rights.
Voluntary Cleanup Program means a program of the United States or a state of the United States enacted pursuant to Environmental Laws which provides for a mechanism for the written approval of, or authorization to conduct, voluntary remedial action for the clean-up, removal or remediation of contamination that exceeds actionable levels established pursuant to Environmental Laws.
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Voting Securities means securities of any class of a Person entitling the holders thereof to vote on a regular basis in the election of members of the board of directors or other governing body of such Person.
ARTICLE II
SLIFKA BUSINESS OPPORTUNITIES
Section 2.1 Slifka Restricted Businesses . Except as permitted by Section 2.2, (a) Alfred A. Slifka, Richard Slifka and each of their Affiliates, other than the Partnership Entities, for so long as Slifka Persons, individually or in the aggregate, control the Partnership Group and (b) Eric Slifka and his Affiliates, other than the Partnership Entities, until December 31, 2010, unless this obligation is terminated earlier pursuant to the terms of the employment agreement between Eric Slifka and the General Partner, shall be prohibited from engaging in or acquiring or investing in any business having assets engaged in the following businesses (the Slifka Restricted Businesses ): (x) wholesale marketing, sale, distribution and transportation (other than transportation by truck) of refined petroleum products in the United States, provided such activity generates qualifying income as defined in Section 7704 of the Code; (y) the storage of refined petroleum products in connection with any of the activities described in (x); and (z) bunkering.
Section 2.2 Slifka Permitted Exceptions . Notwithstanding any provision of Section 2.1 to the contrary, the Slifka Persons may engage in the following activities under the following circumstances:
Section 2.3 Procedures . In the event that any Slifka Person becomes aware of an opportunity to acquire or invest in Slifka Subject Assets as described in Section 2.2(d), then as soon as practicable, such Slifka Person shall notify the General Partner of such opportunity and deliver to the General Partner all information prepared by or on behalf of such Slifka Person relating to such potential transaction. As soon as practicable but in any event within 30 days after receipt of such notification and information, the General Partner, on behalf of the Partnership, shall notify such Slifka Person that either (a) the General Partner, on behalf of the
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Partnership, has elected, with the concurrence of the Conflicts Committee, not to cause a member of the Partnership Group to pursue the opportunity to acquire or invest in the Slifka Subject Assets, or (b) the General Partner, on behalf of the Partnership, has elected (with the concurrence of the Conflicts Committee) to cause a member of the Partnership Group to pursue the opportunity to acquire or invest in the Slifka Subject Assets. If, at any time, the General Partner abandons such opportunity with the approval of the Conflicts Committee (as evidenced in writing by the General Partner following the request of such Slifka Person), such Slifka Person may pursue such opportunity. Any Slifka Subject Assets that are permitted to be acquired or invested in by a Slifka Person must be so acquired or invested in (a) within 12 months of the later to occur of (i) the date that such Slifka Person becomes able to pursue such opportunity in accordance with the provisions of this Section 2.3, and (ii) the date upon which all required governmental approvals to consummate such acquisition or investment have been obtained, and (b) on terms not materially more favorable to such Slifka Person than were offered to the Partnership. If either of these conditions is not satisfied, the opportunity must be reoffered to the Partnership in accordance with this Section 2.3.
Section 2.4 Scope of Prohibition . Except as provided in this Article II and the Partnership Agreement, each Slifka Person shall be free to engage in any business activity, including those that may be in direct competition with any Partnership Group Member.
Section 2.5 Enforcement .
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ARTICLE III
INDEMNIFICATION
Section 3.1 Environmental Indemnification .
but only to the extent that such violation complained of under Section 3.1(a)(i) or such events or conditions included under Section 3.1(a)(ii) occurred before the Closing Date (collectively, Covered Environmental Losses ).
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Section 3.2 Limitations Regarding Environmental Indemnification . The aggregate liability of the GPC Entities and the General Partner in respect of all Covered Environmental Losses under Section 3.1 shall not exceed $ 7.5 million and the GPC Entities and the General Partner shall not have any obligation under Section 3.1 until such Covered Environmental Losses for any 12-month period, beginning on the Closing Date, exceed $4 00,000 (the Annual Deductible ) and then only to the extent such aggregate Covered Environmental Losses exceed $400,000. Any unused portion of the Annual Deductible in a 12-month period, including unused portions carried over from prior periods, shall be carried over to the next 12-month period. After the fifth anniversary of the Closing Date, the Annual Deductible shall be reduced to $150,000, but in all events, any unused portions carried over from prior periods shall thereafter be made available to the GPC Entities and the General Partner. Notwithstanding anything herein to the contrary, in no event shall the GPC Entities and the General Partner have any indemnification obligations under Section 3.1 for claims made as a result of additions to or modifications of Environmental Laws promulgated after the Closing Date.
Section 3.3 Additional Indemnification .
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Section 3.4 Indemnification Procedures .
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ARTICLE IV
MISCELLANEOUS
Section 4.1 Choice of Law; Submission to Jurisdiction . This Agreement shall be subject to and governed by the laws of the Commonwealth of Massachusetts , excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each Party hereby submits to the jurisdiction of the state and federal courts in the Commonwealth of Massachusetts and to venue in Boston, Massachusetts.
Section 4.2 Notice . All notices or other communications required or permitted under, or otherwise in connection with, this Agreement must be in writing and must be given by depositing same in the U.S. mail, addressed to the Person to be notified, postpaid and registered or certified with return receipt requested or by transmitting by national overnight courier or by delivering such notice in person or by facsimile to such Party. Notice given by mail, national overnight courier or personal delivery shall be effective upon actual receipt. Notice given by facsimile shall be effective upon confirmation of receipt when transmitted by facsimile if transmitted during the recipients normal business hours or at the beginning of the recipients next business day after receipt if not transmitted during the recipients normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address, in each case as follows:
if to the Slifka Persons:
Global
Petroleum Corp.
P.O. Box 9161
800 South Street
Waltham, Massachusetts 02454
Attention: Alfred A. Slifka
Fax: (781) 398-4165
with copies to:
Global
Petroleum Corp.
P.O. Box 9161
800 South Street
Waltham, Massachusetts 02454
Attention: Richard Slifka
Fax: (781) 398-4165
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Global
Petroleum Corp.
P.O. Box 9161
800 South Street
Waltham, Massachusetts 02454
Attention: General Counsel
Fax: (781) 398-4165
if to the Partnership Entities:
Global
Partners LP
P.O. Box 9161
800 South Street
Suite 200
Waltham, Massachusetts 02454
Attention: Edward J. Faneuil
Fax: (781) 398-4165
Section 4.3 Entire Agreement . This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
Section 4.4 Amendment or Modification . This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, however, that the Partnership may not, without the prior approval of the Conflicts Committee, agree to any amendment or modification of this Agreement that the General Partner determines will adversely affect the holders of Common Units. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
Section 4.5 Assignment . No Party shall have the right to assign any of its rights or obligations under this Agreement without the consent of the other Parties hereto.
Section 4.6 Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
Section 4.7 Severability . If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
Section 4.8 Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
Section 4.9 Rights of Limited Partners . The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner of the Partnership
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shall have the right, separate and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
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IN WITNESS WHEREOF, the Parties, other than the Slifkas, have executed this Agreement on, and effective as of, the Closing Date.
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IN WITNESS WHEREOF, the Slifkas have executed this Agreement, with respect to the matters herein excepting Article III, on, and effective as of, the Closing Date.
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Exhibit 10.3
AMENDED AND RESTATED
SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (the Agreement) is made and entered into as of this 4th day of October, 2005, by and among Global Petroleum Corp., a Massachusetts corporation (the Company) and Global Companies LLC, a Delaware limited liability company (Global LLC), Global Montello Group LLC, a Delaware limited liability company (Group LLC) and Chelsea Sandwich LLC, a Delaware limited liability company (Chelsea LLC) (Global LLC, Group LLC and Chelsea LLC are sometimes hereinafter referred to individually as an LLC, and collectively as the LLCs). The Company and the LLCs are sometimes hereinafter referred to each as a Party and collectively as the Parties.
W I T N E S S E T H:
WHEREAS, the Company has been providing certain services to the LLCs and the LLCs have been providing certain services to the Company;
WHEREAS, the Company is willing to continue to provide such services as it has previously provided to the LLCs, and the LLCs desire to receive such services from the Company, all upon the terms and subject to the conditions herein contained; and
WHEREAS, the LLCs are willing to continue to provide such services as they have previously provided to the Company, and the Company desires to receive such services from the LLCs, all upon the terms and subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the LLCs hereby agree as follows:
1. Services .
(a) Company Services . The Company hereby agrees to provide to the LLCs services it is capable of providing during the Service Period (defined below) similar to those which historically have been provided to the LLCs by the Company (the Company Services). The Company Services shall include, without limitation, terminal, environmental and operational support services. The Company Services shall be rendered at such times as are reasonably requested by the LLCs, giving due regard to the Companys operations and other responsibilities. The Company Services may not be expanded except in accordance with Paragraph 9 of this Agreement.
(b) LLC Services . The LLCs hereby agree to provide to the Company services they are capable of providing during the Service Period (defined below) similar to those which historically have been provided to the Company by the LLCs (the LLC Services). The LLC Services shall include, without limitation, accounting, treasury, legal, information technology, human resources and financial operations support services. The LLC Services shall be rendered at such times as are reasonably requested by the Company, giving due regard to the LLCs
operations and other responsibilities. The LLC Services may not be expanded except in accordance with Paragraph 9 of this Agreement.
2. Service Period . The Company shall provide the Company Services to the LLCs, and the LLCs shall provide the LLC Services to the Company, from the date hereof until January 1, 2008, and thereafter for such period of time as they shall mutually agree (the Service Period). The Company may terminate its receipt of some or all of the LLC Services, and/or the LLCs may terminate their receipt of some or all of the Company Services, upon one hundred eighty (180) days advance written notice; provided, however, that neither the Company nor the LLCs may terminate their receipt of LLC Services or Company Services, respectively, prior to January 1, 2008.
3. Compensation . In order to reimburse the Company and the LLCs, on a non-profit basis, for costs incurred by it or them in connection with providing the Company Services and the LLC Services, respectively, the LLCs shall pay to the Company, and the Company shall pay to the LLCs, promptly on receipt of quarterly invoices reflecting for the three (3) months covered thereby, the total of (a) the hours spent by each employee in providing the Company Services or the LLC Services, as the case may be, times such employees compensation (expressed as an hourly rate of compensation) plus 30% of the product thereof to cover employee benefits, overhead and other indirect payroll costs, and (b) the Companys or the LLCs actual and documented out of pocket expenses incurred (i) in the case of the Company, in connection with the Company Services or on behalf of the LLCs, or (ii) in the case of the LLCs, in connection with the LLC Services or on behalf of the Company. Notwithstanding the foregoing, with respect to those Company or LLC employees whose salary is greater than $150,000.00 per year, the overhead and benefits calculation for said group of employees shall not, regardless of the plus 30% calculation referred to in the immediately preceding sentence, exceed $40,000.00 per year.
The Company and the LLCs shall keep timekeeper reports on a monthly basis for time expended on non-Company Services or non-LLC Services, respectively, so as to accurately monitor such Company Services provided for the benefit of the LLCs and LLC Services provided for the benefit of the Company. Invoices submitted by the Company to the LLCs, and by the LLCs to the Company, shall be based upon such records. As an alternative to said timekeeping requirements, the President or Treasurer of the Company and the Chief Executive Officer of each LLC may agree upon a specified monthly amount to be paid by such LLC to the Company or by the Company to the such LLC (the Monthly Services Fee), which Monthly Services Fee shall be subject to approval by the Conflicts Committee and reviewed quarterly and amended in order to more accurately and equitably reflect the actual Services rendered. Upon 30 days prior written notice, either Party may elect to cancel the Monthly Services Fee and utilize actual timekeeping records whereupon compensation shall be paid in accordance with the prior provisions of this Paragraph 3.
4. Indemnification . (a) In as much as the Company is performing the Company Services on an at cost basis and not for the purpose of making a profit, the LLCs shall indemnify and hold harmless the Company, and its officers, directors, employees, stockholders, agents and representatives (collectively, the Company Indemnitees) from and against any and all losses, liabilities, damages, claims, and expenses (including reasonable attorneys fees and expenses)
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suffered or incurred by any Company Indemnitee which arise out of or are related to any action of the Company or any of its employees taken while performing Company Services for the benefit of, or on behalf of, the LLCs, except to the extent that such losses, liabilities, damages, claims, and expenses are caused by the gross negligence or willful misconduct of the Company or any of its employees or agents.
(b) In as much as the LLCs are performing the LLC Services on an at cost basis and not for the purpose of making a profit, the Company shall indemnify and hold harmless the LLCs, and their officers, directors, employees, members, agents and representatives (collectively, the LLC Indemnitees) from and against any and all losses, liabilities, damages, claims, and expenses (including reasonable attorneys fees and expenses) suffered or incurred by any LLC Indemnitee which arise out of or are related to any action of the LLCs or any of their employees taken while performing LLC Services for the benefit of, or on behalf of, the Company, except to the extent that such losses, liabilities, damages, claims, and expenses are caused by the gross negligence or willful misconduct of the LLCs or any of their employees or agents.
5. Relationship of the Parties . Each Party is retained by the other Party only for the purposes and to the extent set forth in this Agreement, and shall serve such other Party solely as an independent contractor. Neither Party shall have any authority to enter into agreements or commitments on behalf of the other Party or to bind the other Party in any respect, except as expressly authorized in writing by such other Party. Neither Party shall be entitled to receive any payments from the other Party by way of compensation, expenses, reimbursements or otherwise in respect of the Company Services and LLC Services, except for the reimbursement to be paid as set forth herein. Nothing contained herein shall be construed as making either Party, or any of its employees, an employee, officer, director or owner of any other Party hereto.
6. Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the LLCs and the Company. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given.
7. Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving Partys address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) telexed, telecopied or made by confirmed facsimile transmission, (c) sent by overnight courier, or (d) sent by certified or registered mail, return receipt requested, postage prepaid.
Global Petroleum Corp. |
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All notices, requests, consents and other communications hereunder shall be deemed to have been received: (a) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above; (b) if telexed, telecopied or made by facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise; (c) if sent by overnight courier, on the next day following the day such mailing is made (or in the case that such mailing is made on a Friday, Saturday or on the day before a legal holiday, on the immediately following business day); or (d) if sent by certified or registered mail, return receipt requested, on the date indicated as the receipt date on such returned receipt, or on the 5 th day following the time of such mailing thereof to such address (or in the case that such 5 th day is a Saturday, Sunday or a legal holiday, on the immediately following business day), if a receipt is not returned.
8. Successors and Assigns . This Agreement may not be assigned in whole or in part without the written consent of all of the non-assigning Parties. This Agreement shall be binding upon and inure to the benefit of the LLCs and the Company, and each of their respective successors and assigns.
9. Entire Agreement/Amendment . This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and except as otherwise provided herein, supersedes all prior agreements or understandings written or oral in respect thereof. This Agreement may be amended or modified at any time or from time to time only by a written instrument signed by the Parties hereto.
10. Enforcement . The provisions of this Agreement shall be regarded as divisible, and if any of said provisions or any part hereof are declared invalid or unenforceable by a court of competent jurisdiction, the validity and enforceability of the remainder of such provisions or parts hereof and the applicability thereof shall not be affected thereby.
11. Governing Law . This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of laws principles thereof.
13. Headings . The paragraph headings contained herein are for convenience and reference only and shall not be given effect in the interpretation of any term or condition of this Agreement.
14. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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GLOBAL PETROLEUM CORP. |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Secretary |
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GLOBAL COMPANIES LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Executive Vice President, General
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GLOBAL MONTELLO GROUP LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Secretary and General Counsel |
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CHELSEA SANDWICH LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Executive Vice President, General |
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Counsel and Secretary |
Exhibit 10.4
AMENDED AND RESTATED
SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (the Agreement) is made and entered into as of this 4th day of October, 2005, by and among Alliance Energy Corp., a Massachusetts corporation (the Company) and Global Companies LLC, a Delaware limited liability company (Global). The Company and Global are sometimes hereinafter referred to each as a Party and collectively as the Parties.
W I T N E S S E T H:
WHEREAS, Global has been providing certain services to the Company, and is willing to continue to provide such services as it has previously provided to the Company, upon the terms and subject to the conditions herein contained; and
WHEREAS, the Company desires to receive such services from Global, upon the terms and subject to the conditions herein contained.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Global hereby agree as follows:
1. Services . Global hereby agrees to provide to the Company services it is capable of providing during the Service Period (defined below) similar to those which historically have been provided to the Company by Global (the Services). The Services shall include, without limitation, accounting, treasury, legal, information technology, human resources and financial operations support services. The Services shall be rendered at such times as are reasonably requested by the Company, giving due regard to Globals operations and other responsibilities. The Services may not be expanded except in accordance with Paragraph 9 of this Agreement.
2. Service Period . Global shall provide Services to the Company from the date hereof until January 1, 2008, and thereafter for such period of time as Global and the Company shall mutually agree (the Service Period). The Company may terminate its receipt of some or all of the Services upon one hundred eighty (180) days advance written notice; provided, however, that the Company may not terminate its receipt of Services prior to January 1, 2008.
3. Compensation . In order to reimburse Global, on a non-profit basis, for costs incurred by it in connection with providing the Services, the Company shall pay to Global, promptly on receipt of quarterly invoices reflecting for the three (3) months covered thereby, the total of (a) the hours spent by each Global employee in providing the Services times such employees compensation (expressed as an hourly rate of compensation) plus 30% of the product thereof to cover employee benefits, overhead and other indirect payroll costs, and (b) Globals actual and documented out of pocket expenses incurred in connection with the Services or on behalf of the Company. Notwithstanding the foregoing, with respect to those Global employees whose salary is greater than $150,000.00 per year, the overhead and benefits calculation for said group of employees shall not, regardless of the plus 30% calculation referred to in the immediately preceding sentence, exceed $40,000.00 per year.
Global shall keep timekeeper reports on a monthly basis for time expended on Services provided for the benefit of the Company. Invoices submitted by Global to the Company shall be based upon such records. As an alternative to said timekeeping requirements, the President or Treasurer of the Company and the Chief Executive Officer of Global may agree upon a specified monthly amount to be paid by the Company to Global (the Monthly Services Fee), which Monthly Services Fee shall be subject to approval by Global Partners LPs Conflicts Committee and reviewed quarterly and amended in order to more accurately and equitably reflect the actual Services rendered. Upon 30 days prior written notice, either Party may elect to cancel the Monthly Services Fee and utilize actual timekeeping records whereupon compensation shall be paid in accordance with the prior provisions of this Paragraph 3.
4. Indemnification . In as much as Global is performing the Services on an at cost basis and not for the purpose of making a profit, the Company shall indemnify and hold harmless Global, and its officers, directors, employees, members, agents and representatives (collectively, the Indemnitees) from and against any and all losses, liabilities, damages, claims, and expenses (including reasonable attorneys fees and expenses) suffered or incurred by any Indemnitee which arise out of or are related to any action of Global or any of its employees taken while performing Services for the benefit of, or on behalf of, the Company, except to the extent that such losses, liabilities, damages, claims, and expenses are caused by the gross negligence or willful misconduct of Global or any of its employees or agents.
5. Relationship of the Parties . Each Party is retained by the other Party only for the purposes and to the extent set forth in this Agreement, and shall serve such other Party solely as an independent contractor. Neither Party shall have any authority to enter into agreements or commitments on behalf of the other Party or to bind the other Party in any respect, except as expressly authorized in writing by such other Party. Neither Party shall be entitled to receive any payments from the other Party by way of compensation, expenses, reimbursements or otherwise in respect of the Services, except for the reimbursement to be paid as set forth herein. Nothing contained herein shall be construed as making either Party, or any of its employees, an employee, officer, director or owner of any other Party hereto.
6. Waivers and Consents . The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by Global and the Company. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given.
7. Notices . All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving Partys address set forth below or to such other address as a Party may designate by notice hereunder, and shall be either (a) delivered by hand, (b) telexed, telecopied or made by confirmed facsimile transmission, (c) sent by overnight courier, or (d) sent by certified or registered mail, return receipt requested, postage prepaid.
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All notices, requests, consents and other communications hereunder shall be deemed to have been received: (a) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above; (b) if telexed, telecopied or made by facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise; (c) if sent by overnight courier, on the next day following the day such mailing is made (or in the case that such mailing is made on a Friday, Saturday or on the day before a legal holiday, on the immediately following business day); or (d) if sent by certified or registered mail, return receipt requested, on the date indicated as the receipt date on such returned receipt, or on the 5 th day following the time of such mailing thereof to such address (or in the case that such 5 th day is a Saturday, Sunday or a legal holiday, on the immediately following business day), if a receipt is not returned.
8. Successors and Assigns . This Agreement may not be assigned in whole or in part without the written consent of all of the non-assigning Parties. This Agreement shall be binding upon and inure to the benefit of Global and the Company, and each of their respective successors and assigns.
9. Entire Agreement/Amendment . This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and except as otherwise provided herein, supersedes all prior agreements or understandings written or oral in respect thereof. This Agreement may be amended or modified at any time or from time to time only by a written instrument signed by the Parties hereto.
10. Enforcement . The provisions of this Agreement shall be regarded as divisible, and if any of said provisions or any part hereof are declared invalid or unenforceable by a court of competent jurisdiction, the validity and enforceability of the remainder of such provisions or parts hereof and the applicability thereof shall not be affected thereby.
11. Governing Law . This Agreement and the rights and obligations hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of laws principles thereof.
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13. Headings . The paragraph headings contained herein are for convenience and reference only and shall not be given effect in the interpretation of any term or condition of this Agreement.
14. Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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ALLIANCE ENERGY CORP. |
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Edward J. Faneuil |
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Secretary |
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GLOBAL COMPANIES LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Executive Vice President, General
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Exhibit 10.5
SECOND AMENDED AND RESTATED
TERMINAL STORAGE RENTAL AND THROUGHPUT AGREEMENT
This Second Amended and Restated Terminal Storage and Throughput Agreement (the Agreement) is entered into as of the 4th day of October, 2005 by and among Global Petroleum Corp. (hereinafter referred to as Global) and Global Companies LLC (for itself and its subsidiary, Glen Hes Corp.) and Global Montello Group Corp. (hereinafter jointly referred to as Customer), and amends and restates in its entirety the Amended and Restated Terminal Storage and Throughput Agreement dated as of September 1, 2001 by and among Global and Customer (the Original Agreement).
WHEREAS, Global operates the Terminal described in Section 1.3 hereof on real property, title to which is owned by Global and related entities identified as follows: Global South Terminal LLC, Global Revco Terminal LLC and Global Revco Dock LLC (Global and such related entities are sometimes hereinafter referred to collectively as the Global Terminal Group). The Terminal excludes those parcels of real estate identified on Exhibit A attached hereto and incorporated herein by reference;
WHEREAS, Customer desires to utilize the entire capacity of the Terminal facilities for terminalling petroleum products as described below, subject to the terms hereinafter set forth; and
WHEREAS, the Parties are desirous of amending certain terms and provisions of the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the signatories hereto, the Parties hereby agree as follows:
1. Definitions
In this Agreement the following words have the meanings herein set forth:
1.1 Product(s) means the type and grades of petroleum products described in Schedule 1.1 attached hereto.
1.2 Barrel means forty-two (42) U.S. gallons measured in accordance with Section 6.2 hereof.
1.3 Terminal or Terminal Premises will mean the Global Terminal Groups terminal located at Lee Burbank Highway, Revere, MA, which may include land, dock, storage tanks, truck loading racks, pipes, offices and related facilities, together with modifications or additions thereto, but excluding the office space that is currently leased to Sun Oil Company located at 140 Lee Burbank Highway. The Terminal shall also not
include those parcels of real estate identified on Exhibit A attached hereto and incorporated herein by reference.
1.4 Terminalling Services means the acceptance of Product at the Terminal for the account of Customer, interim storage of the Product at the Terminal, maintenance of Product quality, and redelivery of Product via the truck loading rack or, in the case of distillates, via marine dock, at the Terminal into customer-designated trucks or marine vessels, for the account of Customer, together with all necessary record keeping.
1.5 Throughput means the total volume of Product received by and delivered from the Terminal during a given period.
1.6 Contract Year means a one year period beginning January 1 and ending the following December 31.
1.7 Tank capacity for the exclusive benefit of Customer at the Terminal Premises for the throughput of Products is 2,086,740 barrels, as more specifically set forth on Exhibit B attached hereto and incorporated herein by reference.
1.8 Party or Parties means Global and/or Customer and/or their respective successors and permitted assigns, individually or collectively, as the context requires.
2. Services and Facilities
2.1 Global, at its own expense, will maintain and make such repairs as are necessary to keep the Terminal in good operating condition, normal wear and tear excepted, and in compliance with all applicable laws and ordinances.
2.2 Global agrees to furnish Customer with Terminalling Services at the Terminal.
2.3 Global shall not enter into any throughput agreement with any other persons, companies or corporations with respect to the Terminal and the Product stored therein.
3. Operations
3.1 Customer will provide to Global at the address set forth in Section 23.1 or at such other address as Global shall designate by written notice to Customer, with written monthly forecasts of Product off takes and deliveries by the 15 th day of the month preceding that of the scheduled activity to enable Global to plan inventories and throughputs. Further, Customer shall give Global at least ten (10) days advance written notice of each five day period during which Customer expects any delivery or receipt to take place and, in addition, give Global at least 72, 48 and 24-hours advance notices of the estimated time and arrival of all vessels scheduled for berthing at the Terminal. If such notices are not given, Global shall have no liability for demurrage charges or other damages as a result of the detention of any Product or vessel which is not afforded with tankage or a berth on arrival unless the delay is due to Globals failure to provide the
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facilities for deliveries as specified herein. The ten (10) day advance written notice shall include the following information:
1) Vessel Name
2) Product(s)/specifications
3) Volume(s) to be discharged/loaded
4) Estimated time of arrival
5) Vessel particulars (draft, length, beam and any other particulars as requested.)
6) Agent
7) Loading point within two working days of receipt of above information
Global will confirm or reject the nomination. If Global rejects the nomination because of berthing conflicts, Global shall offer an alternative berthing time.
3.2 Global shall deliver Product for Customers account into tank transport trucks, designated by Customer during regularly scheduled hours as determined by agreement of Customer and Global. Upon receipt of orders from Customer, Global shall be governed in all aspects by Customers instructions with regard to loading tank transport trucks, and/or barges furnished by Customer.
3.3 Global agrees to hold Customers inventory for Customers account.
3.4 Global agrees to provide a suitable berth and dock facility at the Terminal so that Customer may receive Product into storage or load Product (except gasoline, until such time as (i) marine vapor recovery equipment has been installed, and (ii) the right to use same has been fully permitted by legal authorities) from storage. Global only warrants the berth will safely accommodate vessels of a length overall not exceeding 660 feet and having a bow to center manifold distance not exceeding 330 feet. Within these limitations, vessels with a maximum extreme breadth of 90 feet, and with a maximum draft of 36 feet, may safely berth at the Global dock. Global shall not be liable for any damage suffered by such vessel as a result of striking objects or grounding in the berth, or for oil pollution resulting therefrom not caused by the failure of Global to perform hereunder. Customer agrees to defend, indemnify and save harmless Global against any and all claims of liability resulting therefrom. Global shall not be responsible for any such costs or damages incurred by any such vessels in having to vacate the berth whether or not the reason for vacating the berth is due to Globals inability for any cause to receive the Product or otherwise. All duties and other charges on the vessel not caused by the failure of Global to perform hereunder, including without limitation, those incurred for tugs and pilots, other port costs and taxes on freight, shall be borne by Customer. Customer or its marine vessel operator shall be responsible for providing line
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handling personnel for Customers vessel tie-up and release from mooring dolphins whenever dolphin mooring is required, all at Customers sole risk and expense. Customer shall provide dock personnel for tie-up and release of all vessels at dock mooring points, and to make hose connections to the vessels manifold, all at Customers sole risk and expense. After mooring, the vessel shall then be responsible for tending mooring lines to keep the vessel adequately moored at all stages of tide. When unloading a Customers vessel, the Product shall be pumped into storage at the Terminal by the vessel and at Customers expense. Furthermore, Customer assumes full responsibility for any proven damage sustained by Global at or near the Terminal arising out of the negligent or improper operation of tows, barges, tankers or any other waterborne craft, either owned, operated or nominated by Customer, its agents, suppliers or customers not caused by the failure of Global to perform hereunder. Global assumes full responsibility for any proven damages sustained by Customer at or near the Terminal dock arising out of the negligent or improper operation of dock facilities operated by Global or its agents.
3.5 Global shall berth, handle and sail barges arriving to unload Product for Customer on an as available basis. Said berth shall have loading and unloading connections to receive or redeliver Product (with the exception of loading gasoline, until such time as (i) marine vapor recovery equipment has been installed, and (ii) the right to use same has been fully permitted by legal authorities) into or from assigned tankage. Pier facilities to load or unload Product shall be available during regularly scheduled hours, as determined by Global, and Customer agrees its vessels shall immediately vacate the berth after the loading or unloading of Product, subject to the Masters approval based upon acceptable operating conditions.
3.6 Global does not guarantee a minimum discharge/loading rate for vessels and will not accept or pay any demurrage charges or other damages for delay except and to the extent such charges or damages arise from the (i) failure of equipment operated by Global, or (ii) negligent acts or omissions of Global, its agents, servants or employees or by reason of Globals failure to perform its obligations hereunder.
3.7 If Global, in its sole discretion, determines that any Customer designated marine vessel or barge nominated to receive or discharge at the Terminal presents a safety, health or environmental hazard, or is in any way significantly incompatible with the dock facilities, or is not in a fully seaworthy condition, properly manned, equipped and safe with hull, pipes and pumps tight, staunch and strong or in compliance with all federal, state, port and Terminal regulations including but not limited to the U.S. Port and Tanker Safety Act of 1978 and any applicable regulations promulgated thereunder, the International Convention for the Prevention of Pollution from Ships (MARPOL 1973) and the 1978 protocol thereto, as applicable, it will so notify Customer at the earliest opportunity, and it will have the right to refuse such marine vessel or barge access to the dock, or, if docked, to require the marine vessel or barge to be removed promptly. Customer will direct the marine vessels or barges master will immediately comply with any such request by Global. Any delays, losses or expenses arising as a result or failure to comply with this Section shall be for Customers account, and Global shall not be liable for any demurrage or other damages for delay caused by vessel/barges failure to comply.
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3.8 All marine vessels or barges utilized by Customer for receipt and/or delivery of its Product at the Terminal will be compatible with all Terminal facilities. In the event that Global deems it necessary or desirable at any time to modify the Terminal facilities, all Terminal equipment utilized for Customers account, other than equipment owned or leased by Customer, will be modified at Globals expense, in accordance with Globals specifications. Global will not be responsible for any modifications of Customers designated marine vessels or barges, which, if necessary, will be modified at Customers sole expense to be compatible with all modified Terminal facilities. Global will provide Customer prior written notice of such modifications not less than sixty (60) days prior to the effective date of such modifications or changes.
4. Term of Agreement
Subject to the provisions of Sections 17.2, 18.2, 19 and 25.2 hereof, the Initial Term of this Agreement shall be for a period commencing on December 21, 1998 and terminating on December 31, 2013 (hereinafter called the Initial Term). After the Initial Term of this Agreement, the Agreement shall continue for successive one (1) year terms unless Customer or Global gives the other Party not less than ninety (90) days written notice of termination prior to expiration of the Initial Term or, if applicable, any additional one-year term.
5. Charges, Payments, Terms
5.1 From December 21, 1998 to June 20, 1999 Customer shall pay a monthly Throughput charge to Global of $668,426 ($0.30 x 2,228,087). From June 21, 1999 to December 20, 1999 Customer shall pay a monthly Throughput charge to Global of $557,022 ($0.25 x 2,228,087). From December 21, 1999 to August 31, 2001, Customer shall pay a monthly Throughput charge to Global of $445,617 ($0.20 x 2,228,087). From September 1, 2001 to December 31, 2003, Customer shall pay a monthly Throughput charge to Global of $605,155 ($0.29 (the Per Barrel Rate) x 2,086,740). Commencing January 1, 2004 and thereafter on January 1 of each successive Contract Year during the Initial Term and each applicable additional year (if any), the Per Barrel Rate shall be subject to adjustment as follows: Said Per Barrel Rate (as adjusted from time to time, the Adjusted Per Barrel Rate) shall be that amount equal to (i) the Per Barrel Rate for the just expired Contract Year plus (ii) the percentage increase (if any) of the Consumer Price Index, All Urban Consumers (CPI-U) Region 1, Boston Index, comparing the indices for January of said just expired Contract Year and January of the then current Contract Year (the Inflation Adjuster). Said Inflation Adjuster is based upon the current CPI reference base and shall be adjusted as the Bureau of Labor Statistics periodically adjusts its Consumer Price Index reference base. In the event of the discontinuance of the Consumer Price Index during the Initial Term or any additional year thereafter of this Agreement, the inflation adjuster to be used for purposes of this Agreement shall be a mutually agreed upon inflation indicator, or, if the Parties are unable to agree, an inflation factor determined by a neutral arbitrator selected in accordance with Exhibit C. Upon calculation of said Adjusted Per Barrel Rate, the Customer shall pay, for the applicable Contract Year, a monthly Throughput charge in that amount equal to the (x) then Adjusted Per Barrel Rate multiplied times (y) 2,086,740. Regardless of the CPI
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calculation contemplated by this Section 5.1, in no event shall the Adjusted Per Barrel Rate for any Contract Year from and after 2004 be less than twenty-nine cents ($0.29). The Adjusted Per Barrel Rate for the Contract Year commencing January 1, 2005 is $0.30.
5.2 Without duplication for charges therefor, all third party charges including but not limited to booming, line handling, environmental and other taxes (other than income taxes and real estate taxes or assessments, which will be paid in accordance with Section 14.2 below), insurances, dying of Product, etc. will be for Customers account. For purposes of identifying specific inclusions to be paid by Customer with respect to the foregoing, as of the date hereof, Globals reasonable and necessary costs for security measures imposed at the Terminal as directed by Customer, at the request of governmental authorities or otherwise by regulatory mandate directly in response to terrorism or threats thereof shall be for the account of Customer. Said items identified in the immediately preceding sentence are not exhaustive of all such charges.
5.3 Customer shall pay to Global, in addition to any monthly Throughput charge, 75% of any increases in insurance premiums with respect to those policies and coverages identified on Exhibit D attached hereto and incorporated herein by reference (pro rated with respect to any portion of a year in which the term of this Agreement begins or ends), over and above the premiums incurred with respect to the applicable coverage period (the Base Insurance Period) after adjustment by the applicable Inflation Adjuster. Said amount shall be due and payable to Global within ten (10) days after Global makes and provides evidence of the payment thereof to Customer (which evidence shall include a copy of the then current insurance premium invoice and the corresponding premium from the Base Insurance Period)
5.4 All amounts owed by Customer to Global hereunder shall be payable in accordance with Sections 5.1, 5.2 and 5.3. Customer shall pay interest on all past due amounts hereunder, calculated at the prime rate set by JP Morgan Chase for each calendar day or part of a calendar day beyond the due date.
5.5 Failure of Customer to comply strictly with the material terms of this Agreement shall be cause for Global to suspend further shipments and deliveries under this Agreement for so long as such failure continues without liability for any damages occasioned by said suspension.
5.6 Except as may be prohibited by the terms and conditions of Customers financing agreements with its lender(s), Customer hereby grants to Global a security interest in all Product stored by Customer at the Terminal to secure payment of all monetary obligations of Customer to Global pursuant to this Agreement. If and when Customer fails to pay any amounts due to Global hereunder, Global shall have all of the rights and remedies of a secured party, and Customer shall have all of the obligations of a debtor, under the Uniform Commercial Code as in effect in the jurisdiction where the Terminal is located.
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6. Quantity
6.1 Global agrees to furnish Customer with Product storage. Global shall not loan, exchange, or use (directly or indirectly) for its benefit or for the benefit of any other user at the Terminal or otherwise, Customers Product without the prior written consent of Customer.
6.2 All quantity determinations herein shall be corrected by 60 degrees F and shall be measured in U.S. gallons of two hundred thirty-one (231) cubic inches and forty-two (42) gallons to the Barrel in accordance with the latest supplement or amendment to ASTM-IP Petroleum Measurement Tables (ASTM designation D1250) Table 6B.
6.3 Unless otherwise specified, quantities delivered (a) into or from tankers or barges shall be measured by Terminal tank gauges and (b) into or from transport trucks shall be measured by calibrated meters, or calibration tables when meters are not available.
6.4 Upon delivery of Products to Globals storage as provided in Section 11.2 hereof, by Customer or any carrier for Customers account, Global shall be solely responsible for all loss (other than loss of Product), damage or injury to persons or property arising out of possession of such Products, except for such as may be caused by the negligence or willful misconduct of Customer or Customers agents, or by failure of Customer or Customers agents to observe or perform Customers obligations hereunder.
6.5 In the event independent inspectors are used by Customer, the cost of these inspectors will be at Customers sole expense.
7. Product Gains and Losses
7.1 Subject to the provisions of Section 7.2, Customer will assume gains and losses based on Customers Throughput of all Products, (corrected to 60 degrees F.). Actual variations will be reported by Global and added/deducted monthly from Customers inventory through book inventory adjustments.
7.2 Product loss determinations under this Section will be based on book inventory as shown on Globals books and records at the time of loss.
8. Records
8.1 Global will furnish to Customer, on a monthly basis, a statement of activity for the prior month as relates to Customers Product. Global will complete and deliver to Customer copies of such records as are required for the proper accounting of Product handled under the terms of this Agreement.
8.2 Customer shall have 20 days from receipt of the monthly statement to review and advise of apparent discrepancies, if any. Global then shall have 30 days to either adjust its records or provide documentation to support the quantities delivered or received. Customer will have the right to audit, at its cost and expense and during
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ordinary business hours, the accounting records and other pertinent documents which relate to Terminalling Services provided for Customers Product under this Agreement and to take physical inventory, if required in Customers opinion, to verify the related inventory records. Global will retain these records and documents so to be available to Customer for audit for a period of 13 months.
8.3 Global will ensure that all billings and reports rendered to, and financial settlements made with, Customer pursuant to this Agreement will be complete and accurate. Global will notify Customer promptly upon discovery of any mistakes and inaccuracies in any billing, report or financial settlement previously submitted to Customer.
8.4 Global will forward all inventory reconcilations, daily paper (including dispatch bills of lading) and monthly invoices to:
Global Companies LLC
800 South Street, Suite 200
P.O. Box 9161
Waltham, MA 02454-9161
Attn: D.J. Donovan
8.5 Customer will return all statements, all reconciliations and related paperwork to:
Global Petroleum Corp.
800 South Street, Suite 200
P.O. Box 9161
Waltham, MA 02454-9161
Attn: CFO
9. Quality
9.1 Customer agrees that the quality of all Products received into storage by Global for Customers account will meet or exceed industry minimum Product specifications. Product quality will be verified by an independent inspectors analysis prior to discharge into Globals Terminal and the cost of such analysis will be borne by Customer.
9.2 Customer shall furnish Global with the independent inspectors analysis prior to Globals receipt of any Product. Global reserves the right to refuse to accept any Product into storage unless Global has previously received an independent inspectors analysis satisfactory to Global.
10. Heat
10.1 Customer will provide #2 oil used for Terminal to maintain minimum Product temperature as required. To determine said quantity, the actual amount of #2 oil used will be based on a physical gauge of the boiler tank at the beginning of each month,
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plus receipts into the boiler tank, minus the ending inventory in the boiler tank at months end. The amount of oil used will be deducted monthly from Customers inventory.
11. Title and Custody
11.1 Customer represents and warrants to Global that Customer has and will have good and marketable title to all Product delivered to the Terminal, free and clear of all liens and other encumbrances. Title to Customers Product stored at the Terminal shall remain in Customer and shall be free and clear of all liens and encumbrances, other than the security interest of Global hereunder.
11.2 Global will be deemed to have custody of Product delivered by Customer at the time it passes through the flange connection between the delivery line and Globals receiving line. Delivery of Product by Global to Customer for its account will occur when (a) it passes between Globals truck rack delivery line and Customers designated trucks and (b) it passes between Globals dock line flange and the marine vessels receiving hose or the marine vessels manifold if Terminal hoses or load arms are used.
11.3 Upon delivery of Product to Customer or its agents for Customers account, Customer will thereafter be solely responsible for compliance with all governmental rules and regulations pertaining to such Product, and will be solely responsible for all claims, losses, damages, or injuries to persons or to property arising out of the transportation, possession or use of such Product, except for such as may be caused by the negligence of Global, its agents or employees. In no event will Global be liable for any incidental or consequential damages or injuries arising from the use of such Product, or for the failure of such Product to comply with any governmental rule or regulation.
12. Reservation of Right to Throughput for or Exchange with Third Parties
12.1 Global shall not enter into new throughput and/or exchange agreements with third parties relating to the Terminal during the term of this Agreement.
12.2 Customer may not enter into any throughput, exchange agreements or other product agreements of any kind or nature with third parties relating to the use of the Terminal as contemplated by the Agreement without Globals prior approval, which approval shall not be unreasonably withheld and shall be limited to ensuring that Global be the beneficiary of indemnification provisions in form and content reasonably satisfactory to Global from said third parties.
13. Intentionally deleted.
14. Taxes
14.1 Customer will pay any and all taxes (other than income taxes), charges and/or assessments on the Product of Customer covered under this Agreement and levied against the storage, handling, transportation, use, or ownership of such Product, or upon the Terminalling Services provided hereunder, which Global may be required to pay or
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collect pursuant to any federal, state, county or municipal law or authority now in effect or hereafter to become effective. Any and all taxes (other than income taxes), charges and/or assessments on any improvements made by or for and at the request of Customer under the terms of this Agreement will be paid by Customer on demand of Global.
14.2 During the Contract Year commencing on January 1, 2006, and during each successive Contract Year of the Initial Term and each applicable additional year (if any) thereafter, Customer shall pay to Global an amount equal to the amount that the real estate taxes and/or assessments assessed on or against the Terminal Premises by the City of Revere for each tax period exceed the real estate taxes and/or assessments assessed on or against the Terminal Premises for the corresponding tax period during the City of Reveres 2005 fiscal year. Said amounts shall be due and payable to Global within ten (10) days after Global makes and provides evidence of the payment thereof to Customer (which evidence shall include a copy of the then current real estate tax invoice and the corresponding invoice from the 2005 fiscal year).
14.3 The Parties hereby acknowledge that the Terminal (including any modifications subsequent to the execution of this Agreement) is legally and beneficially owned by Global and the related entities identified on the first page of this Agreement. Accordingly, Global will be entitled to claim all tax depreciation and investment tax credit for all Terminal property and facilities, and Customer shall make no claim to any such depreciation or investment tax credit.
14.4 If claim is made against Global for any such tax (other than income taxes), fee, or charge not now in effect, Global will, at Customers expense, take such action as Customer may reasonably direct to a challenge or opposition to such asserted liability and any payment by Global of such tax, fee, or charge will be made under protest, if protest is required and proper.
15. Insurance
15.1 Customer will be responsible for all losses of Product caused by its negligence or willful misconduct or that of its agents, employees or authorized representatives. Global will be responsible for all losses of Product while in its custody caused by its negligence or willful misconduct or that of its agents, employees or authorized representatives. All losses of Product caused by the act of a third party or an act of God or other catastrophic event beyond the control of either Party will be shared in proportion to each Partys share of ownership of the Product. Customer shall bear all risk of loss for the Products of Customer in storage with Global at the Terminal, and shall be solely responsible for obtaining any insurance with respect such losses for which it is responsible, except as provided above in this Section 15.1.
15.2 During the term of this Agreement, both Parties shall carry Workers Compensation, Employers Liability insurance and any other legally required employers insurance in accordance with and meeting all requirements of applicable local, state and federal law. Such liability insurance will be provided with limits of not less than One
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Million Dollars ($1,000,000) each accident and One Million Dollars ($1,000,000) each employee, One Million Dollars ($1,000,000) per policy year for bodily injury by disease.
15.3 During the term of this Agreement, both Parties shall, each at their own expense, carry Commercial General Liability insurance including, without limitation, coverage for Contractual Liability and Sudden and Accidental Pollution Liability. Such coverage shall insure each Party and name the other as an additional insured for injury and death to persons and damage to property including Pollution Liability arising out of the operations of each hereunder. Such coverage shall be in an amount not less than One Million Dollars ($1,000,000) combined single limit per occurrence.
15.4 During the term of this Agreement, Customer shall, at its own expense, carry Automobile/Truck Liability insurance covering bodily injury and death and property damage to third parties arising out of the ownership, operation, maintenance, use, loading and unloading of vehicles said Automobile/Truck Liability insurance shall cover all owned, non owned and hired vehicles used by Customer/Carrier including Contractual Liability and Sudden and Accidental Pollution Liability protection via a buyback endorsement in amounts not less than a combined single limit for bodily injury and property damage of One Million Dollars ($1,000,000) per accident or occurrence.
15.5 During the terms of this Agreement, Customer shall provide excess coverage for the insurance required in Sections 15.2, 15.3 and 15.4 in the form of Umbrella Liability insurance for Employers Liability, Commercial General Liability, Automobile/Truckers Liability and Pollution Liability, and Global shall provide excess coverage for the insurance required in Sections 15.2 and 15.3 in the form of Umbrella Liability insurance for Commercial General Liability and Pollution Liability, in an amount not less than Ten Million Dollars ($10,000,000) per accident or occurrence.
15.6 Prior to any renewal of this Agreement, each Party shall provide the other Party with certificates of insurance evidencing the issuance of the required policies and stating that they are in force and that such policies will not be cancelled or materially changed without thirty (30) days prior written notice to the other. Customers insurance policies referenced in Sections 15.3 and 15.5 shall name Global as additional insured and be obtained from companies satisfactory to both Parties.
15.7 Both Parties shall, to the extent reasonably possible, obtain the liability insurance required hereunder on an occurrence basis rather that a claims-made basis. In the event coverage is provided on a claims-made basis, both Parties shall, prior to the commencement of the Original Terminal Agreement, provide each other with satisfactory evidence that the retroactive date of the claims-made policy is prior to the date of commencement of the Original Terminal Agreement and that the then remaining aggregate amount of coverage is and will be sufficient to meet the minimum amount of coverage required hereunder.
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16. Indemnity
16.1 Customer unconditionally, irrevocably and absolutely agrees to protect, defend, indemnify and hold harmless Global and Globals subsidiaries and affiliates, and its and their present and future directors, direct and indirect shareholders, officers, employees, agents, attorneys, representatives, heirs, personal representatives, successors and assigns (collectively the Global Indemnitees) from any and all losses, penalties, fines, liabilities (including strict liability), costs, damages and expenses, including reasonable attorneys fees and consultants fees, any of which are incurred, paid or sustained at any time by any of the Global Indemnitees in connection with, arising out of, based upon, relating to or otherwise involving: (i) any blending activities performed at and in accordance with Customers direction; (ii) any breach by Customer of any of its representations and warranties under this Agreement; or (iii) failure by Customer to observe or perform any of the terms or conditions of this Agreement to be observed or performed by it ; provided , however , that this indemnity shall not apply to losses, penalties, fines, liabilities, costs, damages and expenses to the extent arising out of Globals or its agents negligent performance of, or negligent failure to perform, its responsibilities under this Agreement.
16.2 Global shall defend and indemnify Customer and Customers subsidiaries and affiliates, and its and their present and future directors, direct and indirect shareholders, officers, employees, agents, attorneys, representatives, heirs, personal representatives, successors and assigns against all claims, demands, liabilities and expenses (including reasonable attorneys fees) arising out of or in connection with: (i) any breach by Global of any of its representations and warranties under this Agreement; (ii) failure by Global to observe or perform any of the terms or conditions of this Agreement to be observed or performed by it; or (iii) the injury or death of any and all persons or the damage to any property caused by the performance of Globals obligations under this Agreement, provided , however , that this indemnity shall not apply to losses, penalties, fines, liabilities, costs, damages and expenses to the extent arising out of Customers or its agents negligent performance of, or negligent failure to perform, its responsibilities under this Agreement.
16.3 The Parties recognize that there is some overlap among their respective shareholders, directors, officers, agents and other representatives (collectively, Party Representatives). In this regard, the Parties understand and agree that the agreements to defend and indemnify a Party Representative extend only to a Party Representative in his or its capacity as a shareholder, director, officer, agent or other representative of a Party.
17. Assignability
17.1 This Agreement will be binding upon and shall inure to the benefit of the successors and assigns of the Parties. Neither Party shall assign its interest in this Agreement or any of its rights and obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
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17.2 Any attempted assignment prohibited by Section 17.1 above will be void and without effect and will be ground for termination of this Agreement.
18. Force Majeure
18.1 Neither Party will be responsible for damages caused by delay or failure to perform its obligations in whole or in part hereunder (other than its obligation to make payment hereunder, if such delay or failure is attributable to a storm, flood, or other act of God; strike, lockout or other labor dispute; riot; civil disorder; explosion; fire; act of war or compliance with an order or rule or regulation of any governmental authority; sabotage; accident; breakdown; delay in transportation; or other cause beyond the control of the affected Party, whether or not similar to those enumerated above, all of which will be considered events of force majeure . Acts of God included in Section 18.1 do not apply to uninsured losses of Customers Product, which losses will be treated as provided in Section 7.
18.2 The Party affected by an event of force majeure will make all reasonable efforts to remove the event of force majeure or mitigate its effect; however, it is understood and agreed that the settlement of any strike, lockout, or other labor dispute will be entirely within the discretion of the Party involved in such dispute. The term of the Agreement will be extended for a period of time equal to the length of the interruption cause by the event of force majeure ; however, in no event will such period of extension be for more than six (6) months. If an event of force majeure continues for a period of more than six (6) consecutive months, the Party that is not affected by such event shall have the right to terminate this Agreement on sixty (60) days prior written notice.
19. Damage or Destruction of the Terminal
19.1 The Terminal consists of several discrete facilities including the storage tanks, the truck loading rack, the dock, and pipeline ingress and egress facilities. If any of these facilities becomes damaged or destroyed and, as a result of such damage or destruction, Globals ability to provide any or all of the Terminalling Services is substantially impaired, Global will have no obligation to rebuild the facility, notwithstanding any provision of this Agreement to the contrary.
19.2 If such damage occurs and, as a result thereof, storage capacity at the Terminal is reduced to less than 600,000 barrels for a period of more than 9 months, then Customer shall have the right to terminate the Agreement. In all other instances of such damage, Global will notify Customer in writing within forty-five (45) days of such occurrence, whether the damaged facility will be rebuilt, and in the event of rebuilding, the expected date of completion. Charges and Payments pursuant to Section 5 of the Agreement shall be proportionate to the reduction in storage capacity verified as a result of the damage or destruction while the Terminal is being rebuilt or repaired
19.3 This Agreement shall continue in force upon the completion of such rebuilding, and the term of this Agreement shall be extended by a period equal to the time required to complete the rebuilding.
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19.4 Should Global give Customer written notice of its intention not to rebuild any damaged or destroyed facility, and provided that the storage capacity of the Terminal is less than 600,000 barrels, Customers sole remedies shall be a reduction in the Charges and Payments pursuant Section 5 proportionate to the reduction in storage capacity verified as a result of the damage or destruction or to terminate this Agreement upon 30 days notice.
20. Environmental Liability
20.1 In the event of any Product spill or other environmentally polluting discharge at or about the Terminal Premises, the costs of containment and clean-up and/or any resulting liability for such spills or discharges shall be the responsibility of each party whose negligence caused such spill or discharge in proportion to the percentage of negligence attributable to such party. Customer shall be liable for any negligence by the operator of Customers receiving or delivering vessel or vehicle.
20.2 In the event of any Product spill or other environmentally polluting discharge caused by Customer or Customers agent, Global is authorized to commence containment or clean-up operations as deemed appropriate or necessary by Global or required by any governmental authority and shall notify Customer promptly of such operations. In the latter event, Customer shall comply with all relevant and applicable federal, state and local governmental requirements, guidance, orders, rules, regulations and statutes, including health and safety procedures and clean-up standards. Customer may, at Customers option, either assume responsibility for the containment or clean-up operations or allow Global to complete such operations. In either event Global shall have, the right, at its option, to participate in all such containment and clean-up operations. If Global undertakes any containment or clean-up operations, Customer shall reimburse Global for its share of such costs and liabilities together with interest on any past due monies, at the rate provided in Section 5.3.
20.3 Global and Customer shall cooperate for the purpose of obtaining reimbursement in the event that a third party shall be legally responsible for costs or expenses borne by Customer and/or Global under this Section 20.
21. Rights of First Refusal
21.1 If, during the Initial Term or any additional year thereafter of this Agreement, Global receives a bona fide offer to purchase all or any portion of the Terminal or Terminal Premises, and Global desires to accept such offer, Global shall first submit to Customer a copy of such offer with full disclosure of all terms and provisions thereof. Customer will have twenty-one (21) days following receipt thereof in which to notify Global in writing of its election to match the third party offer to purchase all or such portion of the Terminal or Terminal Premises. If Customer does not elect to match such third party offer, Global may proceed to enter into a purchase and sale agreement with said third party, upon substantially the same terms and conditions previously disclosed to and rejected by Customer. Customer thereafter waives all rights to the purchase of all or such portion of the Terminal or Terminal Premises, as applicable,
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provided that Global and the said third party consummate the purchase of all or such portion of the Terminal or Terminal Premises pursuant to the aforementioned purchase and sale agreement. In the event Global and the said third party terminate their purchase and sale agreement without consummating the purchase and sale of all or such portion of the Terminal or Terminal Premises, Customers rights to match a third party offer under this Section 21.1 shall again become effective.
21.2 If, during the Initial Term or any additional year thereafter of this Agreement, Global receives a bona fide offer to lease all or any portion of the Terminal or Terminal Premises, and Global desires to accept such offer, Global shall first submit to Customer a copy of such offer with full disclosure of all terms and provisions thereof. Customer will have twenty-one (21) days following receipt thereof in which to notify Global in writing of its election to match the third party offer to lease all or such portion of the Terminal or Terminal Premises. If Customer does not elect to match such third party offer, Global may proceed to enter into a lease agreement with said third party, upon substantially the same terms and conditions previously disclosed to and rejected by Customer. Customer thereafter waives all rights to lease all or such portion of the Terminal or Terminal Premises, as applicable, for the lease period (as extended, if applicable) set forth in the aforementioned lease agreement, provided that Global and the said third party enter into the aforementioned lease agreement. Upon failure to consummate or termination of the lease agreement between Global and such third party, Customers rights to match a third party offer under this Section 21.2 with respect to the previously leased Terminal or Terminal Premises, or applicable portion thereof, shall again become effective.
21.3 Customers rights of first refusal under Sections 21.1 and 21.2 above shall survive the termination of this Agreement and expire at 5:00 p.m. on September 30, 2014.
22. Compliance with Laws and Safety Regulations; Employees
22.1 Each Party represents and warrants that, to the best of its knowledge, none of the Products covered by this Agreement is derived or manufactured from crude petroleum or gas which was produced or withdrawn from storage in violation of any applicable federal, state or other governmental law, or in violation of any applicable rule, regulation or order. Each Party represents and warrants that to the best of its knowledge, Product composition satisfies all specifications established by federal, state and local governmental authorities. Each Party represents and warrants that, to the best of its knowledge, that the Products covered by this Agreement are produced in accordance with the Walsh-Healey Act and in accordance with the Fair Labor Standards Act of 1938, as said acts have been amended, and that all trucks, tanks and other equipment employed by it in connection with this Agreement are and will be constructed, operated and maintained in accordance with applicable legal requirements. Each Party agrees to comply with all other applicable statutes, rules, regulations, orders and directives.
22.2 Customer shall comply and cause Customers employees, agents and other representatives entering on the Terminal Premises to comply with all safety and health regulations of Global, provided Global provides Customer with written copies of such
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regulations and applicable provisions of federal, state or local safety laws, rules, regulations or orders. Global, however, will not be required to supervise Customer nor shall Global be held responsible for Customers compliance with any safety or health rules, laws, regulations or orders.
22.3 Global shall have the right from time to time to specify gates or entrances for use by all employees, agents and authorized representatives of Customer.
22.4 No Customer employee, agent, or authorized representative will be deemed to be an employee of Global for any purpose, nor shall any employee, agent or authorized representative of Global be deemed to be an employee of Customer for any purpose.
23. Notice
23.1 Except as otherwise specifically provided herein, any notice, demand or other communication required or permitted to be sent to Global under the terms and conditions of this Agreement, will be sufficient if personally served, sent by confirmed facsimile transmission or if posted by certified United States mail addressed to:
Global Petroleum Corp.
P.O. Box 9161
800 South Street, Suite 200
Waltham, MA 02454-9161
Attn: CFO
Facsimile: 781-398-4232
or to such substitute address as may from time-to-time be designated in writing.
23.2 Any notice, demand or other communication required or permitted to be sent to Customer under the terms and conditions of this Agreement will be sufficient if personally served, sent by confirmed facsimile transmission or if posted by certified United States mail, addressed to:
Global Companies LLC
P.O. Box 9161
800 South Street, Suite 200
Waltham, MA 02454-9161
Attn: D. J. Donovan
Facsimile: 781-398-4160
or to such substitute address as may from time-to-time be designated in writing.
23.3 All notices served pursuant to this Section will be deemed received upon personal service or 96 hours after posting to the proper address with all charges prepaid.
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24. Waiver
24.1 No waiver by Global or Customer of any default of the other and no failure or delay in exercising any right or remedy under this Agreement will operate as a waiver of any future default whether of like or different character or exclude any future exercise of such right or remedy.
25. Default and Termination
25.1 Each of the following will constitute an event of default hereunder:
A. Failure to comply fully with any of the terms or conditions hereof;
B. Any breach of a representation or warranty hereunder; or
C. Adjudication of insolvency or bankruptcy under any insolvency or bankruptcy law or an assignment for the benefit of creditors or an appointment of receiver of Customer or of its assets.
25.2 The defaulting Party will have ninety (90) days to cure any default under clause A or B following receipt of written notice from the nondefaulting Party. If such default is not cured within said ninety (90) day period, the nondefaulting Party will have the right to terminate this Agreement by written notice.
25.3 In the event of termination by either Party for any reason, or upon the expiration of this Agreement, Customer will remove all of its Product at the Terminal and any additive or other equipment on the Terminal Premises within (30) thirty days of termination or expiration, and pay all charges as provided in this Agreement. Any Product or additive or other equipment remaining at the Terminal after such date may be removed by Global without liability. Customer will bear all costs of removal, including, but not limited to, transportation, storage, inspection, booming and disposal.
26. Whole Agreement
This Agreement, including all exhibits and schedules hereto, embodies the whole Agreement of the Parties and supersedes any and all previous written or oral agreements, understandings and negotiations.
27. Compliance with Executive Orders
If this contract is subject to Executive Order 11246, as amended, a copy of Certificate of Compliance is made a part hereof and either is attached hereto for signature and return or has been previously filed. To the extent required by applicable laws and regulations, this contract also includes and may be subject to Executive Order 11738 requiring a Certificate of Compliance with Environmental Regulations, Executive Order 11625 requiring a Certificate of Compliance with Minority Business Enterprises Regulations, and the Small Business Act and the Small Business Investment Act of 1958, as amended, and to the affirmative action clauses concerning disabled veterans and
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Veterans of the Vietnam era and employment of the handicapped. The appropriate clauses are incorporated herein by reference.
28. Governing Law
This Agreement shall be subject to and governed by the laws of the Commonwealth of Massachusetts, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another jurisdiction.
29. No Agency
The subject matter of the Agreement is the receipt, storage, withdrawal and exchange of the Products identified herein. There is no agency, partnership or joint venture being created by the existence of this Agreement. Neither Party shall represent itself to be the agent, servant or partner of the other.
30. Eminent Domain
If Globals use of all or any substantial part of the Terminal Premises for the storage and handling of the Products shall be restrained or enjoined by court order, or restricted or terminated by any governmental or regulatory authority, or the Terminal or any signification portion of the Terminal Premises is condemned for public use, Global shall notify Customer thereof and either Party may terminate this Agreement by giving written notice to the other Party within ten (10) days after the effective date of said restraint, injunction, restriction, termination or condemnation. If the restraint or condemnation affects only a portion of the Terminal Premises and reduces the capacity of the Terminal, Customers maximum and minimum Throughput and payment obligations shall be adjusted accordingly or Customer may terminate this Agreement by giving written notice to Global. In the event the Terminal Premises or any part thereof are condemned for public use, all compensation and damages of any type whatsoever awarded for such condemnation, whether whole or partial, shall belong to and be the property of Global except that Customer shall have the right to claim and recover from the condemning authority, but not from Global, such compensation as may be separately awarded or recoverable by Customer in Customers own right on account of any and all damage to Customers business by reason of such condemnation and for or on account of any cost or loss to which Customer might suffer in removing Customers Products and equipment; provided, however, such claim shall not diminish or otherwise adversely affect Globals award.
31. Amendment or Modification
This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, however, that Customer may not, without the prior approval of the Conflicts Committee of Global Partners LP, agree to any amendment or modification of this Agreement that Global Partners LPs General Partner determines will adversely affect the holders of Global Partners LPs Common
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Units. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
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GLOBAL PETROLEUM CORP. |
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/s/ Alfred A. Slifka |
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Alfred A. Slifka |
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President |
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GLOBAL COMPANIES LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Executive Vice
President, General
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GLOBAL MONTELLO GROUP LLC |
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/s/ Edward J. Faneuil |
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Edward J. Faneuil |
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Secretary and General Counsel |
Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the Agreement ) is made as of October 4, 2005 (the Effective Date ), by and between Global GP LLC, a Delaware limited liability company (the Company ), and Eric Slifka (the Executive ).
WHEREAS, the Company and the Executive have agreed that the Executive will be employed as the Companys President and Chief Executive Officer; and
WHEREAS, the Company and the Executive mutually desire to formalize the employment arrangement of the Executive and to agree upon the terms of the Executives employment by the Company and, in addition, to agree as to certain benefits of said employment; and
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the Company and the Executive hereby agree as follows:
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If to the Company:
Global GP LLC
P.O. Box 9161
800 South St.
Waltham, Massachusetts 02454-9161
Attention: General Counsel and the Chairman of the Board
with a copy to:
Alan P. Baden
Vinson & Elkins L.L.P.
666 Fifth Avenue
25th Floor
New York, New York 10103
If to the Executive:
Eric Slifka
9 Clarke Road
Wellesley, Massachusetts 02481
with a copy to:
Daniel E. Rosenfeld
Kirkpatrick & Lockhart Nicholson Graham LLP
75 State Street
Boston, Massachusetts 02109
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
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GLOBAL GP LLC |
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/s/ Thomas A. McManmon, Jr. |
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Thomas A. McManmon, Jr. |
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Executive Vice President and |
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Chief Financial Officer |
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ERIC SLIFKA |
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/s/ Eric Slifka |
Exhibit 10.7
GLOBAL PARTNERS LP
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated as of October 4, 2005, is entered into by and among GLOBAL GP LLC , a Delaware limited liability company ( GP LLC ), GLOBAL PARTNERS LP , a Delaware limited partnership ( MLP ), GLOBAL OPERATING LLC, a Delaware limited liability company ( OLLC ), GLOBAL COMPANIES LLC , a Delaware limited liability company ( Global ), GLOBAL MONTELLO GROUP LLC, a Delaware limited liability company ( GMG ), CHELSEA SANDWICH LLC , a Delaware limited liability company ( Chelsea LLC ), GLOBAL PETROLEUM CORP. , a Massachusetts corporation ( GPC ), LAREA HOLDINGS LLC , a Delaware limited liability company ( Larea ), LAREA HOLDINGS II LLC , a Delaware limited liability company ( Larea II ), CHELSEA TERMINAL LIMITED PARTNERSHIP , a Massachusetts limited partnership ( Chelsea LP ), SANDWICH TERMINAL, L.L.C. , a Massachusetts limited liability company ( Sandwich ) and MONTELLO OIL CORPORATION , a New Jersey corporation ( Montello ). The above-named entities are sometimes referred to in this Agreement each as a Party and collectively as the Parties . Capitalized terms used herein shall have the meanings assigned to such terms in Section 1.1.
RECITALS :
WHEREAS , GPC and GP LLC have formed MLP pursuant to the Delaware Revised Uniform Limited Partnership Act (the Delaware LP Act ) for the purpose of engaging in any business activity that is approved by GP LLC and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware LP Act.
WHEREAS, in order to accomplish the objectives and purposes in the preceding recital, each of the following actions have been taken prior to the date hereof:
1. GPC formed GP LLC under the terms of the Delaware Limited Liability Company Act (the Delaware LLC Act ) and contributed $1,000 to GP LLC in exchange for all of the member interests in GP LLC.
2. GP LLC and GPC formed MLP under the terms of the Delaware LP Act to which GP LLC contributed $40 to MLP in exchange for a 2% general partner interest in MLP and GPC contributed $1,960 to MLP in exchange for a 98% limited partner interest in MLP.
3. MLP formed OLLC under the terms of the Delaware LLC Act to which MLP contributed $1,000 to OLLC in exchange for all of the member interests in OLLC.
WHEREAS, concurrently with the consummation of the transactions contemplated hereby, each of the following shall occur:
1. The New Credit Facility will be entered into by and among the parties thereto at which time borrowings under the New Credit Facility will be used to repay any outstanding borrowings under the Old Credit Facility.
2. Global will distribute approximately $45,250,000 in cash and receivables ( Working Capital Assets ), to GPC, Montello, Larea and Larea II as follows:
(a) GPC will receive $18,124,424;
(b) Montello will receive $22,172,500;
(c) Larea will receive $3,302,051; and
(d) Larea II will receive $1,651,025.
3. GPC, Montello, Larea and Larea II will convey a 36%, 49%, 10% and 5%, respectively, member interest in Global to GP LLC in exchange for a 36%, 49%, 10% and 5%, respectively, member interest in GP LLC. Such member interests in Global have an aggregate value equal to 2% of the equity value of MLP at the closing of the transactions contemplated by this Agreement and shall be referred to herein as the Global Interests .
4. GMG will convey all its right, title and interest in the Qualifying Income Assets to Global as a capital contribution on behalf of GPC, Montello, Larea and Larea II.
5. GP LLC will convey the Global Interests to MLP in exchange for (a) 230,303 General Partner Units, which represents a continuation of its 2% general partner interest in MLP, and (b) the issuance of the IDRs.
6. GPC, Montello, Larea, Larea II, Chelsea LP and Sandwich (the Owners ) will convey their member interests in Global, GMG and Chelsea LLC (the Operating Subsidiaries ) to MLP in exchange for (a) 742,424 Common Units representing a 6.4% limited partner interest in MLP, of which (i) GPC will receive 226,736 Common Units, (ii) Montello will receive 308,552 Common Units, (iii) Larea will receive 74,242 Common Units, (iv) Larea II will receive 37,121 Common Units, (v) Chelsea LP will receive 94,659 Common Units and (vi) Sandwich will receive 1,114 Common Units, (b) 5,642,424 Subordinated Units representing a 49.0% limited partner interest in MLP, of which (i) GPC will receive 1,723,196 Subordinated Units, (ii) Montello will receive 2,344,992 Subordinated Units, (iii) Larea will receive 564,242 Subordinated Units, (iv) Larea II will receive 282,121 Subordinated Units, (v) Chelsea LP will receive 719,409 Subordinated Units and (vi) Sandwich will receive 8,464 Subordinated Units, and (c) the assumption by MLP of the GPC Term Loan.
7. In connection with MLPs initial public offering (the Offering ), the public, through the Underwriters, will contribute $107,800,000 in cash to MLP, less the Underwriters discount of $7,144,200, in exchange for 4,900,000 Common Units representing a 42.6% limited partner interest in MLP.
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8. MLP will convey all of its member interests in the Operating Subsidiaries to OLLC as a capital contribution.
9. MLP will (a) pay or cause to be paid approximately $4,405,8000 of offering expenses (excluding the Underwriters discount) in connection with the Offering of the Common Units, (b) repay approximately $51,000,000 of outstanding indebtedness under the GPC Term Loan and (c) contribute its remaining cash of approximately $45,250,000 to OLLC as a capital contribution.
10. OLLC will convey approximately $45,250,000 to Global as a capital contribution, which will use the funds to repay approximately $45,250,000 of outstanding borrowings under the New Credit Facility.
11. Global will convey all of its right, title and interest in the Non-Qualifying Income Assets to GMG as a capital contribution on behalf of OLLC.
12. GMG will, pursuant to the terms of the Delaware LLC Act and the Delaware General Corporation Law (the Delaware GCL ), convert to Global Montello Group Corp., a Delaware corporation ( GMG Corp. ).
13. To the extent the Underwriters exercise their over-allotment option to purchase up to 735,000 Common Units (the Over-Allotment Option ), MLP will use the net proceeds to redeem from the Owners a number of Common Units equal to those sold pursuant to the Over-Allotment Option.
14. The organizational documents of the Parties will be amended and restated as necessary to reflect the applicable matters set forth above and as contained in this Agreement.
NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS
Agreement means this Contribution, Conveyance and Assumption Agreement.
Assets means all right, title and interest of GMG and Global in and to the Qualifying Income Assets and the Non-Qualifying Income Assets, respectively, whether tangible or intangible, whether real, personal or mixed, whether accrued or contingent, and wherever located.
Chelsea LLC has the meaning as set forth in the opening paragraph of this Agreement.
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Chelsea LP has the meaning as set forth in the opening paragraph of this Agreement.
Code means Internal Revenue Code of 1986, as amended.
Common Units has the meaning as set forth in the Partnership Agreement.
Delaware GCL has the meaning as set forth in the Recitals of this Agreement.
Delaware LLC Act has the meaning as set forth in the Recitals of this Agreement.
Delaware LP Act has the meaning as set forth in the Recitals of this Agreement.
Effective Time means 12:01 a.m. Eastern Daylight Time on October 4, 2005.
Employee-Related Liabilities means all liabilities arising out of or related to those agreements, contracts, plans and similar arrangements listed on Schedule A to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of Global or its affiliates.
FFE Assets means the furniture, fixtures and other equipment set forth on Schedule B and such other furniture, fixtures and other equipment in which Global has a right, title and interest in located at 800 South Street, Waltham, Massachusetts 02454, and at such other locations where employees of any of the Partnership Entities are situated.
FFE Liabilities means all liabilities arising out of or related to the ownership of the FFE Assets to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of Global or its affiliates.
General Partner Units has the meaning as set forth in the Partnership Agreement.
Glen Hes means Glen Hes Corp., a Delaware corporation.
Global has the meaning as set forth in the opening paragraph of this Agreement.
Global Interests has the meaning as set forth in the Recitals of this Agreement.
GMG has the meaning as set forth in the opening paragraph of this Agreement.
GMG Corp. has the meaning as set forth in the Recitals of this Agreement.
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GP LLC has the meaning as set forth in the opening paragraph of this Agreement.
GPC has the meaning as set forth in the opening paragraph of this Agreement.
GPC Term Loan means that Term Loan Agreement dated as of July 2, 2004 by and among GPC, as the borrower, those entities identified as guarantors and Bank of America, N.A. and the other lending institutions listed on Schedule 1 thereto and Bank of America, N.A., as agent.
IDR has the same meaning as Incentive Distribution Right as set forth in the Partnership Agreement.
Larea has the meaning as set forth in the opening paragraph of this Agreement.
Larea II has the meaning as set forth in the opening paragraph of this Agreement.
MLP has the meaning as set forth in the opening paragraph of this Agreement.
MLP Agreement means the First Amended and Restated Agreement of Limited Partnership of MLP, as it may be amended, supplemented or restated from time to time.
Montello has the meaning as set forth in the opening paragraph of this Agreement.
New Credit Facility means that Credit Agreement dated as of October 4, 2005, among OLLC, Global, GMG, Glen Hes and Chelsea LLC, as borrowers, MLP and GP LLC as initial guarantors, each lender from time to time party thereto and Bank of America, N.A., as administrative agent.
Non-Qualifying Income Assets means those assets set forth on Schedule C and such other assets that do not generate qualifying income as defined in Section 7704 of the Code.
Non- Qualifying Income Liabilities means all liabilities arising out of or related to the ownership of the Non-Qualifying Income Assets to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of Global or its affiliates.
Offering has the meaning as set forth in the Recitals of this Agreement.
Old Credit Facility means that Eighth Amended and Restated Revolving Credit Agreement dated as of July 1, 2003 by and among Global, GMG, Glen Hes, Chelsea LLC and Fleet National Bank and the other lending institutions listed on Schedule 1 thereto and Fleet National Bank, as agent, as amended.
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OLLC has the meaning as set forth in the opening paragraph of this Agreement.
Operating Subsidiaries has the meaning as set forth in the Recitals of this Agreement.
Over-Allotment Option has the meaning as set forth in the Recitals of this Agreement.
Owners has the meaning as set forth in the Recitals of this Agreement.
Party or Parties has the meaning as set forth in the opening paragraph of this Agreement.
Partnership Entities means GP LLC, MLP, OLLC, the Operating Subsidiaries and Glen Hes.
Qualifying Income Assets means those assets set forth on Schedule D and such other assets that generate qualifying income as defined in Section 7704 of the Code.
Qualifying Income Liabilities means all liabilities arising out of or related to the ownership of the Qualifying Income Assets to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of GMG or its affiliates.
Sandwich has the meaning as set forth in the opening paragraph of this Agreement.
Subordinated Units has the meaning as set forth in the Partnership Agreement.
Underwriters means Lehman Brothers Inc., KeyBanc Capital Markets, a Division of McDonald Investments Inc., Raymond James & Associates, Inc., RBC Capital Markets Corporation and Banc of America Securities LLC.
Working Capital Assets has the meaning as set forth in the Recitals of this Agreement.
ARTICLE II
CONTRIBUTIONS, ACKNOWLEDGMENTS AND DISTRIBUTIONS
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TO HAVE AND TO HOLD the Qualifying Income Assets unto Global, its successors and assigns, together with all and singular the rights and appurtenances thereto in any way belonging, subject, however, to the terms and conditions stated in this Agreement, forever.
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The above contribution has been made to repay approximately $45,250,000 of outstanding borrowings under the New Credit Facility. Global acknowledges that the amounts acknowledged as being contributed under this Section 2.9 have been used to repay approximately $45,250,000 of outstanding borrowings under the New Credit Facility.
TO HAVE AND TO HOLD the Non-Qualifying Income Assets unto GMG, its successors and assigns, together with all and singular the rights and appurtenances thereto in any way belonging, subject, however, to the terms and conditions stated in this Agreement, forever.
TO HAVE AND TO HOLD the FFE Assets unto GP LLC, its successors and assigns, together with all and singular the rights and appurtenances thereto in any way belonging, subject, however, to the terms and conditions stated in this Agreement, forever.
ARTICLE III
ASSUMPTIONS OF CERTAIN LIABILITIES
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ARTICLE IV
ADDITIONAL TRANSACTIONS
ARTICLE V
TITLE
MATTERS
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ARTICLE VI
FURTHER ASSURANCES
From time to time after the date hereof, and without any further consideration the Parties agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other documents, and will do all such other acts and things, all in accordance with applicable law, as may be necessary or appropriate (a) more fully to assure that the applicable Parties own all of the properties, rights, titles, interests, estates, remedies, powers and privileges granted by this Agreement, or which are intended to be so granted, or (b) more fully and effectively to vest in the applicable Parties and their respective successors and assigns beneficial and record title to the interests contributed and assigned by this Agreement or intended so to be and to more fully and effectively carry out the purposes and intent of this Agreement.
ARTICLE VII
EFFECTIVE TIME
Notwithstanding anything contained in this Agreement to the contrary, none of the provisions of Article II or Article III of this Agreement shall be operative or have any effect until the Effective Time, at which time all the provisions of Article II or Article III of this Agreement shall be effective and operative in accordance with Article VIII, without further action by any Party.
ARTICLE VIII
MISCELLANEOUS
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IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties as of the date first written above.
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GLOBAL GP LLC |
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Executive Vice President, Secretary
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its General Partner |
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Edward J. Faneuil |
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GLOBAL OPERATING LLC |
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GLOBAL COMPANIES LLC |
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LAREA HOLDINGS LLC |
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Exhibit 10.8
[Published CUSIP Number: ]
CREDIT AGREEMENT
Dated as of October 4, 2005
among
GLOBAL
OPERATING LLC,
GLOBAL COMPANIES LLC,
GLOBAL MONTELLO GROUP LLC
GLEN HES CORP.
CHELSEA SANDWICH LLC
as the Borrowers,
BANK OF
AMERICA, N.A.,
as Administrative Agent and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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Financial Statements; No Material Adverse Effect; No Internal Control Event |
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Margin Regulations; Investment Company Act; Public Utility Holding Company Act |
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SCHEDULES |
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1A |
Existing Letters of Credit |
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1B |
Major Oil Company Receivables |
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2.1 |
Commitments and Applicable Percentages |
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5.5 |
Supplement to Interim Financial Statements |
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5.6 |
Litigation |
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5.9 |
Environmental Matters |
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5.13 |
Subsidiaries; Other Equity Investments |
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5.21 |
Bank Accounts |
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7.1 |
Existing Liens |
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7.2 |
Existing Investments |
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7.3 |
Existing Indebtedness |
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7.9 |
Shared Services Agreement |
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10.2 |
Administrative Agents Office; Certain Addresses for Notices |
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10.6 |
Processing and Recordation Fees |
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EXHIBITS
Form of |
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A |
Loan Notice |
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B |
Borrowing Base Report |
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Note |
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D |
Compliance Certificate |
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E |
Assignment and Assumption |
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Guaranty |
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G |
LOI Agreement |
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Opinion Matters |
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CREDIT AGREEMENT
This CREDIT AGREEMENT ( Agreement ) is entered into as of October 4, 2005, among GLOBAL OPERATING LLC , a Delaware limited liability company ( OLLC ), GLOBAL COMPANIES LLC , a Delaware limited liability company ( Global ), GLOBAL MONTELLO GROUP LLC , a Delaware limited liability company ( Montello LLC ), GLEN HES CORP. , a Delaware corporation ( Glen Hes ), and CHELSEA SANDWICH LLC , a Delaware limited liability company ( Chelsea LLC and, collectively with OLLC, Global, Montello LLC and Glen Hes, the Borrowers and each individually, a 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 Initial Guarantors and each individually, an Initial Guarantor ), each lender from time to time party hereto (collectively, the Lenders and individually, a Lender ), and BANK OF AMERICA, N.A. , as Administrative Agent and L/C Issuer.
The Borrowers have requested that the Lenders provide a working capital revolving credit facility, an acquisition facility and a general revolving credit facility to the Borrowers, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
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 Baa2 by Moodys, and, in each of (a) and (b), which is acceptable to the Administrative Agent in its sole discretion. Notwithstanding the foregoing, the Administrative Agent, in its sole and absolute discretion, reserves the right to require a replacement Acceptable Issuer to the extent a material adverse change in the condition (financial or otherwise) occurs as to the then existing Acceptable Issuer, or, in the Administrative Agents sole and absolute discretion, such then existing Acceptable Issuer becomes less than well capitalized or any enforcement action is threatened or commenced against such Acceptable Issuer.
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, all as recorded on books of account in accordance with generally accepted accounting principles.
Acquisition Commitment means, as to each Lender, its obligation to make Acquisition Loans to the Borrower pursuant to Section 2.1(b) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lenders name on Schedule 2.1 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.
Acquisition Loans has the meaning set forth in Section 2.1(b) hereof.
Administrative Agent means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
Administrative Agents Office means the Administrative Agents 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 Borrower and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding anything to the contrary, for purposes of this Agreement, Global Petroleum Corp., Montello Oil Corporation, Global Revco Terminal LLC, Global South Terminal LLC, Global Revco Dock LLC, Alliance, Sandwich Terminal LLC, Chelsea Terminal Limited Partnership, Chelsea Terminal Corporation, ASRS Global General Partnership, and ASRS Montello General Partnership shall be an Affiliate and as of the date hereof, the only Affiliates of the Loan Parties are Global Petroleum Corp., Montello Oil Corporation, Global Revco Terminal LLC, Global South Terminal LLC, Global Revco Dock LLC, Alliance, Sandwich Terminal LLC, Chelsea Terminal Limited Partnership, Chelsea Terminal Corporation, ASRS Global General Partnership and ASRS Montello General Partnership. For the purposes of this Agreement, any other Person existing on the date hereof which would otherwise be an Affiliate of any Loan Party pursuant to this definition shall not be deemed to be an Affiliate of such Loan Party.
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.
Agreement means this Credit Agreement.
Alliance means Alliance Energy Corp., a Massachusetts corporation.
Applicable Percentage means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Total WC Revolver Commitment, the Total Revolver Commitment or the Total Acquisition Commitment, as the case may be, represented by such Lenders WC Commitment, Acquisition Commitment or Revolver Commitment, as the case may be, at such time. 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 8.2
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or if the Total WC Revolver Commitments, Total Revolver Commitments or Total Acquisition 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 is set forth opposite the name of such Lender on Schedule 2.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
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.
Arranger means Banc of America Securities LLC, in its capacity as sole lead arranger and sole 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 Eligible Assignee (with the consent of any party whose consent is required by Section 10.6(b) , and accepted by the Administrative Agent, in substantially the form of Exhibit E 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 combined balance sheet of the Borrowers (other than OLLC) and their Subsidiaries for the fiscal year ended December 31, 2004 , and the related combined statements of income or operations, shareholders or members equity and cash flows for such fiscal year of the Borrowers (other than OLLC) and their 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 Total WC Revolver Commitment, the Total Acquisition Commitment or the Total Revolver Commitment, as the case may be, pursuant to Section 2.5 , 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 8.2 .
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 higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly
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announced from time to time by Bank of America as its prime rate. The prime rate is a rate set by Bank of America based upon various factors including Bank of Americas 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 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.
Borrower(s) has the meaning specified in the introductory paragraph hereto.
Borrower Materials has the meaning specified in Section 6.2 .
Borrowing means a borrowing consisting of simultaneous WC Revolver Loans, Acquisition 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 6.2(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) 100% of Paid but Unexpired Letters of Credit; plus
(h) 80% of Eligible Product Under Contract; plus
(i) 100% of the face amount of a standby letter of credit (which shall be in form and substance satisfactory to the Administrative Agent and which shall be in a currency acceptable to the Required Lenders) issued in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders from an issuer satisfactory to the Administrative Agent and the Required Lenders, and which standby letter of credit shall not be amended, modified or altered without the consent of the Administrative Agent and the Required Lenders; plus
(j) the lesser of (i) 80% of Positive Net Unrealized Forward Contract Positions and (ii) $50,000,000; plus
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(k) 100% of the aggregate amount of Negative Net Unrealized Forward Contract Positions.
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 Agents Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
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 7.3(e) shall not be considered a Capital Expenditure thereunder.
Capitalized Leases means leases under which any of the Loan Parties 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.
Cash Collateralize has the meaning specified in Section 2.3(g) .
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 Moodys Investor Service, Inc. or S&P or their successors.
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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 (such right, an option right ), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of twenty percent (20%) or more of the 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); or
(c) 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, will result 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; or
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(d) the GP ceases to be the general partner of MLP, or both Eric Slifka and Thomas McManmon cease to have a full-time senior financial 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, Richard and Eric Slifka (or their respective estates) 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.
Closing Date means the first date all the conditions precedent in Section 4.1 are satisfied or waived in accordance with Section 10.1 .
Code means the Internal Revenue Code of 1986.
Collateral means all of the property, rights and interests of the Borrowers 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 in accordance with GAAP.
Combined Current Assets means all assets of the Borrowers 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 Borrowers, 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 the Borrowers and their 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 the Borrowers and their Subsidiaries for such period, (iii) depreciation and amortization expense and (iv) other non-recurring expenses of the Borrowers 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 Borrowers and their Subsidiaries for such period, and (ii) all 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 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 such Permitted Acquisition on a pro forma basis as if such Permitted Acquisition had occurred on the first date of the test period.
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Combined Funded Debt means as of any date of determination, for the Borrowers 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 Revolver 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 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 Borrowers 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 Borrowers 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 Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Borrower or such Subsidiary.
Combined Interest Coverage Ratio means, as at any date of determination, the ratio of (a) Combined EBITDA for the Reference Period most recently ended less the aggregate amount of Capital Expenditures (other than Capital Expenditures made in connection with the purchase of assets in connection with a Permitted Acquisition) for such Reference Period to (b) Combined Total Interest Expense for such Reference Period.
Combined 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 Net Income means for any period, for the Borrowers and their Subsidiaries on a combined basis, the net income of the Borrowers and their Subsidiaries (excluding extraordinary gains but including extraordinary losses) for that period.
Combined Total Interest Expense means, for any period, for the Borrowers and their Subsidiaries on a combined basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses of the Borrowers 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 Borrowers 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 Leverage Ratio for any period in which a Permitted Acquisition has 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.
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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 Borrowers in excess of $3,000,000 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 Borrower which will be subsequently paid or otherwise distributed to such Borrowers 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 Borrower 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 Accounts 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 Revolver Loans outstanding hereunder 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 Borrower pursuant to Section 2.1 , 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 Lenders name on Schedule 2.1 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.
Commodity Hedging Agreement means any Swap Contract which protects a Borrower against fluctuations in commodity rates.
Compliance Certificate means a certificate substantially in the form of Exhibit D .
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.
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.
Credit Extension means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
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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) 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 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 100 basis points plus 2% per annum.
Defaulting Lender means any Lender that (a) has failed to fund any portion of the Loans or participations in L/C Obligations required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
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 (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent and the L/C Issuer, and (ii) unless an Event of Default has occurred and is continuing, the Borrowers (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, Eligible Assignee shall not include any Loan Party or any of a Loan Partys Affiliates or Subsidiaries.
Eligible Cash and Cash Equivalents means Cash and Cash Equivalents of a Borrower which are on deposit with the Administrative Agent and subject to a first priority perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders.
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
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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 Administrative Agent may, in its sole and absolute discretion, exclude from Eligible Exchange Balances any Exchange Balance with respect to which:
(i) any representation or warranty contained in this Credit Agreement or any other Loan Document is materially breached;
(ii) 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
(iii) 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) which the Administrative Agent deems to be obsolete or not marketable, or any other Inventory which the Administrative Agent, from time to time, in its reasonable discretion, upon five (5) days prior written notice to the Borrowers deems to be ineligible, 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; (b) United States Treasury money market funds rated AAA by S&P; and (c) items which the Administrative Agent in its reasonable discretion would classify as a cash equivalent and which are expressly approved by the Administrative Agent; 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
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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 commodities brokers acceptable to the Agent 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 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, plus Eligible Exchange Balances (which number can be either negative or positive).
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 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, 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;
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(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 fair and reasonable transaction no less favorable to the Borrowers than would be a similar transaction conducted at arms-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 from an obligor on the Account Receivable which is creditworthy in the reasonable business judgment of the Administrative Agent;
(h) 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;
(i) 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;
(j) are denominated in Dollars and payable in the United States; and
(k) are otherwise satisfactory to the Required Lenders in their reasonable business judgment.
For the purpose of this definition, (i) to the extent that Eligible Receivables owing by any obligor exceed fifteen percent (15%) 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 Administrative Agent, and, in the event such obligor is Alliance, also the 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
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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 those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrowers, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity 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.
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 a Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
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imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
Eurodollar Rate means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate ( BBA LIBOR ), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business 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. If such rate is not available at such time for any reason, then the Eurodollar Rate for such Interest Period shall be 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 by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of Americas London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
Eurodollar Rate Loan means a Loan that bears interest at a rate based on the Eurodollar Rate.
Event of Default has the meaning specified in Section 8.1 .
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 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 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 arms-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 Borrower 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
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imposed by any other jurisdiction in which a Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13 ), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lenders failure or inability (other than as a result of a Change in Law) to comply with Section 3.1(e) , 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 3.1(a) .
Existing Credit Agreement means that certain Eighth Amended and Restated Revolving Credit Agreement dated as of July 1, 2003 (as amended from time to time) among certain of the Loan Parties, Bank of America, N.A., as agent, and a syndicate of lenders.
Existing Letters of Credit means those Letters of Credit identified on Schedule 1A hereto.
Facility Decrease Date has the meaning set forth in Section 2.1(a)(ii) .
Facility Increase Date has the meaning set forth in Section 2.1(a)(ii) .
Federal Funds Rate means, for any day or for any Interest Period with respect to a Cost of Funds Rate Loan, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank 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 as of the date hereof, among the Borrowers, the Administrative Agent and the Arranger.
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. 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.
Fund means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
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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, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (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 means, collectively, the Initial Guarantors and any Domestic Subsidiary of MLP or any other Loan Party formed, acquired or otherwise existing after the Closing Date.
Guaranty means the Guaranty made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F .
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.
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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 London International Petroleum Exchange or on the New York Mercantile Exchange, (b) covered by swap contracts with investment grade companies or (c) where the margin on wet barrels is fixed in a manner satisfactory to the Administrative Agent.
Indebtedness means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all 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 [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.
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Indemnitees has the meaning specified in Section 10.4(b) .
Information has the meaning specified in Section 10.7 .
Initial WC Revolver Total Commitment means the WC Revolver Total Commitment as in effect on the Closing Date, as the same may be reduced in accordance with the terms hereof. On the Closing Date, the Initial WC Revolver Total Commitment is $300,000,000.
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 its 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:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
Internal Control Event means a material weakness in, or fraud that involves management or other employees who have a significant role in, any Loan Partys internal controls over financial reporting, in each case as described in the Securities Laws.
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 Commonwealth of Massachusetts, as well as all inventory which is held for sale or which consists of raw materials or work in process.
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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.
IP Rights has the meaning specified in Section 5.17 .
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 (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 the L/C Issuer and relating to any 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 Lenders 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.
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
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amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.6 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the 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 Lenders 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. 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 2.3(i) .
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 or Loans means all extensions of credit made pursuant to Article II hereof, including, without limitation, the WC Revolver Loans, the Acquisition Loans and the Revolver Loans.
Loan Documents means this Agreement, each Note, each Issuer Document, any Swap Contract with a Lender or an Affiliate of a Lender, 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, pursuant to Section 2.2(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 .
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LOI Agreement means the Fifth Amended and Restated Continuing Letter of Indemnity Agreement dated as of the date hereof by and among the Borrowers, Bank of America, N.A. as LOI Agent, and the lending institutions party thereto (the LOI Banks), as the same may be amended from time to time, in form and substance satisfactory to the LOI Agent and the LOI Banks and in substantially the form of Exhibit G hereto.
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 obligors 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 Persons unenhanced senior unsecured short-term debt is rated investment grade by either S&P or Moodys; 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 Moodys 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 Commonwealth of Massachusetts) 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 Platts (mid-point) (or if the PLATTs 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), condition (financial or otherwise) or prospects of any Loan Party or a Loan Party and its Subsidiaries
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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 October 2, 2009.
Monetary Hedging Agreement means any Swap Contract which protects a Borrower against fluctuations in interest rates, exchange rates and forward rates.
Moodys means Moodys 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 and leasehold 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 Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
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 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 C .
Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or the LOI Agreement or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including 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 and including any advances made by any Lender for the account of any Loan Party to cover overdrafts on accounts of such Loan Party with such Lender so long as such Indebtedness of such Loan Party to such Lender is permitted hereunder (the Overdrafts ).
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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 of Purchased Product exceeds (ii) the aggregate number of barrels of Product under Contract for Sale or (b) the amount by which the number of barrels of Product under Contract for Sale exceeds the number of barrels 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 provided , further , that if the Administrative Agent upon direction from the Required Lenders notifies the Borrowers in writing that it does not consider certain specified locations to be in the same market, such locations shall not thereafter be considered to be in the same market for purposes of this definition of Open Position unless and until the Administrative Agent upon direction from the Required Lenders notifies the Borrowers otherwise; 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 of Product under Contract
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for Sale which the Borrower may not deduct from the number of barrels 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 Lenders.
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 and Montello Oil Corporation, a New Jersey corporation.
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.
Outstanding Amount means (i) with respect to 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.
Overdrafts has the meaning set forth in the definition of Obligations.
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
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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 10.6(d) .
Partnership Agreement means that certain First Amended and Restated Agreement of Limited Partnership of Global Partners LP dated October 4, 2005.
PBGC means the Pension Benefit Guaranty Corporation.
Pension Plan means any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
Perfection Certificates means the Perfection Certificates as defined in the Security Agreements.
Permitted Acquisition has the meaning set forth in Section 7.6(c).
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 of cash distributions in an aggregate amount not to exceed Available Cash.
Permitted Liens means those Liens permitted by Section 7.1.
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 (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
Platform has the meaning specified in Section 6.2 .
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 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.
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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 10.6(c) .
Registered Public Accounting Firm has the meaning specified in the Securities Laws and shall be independent of the Borrower as prescribed by the Securities Laws.
Related Contracts means, collectively, all leases and all thru-put and other similar agreements pertaining to any Mortgaged Property.
Related Parties means, with respect to any Person, such Persons Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Persons 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 at least sixty five percent (65%) of the Total 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 8.2 , Lenders holding in the aggregate at least sixty five percent (65%) of the Total Outstandings (with the aggregate amount of each Lenders 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, president, vice president, chief financial officer, treasurer, assistant treasurer or secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall
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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 a Loan Partys stockholders, partners or members (or the equivalent Person thereof).
Revolver Commitment means , as to each Lender, its obligation to make Revolver Loans to the Borrower pursuant to Section 2.1(c) , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lenders name on Schedule 2.1 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 2.1(c) hereof.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
Sarbanes-Oxley means the Sarbanes-Oxley Act of 2002.
SEC means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
Seasonal Overline Period means the nine consecutive calendar month period of September 1 through June 30 of each calendar year.
Securities Laws means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended and in effect on any applicable date hereunder.
Security Agreement means that certain Security Agreement dated as of the Closing Date among the Borrowers and the Administrative Agent 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.
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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 seventy five percent (75%) of the Total 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 8.2 , Lenders holding in the aggregate at least seventy five percent (75%) of the Total Outstandings (with the aggregate amount of each Lenders 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 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).
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
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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, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Threshold Amount means $2,000,000.
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 Lenders may require, any such reinsurance to be with direct access endorsements) in such amount as may be determined by the Lenders 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 Agent in its discretion may require, including but not limited to (a) comprehensive endorsement, (b) variable rate of interest endorsement and (c) usury endorsement.
Total Acquisition Commitment means the sum of the Acquisition Commitments of the Lenders to make Acquisition Loans to the Borrowers.
Total Acquisition Outstandings means the aggregate Outstanding Amount of all Acquisitions Loans.
Total Commitments means, collectively, the Total WC Revolver Commitment, the Total Acquisition Commitment and the Total Revolver Commitment.
Total Outstandings means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
Total Revolver Commitment means the sum of the Revolver Commitments of the Lenders to make Revolver Loans to the Borrowers.
Total Revolver Outstandings means the aggregate Outstanding Amount of all Revolver Loans.
Total WC Revolver Commitment means the sum of the WC Revolver Commitments of the Lenders to make WC Revolver Loans to the Borrowers and to purchase participations in L/C Obligations, as in effect from time to time.
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Total WC Revolver Outstandings means the aggregate Outstanding Amount of all WC Revolver Loans and all L/C Obligations.
Type means, with respect to a Loan, its character as a Base Rate Loan, Cost of Funds Rate Loan or a Eurodollar Rate Loan.
Unfunded Pension Liability means the excess of a Pension Plans benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plans assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
United States and U.S. 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 2.3(c)(i) .
WC Revolver Commitment means , as to each Lender, its obligation to (a) make WC Revolver Loans to the Borrower pursuant to Section 2.1(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 Lenders name on Schedule 2.1 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 Revolver Loans has the meaning specified in Section 2.1(a).
1.2 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
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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 Persons successors and assigns, (iii) the words 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.
1.3 Accounting Terms. (a) Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.
(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.
1.4 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).
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1.5 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.6 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
(a) Working Capital Revolver .
(i) Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a WC 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 Lenders WC Revolver Commitment; provided , however , that after giving effect to any Borrowing of a WC Revolver Loan, (i) the Total WC Revolver Outstandings shall not exceed the lesser of (1) the Total WC Revolver Commitment as in effect on such date and (2) the Borrowing Base at such time, and (ii) the aggregate Outstanding Amount of the WC Revolver Loans of any Lender, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lenders WC Revolver Commitment. Within the limits of each Lenders WC Revolver Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.1(a) , prepay under Section 2.4 , and reborrow under this Section 2.1(a) . WC Revolver Loans may be Base Rate Loans, Cost of Funds Rate Loans or Eurodollar Rate Loans, as further provided herein.
(ii) At any time during a Seasonal Overline Period, upon one (1) Business Day prior written notice to the Administrative Agent and the Lenders, and so long as no Default or Event of Default has occurred and is continuing or would exist as a result thereof, the Borrowers may increase the Total WC Revolver Commitment by an amount equal to $50,000,000 (such amount being hereinafter referred to as the Facility Increase Amount ), provided that the Total WC Revolver Commitment shall at no time exceed the Initial Total WC Revolver Commitment as in effect immediately prior to such increase plus $50,000,000, and, provided further , that the Borrowers shall only be permitted to increase the Total WC Revolver Commitment pursuant to this Section 2.1(a)(ii) once during such Seasonal Overline Period. The increase in the Total WC Revolver Commitment shall become effective upon (a) receipt by the Administrative Agent and the Lenders of the notice as described in the first sentence of this Section 2.1(a)(ii); (b) evidence satisfactory to the Administrative Agent of pro forma compliance with the financial covenants contained in Section 7.18 hereof both before and after giving effect to the increase; and (c) receipt by the Administrative Agent for the pro rata accounts of the Lenders of the fee set forth in Section 2.8 hereof at the time required by Section 2.8 (such effective date being hereinafter referred to as a Facility Increase Date ). On such Facility Increase Date, the WC Revolver
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Commitment of each Lender shall be increased on a pro rata basis based on each such Lenders Commitment Percentage of the Total WC Revolver Commitment as in effect after giving effect to the Facility Increase Amount. In addition, on the Facility Increase Date, Schedule 2.1 attached hereto shall be modified to reflect the increase in each Banks WC Revolver Commitment and the Total WC Revolver Commitment contemplated by this Section 2(a)(ii). Subject to the terms and conditions set forth in this Agreement, each of the Lenders severally agrees that on the Facility Increase Date, its WC Revolver Commitment shall be automatically increased as set forth in this Section 2.1(a)(ii). To the extent the Borrowers have not reduced the Total WC Revolver Commitment by $50,000,000 at the expiration of the Seasonal Overline Period, then, on such expiration date, the Total WC Revolver Commitment shall automatically be reduced by $50,000,000, and the Borrowers jointly and severally agree to pay to the Administrative Agent, for the pro rata accounts of the Lenders, the amount of any WC Revolver Loans which are in excess of the Total WC Revolver Commitment as in effect after giving effect to such reduction. In addition, the parties hereto hereby agree that at any time in which the Total WC Revolver Commitment has been increased pursuant to this Section 2.1(a)(ii), the Borrowers shall have the right at any time and from time to time during the applicable Seasonal Overline Period, upon one (1) Business Days prior written notice to the Administrative Agent to reduce the Total WC Revolver Commitment by an amount equal to the Facility Increase Amount (the effective date of such decrease shall be hereinafter referred to as a Facility Decrease Date ), whereupon the Total WC Revolver Commitment shall be reduced by such amount (and the WC Revolver Commitments of the Lenders shall be reduced pro rata in accordance with their respective Applicable Percentages by such amount). The Borrowers shall only have the right to reduce the Total WC Revolver Commitment pursuant to this Section 2.1(a)(ii) once during any Seasonal Overline Period. Promptly after receiving any notice of the Borrowers delivered pursuant to this Section 2.1(a)(ii), the Administrative Agent will notify the Lenders of the substance thereof. On the Facility Decrease Date, the Borrowers shall jointly and severally pay to the Administrative Agent for the respective accounts of the Lenders the full amount of any facility fee then accrued on the amount of the reduction and Schedule 2.1 attached hereto shall be modified to reflect the decrease in each Lenders WC Revolver Commitment and the Total WC Revolver Commitment contemplated by this Section 2.1(a)(ii).
(b) Acquisition Facility . Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, an Acquisition 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 Lenders Acquisition Commitment; provided , however , that after giving effect to any Borrowing of an Acquisition Loan, (i) the Total Acquisition Outstandings shall not exceed the Total Acquisition Commitment as in effect on such date, and (ii) the aggregate Outstanding Amount of the Acquisition Loans of any Lender shall not exceed such Lenders Acquisition Commitment. Within the limits of each Lenders Acquisition Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.1(b) , prepay under Section 2.4 , and reborrow under this Section 2.1(b) . Acquisition Loans may be Base Rate Loans, Cost of Funds Rate Loans or Eurodollar Rate Loans, as further provided herein. Acquisition Loans shall only be requested by the Borrowers, and the proceeds thereof shall only be used by the Borrowers, to fund all or any portion of a Permitted Acquisition.
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(c) Revolving Credit Facility . 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 Lenders Revolver Commitment; provided , however , that after giving effect to any Borrowing of a Revolver Loan, (i) the Total Revolver Outstandings shall not exceed the Total 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 Lenders Revolver Commitment. Within the limits of each Lenders Revolver Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.1(c) , prepay under Section 2.4 , and reborrow under this Section 2.1(c) . Revolver Loans may be Base Rate Loans, Cost of Funds Rate Loans or Eurodollar Rate Loans, as further provided herein. Notwithstanding anything to the contrary contained herein, in each calendar year, the Outstanding Amount of all Revolver Loans shall not exceed $0 for a period of thirty (30) consecutive calendar days.
2.2 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) two 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 a Base Rate Loan or a Cost of Funds Rate Loan, and (ii) on the requested date of any Borrowing of Base Rate Loans or Cost of Funds Rate Loans. Each telephonic notice by the Borrowers pursuant to this Section 2.2(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed for the type of Loan being requested and signed by a Responsible Officer of the Borrowers. Each 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 2.3(c) , each Borrowing of or conversion to a 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 WC Revolver Loan, an Acquisition Loan or a Revolver Loan; (ii) whether the Borrowers are requesting a Borrowing, a conversion of a particular Loan from one Type to the other, or a continuation of Eurodollar Rate Loans or Cost of Funds Rate Loans, as the case may be, (iii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (vi) 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.
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(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 applicable Loan available to the Administrative Agent in immediately available funds at the Administrative Agents 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 4.2 (and, if such Borrowing is the initial Credit Extension, Section 4.1 ), 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 and a Cost of Funds Rate Loan 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, as applicable. During the existence of a Default or Event of 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 or Cost of Funds Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of Americas 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 weekly (or at such other interval as may be specified pursuant to Section 6.2(g) ) by the Administrative Agent by reference to the Borrowing Base Report.
(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 2.3 , (1) from time to time on any Business Day during the period from the Closing Date until the
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Letter of Credit Expiration 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, (x) the Total WC Revolver Outstandings shall not exceed the lesser of (i) the Total WC Revolver Commitments as in effect at such time and (ii) the Borrowing Base at such time, and (y) the aggregate Outstanding Amount of the WC Revolver Loans of any Lender, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations shall not exceed such Lenders WC Revolver Commitment. 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 a Borrower 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.
(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 2.3(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance
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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 such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a documentary Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; or
(E) a default of any Lenders obligations to fund under Section 2.3(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuers risk with respect to such Lender.
(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 such 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 such Letter of
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Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(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 .
(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 completed and signed by a Responsible Officer of the Borrowers. 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 one Business Day (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; and (G) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally, the 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.
(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
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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 Issuers usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lenders Applicable Percentage times the amount of such Letter of Credit.
(iii) If a Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic 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 2.3(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five 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 4.2 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 Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations .
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of 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
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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 Lenders Applicable Percentage thereof. In such event, the Borrowers shall be deemed to have requested a Borrowing of a WC Revolver Loan which is a Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.2 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Total WC Revolver Commitments and the conditions set forth in Section 4.2 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.3(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 2.3(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer at the Administrative Agents 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 2.3(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan (which is a WC Revolver 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 (which are WC Revolver Loans) because the conditions set forth in Section 4.2 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 Lenders payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(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 2.3 .
(iv) Until each Lender funds its WC Revolver Loan or L/C Advance pursuant to this Section 2.3(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lenders Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
(v) Each Lenders obligation to make WC Revolver Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.3(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 Lenders obligation to make WC Revolver Loans pursuant to this Section 2.3(c) is subject to the conditions set
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forth in Section 4.2 (other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrowers to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.3(c) by the time specified in Section 2.3(c)(ii) , the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation. 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 Lenders L/C Advance in respect of such payment in accordance with Section 2.3(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lenders L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.3(c)(i) is required to be returned under any of the circumstances described in Section 10.5 (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 obligations of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
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(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers 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, the 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 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. The Borrowers hereby assume 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
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responsible for any of the matters described in clauses (i) through (v) of Section 2.3(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 Borrowers, 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 Issuers willful misconduct or gross negligence or the L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral . Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any 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. Sections 2.4 and 8.2(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.3 , Section 2.4 and Section 8.2(c) , Cash Collateralize means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The Borrowers hereby grant to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.
(h) 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.
(i) 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 greater of (i) one percent (1%) per annum times the daily amount available to be drawn under such Letter of Credit and (ii) $400. 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 1.6 . Letter of Credit Fees shall be (i) computed on a monthly basis in arrears and (ii) due and payable on the first Business Day after the end of each calendar month, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
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Expiration Date and thereafter on demand. 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.
(j) 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 Letter of Credit, at the rate specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a monthly basis in arrears, and (ii) with respect to any amendment of a 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. Such fronting fee shall be due and payable on the first Business Day after the end of each calendar month in respect of the most recently-ended monthly 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 1.6 . 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.
(k) 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.
(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) two Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans or 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, the Type(s) of Loans to be prepaid and whether such Loan being prepaid is a WC Revolver Loan, an Acquisition Loan or a Revolver Loan. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lenders 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 3.5 . Each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
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(b) If for any reason (i) the Total WC Revolver Outstandings at any time exceed the lesser of (1) the Total WC Revolver Commitments then in effect and (2) the Borrowing Base at such time, the Borrowers shall immediately prepay WC Revolver 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 2.4(b) unless after the prepayment in full of the WC Revolver Loans the Total WC Revolver Outstandings exceed the Total WC Revolver Commitments then in effect; (ii) the Total Acquisition Outstandings at any time exceed the Total Acquisition Commitments then in effect the Borrowers shall immediately prepay Acquisition Loans in an aggregate amount equal to such excess; and (iii) the Total Revolver Outstandings at any time exceed the Total Revolver Commitments then in effect the Borrowers shall immediately prepay Revolver Loans in an aggregate amount equal to such excess.
2.5 Termination or Reduction of Commitments. The Borrowers may, upon notice to the Administrative Agent, terminate the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be, or from time to time permanently reduce the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be; provided that (i) any such notice (which shall specify which Commitment is being reduced and/or terminated) 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 (1) of the Total WC Revolver Commitment shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; (2) of the Total Revolver Commitment shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, and (3) the Total Acquisition Commitment shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof; and (iii) the Borrowers shall not terminate or reduce the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be, if, after giving effect thereto and to any concurrent prepayments hereunder, the Total WC Revolver Outstandings, Total Revolver Outstandings or Total Acquisition Outstandings, as the case may be, would exceed the Total WC Revolver Commitment, the Total Revolver Commitment or the Total Acquisition Commitment, as applicable. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be. Any reduction of the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be, shall be applied to the applicable WC Revolver Commitment, the Acquisition Commitment and the Revolver Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Total WC Revolver Commitments, the Total Revolver Commitments and/or the Total Acquisition Commitments, as the case may be, shall be paid on the effective date of such termination.
(a) The Borrowers shall repay to the Lenders on the Maturity Date the aggregate principal amount of Loans outstanding on such date.
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(a) WC Revolver Loans . Subject to the provisions of subsection (d) below, (i) each WC 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 one percent (1%); (ii) each WC 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 one percent (1%); and (iii) each WC 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.
(b) Acquisition Loans . Subject to the provisions of subsection (d) below, (i) each Acquisition 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 one and three quarters of one percent (1 3/4%); (ii) each Acquisition 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 one and three quarters of one percent (1 3/4%); and (iii) each Acquisition 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.
(c) Revolver Loans . Subject to the provisions of subsection (d) 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 one and one half of one percent (1 1/2%); (ii) 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 one and one half of one percent (1 1/2%); and (iii) 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.
(d) (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 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 Borrower 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.
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(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(e) 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.
2.8 Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.3 :
(a) Commitment Fee . The Borrowers jointly and severally shall pay to the Administrative Agent (i) in connection with the WC Revolver Loans, for the account of each Lender in accordance with its Applicable Percentage of the Total WC Revolver Commitment, a commitment fee equal to twenty five (25) basis points per annum on the average amount during each calendar month or portion thereof from the Closing Date to the Maturity Date by which the Total WC Revolver Commitment as in effect on such date minus the Outstanding Amount of L/C Obligations exceeds the Total WC Revolver Outstandings during such calendar month; (ii) in connection with the Acquisition Loans, for the account of each Lender in accordance with its Applicable Percentage of the Total Acquisition Commitment, a commitment fee equal to twenty five (25) basis points per annum on the average amount during each calendar month or portion thereof from the Closing Date to the Maturity Date by which the Total Acquisition Commitment as in effect on such date exceeds the Total Acquisition Outstandings during such calendar month; and (iii) in connection with the Revolver Loans, for the account of each Lender in accordance with its Application Percentage of the Total Revolver Commitment, a commitment fee equal to twenty five (25) basis points per annum on the average amount during each calendar month or portion thereof from the Closing Date to the Maturity Date by which the Total 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.
(b) Facility Fee . The Borrowers jointly and severally shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage of the Total WC Revolver Commitment, a facility fee equal to ten (10) basis points per annum on the average daily amount during each calendar month or portion thereof in each applicable Seasonal Overline Period, commencing September 1, 2005 to the Maturity Date by which the amount of $350,000,000 exceeds to the Total WC Revolver Commitment actually in effect during each such calendar month. The facility fee shall be payable monthly in arrears on the last day of each calendar month in the applicable Seasonal Overline Period for the calendar month then ending, with the first such payment to be made hereunder on September 30, 2005, and a final payment on June 30, 2009.
(c) Seasonal Overline Fee . To the extent the Borrowers elect to increase the Total WC Revolver Commitment pursuant to Section 2.1(a)(ii) hereof during any Seasonal Overline Period, on each Facility Increase Date, the Borrowers shall pay to the Administrative Agent for
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the account of each Lender in accordance with its Applicable Percentage of the Total WC Revolver Commitment, an increase fee in the amount of $30,000.
(d) Amendment/Waiver Fee . The Borrowers jointly and severally shall pay to the Administrative Agent for the respective accounts of the Lenders an administrative amendment and/or waiver fee, as the case may be, in an amount equal to (i) $1,000 for each Lender in the case of a requested amendment or waiver, as the case may be, which requires the consent of the Required Lenders and (ii) $5,000 for each Lender in the case of a requested amendment or waiver, as the case may be, which requires the consent of all of the Lenders; provided, however, that no such amendment and/or waiver fee shall be due and payable by the Borrowers if the sole purpose of such amendment and/or waiver is to effect an assignment pursuant to Section 10.6 hereof. The Borrowers agree that (i) each such amendment and/or waiver fee shall be required to be paid by the Borrowers whether or not such proposed amendment or waiver, as the case may be, ever becomes effective; (ii) such amendment and/or waiver fee is an administrative fee only, and does not preclude the Lenders from charging additional fees in connection with any amendment or waiver; and (iii) the obligation of the Borrowers to pay such fees does not in any manner constitute a commitment or obligation on the part of any Lender to enter into the proposed amendment and/or waiver giving rise to such fee. Each such amendment and/or waiver fee shall be due and payable by the Borrowers upon the earlier to occur of (i) the closing and effectiveness of each such amendment or waiver, as the case may be, and (ii) forty-five (45) days after the Borrowers request such amendment or waiver, as the case may be.
(e) Other Fees . (i) The Borrowers jointly and severally shall pay to the 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 jointly and severally 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.
2.9 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of Americas prime rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(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.
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(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the 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) three Notes, the Notes being in the amount of such Lenders WC Revolver Commitment, Acquisition Commitment and Revolver Commitment, as the case may be, which shall evidence such Lenders Loans in addition to such accounts or records. Each Lender may attach schedules to its Notes 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 Agents 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 Agents 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 Lenders 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 Base Rate Loans or Cost of Funds Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such
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date in accordance with Section 2.2 (or, in the case of a Borrowing of Base Rate Loans or Cost of Funds Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.2 ) 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 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 and (B) in the case of a payment to be made by the Borrowers, 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 Lenders 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.
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(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 10.4(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 10.4(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 10.4(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 Lenders 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 applicable 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 the Borrowers pursuant to and in accordance with the express terms of this Agreement or (y) 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 (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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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
(a) Payments Free of Taxes . Any and all payments by or on account of any obligation of the Borrowers hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the Borrowers shall be required by applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) 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 deductions been made, (ii) the Borrowers shall make such deductions and (iii) the Borrowers shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers . 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 law.
(c) Indemnification by the Borrowers . The Borrowers shall jointly and severally indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand 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) 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. A certificate as to the amount of 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.
(d) Evidence of Payments . As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrowers shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders . Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrowers are resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine
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whether or not such Lender is subject to backup withholding or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the Borrowers are resident for tax purposes in the United States, any Foreign Lender 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) duly completed copies 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) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) 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) duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers to determine the withholding or deduction required to be made.
(f) Treatment of Certain Refunds . 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 of 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 Borrowers, 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 returns (or any other information relating to its taxes that it deems confidential) to the Borrowers or any other Person.
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3.2 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, 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, 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 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, 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, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.3 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 (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, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended 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.
3.4 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 3.4(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
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Taxes or Other Taxes covered by Section 3.1 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 Eurodollar Rate Loan (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 Lenders or the L/C Issuers holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lenders or the L/C Issuers capital or on the capital of such Lenders or the L/C Issuers holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or 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 Lenders or the L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or the L/C Issuers policies and the policies of such Lenders or the L/C Issuers 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 Lenders or the L/C Issuers 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 Lenders or the L/C Issuers 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 Lenders or the L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is
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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.
3.5 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:
(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 Borrowers; or
(c) any assignment of a Eurodollar Rate Loan or a Cost of Funds Rate Loan 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 3.5 , 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.
3.6 Mitigation Obligations; Replacement of Lenders .
(a) Designation of a Different Lending Office . If any Lender requests compensation under Section 3.4 , or 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 3.1 , or if any
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Lender gives a notice pursuant to Section 3.2 , then such Lender shall 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, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.1 or 3.4 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.2 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby jointly and severally agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders . If any Lender requests compensation under Section 3.4 , 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 3.1 , the Borrowers may replace such Lender in accordance with Section 10.13 .
3.7 Survival. All of the Borrowers obligations under this Article III shall survive termination of the Total Commitments and repayment of all other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.1 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 Agents 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 Borrower;
(ii) the Notes, 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
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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., 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 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 4.2(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) evidence that each of the Existing Credit Agreement and the GPC Credit Agreement (as such term is defined in the Existing Credit Agreement) have been or concurrently with the Closing Date are being terminated and all Liens securing obligations under the Existing Credit Agreement and the GPC Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a fully executed Perfection Certificate from each Borrower 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;
(xi) the most recent Accounts Receivable aging report of the Borrowers dated as of a date which shall be no more than fifteen (15) days prior to the Closing Date and the Borrowers shall have notified the Administrative Agent in writing on the Closing Date of any material deviation from the Accounts Receivable values reflected in such Accounts Receivable aging report and shall have provided the Administrative Agent with such supplementary documentation as the Administrative Agent may reasonably request; 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.
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(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 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.
(e) The Administrative Agent and each of the Lenders shall have received from the Borrowers the initial Borrowing Base Report and marked-to-market inventory report each as at September 23, 2005.
(f) Evidence satisfactory to the Administrative Agent and each of the Lenders that MLP has consummated the initial public offering of its limited partnership units and has received gross cash proceeds in connection therewith of not less than $90,000,000.
(g) Evidence satisfactory to the Administrative Agent and each of the Lenders of the corporate and capital structure of the Loan Parties.
(h) The Administrative Agent and each of the Lenders shall have received the result of a commercial financial examination of the Borrowers completed in June, 2005, and the results thereof shall be satisfactory in all respects to the Administrative Agent and the Lenders.
Without limiting the generality of the provisions of Section 9.4 , for purposes of determining compliance with the conditions specified in this Section 4.1 , 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.
4.2 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) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrowers and each other Loan Party 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
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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 4.2 , the representations and warranties contained in subsections (a) and (b) of Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.1 .
(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 or Cost of Funds Rate Loans) submitted by the Borrowers shall be deemed to be a representation and warranty that the conditions specified in Sections 4.2(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:
5.1 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own 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, (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (d) is in compliance with all Laws; except in each case referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.2 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 Persons 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. Each Loan Party and each Subsidiary thereof is in compliance with all Contractual Obligations referred to in clause (b)(i), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
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5.3 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document.
5.4 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.
5.5 Financial Statements; No Material Adverse Effect; No Internal Control Event; Accuracy of Borrowing Base Report and Solvency .
(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 Borrower (other than OLLC) and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrowers (other than OLLC) and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited combined balance sheets of the Borrowers (other than OLLC) and their Subsidiaries dated [June 30, 2005], and the related combined statements of income or operations, shareholders equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower (other than OLLC) and their Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. Schedule 5.5 sets forth all material indebtedness and other liabilities, direct or contingent, of (a) the Borrowers (other than OLLC) and their Subsidiaries as of the date of such financial statements; and (b) MLP, GP and OLLC as of the Closing Date, including liabilities for taxes, material commitments and Indebtedness.
(c) 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.
(d) Since the date of the Audited Financial Statements, no Internal Control Event has occurred. Since the date of the Audited Financial Statements, none of the Loan Parties has made any Restricted Payment, except Restricted Payments permitted by Section 7.7 hereof.
(e) There has been delivered to the Administrative Agent and each of the Lenders a complete and accurate Borrowing Base Report as at September 23, 2005, with an accompanying true and complete marked-to-market inventory report.
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(f) The Loan Parties, on a combined and combining basis, both before and after giving effect to the transactions contemplated by this Agreement and the other Loan Documents (a) are solvent; (b) 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); (c) 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 its probable liabilities on its debts as they become absolute and mature; (d) does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (e) is not engaged, and is not about to engage, in business or a transaction for which is property would constitute unreasonably small capital.
5.6 Litigation. Except as set forth on Schedule 5.6 hereto, 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) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
5.7 No Default. Neither any Loan Party nor any Subsidiary 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.
5.8 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.
5.9 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 (including Real Estate), and as a result thereof each Loan Party has reasonably concluded that, except as specifically disclosed in Schedule 5.9 , 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 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 such Loan Party or the applicable Subsidiary operates.
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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.
(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 Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of 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 or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither a Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither a Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither a Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
5.13 Subsidiaries; Equity Interests. Part (a) of Schedule 5.13 sets forth each Subsidiary of each Loan Party. All of the 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 Lenders under the Loan 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
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granted to the Administrative Agent for the benefit of the Administrative Agent and the Lenders under the Loan Documents.
5.14 Margin Regulations; Investment Company Act; Public Utility Holding 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 of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Loan Parties, any Person Controlling a Loan Party, or any Subsidiary (i) is a holding company, or a subsidiary company of a holding company, or an affiliate of a holding company or of a subsidiary company of a holding company, within the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an investment company under the Investment Company Act of 1940.
5.15 Disclosure. The Loan Parties have 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) 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.
5.16 Compliance with Laws. Each Loan Party and each Subsidiary 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 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. To the best knowledge of the Loan Parties, 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 the Loan Parties, threatened, which, either
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individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.18 Absence of Financing Statements, Etc . 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.
5.19 Perfection of Security Interest . 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 Agents security interest in the Collateral. The Collateral and the Administrative Agents rights with respect to the Collateral are not subject to any setoff, claims, withholdings or other defenses. TheBorrowers are the owners of the Collateral free from any Lien and any other claim or demand, except for Permitted Liens.
5.20 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 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.
5.21 Bank Accounts . Schedule 5.21 sets forth the account numbers and locations of all bank accounts of each of the Loan Parties.
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 6.1 , 6.2 , and 6.3 ) cause each Subsidiary to:
6.1 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 within 90 days after the end of each fiscal year of each Loan Party, 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
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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 (i) a report and opinion of a Registered Public Accounting Firm 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 and (ii) if required by law, an attestation report of such Registered Public Accounting Firm as to the Borrowers internal controls pursuant to Section 404 of Sarbanes-Oxley expressing a conclusion to which the Required Lenders do not object;
(b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Loan Parties, 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 Partys 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 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 within forty-five 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 6.2(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.
6.2 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 Section 6.1(a) , a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;
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(b) concurrently with the delivery of the financial statements referred to in Sections 6.1(a) and (b) , a duly completed Compliance Certificate signed by a Responsible Officer of the Loan Parties;
(c) 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;
(d) 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; and
(e) 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 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;
(f) 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;
(g) no later than (i) the last Business Day of each of the first three weeks of each calendar month (or such earlier time as the Administrative Agent may reasonably request) a complete and accurate Borrowing Base Report setting forth the Borrowing Base as at the close of business on the last Business Day of the preceding week (or other date so requested by the Administrative Agent), and (ii) 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 Revolving Loans the Borrowers are permitted to borrow and Letters of Credit 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 complete and accurate 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;
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(h) as soon as practicable, but in any event within fifteen (15) Business Days after the end of each month, an Accounts Receivable aging summary;
(i) as soon as practicable, but in any event within forty five (45) days of the end of each fiscal quarter, a report of gross margins and volumes by product for such fiscal quarter;
(j) 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; and
(k) 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 6.1(a) or (b) or Section 6.2(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may 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 Partys website on the Internet at the website address listed on Schedule 10.2 ; or (ii) on which such documents are posted on the applicable Loan Partys 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 that requests 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 Borrowers 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. Notwithstanding anything contained herein, in every instance the Loan Parties shall be required to provide paper copies of the Compliance Certificates required by Section 6.2(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Loan Parties with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Loan Parties hereby acknowledges 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 may be public-side Lenders ( i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a Public Lender ). Each Loan Party hereby agrees that (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
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thereof; (x) by marking Borrower Materials PUBLIC, the Loan Parties 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 the Loan Parties 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 Investor; 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 Investor.
6.3 Notices. Promptly notify the Administrative Agent and each Lender:
(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 the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower 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;
(e) of the occurrence of any Internal Control Event;
(f) 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; and
(g) 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 Agents rights with respect to the Collateral, are subject.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer of the Loan Parties setting forth details of the occurrence referred to therein and stating what action the applicable Loan Party has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
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6.4 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 being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by each Loan Party or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property, provided that such Loan Party will pay all such taxes, assessments, charge and levies upon the commencement of proceedings to foreclose any Lien that may have attached as security therefor; 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.
6.5 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 7.4 or 7.5 ; (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.
6.6 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.
6.7 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 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.
6.8 Compliance with Laws; Governing Documents. Comply (a) with the provisions of its charter documents and by-laws or other 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.
6.9 Books and Records. 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 Borrower or such
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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 independent certified public accountants of the Loan Parties and not permit more than thirty (30) days to elapse between the cessation of such firms (or any successor firms) 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.
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 Loan Parties; 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 and without advance notice. In addition, the Loan Parties shall permit the Administrative Agent, the Lenders or any of their respective 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 from time to time upon request of the Administrative Agent or any Lender, all at the Loan Parties expense.
6.11 Use of Proceeds. Use the proceeds of (a) WC Revolver Loans solely for working capital purposes and not in contravention of any Law or of any Loan Document; (b) the Acquisition Loans to finance all or any portion of Permitted Acquisitions and not in contravention of any Law or of any Loan Document; and (c) the Revolver Loans for general corporate purposes (including payment of Permitted Distributions) 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 Bank 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.
6.13 Additional Guarantors . Notify the Administrative Agent at the time that any Person becomes a Domestic Subsidiary, and promptly thereafter cause such Person to (a) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or such other document as the Administrative Agent shall deem appropriate for such purpose and executing and delivering applicable Security Documents, and (b) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.1(a) and favorable opinions of counsel to such Person (which shall cover, among other things,
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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.
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 outstanding, the Loan Parties shall not, nor shall it permit any Subsidiary to, directly or indirectly:
7.1 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or upon the income or profits therefrom, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.1 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, (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 7.3(b) ;
(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, warehousemens, mechanics, materialmens, repairmens or other like Liens arising in the ordinary course of business which are not overdue for a period of more than thirty (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 8.1(h) ;
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(i) Liens securing Indebtedness permitted under Section 7.3(e) ; provided that (i) such Liens do not at any time encumber any property other than the property financed by such 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 in favor of the Administrative Agent or the LOI Agent (as defined in the definition of LOI Agreement) for the benefit of the LOI Agent and the LOI Banks (as defined in the definition of LOI Agreement) under the LOI Agreement; and
(k) Liens on the Mortgaged Property as and to the extent permitted by the Mortgages applicable thereto.
In addition, no Loan Party will (a) enter into or permit to exist any arrangement or agreement (excluding the Agreement, the LOI Agreement and the other Loan Documents) 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 LOI Agreement and the other Loan Documents) 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 7.3(e) , 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.
7.2 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 commercial paper has been rated and the ratings therefore are not less than P-2 if rated by Moodys 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;
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(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) Investment existing on the date hereof and set forth on Schedule 7.2 hereto, and Guarantees permitted by Section 7.3 ;
(i) Investments of a Loan Party in the form of short-term Investments in tax-exempt money market funds acceptable to the Administrative Agent ; and
(j) Investments consisting of a Permitted Acquisition.
7.3 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.3 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;
(c) 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;
(d) obligations (contingent or otherwise) of the Borrower 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;
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(e) 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 7.1(i) ; provided , however , that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000; and
(f) Indebtedness to any of the LOI Banks or the LOI Agent (as such terms are defined in the definition of LOI Agreement) pursuant to the LOI Agreement.
7.4 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all 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 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 may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or to a Guarantor other than the GP or MLP.
In addition, the Loan Parties have informed the Administrative Agent, the L/C Issuer and the Lenders that after the Closing Date, OLLC intends to cause Montello LLC to convert in accordance with Section 18-216 of the Delaware Limited Liability Company Act and Section 265 of the Delaware General Corporation Law into a Delaware corporation (to be known as Global Montello Group Corp. and after the conversion hereinafter referred to as Montello Corp. ) (such action being the Montello Conversion ). The parties hereto hereby consent to the Montello Conversion so long as (a) no Default exists or would result therefrom; (b) the Loan Parties have provided the Administrative Agent with prompt written notice of the Montello Conversion, together with copies of all documents, agreements and instruments to be filed with the Secretary of State of the State of Delaware in connection with such Montello Conversion and such documents, agreements and/or instruments shall be satisfactory to the Administrative Agent; and (c) the Loan Parties take whatever action the Administrative Agent shall reasonably require (including, without limitation, delivery of all documents, agreements and instruments evidencing such Montello Conversion, copies of all the Governing Documents of Montello Corp. and authorizations to file amendments to any financing statements of record evidencing the change of name) to evidence Montello Corp. as a party to the Loan Documents as a Borrower and a Loan Party hereunder and thereunder.
7.5 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;
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(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 value of any equipment so disposed of pursuant to this Section 7.5(c)(iii) does not exceed $100,000 per item of equipment and the aggregate value of all the equipment disposed of pursuant to this Section 7.5(c)(iii) does not exceed $2,000,000 over the life of this Agreement;
(d) Dispositions of property by any Subsidiary to a Borrower or to a Guarantor other than the GP or MLP; and
(e) Dispositions permitted by Section 7.4 .
7.6 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;
(b) Mergers and consolidations permitted by Section 7.4; and
(c) Acquisitions of the assets or stock of another Person (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 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 acquisition or series of related 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 $25,000,000; and (viii) the aggregate amount of the purchase price for all 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 $35,000,000.
7.7 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
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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;
(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 so long as such Restricted Payments constitute Permitted Distributions.
7.8 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 7.8 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.
7.9 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) the sale by Global on or about the Closing Date to Global Petroleum Corp. of certain notes receivable in an aggregate amount of approximately $3,050,000; (b) in connection with the shared services agreements set forth on Schedule 7.9 hereto; or (c) 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 arms length transaction with a Person other than an Affiliate.
7.10 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement, the LOI Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to any Loan Party or to otherwise transfer property to a Loan Party, (ii) of any Subsidiary to Guarantee the Indebtedness of a Loan Party or (iii) of the a Loan Party 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 7.3(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
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purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
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 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 that are (i) economically appropriate and consistent with such Loan Partys business; (ii) used to offset price risks incidental to such Loan Partys cash or spot transactions in petroleum product; and (iii) established and liquidated in accordance with sound commercial practices, 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 1,000,000 barrels of petroleum product at any one time.
7.14 Loans to Owners, Officers and 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 ½ 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 7.13, 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 7.13 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 prepayments of the Obligations pursuant to the terms of this Agreement or the other Loan Documents and repayments and prepayments under the LOI Agreement.
7.16 Bank Accounts. Either (a) establish any bank account other than those listed on Schedule 5.21 without the Administrative Agents 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 listed on Schedule 5.21 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 listed on Schedule 5.21 as petty cash accounts; or (e) allow any collected funds (other than nominal amounts not in
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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 listed on Schedule 5.21 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 of Thru Put. Global will not amend, in any material respects, the terms and conditions set forth in the thru-put agreement between Global and Global Petroleum Corp. without the prior written consent of the Required Lenders, which consent shall not be unreasonably withheld.
(a) Combined Working Capital . Permit the Combined Working Capital to be less than (i) $25,000,000 at any time from the Closing Date through March 30, 2006; and (ii) $30,000,000 at any time thereafter.
(b) Minimum EBITDA . Permit Combined EBITDA as at the end of any fiscal quarter to be less than $20,000,000 for the Reference Period ended on such quarter end date.
(c) Combined Interest Coverage Ratio . Permit the Combined Interest Coverage Ratio as of the end of any fiscal quarter to be less than 2.75:1.00.
(d) Combined Leverage Ratio . Permit the Combined Leverage Ratio as at the end of any fiscal quarter to be greater than 2.50:1.00.
7.19 Capital Expenditures . Make or become legally obligated to make any Capital Expenditure in any fiscal year that exceed, in the aggregate for all Loan Parties, $4,000,000 for such fiscal year, provided, however, that if, during any fiscal year the amount of Capital Expenditures permitted for that fiscal year up to a maximum aggregate amount of $4,000,000 is not so utilized, such unutilized amount may be utilized in the next succeeding fiscal year, but not in any subsequent fiscal year.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.1 Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment . Any Borrower 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
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(b) Specific Covenants . Any Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.1, 6.2, 6.3, 6.5, 6.10, 6.11, 6.12 or 6.13 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
(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 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, 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, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, 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 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 Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries 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
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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) a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 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 the Borrower 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) a 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.
8.2 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;
(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 Borrowers;
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(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 and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;
provided , however , that upon the occurrence of an actual or deemed entry (which, for the avoidance of doubt shall include any event set forth in Section 8.1(f) hereof) of an order for relief with respect to any Loan Party under the Bankruptcy Code of the United States, the obligation and Commitments of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.3 Application of Funds. After the exercise of remedies provided for in Section 8.2 (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 8.2 ), any amounts received on account of the Obligations (including, without limitation, amounts realized upon any of the Collateral) shall be applied by the Administrative Agent in the following order:
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including 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 all other Obligations, other than the Obligations arising under the Commodity Hedging Agreements, the Overdrafts or arising from an LOI, in such order or preference as the Required Lenders may determine; provided , however , that (i) distributions in respect of such Obligations shall be made pari passu among Obligations with respect to the Administrative Agents fee and all other Obligations, (ii) distributions in respect of Obligations under Monetary Hedging Agreements shall be made pari passu with the other Obligations under this clause in respect of Loans and Letters of Credit (including, without limitation, principal, interest, fees, and L/C Obligations); and (iii) Obligations owing to the Lenders with respect to each type of Obligation such as interest, principal, fees and expenses, shall be made among the Lenders pro rata ; and provided , further , that the Administrative Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable;
Third , to all Obligations arising under the Commodity Hedging Agreement;
Fourth , to all Obligations consisting of the Overdrafts on a pro rata basis;
Fifth , to all Obligations arising pursuant to the LOI Agreement (including, but not limited to cash collateralize in full the face amount of any outstanding and unpaid LOIs); and
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Sixth , 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;
Seventh , upon payment and satisfaction in full or other provisions for payment in full satisfactory to the Lenders and the Administrative Agent of all of the Obligations, to the payment of any obligations required to be paid pursuant to §9-608(a)(1)(C) of the Uniform Commercial Code of the Commonwealth of Massachusetts;
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 Section 2.3(c) , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT
9.1 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 neither the Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
9.2 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 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 the Borrower 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.
9.3 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;
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(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 the Borrowers 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 10.1 and 8.2 ) 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 a 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 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.4 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 a Loan Party), independent accountants and other experts selected by it, and shall
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not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.5 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.
9.6 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 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 successors 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 Agents resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.4 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.
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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 successors 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 their respective 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.
9.7 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.
9.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, or Arrangers 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.
9.9 Administrative Agent May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) 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 2.3(i)) and (j), 2.8 and 10.4 ) 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
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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 10.4 .
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 to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10 Collateral and Guaranty Matters . The Lenders 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 Total Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is 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 10.1 , if approved, authorized or ratified in writing by the Required Lenders;
(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 7.1(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 Agents 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 .
10.1 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 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 4.1(a) or 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 each Lender;
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(b) extend or increase the Acquisition Commitment, the WC Revolver Commitment or the Revolver Commitment, as the case may be, of any Lender (or reinstate any Acquisition Commitment, the WC Revolver Commitment or the Revolver Commitment, as the case may be, terminated pursuant to Section 8.2 ) 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, Unreimbursed Amount 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 L/C Advance, or (subject to clause (iii) of the second proviso to this Section 10.1 ) 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 to amend the definition of Default Rate or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(e) change Section 2.12 or Section 8.3 in a manner that would alter the pro rata sharing of payments required thereby or change or waive any other provision that provides for the pro rata nature of disbursements by or payments to the Lenders without the written consent of each Lender, or amend, change or waive Section 8.3 without the written consent of the Borrowers and the Supermajority Banks;
(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; or
(g) release the Guarantors from the Guaranty, or release the Administrative Agents Lien on any Collateral with an aggregate value in excess of $500,000 without the written consent of each Lender;
and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any 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, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
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10.2 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 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 the Borrowers, 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.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices 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 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 the Borrowers 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 senders 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.
(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
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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 the Borrower, 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 the Borrowers or the Administrative Agents 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 the Borrowers, 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 of the Borrower, 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.
(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 the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of 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 the Borrowers. 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.
10.3 No Waiver; Cumulative Remedies. 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.
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10.4 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 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 Borrowers . The Borrower 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 the Borrowers or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto 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, (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 any Loan Party 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 the Borrowers or any other 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 the Borrowers or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitees obligations hereunder or under any other Loan Document, if the Borrowers or such Loan Party has obtained a final and
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nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders . To the extent that the Borrowers for any reason fail 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 Lenders 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) .
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrowers shall not assert, and hereby waive, 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 by it 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.
(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 and the L/C Issuer, the replacement of any Lender, the termination of the Total Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.5 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower or any other 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
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repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. 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.
(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 Eligible Assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the 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 Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the assigning Lenders Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, 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 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;
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(ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the Administrative Agent and the L/C Issue unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount, if any, required as set forth in Schedule 10.06 , and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenders 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 3.1 , 3.4 , 3.5 , and 10.4 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 the Notes 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, shall maintain at the Administrative Agents Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the Register ). The entries in the Register shall be conclusive (absent manifest error), 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. The Register shall be available for inspection by each of the Borrowers and the L/C Issuer at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents is pending, any Lender may request and receive from the Administrative Agent a copy of the Register.
(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 or any Loan Party or any of a Loan Partys Affiliates or Subsidiaries) (each, a
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Participant ) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lenders participations in L/C Obligations) owing to it); provided that (i) such Lenders 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 Lenders 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 10.1 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.1 , 3.4 and 3.5 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 10.8 as though it were a Lender, provided such Participant agrees to be subject to Section 2.12 as though it were a Lender.
(e) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 3.1 or 3.4 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 3.1 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 3.1(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 from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments . The words execution, signed, signature, and words of like import in any Assignment and Assumption 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.
(h) 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 Commitment and
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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 2.3(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.
10.7 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, 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 (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrowers and their 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 Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrowers.
For purposes of this Section, Information means all information received from the Borrowers or any Subsidiary relating to the Borrowers 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 the Borrowers or any Subsidiary, provided that, in the case of information received from the Borrowers 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
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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 the Borrowers 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 Federal and state securities Laws.
10.8 Right of Setoff. 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 Loan Party against any and all of the obligations of the any 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 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. 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.
10.9 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
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Section 4.1 , 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 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.
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.
10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.4 , 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 3.1 , or if any Lender is a Defaulting Lender, 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 10.6 ), 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 10.6(b) ;
(b) such Lender shall have received payment of an amount equal to 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 3.5 ) 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 3.4 or payments required to be made pursuant to Section 3.1 , such assignment will result in a reduction in such compensation or payments thereafter; and
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(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 Borrower to require such assignment and delegation cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS.
(b) SUBMISSION TO JURISDICTION . THE BORROWERS AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS SITTING IN SUFFOLK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE FIRST CIRCUIT, 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 MASSACHUSETTS 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 THE BORROWERS OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE . THE BORROWES 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 10.2 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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10.15 Joint and Several Liability.
(a) 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
(b) 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
(c) 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
(d) The Obligations of each of the Loan Parties under the provisions of this Section 10.15 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.
(e) 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. 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
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of this Section 10.15, 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 10.15, 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 10.15 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 10.15 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.
(f) The provisions of this Section 10.15 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 10.15 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 10.15 will forthwith be reinstated in effect, as though such payment had not been made.
(g) (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 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 10.15(g) may be relied on
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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 Partys 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.
10.16 USA PATRIOT Act Notice. 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 the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Act ), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrowers in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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GLOBAL OPERATING LLC |
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By: Global Partners LP, its sole member |
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By: Global GP LLC, its general partner |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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GLOBAL COMPANIES LLC |
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By: Global Operating LLC, its sole member |
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By: Global Partners LP, its sole member |
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By: Global GP LLC, its general partner |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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GLOBAL MONTELLO GROUP LLC |
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By: Global Operating LLC, its sole member |
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By: Global Partners LP, its sole member |
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By: Global GP LLC, its general partner |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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CHELSEA SANDWICH LLC |
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By: Global Operating LLC, its sole member |
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By: Global Partners LP, its sole member |
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By: Global GP LLC, its general partner |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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GLEN HES CORP. |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Senior Vice President |
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GLOBAL PARTNERS LP |
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By: Global GP LLC, its general partner |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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GLOBAL GP LLC |
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By: |
/s/ Edward J. Faneuil |
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Edward J. Faneuil, Executive Vice President |
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BANK OF AMERICA, N.A., as |
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Administrative Agent |
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By: |
/s/Carol G. Alm |
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Name: |
Carol G. Alm |
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Title: |
Assistant Vice President |
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BANK OF AMERICA, N.A., as a Lender and L/C |
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Issuer |
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By: |
/s/Robert D. Valbona |
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Name: |
Robert D. Valbona |
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Title: |
Managing Director |
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JPMORGAN CHASE BANK, N.A.., as a Lender |
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By: |
/s/John M. Hariaczyi |
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Name: |
John M. Hariaczyi |
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Title: |
Vice President |
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SOCIETE GENERALE, as a Lender |
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By: |
/s/ Barbara Paulsen |
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Name: |
Barbara Paulse |
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Title: |
Director |
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By: |
/s/ Emmanuel Chesneau |
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Name: |
Emmanuel Chesneau |
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Title: |
Managing Director |
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STANDARD CHARTERED BANK, as a Lender |
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By: |
/s/ Maria Carolina Torres |
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Name: |
Maria Carolina Torres |
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Title: |
Vice President |
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By: |
/s/ Robert K. Reddington |
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Name: |
Robert K. Reddington |
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Title: |
Assistant Vice President |
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CITIZENS BANK OF MASSACHUSETTS, as a |
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Lender |
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By: |
/s/Marina E. Grossi |
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Name: |
Marina E. Grossi |
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Title: |
Vice President |
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FORTIS CAPITAL CORP., as a Lender |
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By: |
/s/Edward F. Aldrich |
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Name: |
Edward F. Aldrich |
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Title: |
Director |
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By: |
/s/Christina M. Renolds |
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Name: |
Christina M. Renolds |
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Title: |
Senior Vice President |
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SOVEREIGN BANK, as a Lender |
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By: |
/s/ Robert D. Lanigan |
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Name: |
Robert D. Lanigan |
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Title: |
Senior Vice President |
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KEYBANK NATIONAL ASSOCIATION, as a |
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Lender |
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By: |
/s/Keven D. Smith |
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Name: |
Keven D. Smith |
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Title: |
Vice President |
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WEBSTER BANK NATIONAL ASSOCIATION, |
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as a Lender |
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By: |
/s/Carol Carver |
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Name: |
Carol Carver |
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Title: |
Vice President |
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