=======================
CROWN CENTRAL PETROLEUM CORPORATION
----------------------
CREDIT AGREEMENT
Dated as of September 25, 1995
-----------------------
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and
Letter of Credit Agent
and
THE FIRST NATIONAL BANK OF BOSTON
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
as Agents
====================
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement
to which it is attached but is inserted for convenience
only.
Page
SECTION 1. Definitions and Accounting Matters...1
1.1 Certain Defined Ter ........................1
1.2 Accounting Terms and determinations.........27
1.3 Certain References and Terms................28
SECTION 2. Commitments..........................29
2.1 Loans........................................29
2.2 Borrowings..................................30
2.3 Letters of Credit...........................30
2.4 Changes of Commitments......................36
2.5 Fees........................................37
2.6 Lending Offices.............................38
2.7 Several Obligations; Remedies Independent...38
2.8 Notes.......................................39
2.9 Voluntary Prepayments.......................39
2.10 Clean-ups...................................39
SECTION 3. Payments of Principal and Interest...41
3.1 Repayment of Loans..........................41
3.2 Interest....................................41
SECTION 4. Payments; Pro Rata Treatment;
Computations; Etc...............................42
4.1 Payments....................................42
4.2 Pro Rata Treatment..........................43
4.3 Computations................................43
4.4 Non-Receipt of Funds by the Administrative
Agent...........................................43
4.5 Sharing of Payments, Etc....................44
SECTION 5. Yield Protection and Illegality......45
5.1 Additional Costs............................45
5.2 Limitation on Types of Loans................48
5.3 Illegality..................................49
5.4 Treatment of Affected Loans.................49
5.5 Compensation................................49
5.6 Additional Costs in Respect of Letters of
Credit..........................................50
5.7 No Duplication..............................50
SECTION 6. Conditions Precedent.................50
6.1 Initial Extension of Credit.................50
6.2 Initial and Subsequent Extensions of Credit.52
SECTION 7. Representations and Warranties.......53
7.1 Corporate Existence.........................53
7.2 Financial Condition.........................53
7.3 Litigation..................................53
7.4 No Breach...................................54
i
7.5 Corporate Action............................54
7.6 Approvals...................................54
7.7 Use of Proceeds.............................54
7.8 ERISA.......................................54
7.9 Taxes.......................................55
7.10 Investment Company Act.....................55
7.11 Environmental Conditions...................55
7.12 Indebtedness...............................57
7.13 Operation of Business......................58
7.14 No Defaults on Outstanding Judgments or
Orders..........................................58
7.15 No Defaults under Other Agreements, Etc....58
7.16 Labor Disputes and Acts of God.............58
7.17 Subsidiaries, Etc..........................58
SECTION 8. Covenants of the Company.............59
8.1 Maintenance of Existence....................59
8.2 Conduct of Business.........................59
8.3 Maintenance of Properties...................59
8.4 Maintenance of Records......................59
8.5 Maintenance of Insurance....................59
8.6 Compliance with Laws and Agreements.........59
8.7 Right of Inspection.........................60
8.8 Reporting Requirements......................60
8.9 Liens.......................................64
8.10 Indebtedness................................65
8.11 Guaranties, Etc.............................66
8.12 Mergers, Etc................................67
8.13 Investments.................................67
8.14 Sale of Assets..............................67
8.15 Stock of Subsidiaries, Etc..................68
8.16 Transactions with Affiliates................68
8.17 Line of Business............................68
8.18 Accounts Payable; Senior Notes..............69
8.19 FIFO Tangible Net North.....................69
8.20 CFD/Capital Ratio...........................69
8.21 Net Adjusted Working Capital................69
8.22 Adjusted Current Ratio......................69
8.23 Short-Term FIFO Net Income (Loss)...........69
8.24 Mid-Term FIFO Net Income (Loss).............69
8.25 Unrestricted Subsidiaries...................70
8.26 Restricted Subsidiaries.....................71
SECTION 9. Events of Default..................71
9.1 Events of Default...........................71
9.2 Cash Collateral Account.....................74
9.3 Indemnity...................................74
SECTION 10. The Administrative Agent and
the Letter of Credit Agent......................75
10.1 Appointment, Powers and I..................75
10.2 Reliance...................................76
10.3 Defaults...................................76
10.4 Rights as a Bank...........................76
ii
10.5 Indemnification............................77
10.6 Non-Reliance on other Bank Parties.........77
10.7 Failure to Act.............................78
10.8 Resignation or Removal.....................78
10.9 Documents..................................79
SECTION 11. Miscellaneous.......................79
11.1 No Waiver..................................79
11.2 Notices....................................79
11.3 Expenses, Etc..............................79
11.4 Whole Agreements, Amendments, Etc..........80
11.5 Survival After Closing; Severability.......81
11.6 Assignments and Participations.............81
11.7 Termination; Limited Survival..............83
11.8 Acknowledgments and Admissions.............83
11.9 Counterparts...............................83
11.10 Governing Law; Submission to Jurisdiction..83
11.11 WAIVER OF JURY TRIAL.......................84
11.12 Confidentiality............................84
11.13 Replacement of Banks.......................85
SCHEDULE 1 - Pricing Grid Tables
SCHEDULE 2 - Indebtedness and Liens
SCHEDULE 3 - Investments and Subsidiaries
SCHEDULE 4 - Calculations of Financial
Compliance as of June 30, 1995
EXHIBIT A - Form of Note
EXHIBIT B - Form of Credit Certificate
EXHIBIT C - Form of Opinion of Counsel
to the Company
EXHIBIT D - Form of Opinion of Special
New York Counsel to the
Administrative Agent
iii
CREDIT AGREEMENT
------------------------------
THIS CREDIT AGREEMENT, dated as
of September 25, 1995, is among:
Crown Central Petroleum
Corporation, a corporation duly
organized and validly existing
under the laws of the State of
Maryland (the "_______
Company"); each of
the banks that is a signatory
hereto (individually, a "____
Bank" and,
collectively, the "_____
Banks"); The
First National Bank of Boston and
Texas Commerce Bank National
Association, as agents for the
Banks (in such capacity, and
together with their respective
successors in such capacity, the
"Agents"), and NationsBank of
Texas, N.A., as administrative
agent and as letter of credit agent
for the Banks (in such respective
capacities, together with its
successors in such respective
capacities, the "______________
Administrative
_____
Agent" and the "________________
Letter of Credit
_____
Agent").
The Company has requested that
the Banks extend credit to it as
provided herein, and the Banks are
prepared to make such extensions of
credit upon the terms hereof.
Accordingly, the parties hereto
agree as follows:
SECTION 1 _______________
Definitions and
__________________
Accounting Matters
1.1 _____________________
Certain Defined Terms. As
used herein, the following terms
shall have the following meanings:
"_______________________
Adjusted Current Assets" shall
mean, as of June 30, 1995 and as of
the end of each calendar month
thereafter (each a "Determination
Date" in this definition), the sum
(without duplication) of:
(a) the Company's
Consolidated current assets at such
Determination Date, plus
(b) an amount equal to (1)
the Company's Consolidated
inventory LIFO reserve at such
Determination Date, times (2) the
Tax Adjustment Factor in effect at
such Determination Date.
"______________________
Adjusted Current Ratio" shall
mean, as of June 30, 1995 and as of
the end of each calendar month
thereafter, the ratio of Adjusted
Current Assets to Adjusted
Liabilities.
"____________________
Adjusted Liabilities" shall
mean, as of June 30, 1995 and as of
the end of each calendar month
thereafter (each a "Determination
Date" in this definition), the sum
(without duplication) of:
(a) the Company's
Consolidated current liabilities at
such Determination Date, plus
1
(b) Loans outstanding
under this Agreement at such
Determination Date (to the extent
not included in the Company's
Consolidated current liabilities),
plus
(c) Letter of Credit
Liabilities in respect of Insurance
Letters of Credit or Miscellaneous
Letters of Credit at such
Determination Date (to the extent
the liabilities supported by such
Letters of Credit are not included
in the Company's Consolidated
current liabilities), plus
(d) all of the Company's
Consolidated liabilities with
respect to (1) letters of credit
issued other than under this
Agreement, or (2) Guarantees.
"__________________________
Adjusted Net Income (Loss)"
shall mean, for any period, the
Company's Consolidated net income
(or loss) for such period as
adjusted (to the extent otherwise
included in calculating such net
income or loss) by excluding,
without duplication:
(a) all extraordinary
gains or losses (less all fees and
expenses relating thereto),
(b) the portion of such
net income (or loss) allocable to
minority interests owned by the
Company and the Consolidated
Subsidiaries in unconsolidated
Persons, to the extent that cash
dividends or distributions have not
actually been received by the
Company or one of the Consolidated
Subsidiaries during such period
(provided that, after June 30,
1995, if any such exclusion is made
for dividends or distributions
accrued but not received, net
income for any subsequent period
shall be deemed increased by the
amount of any such previously
excluded accrued dividends or
distributions which are actually
received during such subsequent
period),
(c) net income (or loss)
of any Person combined with the
Company and the Consolidated
Subsidiaries on a "pooling of
interests" basis attributable to
any period prior to the date of
combination,
(d) any gain or loss, net
of taxes, realized upon the
termination of any employee pension
benefit plan,
(e) net gains (but not
losses) (less all fees and expenses
relating thereto) in respect of
dispositions of assets other than
in the ordinary course of business,
and
(f) the net income of any
Consolidated Subsidiary of the
Company to the extent that the
transfer by such Consolidated
Subsidiary to the Company of funds
equal to such income (by dividends,
payments upon liquidation, or some
other similar form of distribution)
is not at the time permitted,
directly or indirectly, by
operation of the terms of such
Subsidiary's charter or any
agreement, instrument, judgment,
decree, order, statute, rule or
governmental regulations applicable
to such Subsidiary or its
stockholders (provided that, after
June 30, 1995, if any such
exclusion is made for net income
not permitted to be so transferred,
net income for any subsequent
period shall be deemed increased by
the amount of any such previously
excluded net income (to the extent
not reduced by subsequent losses or
other events) which becomes
permitted to be so transferred
during such subsequent period).
2
"________________________
Administrative/LC Agents" shall
have the meaning given to that term
in Section 10.1 hereof.
"_________
Affiliate" shall mean, as to
any Person, any other Person which
directly or indirectly controls, or
is under common control with, or is
controlled by, such Person. As
used in this definition, "_______
control"
(including, with its correlative
meanings, "_____________
controlled by" and
"_________________________
under common control with") shall
mean possession, directly or
indirectly, of power to direct or
cause the direction of management
or policies (whether through
ownership of securities or
partnership or other ownership
interests, by contract or
otherwise), provided that, in any
event, any Person which owns
directly or indirectly 5% or more
of the securities having ordinary
voting power for the election of
directors or other governing body
of a corporation or 5% or more of
the partnership or other ownership
interests of any other Person
(other than as a limited partner of
such other Person) will be deemed
to control such corporation or
other Person. Notwithstanding the
foregoing, no individual shall be
deemed to be an Affiliate of a
corporation solely by reason of his
or her being an officer or director
of such corporation.
"__________________________
Applicable Commitment Rate"
shall mean, on any day, the rate
per annum (expressed in Basis
Points) set forth in the Pricing
Grid in the row headed "Commitment
Fee" and in the column headed by
the ratio of Debt/Cash Flow which
is in effect or deemed to be in
effect on such day.
"_________________________
Applicable Lending Office"
shall mean, for each Bank and for
each type of Loan, the Lending
Office of such Bank (or of an
affiliate of such Bank) designated
for such type of Loan on the
signature pages hereof or such
other office of such Bank (or of an
affiliate of such Bank) as such
Bank may from time to time specify
to the Administrative Agent and the
Company as the office by which its
Loans of such type are to be made
and maintained.
"___________________________
Applicable Letter of Credit
____
Rate" shall mean (a) with respect
to any Insurance Letter of Credit
or Miscellaneous Letter of Credit
on any day, the rate per annum
(expressed in Basis Points) set
forth in the Pricing Grid in the
row headed "Ins/Misc LCs" and in
the column headed by the ratio of
Debt/Cash Flow which is in effect
or deemed to be in effect on such
day, and (b) with respect to any
Inventory Letter of Credit on any
day, the rate per annum (expressed
in Basis Points) set forth in the
Pricing Grid in the row headed
"Inventory LCs" and in the column
headed by the ratio of Debt/Cash
Flow which is in effect or deemed
to be in effect on such day.
3
"_________________
Applicable Margin" shall mean:
(a) with respect to Base Rate
Loans, 0%; (b) with respect to CD
Loans, one-eighth of one percent
(0.125%) per annum plus the
Applicable LIBOR Margin; and (c)
with respect to Eurodollar Loans,
the Applicable LIBOR Margin. As
used in this definition,
"Applicable LIBOR Margin" shall
mean, on any day, the rate per
annum (expressed in Basis Points)
set forth in the Pricing Grid in
the row headed "LIBOR Margin" and
in the column headed by the ratio
of Debt/Cash Flow which is in
effect or deemed to be in effect on
such day.
"_______________
Assessment Rate" shall mean,
for any CD Loan, the effective
annual assessment rate (rounded
upwards, if necessary, to the
nearest Basis Point) payable by
NationsBank to the Federal Deposit
Insurance Corporation (or any
successor) for deposit insurance
for Dollar time deposits with
NationsBank at its Principal Office
during the Interest Period for such
Loan, as reasonably estimated by
NationsBank.
"__________
Asset Sale" shall mean any
sale, lease, assignment, transfer
or other disposition by the Company
or any of its Subsidiaries
(including by way of merger,
consolidation or any sale and
leaseback transaction)
(collectively a "transfer" in this
definition), directly or
indirectly, in one or a series of
related transactions:
(a) at any time, of either
or both of the Company's directly
or indirectly owned refineries in
Pasadena and Tyler, Texas, or of
any undivided interest in any
substantial part thereof, or of any
interest in a Subsidiary which
directly or indirectly owns such
assets,
(b) during any fiscal year
of the Company, of service
stations, convenience stores, or
other retail establishments, if the
remainder of (i) the aggregate
price received during such fiscal
year for all such transfers (on an
accrual basis, taking into account
all forms of consideration
received), less (ii) the aggregate
price paid by the Company and its
Subsidiaries during such fiscal
year (on an accrual basis, taking
into account all forms of
consideration paid) for all service
stations, convenience stores, and
other retail establishments
purchased, is $25,000,000 or more,
4
(c) at any time, of any
stock or other equity interest in
any of the Company's Subsidiaries
(other than directors' qualifying
shares and shares required to be
owned by foreign nationals, to the
extent mandated by applicable law),
provided that the transfer by the
Company of all of its stock in any
particular Subsidiary (excluding
any Subsidiary described in clause
(a) of this definition) shall not
be deemed to be an Asset Sale under
this clause (c) if the transfer by
such Subsidiary of all of its
assets would not constitute an
Asset Sale (either alone or in
aggregation with any other
transactions described in clause
(b) above) under clause (b) or
clause (d) of this definition, and
(d) at any time, of (i)
all or substantially all of the
properties and assets of any
division or line of business of the
Company and its Subsidiaries (it
being agreed that the only business
activities of the Company and its
Subsidiaries that constitute lines
of business, for the purposes of
this Agreement and for no other
purpose, are (y) refining and (z)
retail sales), or (ii) any other
properties or assets if the
transfer thereof is other than in
the ordinary course of business,
provided that "Asset Sales"
pursuant to this clause (d) shall
not include (1) any transfer of
inventory in the ordinary course of
business, (2) any transfer of
hydrodesulphurization equipment
originally purchased by the Company
to manufacture low sulphur
distillate in its Pasadena
refinery, and (3) any transfer of
properties and assets in any fiscal
year with an aggregate fair market
value of less than $500,000.
"_________________________
Authorized Representative"
shall mean any officer of the
Company theretofore specified by
the Company to the Administrative
Agent as authorized to give notices
as provided herein on behalf of the
Company. The Bank Parties may
conclusively assume that any
officer so specified is authorized
until notified by the Company to
the contrary.
"____________
Bank Parties" shall mean the
Administrative Agent, the Letter of
Credit Agent, the Agents, and the
Banks.
"_________
Base Rate" shall mean, with
respect to any Base Rate Loan, for
any day, the higher of (a) the
Federal Funds Rate for such day
plus fifty (50) Basis Points per
annum or (b) the Prime Rate for
such day. Each change in any
interest rate provided for herein
based upon the Base Rate resulting
from a change in the Base Rate
shall take effect at the time of
such change in the Base Rate.
"_______________
Base Rate Loans" shall mean
Loans which bear interest at rates
based upon the Base Rate.
"___________
Basis Point" shall mean one
one-hundredth of one percent
(.01%).
5
"____________
Business Day" shall mean any
day except Saturdays, Sundays, and
those other days on which
commercial banks are authorized or
required to close in either or both
of New York City and Dallas,
provided that, if such day relates
to the giving of notices in
connection with a borrowing of, a
payment or prepayment of principal
of or interest on, or the Interest
Period for, a Eurodollar Loan or a
notice by the Company with respect
to any such borrowing, payment,
prepayment or Interest Period, such
day must also be a day on which
dealings in Dollar deposits are
carried out in the London interbank
market.
"____________________
Capital Expenditures" shall
mean, for any period, all of the
Company's Consolidated expenditures
during such period (including the
aggregate amount of Capital Lease
Obligations incurred during such
period) to acquire or construct
fixed assets, plant and equipment
(including renewals, improvements
and replacements, but excluding
repairs), or for deferred
maintenance turnarounds.
"_____________________________
Capitalized Lease Obligations"
shall mean, as to any Person, the
obligations of such Person to pay
rent or other amounts under a lease
of (or other agreement conveying
the right to use) real or personal
property which obligations are
required to be classified and
accounted for as a capital lease on
a balance sheet of such Person
under GAAP (including Statement of
Financial Accounting Standards No.
13 of the Financial Accounting
Standards Board) and, for purposes
of this Agreement, the amount of
such obligations shall be the
capitalized amount thereof,
determined in accordance with GAAP
(including such Statement No. 13).
"________
CD Loans" shall mean Loans the
interest rates on which are
determined on the basis of rates
referred to in clause (b) of the
definition herein of "Fixed Base
Rate".
"______
CERCLA" and "_______
CERCLIS" shall
have the meanings given to those
terms in Section 7.11(e) hereof.
"_________________
CFD/Capital Ratio" shall mean,
at any time, the ratio of
(a) Consolidated Funded Debt, to
(b) the sum of Consolidated Funded
Debt plus Net Worth.
"____________
Closing Date" shall mean the
date specified by the
Administrative Agent to all parties
hereto as the date on which the
conditions precedent set forth in
Section 6.1 have been satisfied.
"____
Code" shall mean the Internal
Revenue Code of 1986, as amended
from time to time.
"__________________
Collateral Account" shall have
the meaning given to that term in
Section 9.2 hereof.
6
"__________
Commitment" shall mean, as to
each Bank, the obligation of such
Bank to make Loans pursuant to
Section 2.1 hereof and to issue (in
the case of the Bank serving as
Letter of Credit Agent) or acquire
(in the case of each Participant
Bank) participations in Letters of
Credit pursuant to Section 2.3
hereof in an aggregate amount at
any one time outstanding up to but
not exceeding the amount set
opposite such Bank's name on the
signature pages hereof under the
caption "Commitment" (as the same
may be reduced at any time or from
time to time pursuant to Section
2.4 hereof). The original
aggregate amount of the Commitments
is $130,000,000.
"___________________________
Commitment Termination Date"
shall mean September 30, 1997, or
such later date as shall apply with
respect to any Bank pursuant to
Section 2.4(d) hereof.
"____________
Consolidated" refers to the
consolidation, in accordance with
GAAP, of the Company and the
Consolidated Subsidiaries.
References herein to the Company's
Consolidated financial statements,
Consolidated current assets,
Consolidated financial condition,
Consolidated Funded Long-Term
Indebtedness etc. refer to the
consolidated financial statements,
consolidated current assets,
consolidated financial condition,
consolidated Funded Long-Term
Indebtedness, etc. of the Company
and the Consolidated Subsidiaries.
"________________________
Consolidated Funded Debt" shall
mean the Company's Consolidated
Funded Long-Term Indebtedness
excluding, at the time in question,
the current portion of such
Consolidated Funded Long-Term
Indebtedness (i.e., any portion of
such Consolidated Funded Long-Term
Indebtedness which in accordance
with its terms is scheduled to be
permanently repaid or retired
within one year from such time).
"_______________________
Consolidated Income Tax
_______
Expense" shall mean, for any
period, the Company's Consolidated
provision for Federal, state, local
and foreign income and franchise
taxes for such period.
"_____________________________
Consolidated Interest Expense"
shall mean, for any period, the
sum, without duplication, of (a)
the Company's Consolidated interest
expense for such period, including
(i) amortization of debt discount,
(ii) cost of or payments under Rate
Hedging Obligations (including fees
and amortization of discounts and
any increases in any reserve
established for Rate Hedging
Obligations, but net of any
reductions in such a reserve and
any payments received under
agreements evidencing Rate Hedging
Obligations), (iii) the interest
portion of any deferred payment
obligation, (iv) payments or fees
with respect to letters of credit,
bankers' acceptances or similar
facilities, and (v) accrued
interest, plus (b) (i) the interest
component of the Company's
Consolidated Capitalized Lease
Obligations paid, accrued or
scheduled to be paid or accrued
during such period and (ii) the
Company's Consolidated capitalized
interest during such period.
7
"_____________________________
Consolidated Non-Cash Charges"
shall mean, for any period, the
Company's Consolidated
depreciation, amortization and
other non-cash charges deducted in
the determination of Adjusted Net
Income for such period.
"_______________________
Consolidated Subsidiary" shall
mean each Subsidiary of the Company
(whether now existing or hereafter
created or acquired) the financial
statements of which shall be (or
should have been) consolidated with
the financial statements of the
Company in accordance with GAAP,
provided that no Unrestricted
Subsidiary shall be deemed to be a
Consolidated Subsidiary for so long
as it is an Unrestricted
Subsidiary.
"__________________
Credit Certificate" shall mean
a certificate of the Company in the
form of Exhibit B hereto,
appropriately completed, pursuant
to which (among other things) the
Company confirms that the
conditions for an Extension of
Credit have been met.
"_____________________________
Cumulative Adjusted Liquidity
________
Capacity" shall mean, as of June
30, 1995 and as of the end of each
calendar month thereafter (each a
"Determination Date" in this
definition):
(a) $28,000,000; plus
(minus)
the cumulative amount (without
duplication) of the following as
determined for the Company on a
Consolidated basis for the period
(a "Determination Period" in this
definition) beginning on and
including July 1, 1995, and ending
on and including such Determination
Date:
(b) Adjusted Net Income
(Loss) for such Determination
Period, plus (minus)
(c) an amount equal to the
LIFO provision (recovery) for such
Determination Period times the Tax
Adjustment Factor in effect at such
Determination Date, plus
8
(d) Consolidated Non-Cash
Charges deducted in determining
such Adjusted Net Income (Loss);
minus
(e) Capital Expenditures
during such Determination Period
(less the net book value of fixed
assets, plant or equipment sold in
the ordinary course of business
during such Determination Period),
plus (minus)
(f) decreases (increases)
during such Determination Period in
Deferred Assets, plus (minus)
(g) increases (decreases)
during such Determination Period in
Deferred Liabilities, plus (minus)
(h) increases (decreases)
in Consolidated Funded Debt during
such Determination Period, but only
up to the level at which the
CFD/Capital Ratio equals 40%
(provided, however, that in no
event will increases in
Consolidated Funded Debt be added
in determining Cumulative Adjusted
Liquidity Capacity unless FIFO
Tangible Net Worth exceeds
$298,000,000 at such Determination
Date), minus
(i) the dollar amount by
which Consolidated Funded Debt at
such Determination Date exceeds 66-
2/3% of Net Worth at such date;
minus
(j) dividends declared by
the Company during such
Determination Period, minus
(k) Restricted Payments
(other than dividends declared by
the Company) which are made during
such Determination Period, minus
(l) the sum at such
Determination Date of (i) the
Company's Consolidated Funded
Short-Term Indebtedness other than
under this Agreement plus (ii) the
Company's Consolidated Indebtedness
for letters of credit (regardless
of the term thereof), issued other
than under this Agreement or the
Existing Agreement, minus
(m) the amount (measured
at book value) of the Company's
Permitted Investments during such
Determination Period in any
Unrestricted Subsidiaries (net of
any Consolidated liabilities of the
Company and its Consolidated
Subsidiaries from which they are
released in all respects due to the
assumption of such liabilities by
an Unrestricted Subsidiary).
"_______
Default" shall mean an Event of
Default or an event which with
notice or lapse of time or both
would become an Event of Default.
9
"_______________
Deferred Assets" means the
Company's Consolidated assets other
than (a) current assets, and (b)
fixed assets, plant and equipment
(including renewals, improvements
and replacements, and assets
attributed to deferred maintenance
turnarounds).
"____________________
Deferred Liabilities" means the
Company's Consolidated liabilities
other than (a) current liabilities,
and (b) Consolidated Funded Debt.
"_________________
Disclosure Letter" means the
letter of even date herewith from
the Company to the Banks, in which
the Company describes certain
matters relating to the
representations and warranties in
Sections 7.3, 7.11 or 7.16 hereof.
"_______
Dollars" and "_
$" shall mean
lawful money of the United States
of America.
"___________
Environment" shall mean any
environmental medium the condition
or use of which is regulated by any
government or agency thereof,
including soil, surface waters,
groundwaters, land, storm water run
off, stream and pond sediments,
surface or subsurface strata, and
ambient air.
"_______________________
Environmental Condition" shall
mean any condition with respect to
the Environment whether or not yet
discovered, which could or does
result in any damage, loss, cost,
or expense being incurred by, claim
or demand on, order to, or
liability of, the Company or any of
its Subsidiaries by or to any
government entity or other third
party, including any condition
resulting from any operations by
the Company or any of its
Subsidiaries.
"_________________
Environmental Law" shall mean
any statute, law, regulation, code,
plan, judgment, injunction, rule,
ordinance, order, decree, court
decision, or bylaw by any
government or agency of any
government (whether federal, state
or local), existing at any time
prior to and including the Closing
Date, which in any way regulates or
pertains to the use or condition of
the Environment.
"____________________
Environmental Permit" shall
mean any permit, license, approval,
consent or authorization issued
pursuant to or required to be
issued under any Environmental Law.
"_____________________
Environmental Release" shall
mean any releasing, spilling,
leaking, pumping, pouring,
emitting, emptying, discharging,
injecting, escaping, leaching,
disposing, or dumping into the
Environment, including any
abandonment or discarding of
barrels, containers, or other
receptacles containing any
Hazardous Material.
"____________________
Environmental Report" shall
mean any final written
investigation, study, audit, test,
review, or other analysis of
Environmental Conditions at any
property now or previously owned or
leased by the Company or its
Subsidiaries or of compliance with
any Environmental Permit or
Environmental Law by the Company or
any of its Subsidiaries, except for
any such final written document
which the Company or its
Subsidiaries treats as confidential
and which would be privileged from
disclosure under applicable rules
of evidence.
10
"_____
ERISA" shall mean the Employee
Retirement Income Security Act of
1974, as amended from time to time.
"_______________
ERISA Affiliate" shall mean any
corporation or trade or business
which is a member of the same
controlled group of corporations
(within the meaning of Section
414(b) of the Code) as the Company
or is under common control (within
the meaning of Section 414(c) of
the Code) with the Company.
"________________
Eurodollar Loans" shall mean
Loans the interest rates on which
are determined on the basis of
rates referred to in clause (a) of
the definition herein of "Fixed
Base Rate".
"________________
Event of Default" shall have
the meaning assigned to such term
in Section 9.1 hereof.
"__________________
Existing Agreement" shall mean
the Credit Agreement dated as of
May 10, 1993, among the Company and
the banks and the agents named
therein, as amended and in effect
on the Closing Date.
"___________________
Extension of Credit" shall mean
either the making by any Bank or
Banks of Loans hereunder or the
issuance by the Letter of Credit
Agent of a Letter of Credit
pursuant to Section 2.3(a) hereof.
"__________________
Federal Funds Rate" shall mean,
for any day, the rate per annum
(rounded upwards, if necessary, to
the nearest Basis Point) 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 (i) if the day for
which such rate is to be determined
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 (ii) if such rate
is not so published for any day,
the Federal Funds Rate for such day
shall be the average rate charged
to NationsBank on such day on such
transactions as determined by
NationsBank.
"______________________
FIFO Net Income (Loss)" shall
mean, for any period, the sum of:
(a) Adjusted Net Income
(Loss) for such period, plus
(minus)
11
(b) an amount equal to (i)
the Company's Consolidated LIFO
provision (recovery) for such
period, times (ii) the Tax
Adjustment Factor in effect at the
end of such period.
"_______________________
FIFO Tangible Net Worth" shall
mean, as at any date of
determination thereof, the sum of:
(a) Net Worth at such
date, minus
(b) the excess, if any, of
(i) all Intangible Assets of the
Company on a Consolidated basis,
over (ii) $20,000,000, plus
(c) an amount equal to the
product of (i) the Company's
Consolidated LIFO reserve at such
date, times (ii) the Tax Adjustment
Factor in effect at such date.
"____________________
Financial Compliance", and the
Company's being "____________
in Financial
__________
Compliance", shall mean, at any
date, that the Company and the
Consolidated Subsidiaries: (a) are
(with respect to any such date
which is the last day of a calendar
month), or were (with respect to
any other date) on the last day of
the calendar month immediately
preceding such date, in compliance
with the financial covenants set
out in Sections 8.19, 8.20, 8.21,
8.22, 8.23, 8.24, 8.25 and 8.26
hereof, and (b) have (with respect
to any such date which is the last
day of a calendar month), or had
(with respect to any other date) on
the last day of the calendar month
immediately preceding such date,
Cumulative Adjusted Liquidity
Capacity greater than zero. To the
extent that any provisions hereof
refer to the Company's being (or
not being) in Financial Compliance
before or after a specified event
(e.g. an incurrence of Indebtedness
referred to in Section 8.10, an
Investment referred to in Section
8.13 or 8.25, or a sale referred to
in Section 8.14) and such event
occurs on a date which is not the
last day of a calendar month, then
such Financial Compliance shall be
determined as of the end of the
calendar month immediately
preceding such event, giving effect
to such event on a pro-forma basis
as of the end of such preceding
calendar month.
"_______________
Fixed Base Rate" shall mean,
with respect to any Fixed Rate
Loan:
(a) if such Loan is a
Eurodollar Loan, the arithmetic
mean (rounded upwards, if
necessary, to the nearest 1/16 of
1%), as determined by the
Administrative Agent, of the rates
per annum quoted by the respective
Reference Banks at approximately
11:00 a.m. London time (or as soon
thereafter as practicable) on the
date two Business Days prior to the
first day of the Interest Period
for such Loan for the offering by
the respective Reference Banks to
leading banks in the London
interbank market of Dollar deposits
having a term comparable to such
Interest Period and in an amount
comparable to the principal amount
of the Eurodollar Loans to be made
by the respective Reference Banks
for such Interest Period; and
(b) if such Loan is a CD
Loan, the arithmetic mean (rounded
upwards, if necessary, to the
nearest 1/20 of 1%), as determined
by the Administrative Agent, of the
rates per annum determined by the
respective Reference Banks to be
the average of the bid rates quoted
to the respective Reference Banks
at approximately 10:00 a.m. New
York time (or as soon thereafter as
practicable) on the first day of
the Interest Period for such Loan
by at least two certificate of
deposit dealers of recognized
national standing selected by such
Reference Banks for the purchase at
face value of certificates of
deposit of the respective Reference
Banks having a term comparable to
such Interest Period, in an amount
comparable to the principal amount
of the CD Loans to be made by the
respective Reference Banks for such
Interest Period.
12
If any Reference Bank is not
participating in any Fixed Rate
Loan, the Fixed Base Rate for such
Loan shall be determined by
reference to the amount of the Loan
which such Reference Bank would
have made had it been participating
in such Loan. If any Reference
Bank does not timely furnish such
information for determination of
any Fixed Base Rate, the
Administrative Agent shall
determine such Fixed Base Rate on
the basis of information timely
furnished by the remaining
Reference Banks.
"__________
Fixed Rate" shall mean, for any
Fixed Rate Loan, a rate per annum
(rounded upwards, if necessary, to
the nearest Basis Point) determined
by the Administrative Agent to be
equal to (a) in the case of a CD
Loan, the sum of (i) the Fixed Base
Rate for such Loan for the Interest
Period for such Loan divided by 1
minus the Reserve Requirement for
such Loan for such Interest Period
____
plus (ii) the Assessment Rate for
such Interest Period and (b) in the
case of a Eurodollar Loan, the
Fixed Base Rate for such Loan for
the Interest Period for such Loan.
"________________
Fixed Rate Loans" shall mean CD
Loans and Eurodollar Loans.
"___________________
Funded Indebtedness" shall
mean, as to any Person, the sum of
(i) all Indebtedness of such Person
described in clause (a) of the
definition herein of "Indebtedness"
and (ii) all other Indebtedness of
such Person which bears or accrues
interest (whether such interest is
stated, or imputed, or otherwise
accrues in accordance with GAAP)
during any portion of the period
when such Indebtedness is
outstanding (without regard to
whether such interest is ever
actually paid or is ever deferred,
terminated or forgiven pursuant to
a workout or settlement or
otherwise).
"_____________________________
Funded Long-Term Indebtedness"
shall mean, as to any Person, all
Funded Indebtedness of such Person
which, by its terms or by the terms
of any instrument or agreement
relating thereto, either (a)
matures, or is otherwise payable or
unpaid, one year or more from the
date of the creation thereof, or
(b) is directly or indirectly
renewable or extendable at the
option of such Person (whether
under a revolving credit agreement
or otherwise) to a date one year or
more from the date of creation
thereof; provided that Indebtedness
of the Company under this Agreement
shall constitute Funded Short-Term
Indebtedness of the Company rather
than Funded Long-Term Indebtedness
of the Company.
13
"______________________________
Funded Short-Term Indebtedness"
shall mean, as to any Person, all
Funded Indebtedness of such Person
which, by its terms or by the terms
of any instrument or agreement
relating thereto, (a) is payable on
demand, or (b) matures or is
otherwise required to be
permanently repaid or retired less
than one year from the date of the
creation thereof and is not
directly or indirectly renewable or
extendable at the option of such
Person to a date one year or more
from the date of creation thereof.
"Funded Short-Term Indebtedness"
of a Person does not include any
current portion of such Person's
Funded Long-Term Indebtedness.
"____
GAAP" shall mean generally
accepted accounting principles
applied on a basis consistent with
those which, in accordance with the
last sentence of Section 1.2(a)
hereof, are to be used in making
the calculations for purposes of
determining compliance with the
terms of this Agreement.
"_________
Guarantee" shall have the
meaning assigned to such term in
Section 8.11 hereof.
"__________________
Hazardous Material" shall mean
any pollutant, toxic substance,
hazardous waste, hazardous
material, or hazardous substance as
defined in or pursuant to the
Resource Conservation and Recovery
Act, as amended, CERCLA, the
Federal Clean Water Act, as
amended, or any other Environmental
Law.
"_______________
Hazardous Waste" shall refer to
any Hazardous Material which has
ever been or at the time of the
Closing Date would be listed or
characterized as a hazardous waste
within the meaning of the Resource
Conservation and Recovery Act, as
amended, and any regulations,
guidances, or other interpretations
issued pursuant to such Act any
time prior to and including the
Closing Date.
"__________________
Hedging Obligation" shall mean
the obligation of any Person
pursuant to (a) any rate swap
agreement, basis swap agreement,
forward rate agreement, commodity
swap agreement, interest rate
option, forward foreign exchange
agreement, cap agreement, floor
agreement, collar agreement, cross-
currency rate swap agreement, or
currency option, (b) any option,
futures or forward contract traded
on an exchange, or (c) any other
derivative agreement or other
similar agreement or arrangement.
"_____
incur" shall have the meaning
ascribed thereto in Section 8.10
hereof; provided that (a) with
respect to any Indebtedness of any
Consolidated Subsidiary that is
owing to the Company or to another
Consolidated Subsidiary, any
disposition, pledge or transfer of
such Indebtedness by the payee of
such Indebtedness to any Person
(other than the Company or a
Consolidated Subsidiary) shall be
deemed to be an incurrence of such
Indebtedness by the payor
Consolidated Subsidiary, (b) with
respect to any Indebtedness of the
Company or any Consolidated
Subsidiary that is owing to a
Consolidated Subsidiary, any
transaction pursuant to which the
payee of such Indebtedness ceases
to be a Consolidated Subsidiary
shall be deemed to be an incurrence
of such Indebtedness by the Company
or the payor Consolidated
Subsidiary, and (c) with respect to
all Indebtedness owed to any Person
by an Unrestricted Subsidiary which
is converted to a Restricted
Subsidiary as provided herein, such
Indebtedness shall be deemed to be
incurred by such Restricted
Subsidiary at the time of such
conversion.
14
"____________
Indebtedness" shall mean, as to
any Person:
(a) indebtedness created,
issued or incurred by such Person
for borrowed money (whether by loan
or the issuance and sale of notes
or other debt securities);
(b) obligations of such
Person to pay the deferred purchase
or acquisition price of property or
services, other than trade accounts
payable (other than for borrowed
money) arising, and accrued
expenses incurred, in the ordinary
course of business so long as such
trade accounts payable are payable
within 90 days of the date the
respective goods are delivered or
respective services rendered;
(c) the excess of all
Unfunded Vested Liabilities of such
Person over the amount by which all
Plans are overfunded;
(d) Indebtedness of others
secured by a Lien on the property
of such Person, whether or not the
respective Indebtedness so secured
has been assumed by such Person;
(e) obligations of such
Person in respect of letters of
credit, surety bonds (other than
worker's compensation bonds and
fuel distributor's bonds) or
similar instruments issued or
accepted by banks and other
financial institutions for the
account of such Person;
(f) all obligations of
such Person arising under
acceptance facilities;
(g) Capitalized Lease
Obligations of such Person;
(h) all Guarantees of such
Person (other than Guarantees
permitted to be incurred by the
Company or a Subsidiary pursuant to
Section 8.11 hereof);
15
(i) the unearned balance
of any advance payment received by
such Person under any contract to
be performed; and
(j) all Hedging
Obligations of such Person.
As used herein, Indebtedness
with respect to any Hedging
Obligation shall mean, with respect
to any specified Person on any
date, the net amount (if any) that
would be payable by such specified
Person upon the liquidation, close-
out or early termination of a
Hedging Obligation and will be
calculated by the Company in good
faith and in a commercially
reasonable manner on the basis that
such liquidation, close-out or
early termination results from an
event of default or other similar
event with respect to such
specified Person.
"___________________
Indemnified Parties" shall mean
each Bank Party, each Affiliate of
any Bank Party, and each director,
officer, agent, employee, or
representative of any Bank Party or
any Affiliate of any Bank Party.
"__________________________
Insurance Letter of Credit"
shall mean a Standby Letter of
Credit which is used to satisfy
bonding requirements which are
applicable to the Company and the
Consolidated Subsidiaries in the
ordinary course of their business,
or which is used to support
performance obligations relating to
insurance which are incurred by the
Company and the Consolidated
Subsidiaries in the ordinary course
of their business.
"_________________
Intangible Assets" shall mean,
on any date of determination
thereof, with respect to any
Person, the book value of all
property held by such Person that
would be treated as intangibles
under GAAP, including goodwill,
patents, trademarks and other such
intangibles.
"_______________
Interest Period" shall mean:
(a) With respect to any
Eurodollar Loan, the period
commencing on the date such
Eurodollar Loan is made and ending
on the numerically corresponding
day in the first, second, third or
sixth calendar month thereafter, as
the Company may select as provided
in Section 2.2 hereof, except that
each such Interest Period which
commences on the last Business Day
of a calendar month (or on any day
for which there is no numerically
corresponding day in the
appropriate subsequent calendar
month) shall end on the last
Business Day of the appropriate
subsequent calendar month;
(b) With respect to any CD
Loan, the period commencing on the
date such CD Loan is made and
ending on the day 30, 60, 90 or 180
days thereafter, as the Company may
select as provided in Section 2.2
hereof; and
16
(c) With respect to any
Base Rate Loan, the period
commencing on the date such Base
Rate Loan is made and ending on the
date 30 days thereafter.
Notwithstanding the foregoing:
(i) no Interest Period may commence
before and end after the Commitment
Termination Date; (ii) each
Interest Period which would
otherwise end on a day which is not
a Business Day shall end on the
next succeeding Business Day (or,
in the case of an Interest Period
for Eurodollar Loans, if such next
succeeding Business Day falls in
the next succeeding calendar month,
on the next preceding Business
Day); and (iii) notwithstanding
clause (i) above, no Interest
Period for any Fixed Rate Loans
shall have a duration of less than
one month (in the case of
Eurodollar Loans) or 30 days (in
the case of CD Loans) and, if the
Interest Period for any Fixed Rate
Loans would otherwise be a shorter
period, such Loans shall not be
available hereunder.
"__________________________
Inventory Letter of Credit"
shall mean either (a) a Standby
Letter of Credit used to finance
the purchase of crude oil, refined
products, or other inventory by the
Company and the Consolidated
Subsidiaries, or (b) a commercial
Letter of Credit used by the
Company and the Consolidated
Subsidiaries for any purpose in the
ordinary course of their business.
"__________
Investment" shall mean, with
respect to any Person, directly or
indirectly, any advance, loan
(including Guarantees) or other
extension of credit or capital
contribution to any other Person
(by means of any transfer of cash
or other property to others or any
payment for property or services
for the account or use of others,
but excluding any such advance,
loan or extension of credit having
a term not exceeding 60 days
representing the purchase price of
inventory or supplies purchased in
the ordinary course of business),
or any purchase, acquisition or
ownership by such Person of any
stock, bonds, notes, debentures or
other securities issued by any
other Person and all other items
that would be classified as
investments on a balance sheet
prepared in accordance with GAAP.
"________________
Letter of Credit" shall have
the meaning given to such term in
Section 2.3(a) hereof.
"__________________________
Letter of Credit Documents"
shall mean, with respect to any
Letter of Credit, collectively,
such Letter of Credit, any
amendments thereto, any documents
delivered thereunder, any
application therefor, and any other
agreements, instruments, guaranties
or other documents (whether general
in application or applicable solely
to such Letter of Credit) governing
or providing for (a) the rights and
obligations of the parties
concerned or at risk or (b) any
collateral security for such
obligations.
17
"____________________________
Letter of Credit Liabilities"
shall mean, at any time and in
respect of any Letter of Credit,
the sum of (a) the undrawn face
amount of such Letter of Credit,
plus (b) the aggregate unpaid
amount of all Reimbursement
Obligations at the time due and
payable in respect of drawings made
under such Letter of Credit. For
purposes hereof, each Bank
(including the Bank acting as
Letter of Credit Agent) shall be
deemed to hold Letter of Credit
Liabilities in respect of each
Letter of Credit in an amount equal
to its Percentage of the amount of
each Letter of Credit and any
related Reimbursement Obligations.
"____
Lien" shall mean, with respect
to any asset, any mortgage, lien,
pledge, charge, security interest
or encumbrance of any kind in
respect of such asset. For
purposes of this Agreement, the
Company or any of its Subsidiaries
shall be deemed to own subject to a
Lien any asset which it has
acquired or holds subject to the
interest of a vendor or lessor
under any conditional sale
agreement, capital lease or other
title retention agreement relating
to such asset.
"______________
Loan Documents" shall mean (a)
this Agreement, (b) the Notes, (c)
all Letter of Credit Documents, (d)
all certificates of the Company's
officers furnished under this
Agreement or any Letter of Credit
Documents, and (e) all other
documents of any kind which are now
or hereafter executed by the
Company or any of its Subsidiaries
and which state that they are Loan
Documents as defined in this
Agreement, as all of the foregoing
are amended, supplemented, or
restated from time to time.
"_____
Loans" shall mean the loans
provided for in Section 2.1 hereof.
"______________
Majority Banks" shall mean, at
any time, Banks having at least 66-
2/3% of the aggregate amount of the
Commitments in effect at such time;
provided that, if the Commitments
shall have been terminated or
reduced to zero, Majority Banks
shall mean Banks holding at least
66-2/3% of the aggregate unpaid
principal amount of the Loans and
the Letter of Credit Liabilities
outstanding at such time, and for
purposes hereof, a Bank (other than
the Bank acting as Letter of Credit
Agent) shall be deemed to hold a
Letter of Credit Liability
hereunder in an amount equal to its
participation interest in the
related Letter of Credit under
Section 2.3 hereof, and the Bank
acting as Letter of Credit Agent
shall be deemed to hold a Letter of
Credit Liability hereunder in an
amount equal to its retained
interest in the related Letter of
Credit after giving effect to the
acquisition by the other Banks of
their participation interests under
such Section 2.3.
"____________
Margin Stock" shall mean margin
stock within the meaning of
Regulations U and X.
"______________________________
Miscellaneous Letter of Credit"
shall mean a Standby Letter of
Credit which is used by the Company
and the Consolidated Subsidiaries
for working capital or other short
term purposes in the ordinary
course of their business but which
is neither an Insurance Letter of
Credit nor an Inventory Letter of
Credit. For the purposes of this
definition, use of a Letter of
Credit to support obligations for
Funded Indebtedness or obligations
in connection with the sale of
accounts receivable shall not be
considered to be in the ordinary
course of business.
18
"_______
Moody's" shall mean Moody's
Investors Service, Inc., or any
successor rating agency.
"__________________
Multiemployer Plan" shall mean
a multiemployer plan defined as
such in Section 3(37) of ERISA to
which contributions have been made
by the Company or any ERISA
Affiliate and which is covered by
Title IV of ERISA.
"___________
NationsBank" shall mean
NationsBank of Texas, N.A. (or any
successor thereto).
"_________
Net Worth" shall mean, as at
any date of determination thereof,
the Company's Consolidated
stockholders' equity, excluding any
portion thereof consisting of
preferred stock which has mandatory
sinking fund or redemption
provisions which could require
payments to be made by the Company
or any Consolidated Subsidiary
prior to the 91st day after the
Commitment Termination Date.
"________________________
Nonrecourse Indebtedness" shall
mean Indebtedness owed by an
Unrestricted Subsidiary, provided
that neither the Company nor any
Restricted Subsidiary may have any
liability or obligation in
connection with such Indebtedness
(including any liability or
obligation as a co-maker, under any
Guarantee, or under any indemnity
or undertaking given to the holder
of such Indebtedness, to such
Unrestricted Subsidiary or to any
other Person).
"_____
Notes" shall mean the
promissory notes provided for by
Section 2.8 hereof.
"___________
Obligations" shall mean,
collectively: (a) the obligations
of the Company hereunder in respect
of the principal of and interest on
the Loans; (b) the Letter of Credit
Liabilities and all interest on the
Letter of Credit Liabilities; (c)
the obligations of the Company in
respect of fees, reimbursements,
indemnities, and all other amounts
payable by the Company to the Bank
Parties or the Indemnified Parties
under any of the Loan Documents;
and (d) to the extent that any
Subsidiaries of the Company ever
become liable to any Bank Party
under any Loan Document, the
obligations of such Subsidiaries
under the Loan Documents.
"____________
Participants" shall have the
meaning given to such term in
Section 11.6(d) hereof.
19
"________________
Participant Bank" shall mean,
with respect to each Letter of
Credit, each Bank other than the
Letter of Credit Agent.
"____
PBGC" shall mean the Pension
Benefit Guaranty Corporation or any
entity succeeding to any or all of
its functions under ERISA.
"__________
Percentage" shall mean, as to
any Bank at the time in question,
the quotient of (a) such Bank's
Commitment at such time, divided by
(b) the aggregate amount of the
Commitments at such time.
"_____________________
Permitted Investments" shall
mean:
(a) purchases of Senior
Notes required under the Senior
Notes Indenture;
(b) Temporary Cash
Investments;
(c) Investments in
existence on the date of this
Agreement (but not any increases
thereof unless such increases
otherwise constitute Permitted
Investments);
(d) advances of
Indebtedness permitted to be
incurred under Section 8.10(f);
(e) Investments in any
Consolidated Subsidiary or any
Person which, as a result of such
Investment, becomes a wholly owned
Consolidated Subsidiary; provided
that such Subsidiary is engaged in
a business that is reasonably
related to the business of the
Company and the Consolidated
Subsidiaries on the date of this
Agreement;
(f) capital contributions
to Unrestricted Subsidiaries to the
extent permitted under Section 8.25
hereof; and
(g) other investments that
do not exceed $15,000,000 in the
aggregate at any one time
outstanding in joint ventures,
corporations, limited liability
companies or partnerships engaged
in a business that is reasonably
related to the business of the
Company and the Consolidated
Subsidiaries on the date of this
Agreement.
"______
Person" shall mean any
individual, corporation, company,
voluntary association, partnership,
joint venture, trust,
unincorporated organization or
government (or any agency,
instrumentality or political
subdivision thereof).
"____
Plan" shall mean an employee
benefit or other plan established
or maintained by the Company or any
ERISA Affiliate and which is
covered by Title IV of ERISA,
excluding any Multiemployer Plan
but including any such employee
benefit or other plan covered by
Title IV of ERISA which is
maintained by a former ERISA
Affiliate and for which the Company
or any of its Subsidiaries has any
actual or contingent liability.
20
"_________________
Post-Default Rate" shall mean,
in respect of any principal of any
Loan or any other amount payable by
the Company under this Agreement or
any Note that is not paid when due
(whether at stated maturity, by
acceleration or otherwise), a rate
per annum during the period from
and including the due date to but
excluding the date on which such
amount is paid in full equal to 2%
per annum above the Base Rate as in
effect from time to time (provided
that, if the amount so in default
is principal of a Fixed Rate Loan
and the due date thereof is a day
other than the last day of the
Interest Period therefor, the
"Post-Default Rate" for such
principal shall be, for the period
from and including the due date to
but excluding the last day of the
Interest Period therefor, 2% per
annum above the interest rate for
such Loan as provided in Section
3.2 hereof and, thereafter, the
rate provided for above in this
definition).
"____________
Pricing Grid" shall mean Table
1 in Schedule 1 hereto whenever the
sum of the aggregate outstanding
principal amount of Loans and the
aggregate outstanding amount of all
Letter of Credit Liabilities is
less than or equal to $65,000,000
and Table 2 in Schedule 1 hereto
whenever the sum of the aggregate
outstanding principal amount of
Loans and the aggregate outstanding
amount of all Letter of Credit
Liabilities exceeds $65,000,000.
"__________
Prime Rate" shall mean the rate
of interest established by
NationsBank from time to time as
its "prime rate". Such rate is set
by NationsBank as a general
reference rate of interest, taking
into account such factors as it may
deem appropriate, it being
understood that many of
NationsBank's commercial or other
loans are priced in relation to
such rate, that it is not
necessarily the lowest or the best
rate actually charged to any
customer, that it may not
correspond with further increases
or decreases in interest rates
charged by other lenders or market
rates in general, and that
NationsBank may make various
commercial or other loans at rates
of interest having no relationship
to such rate. If NationsBank's
"prime rate" changes after the date
hereof, the Prime Rate shall be
automatically increased or
decreased, as the case may be,
without notice to the Company from
time to time as of the effective
time of each change in
NationsBank's "prime rate".
"________________
Principal Office" shall mean
the principal office of the
Administrative Agent, the Letter of
Credit Agent, or NationsBank, as
the case may be, all of which
principal offices are presently
located at 901 Main Street, Dallas,
Texas 75202.
"_____________
Process Agent" shall mean
Corporation Service Company, or
such other Person which, from time
to time, shall be nominated by the
Company and approved by the
Administrative Agent to serve as
Process Agent hereunder and which
shall consent in writing so to
serve.
21
"__________________________
Product Hedging Obligation"
shall mean any Hedging Obligation
relating to the prices applicable
to the existing or reasonably
anticipated requirements (for the
reasonable operations of the two
lines of business of the Company
and its Consolidated Subsidiaries)
of the Company and its Consolidated
Subsidiaries of crude oil, other
feedstocks, other petroleum
products, or additives thereto or
components thereof or their
reasonably anticipated requirements
for energy supplies.
"___________________________
Purchase Money Indebtedness"
shall mean (a) Indebtedness of the
Company or a Consolidated
Subsidiary incurred to finance the
cost (including the cost of
improvement) of the acquisition or
construction in the ordinary course
of business of real or tangible
personal property constituting
fixed assets, plant or equipment,
provided that such Indebtedness is
incurred no later than 90 days
after such acquisition or
construction is completed, and (b)
Indebtedness of the Company or a
Consolidated Subsidiary incurred to
refinance Indebtedness described in
clause (a) of this definition,
provided that the Indebtedness so
incurred is less than or equal to
the outstanding balance, at the
time of refinancing, of the
Indebtedness being refinanced.
"___________________
Purchase Money Lien" means (a)
any Lien on real or tangible
personal property constituting
fixed assets, plant or equipment of
the Company or a Consolidated
Subsidiary which Lien secures only
Purchase Money Indebtedness (and
associated interest, fees and
costs) incurred to finance or
refinance the cost of acquiring or
constructing such property, (b) any
Lien on any such acquired property
of the Company or a Consolidated
Subsidiary which already burdens
such property at the time of such
acquisition, (c) any Lien incurred
in connection with the acquisition
of any such property by the Company
or a Consolidated Subsidiary
pursuant to any conditional sale or
other title retention agreement, or
(d) the rights of the lessor
pursuant to any lease of any such
property under which the lessee is
the Company or a Consolidated
Subsidiary and the lessee's
payments are Capitalized Lease
Obligations, provided that:
(1) any property subject to any
such Lien is acquired or
constructed by the Company or a
Consolidated Subsidiary in the
ordinary course of its business and
such Lien is created or assumed
contemporaneously with such
acquisition or construction or
within 90 days after the completion
thereof (provided that any such
Lien securing Purchase Money
Indebtedness incurred in a
refinancing described in clause (b)
of the definition herein of
"Purchase Money Indebtedness" may
also be created contemporaneously
with such refinancing);
22
(2) the obligations secured by
any such Lien do not exceed 100% of
the lesser of the cost or fair
market value of the property
subject thereto as of the time such
acquisition or construction is
completed;
(3) any such Lien burdens only
the property so acquired or
constructed and fixed improvements
thereon or accessions thereto;
(4) the Indebtedness secured by
all such Liens does not exceed
$25,000,000 at any time outstanding
in the aggregate; and
(5) the obligations secured by
each such Lien are permitted to be
incurred under Section 8.10(d)
hereof.
"_______________________
Quarterly Payment Dates" shall
mean the last day of March, June,
September, and December in each
year, the first of which shall be
the first such day after the date
of this Agreement; provided that if
any such day is not a Business Day,
then such Quarterly Payment Date
shall be the next succeeding
Business Day.
"_______________________
Rate Hedging Obligation" shall
mean any Hedging Obligation
relating to interest rates.
"_______________
Reference Banks" shall mean
NationsBank and the Agents (or
their Applicable Lending Offices,
as the case may be).
"_____________
Regulation D", "____________
Regulation U"
and "____________
Regulation X" shall mean,
respectively, Regulations D, U and
X of the Board of Governors of the
Federal Reserve System (or any
successor), as the same may be
amended or supplemented from time
to time.
"_________________
Regulatory Change" shall mean,
with respect to any Bank, any
change after the date of this
Agreement in United States Federal,
state or foreign law or regulations
(including Regulation D) or the
adoption or making after such date
of any interpretation, directive or
request applying to a class of
banks including such Bank of or
under any United States Federal,
state or foreign law or regulations
(whether or not having the force of
law) by any court or governmental
or monetary authority charged with
the interpretation or
administration thereof.
"_________________________
Reimbursement Obligations"
shall mean, at any time,
collectively, the obligations of
the Company then outstanding, or
which may thereafter arise in
respect of Letters of Credit then
outstanding, to reimburse the
Letter of Credit Agent and the
Banks under Section 2.3(b)(v)
hereof for the amounts paid by them
in respect of drawings under
Letters of Credit.
"_____________________
Reimbursement Payment" shall
have the meaning given to that term
in Section 2.3(b)(v) hereof.
23
"___________________
Reserve Requirement" shall
mean, for any Interest Period for
any CD Loan, the average maximum
rate at which reserves (including
any marginal, supplemental or
emergency reserves) are required to
be maintained during such Interest
Period under Regulation D by member
banks of the Federal Reserve System
in New York City with deposits
exceeding one billion Dollars
against non-personal Dollar time
deposits in an amount of $100,000
or more. Without limiting the
effect of the foregoing, the
Reserve Requirement shall include
any other reserves required to be
maintained by such member banks by
reason of any Regulatory Change
against (i) any category of
liabilities which includes deposits
by reference to which the Fixed
Base Rate for CD Loans is to be
determined as provided in the
definition herein of "Fixed Base
Rate" or (ii) any category of
extensions of credit or other
assets which includes CD Loans.
"___________________
Restricted Payments" shall
mean, during any "Determination
Period" (as defined in the
definition herein of "Cumulative
Adjusted Liquidity Capacity"), all
dividends (in cash, property,
obligations or other securities)
on, or other payments or
distributions on account of, or
payments for, or the setting apart
of money for a sinking or other
analogous fund for, the purchase,
redemption, retirement or other
acquisition of, any shares of any
class of stock of the Company, but
excluding dividends payable solely
in shares of common stock of the
Company and newly issued shares of
common stock of the Company sold by
the Company pursuant to any stock
option or benefit plan maintained
for its employees, officers or
directors. To the extent that, in
any such "Determination Period",
the Company repurchases shares of
its common stock and then resells
such shares pursuant to any such
stock option or benefit plan, such
transactions shall increase the
amount of "Restricted Payments"
during such Determination Period
only to the extent that the price
paid by the Company in making such
repurchase (including any
commissions and other costs)
exceeds the price received by the
Company in making such resale (net
of any commissions and other
costs).
"_____________________
Restricted Subsidiary" shall
mean any Subsidiary of the Company
which is not an Unrestricted
Subsidiary. On the date hereof,
all Subsidiaries of the Company are
Restricted Subsidiaries.
"____________
Senior Notes" shall mean the
Company's 10-7/8% Senior Notes due
2005 which are issued under the
Senior Notes Indenture.
"______________________
Senior Notes Indenture" shall
mean that certain Indenture dated
as of January 24, 1995, between the
Company, as Issuer, and The First
National Bank of Boston, as
Trustee, as such Indenture is from
time to time supplemented, amended
or restated.
"________________________
Standby Letter of Credit" shall
mean a Letter of Credit determined
by the Letter of Credit Agent to be
a "standby letter of credit" within
the meaning of that term as set
forth in the applicable rulings and
interpretations of the Comptroller
of the Currency as in effect from
time to time.
24
``___
S&P'' shall mean Standard &
Poor's Ratings Group, a division of
McGraw Hill Inc., or any successor
rating agency.
"__________
Subsidiary" shall mean, as to
any Person, any corporation of
which at least a majority of the
outstanding shares of stock having
by the terms thereof ordinary
voting power to elect a majority of
the board of directors of such
corporation (irrespective of
whether or not at the time stock of
any other class or classes of such
corporation shall have or might
have voting power by reason of the
happening of any contingency) is at
the time directly or indirectly
owned or controlled by such Person
or one or more of its Subsidiaries
or by such Person and one or more
of its Subsidiaries. Unless
otherwise specified herein,
references to "__________
Subsidiary" or
"____________
Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the
Company.
"_____________________
Tax Adjustment Factor" shall
mean, during any calendar year, the
remainder, expressed as a
percentage, of 1 minus the highest
federal corporate income tax rate
for such year.
"__________________________
Temporary Cash Investments"
shall mean:
(a) direct obligations of
the United States of America or any
agency thereof with maturities of
one year or less from the date of
acquisition;
(b) commercial paper (or
other instruments with an original
maturity of one year or less) of a
domestic issuer rated at least A-2
by S&P or P-2 by Moody's;
(c) eurodollar time
deposits rated at least A-2 by S&P
or P-2 by Moody's in an amount not
exceeding $10,000,000;
(d) municipal bonds or
notes with maturities of six months
or less rated A or better by S&P or
Moody's or guaranteed by a Bank or
by one or more banks rated AAA by
S&P or Aaa by Moody's;
(e) certificates of
deposit with maturities of one year
or less from the date of
acquisition issued either by any
commercial bank operating within
the United States of America having
capital and surplus in excess of
$100,000,000 or by a Bank;
(f) participations in or
notes evidencing loans made by any
Bank to any corporation organized
under the laws of the United States
of America or any state thereof
having a commercial paper rating of
at least A-2 by S&P or P-2 by
Moody's or a bond rating of at
least BBB by S&P or Baa2 by
Moody's; and
25
(g) any shares in an open-
end mutual fund organized by a bank
or financial institution with a
combined capital and surplus of at
least $100,000,000 investing solely
in Investments permitted by the
foregoing clauses (a), (b), (c),
(d), (e) and (f).
"___
UCP" shall mean the Uniform
Customs and Practice for
Documentary Credits (1993
revision), International Chamber of
Commerce Publication No. 500 (or
any successor publication of the
International Chamber of Commerce),
as amended and in effect from time
to time.
"___________________________
Unfunded Vested Liabilities"
shall mean, with respect to any
Plan, the amount (if any) by which
the present value of all vested
benefits under such Plan exceeds
the fair market value of all Plan
assets allocable to such benefits,
as determined on the most recent
valuation date of such Plan and in
accordance with the provisions of
ERISA for calculating the potential
liability of the Company or any
ERISA Affiliate to PBGC or such
Plan under Title IV of ERISA.
"_______________________
Unrestricted Subsidiary" shall
mean any Subsidiary of the Company
which is designated as such by the
Company to the Bank Parties,
provided that:
(a) no such designation
may be made by the Company during
the continuance of any Default or
when the Company is not in
Financial Compliance;
(b) no such designation
may be made by the Company with
respect to any Subsidiary of the
Company which has engaged in
business prior to the time of
designation; and
(c) no Subsidiary of the
Company may be designated as an
Unrestricted Subsidiary if it has
at any time received capital
contributions or other transfers of
assets from the Company or any
Restricted Subsidiary other than
(i) the minimum amount required by
law upon the initial issuance of
stock by such Unrestricted
Subsidiary, and (ii) a single
capital contribution prior to or at
the time such Unrestricted
Subsidiary first engages in
business, so long as (A) the making
of such capital contribution does
not cause a Default to occur or
cause the Company not to be in
Financial Compliance immediately
thereafter, and (B) such capital
contribution does not constitute an
"Asset Sale" under clauses (a) or
(b) of the definition herein of
such term.
26
1.2 ____________________
Accounting Terms and
______________
Determinations.
(a) Except as otherwise
expressly provided herein, all
accounting terms used herein shall
be interpreted, and all financial
statements and certificates and
reports as to financial matters
required to be delivered to the
Bank Parties hereunder shall
(unless otherwise disclosed in
writing at the time of delivery
thereof in the manner described in
subsection (b) below) be prepared,
in accordance with generally
accepted accounting principles
applied on a basis consistent with
those used in the preparation of
the annual financial statements
referred to in Section 7.2 hereof
or, if financial statements have
theretofore been furnished to the
Banks under Section 8.8(a) or (b)
hereof, the latest such financial
statements. All calculations made
for the purposes of determining
compliance with the terms of this
Agreement shall (except as
otherwise expressly provided
herein) be made by application of
generally accepted accounting
principles applied on a basis
consistent with those used in the
preparation of the annual financial
statements referred to in Section
7.2 hereof or, if financial
statements have theretofore been
furnished to the Bank under Section
8.8(a) or (b) hereof, the latest
such financial statements, unless
(i) the Company shall have objected
in writing to determining such
compliance on such basis at the
time of delivery of such financial
statements furnished to the Banks
pursuant to Section 8.8(a) or (b)
hereof or (ii) the Majority Banks
shall have objected in writing to
so determining such compliance
within 30 days after delivery of
such financial statements, in
either of which events such
calculations shall be made on a
basis consistent with those used in
the preparation of the latest
financial statements as to which
such objection shall not have been
made (which, if objection is made
in respect of the first financial
statements delivered under Section
8.8(a) or (b) hereof, shall mean
the annual financial statements
referred to in Section 7.2 hereof).
(b) The Company shall
deliver to the Banks at the same
time as the delivery of any annual
or quarterly financial statements
under Section 8.8(a) or (b) hereof
a description in reasonable detail
of any material variation between
the accounting principles employed
in the preparation of such
statement and the accounting
principles employed in the
preparation of the next preceding
annual or quarterly financial
statements as to which no objection
has been made in accordance with
the last sentence of subsection (a)
above, and reasonable estimates of
the difference between such
statements arising as a consequence
thereof.
(c) To enable the ready
and consistent determination of
compliance with the provisions of
this Agreement, the Company will
not change the last day of its
fiscal year from December 31, or
the last day of the first three
fiscal quarters in each of its
fiscal years from March 31, June 30
and September 30, respectively.
27
(d) Notwithstanding
anything to the contrary in
subsection (a) of this Section 1.2
or in generally accepted accounting
principles, whenever any Subsidiary
of the Company is an Unrestricted
Subsidiary such Unrestricted
Subsidiary shall be excluded from
all calculations made for the
purposes of determining compliance
with the terms of this Agreement
and the Company's Investments
therein (and share of the earnings
thereof) shall be deemed to be zero
for the purposes of determining
Cumulative Adjusted Liquidity
Capacity and the Company's
compliance with Sections 8.19
through and including 8.24 hereof.
If any Unrestricted Subsidiary is
converted to a Restricted
Subsidiary, however, then for the
purposes of all calculations which
are to be made under this Agreement
with respect to the time of such
conversion or any time thereafter
(including the calculations which
are to be made under Section 8.25
hereof to determine whether the
Company is in Financial Compliance
immediately after giving effect to
such conversion) such new
Restricted Subsidiary shall be
deemed to have been Consolidated
with the Company throughout the
entire period during which such
Subsidiary shall have been in
existence as a Subsidiary of the
Company.
(e) To the extent that two
or more of the Company and its
Consolidated Subsidiaries are
liable for the same item of
Indebtedness or other obligation
(whether as co-makers, principal
and guarantor, or otherwise), such
item of Indebtedness or other
obligation shall be calculated
without duplication in determining
(i) compliance with the financial
covenants set out in Sections 8.19,
8.20, 8.21, 8.22, 8.23, and 8.24
hereof, (ii) Cumulative Adjusted
Liquidity Capacity, and (iii) the
factors taken into account in
determining "Debt/Cash Flow" as
defined in Schedule 1 hereto.
(f) Set out on Schedule 4
hereto are calculations as of June
30, 1995, of Cumulative Adjusted
Liquidity Capacity, of "Debt/Cash
Flow" as defined in Schedule 1
hereto, and of the matters
addressed in Sections 8.19 through
and including 8.24 hereof, which
calculations illustrate how all of
such matters are to be calculated
in accordance with this Agreement.
The Company hereby represents and
warrants that the information used
in making such calculations is true
and correct in all material
respects as of June 30, 1995.
SECTION 1.3 __________________
Certain References
_________
and Terms. All references in this
Agreement to Exhibits, Schedules,
articles, sections, subsections and
other subdivisions refer to the
Exhibits, Schedules, articles,
sections, subsections and other
subdivisions of this Agreement
unless expressly provided
otherwise. Titles appearing at the
beginning of any subdivisions are
for convenience only and do not
constitute any part of such
subdivisions and shall be
disregarded in construing the
language contained in such
subdivisions. The words "this
Agreement", "this instrument",
"herein", "hereof", "hereby",
"hereunder" and words of similar
import refer to this Agreement as a
whole and not to any particular
subdivision unless expressly so
limited. The phrases "this
section" and "this subsection" and
similar phrases refer only to the
sections or subsections hereof in
which such phrases occur. The word
"or" is not exclusive, and the word
"including" (in its various forms)
means "including without
limitation". Pronouns in
masculine, feminine and neuter
genders shall be construed to
include any other gender, and words
in the singular form shall be
construed to include the plural and
vice versa, unless the context
otherwise requires.
SECTION 2 ___________
Commitments.
2.1 _____
Loans. Each Bank severally
agrees, on the terms of this
Agreement, to make loans to the
Company in Dollars (herein called
the "Loans") during the period from
and including the date hereof to
but not including the Commitment
Termination Date in an aggregate
principal amount at any one time
outstanding up to but not exceeding
the amount of such Bank's
Commitment as then in effect.
Subject to the terms of this
Agreement, during such period the
Company may borrow, repay and
reborrow Loans, provided that:
28
(a) after giving effect to
such Loans, the aggregate
outstanding principal amount of
Loans and the aggregate outstanding
amount of all Letter of Credit
Liabilities must not exceed the
aggregate amount of the
Commitments,
(b) Cumulative Adjusted
Liquidity Capacity must exceed zero
after giving effect to such Loans
on a pro-forma basis as of the end
of the immediately preceding
calendar month,
(c) at the time of any
borrowing or reborrowing of Loans,
the Company must reasonably expect
that Cumulative Adjusted Liquidity
Capacity will exceed zero at the
end of the fiscal quarter in which
such Loans are made,
(d) there may be no more
than ten different Interest Periods
for Loans outstanding at the same
time (for which purpose Interest
Periods described in different
lettered clauses of the definition
herein of the term "Interest
Period" shall be deemed to be
different Interest Periods even if
they are coterminous),
(e) the borrowing of such
Loans by the Company must then be
permitted under the Senior Notes
Indenture, and
(f) the various conditions
in Section 6 hereof must be
satisfied.
The Loans may be Base Rate
Loans, CD Loans or Eurodollar Loans
(each a "____
type" of Loan).
2.2 __________
Borrowings. The Company
shall give the Administrative Agent
(which shall promptly notify the
Banks) written notice (or
telephonic notice immediately
confirmed in writing) of each
borrowing of Loans hereunder, which
notice shall be irrevocable and
effective only upon receipt by the
Administrative Agent, shall specify
(i) the aggregate amount thereof
(which shall be $5,000,000 or a
higher integral multiple of
$1,000,000), (ii) the type and date
thereof (which shall be a Business
Day) and (iii) (in the case of
Fixed Rate Loans) the duration of
the Interest Period therefor and
shall be given not later than 9:30
a.m. Dallas time (in the case of
Base Rate Loans) or 10:00 a.m.
Dallas time (in the case of Loans
other than Base Rate Loans) on the
day which is not less than the
number of Business Days prior to
the date of such borrowing
specified below opposite the type
of such Loans:
29
________
Type _______________________
Number of Business Days
Base Rate Loans same day
CD Loans 2
Eurodollar Loans 3
Each such written notice or
confirmation shall be in the form
of a Credit Certificate; each such
telephonic notice shall constitute
a representation and warranty of
the Company as described in 6.2
hereof. Not later than noon Dallas
time on the date specified for each
borrowing, each Bank shall make
available the amount of the Loan to
be made by it on such date to the
Administrative Agent at an account
from time to time specified by the
Administrative Agent at its
Principal Office, in immediately
available funds, for the account of
the Company. The amount so
received by the Administrative
Agent shall, subject to the terms
and conditions of this Agreement,
be made available to the Company by
depositing the same, in immediately
available funds, in an account of
the Company maintained with the
Administrative Agent at its
Principal Office, such account to
be designated by the Company.
2.3 _________________
Letters of Credit.
(a) _________________
Letters of Credit.
The Letter of Credit Agent agrees,
on the terms of this Agreement, to
issue letters of credit (such
letters of credit, as amended and
in effect from time to time, being
herein called "Letters of Credit")
for the account of the Company
during the period from and
including the Closing Date to and
including the date five Business
Days preceding the Commitment
Termination Date, provided that:
(i) after giving
effect to the issuance of such
Letters of Credit, the aggregate
outstanding principal amount of
Loans and the aggregate outstanding
amount of all Letter of Credit
Liabilities must not exceed the
aggregate amount of the
Commitments,
(ii) Cumulative
Adjusted Liquidity Capacity must
exceed zero after giving effect to
the issuance of such Letters of
Credit on a pro-forma basis as of
the end of the immediately
preceding calendar month,
(iii) at the time of
the issuance of such Letters of
Credit, the Company must reasonably
expect that Cumulative Adjusted
Liquidity Capacity will exceed zero
at the end of the fiscal quarter in
which such Letters of Credit are
issued,
(iv) the aggregate
outstanding amount of all Letter of
Credit Liabilities with respect to
Insurance Letters of Credit or
Miscellaneous Letters of Credit
shall not exceed $50,000,000 after
giving effect to the issuance of
such Letters of Credit,
30
(v) the incurrence by
the Company of Reimbursement
Obligations with respect to such
Letters of Credit must then be
permitted under the Senior Notes
Indenture, and
(vi) the various
conditions in Section 6 hereof must
be satisfied.
Each Participant Bank severally
agrees with the Letter of Credit
Agent that, upon the issuance by
the Letter of Credit Agent of any
Letter of Credit, each Participant
Bank shall automatically acquire a
participation in the Letter of
Credit Agent's liability under such
Letter of Credit in an amount equal
to such Participant Bank's
Percentage of the face amount of
such Letter of Credit. By such
acquisition of a participation in a
Letter of Credit, each Participant
Bank shall automatically (and
absolutely, unconditionally and
irrevocably) assume, as primary
obligor and not as a surety, and
shall be unconditionally obligated
to the Letter of Credit Agent to
pay and discharge when due, its
Percentage of the Letter of Credit
Agent's liability under such Letter
of Credit, and, in that connection,
each Participant Bank hereby
unconditionally agrees to pay
(except to the extent credited
under 2.3(b)(v) hereof) to the
Letter of Credit Agent, at its
Principal Office, in immediately
available funds, not later than
2:00 p.m. Dallas time on the day
specified in each notice from the
Letter of Credit Agent to the
Participant Banks pursuant to
Section 2.3(b)(iv) hereof as the
payment date of a drawing under a
Letter of Credit issued by the
Letter of Credit Agent, the amount
of such Participant Bank's
Percentage of the amount of such
drawing specified in such notice.
Each Participant Bank acknowledges
and agrees that its obligation to
make such payments to the Letter of
Credit Agent, and the Letter of
Credit Agent's right to receive the
same, are absolute and
unconditional and shall not be
affected by any circumstance
whatsoever, including, without
limiting the effect of the
foregoing, the failure to satisfy
any condition precedent set forth
in Section 6 hereof or any
termination or reduction of the
Commitments or the failure of any
other Participant Bank to make its
payment under this Section 2.3(a),
and further agrees that each such
payment to the Letter of Credit
Agent shall be made without any
offset, abatement, withholding or
reduction whatsoever; provided
that, notwithstanding the
foregoing, no such payment shall be
required to be made to the extent
that such payment arises from the
gross negligence or willful
misconduct of the Letter of Credit
Agent. In the event any
Participant Bank shall fail to make
any such payment on the date when
due, such Participant Bank shall
pay interest to the Letter of
Credit Agent on the amount of such
payment in respect of each day
during the period commencing on the
due date and ending on the date
such payment is in fact made at a
rate per annum equal to the Federal
Funds Rate for such day.
31
(b) ________________
Other Provisions
_____________________________
Relating to Letters of Credit. The
following additional provisions
shall apply to the Letters of
Credit:
(i) _________
Notice of
_________________
Proposed Issuance. The Company
shall give the Letter of Credit
Agent irrevocable notice prior to
10:00 a.m. Dallas time on the same
day (but subject to clause (vi) of
this Section 2.3(b)) any Letter of
Credit is proposed to be issued
(effective upon receipt) specifying
the date (which shall not be later
than the date five Business Days
preceding the Commitment
Termination Date) each Letter of
Credit is to be issued, the
proposed beneficiary thereof, and
whether such Letter of Credit will
be an Inventory Letter of Credit,
an Insurance Letter of Credit or a
Miscellaneous Letter of Credit, and
describing the proposed terms of
such Letter of Credit and the
nature of the transactions proposed
to be supported thereby.
Concurrently with such notice, the
Company will give the
Administrative Agent a Credit
Certificate with respect to such
Letter of Credit. Upon receipt of
such notice the Letter of Credit
Agent shall promptly notify each
Participant Bank of the contents
thereof and of such Participant
Bank's share of the amount of such
proposed Letter of Credit (equal to
its Percentage of such amount).
(ii) ______
Use of
___________
Commitments. On each day during
the period commencing with the
issuance by the Letter of Credit
Agent of any Letter of Credit and
until such Letter of Credit shall
have expired or been terminated,
the Commitment of each Bank shall
be deemed to be utilized for all
purposes hereof in an amount equal
to such Bank's Percentage of the
then undrawn face amount of such
Letter of Credit.
(iii) __________
Amendments.
The Letter of Credit Agent may
amend any Letter of Credit as
requested by the Company without
the consent of the Participant
Banks, provided that (1) after
giving effect to such amendment,
such Letter of Credit meets the
requirements for Letters of Credit
specified in clause (vii) of this
Section 2.3(b), (2) if any such
amendment increases the amount or
extends the expiry date of any
Letter of Credit or otherwise
changes the terms of such Letter of
Credit in a manner which the Letter
of Credit Agent reasonably deems
(in its sole discretion) to be
material to the Banks, the
provisions of clause (vi) of this
Section 2.3(b) shall apply to the
issuance of such amendment as if
such issuance constituted the
issuance of a new Letter of Credit
and the provisions of Section 6.2
hereof shall apply to such issuance
as if such issuance constituted an
Extension of Credit, and (3) the
Letter of Credit Agent shall
promptly notify each Participant
Bank of its issuance of each such
amendment or consent. If any such
amendment shall increase or
decrease the amount of any Letter
of Credit, then on each day during
the period commencing with the
issuance of such amendment and
until such Letter of Credit shall
have expired or been terminated the
amount by which the Commitment of
each Bank shall be deemed pursuant
to clause (ii) of this Section
2.3(b) to be utilized shall be
increased or decreased by an amount
equal to such Bank's Percentage of
the amount of such increase or
decrease.
32
(iv) _________
Notice of
_______
Drawing. Upon receipt from the
beneficiary of any Letter of Credit
of any draft or demand for payment
under such Letter of Credit, the
Letter of Credit Agent shall
promptly notify the Company and
each Participant Bank of the amount
to be paid pursuant to such demand
and the respective payment date.
(v) _____________
Reimbursement
________
Payments. At or prior to the time
the Letter of Credit Agent makes
any payment under a Letter of
Credit, the Company shall make a
payment (each such payment being
herein called a "_____________
Reimbursement
_______
Payment") to the Letter of Credit
Agent, at its Principal Office in
immediately available funds, for
the account of the Banks in their
respective Percentages and in an
amount equal to the amount of such
payment by the Letter of Credit
Agent. The Letter of Credit Agent
shall forthwith credit each
Participant Bank's respective
Percentage of the amount of such
Reimbursement Payment against any
payment required to be made by such
Participant Bank pursuant to
Section 2.3(a) or, if a Participant
Bank has made a payment pursuant to
Section 2.3(a) hereof, remit to
such Participant Bank its
respective Percentage of the amount
of such Reimbursement Payment. The
Company's obligation to make
Reimbursement Payments under this
Section 2.3(b)(v), and the right of
each Bank to receive the same from
the Company, are absolute and
unconditional and shall not be
affected by any circumstance
whatsoever, including without
limiting the effect of the
foregoing or clauses (viii) and
(ix) of this Section 2.3(b), the
existence or assertion of any claim
or defense on the part of the
Company against any Person or the
failure of any Participant Bank to
make any payment to be made by it
under Section 2.3(a) hereof, and
the Company further agrees that
each Reimbursement Payment required
to be made under this Section
2.3(b)(v) shall be made without any
offset, abatement, withholding or
reduction whatsoever.
(vi) _____________
Conditions to
________
Issuance. The issuance by the
Letter of Credit Agent of each
Letter of Credit shall, in addition
to the conditions precedent set
forth in Section 6 hereof, be
subject to the conditions precedent
that such Letter of Credit shall be
in such form and contain such terms
as shall be satisfactory to the
Letter of Credit Agent and (if so
determined to be appropriate by the
Letter of Credit Agent or if so
specified with respect to a
particular Letter of Credit by the
Majority Banks to the Letter of
Credit Agent prior to the date one
Business Day preceding the issuance
thereof) the Majority Banks and
that the Company shall have
executed and delivered such other
instruments and agreements relating
to such Letter of Credit as the
Letter of Credit Agent or (if so
specified with respect to a
particular Letter of Credit by the
Majority Banks to the Letter of
Credit Agent prior to the date one
Business Day preceding the issuance
thereof) the Majority Banks may
reasonably request (including an
application therefor satisfactory
in form and substance to the Letter
of Credit Agent). In addition, in
no event shall the Letter of Credit
Agent be required to issue any
Letter of Credit in violation of
any law, rule, regulation or
directive of any governmental
authority.
33
(vii) ________
Required
_____
Terms. Each Letter of Credit
shall:
(1) be either an
Inventory Letter of Credit, an
Insurance Letter of Credit, or a
Miscellaneous Letter of Credit,
(2) be payable
solely in Dollars;
(3) not be
transferable without the consent of
the Letter of Credit Agent,
(4) if it is an
Insurance Letter of Credit or a
Miscellaneous Letter of Credit,
have a term that neither exceeds
one year nor extends past the 90th
day after the Commitment
Termination Date,
(5) if it is an
Inventory Letter of Credit which is
a Standby Letter of Credit, have a
term that neither exceeds 120 days
nor extends past the Commitment
Termination Date, and
(6) if it is an
Inventory Letter of Credit which is
not a Standby Letter of Credit,
have a term that neither exceeds 90
days nor extends past the
Commitment Termination Date.
34
(viii) _____________
UCP; Right to
___
Pay. Each of the Company and the
Participant Banks agrees with the
Letter of Credit Agent that the UCP
shall be binding on the Company,
the Letter of Credit Agent and the
Participant Banks with respect to
Letters of Credit, except to the
extent otherwise expressly agreed.
To the extent that the UCP is
silent on the proper interpretation
of a Letter of Credit or is
otherwise inapplicable to any
Letter of Credit, the provisions of
the Uniform Commercial Code as
adopted in the State of New York
shall apply. Notwithstanding the
foregoing, but without limiting the
effect of Section 2.3(b)(ix) and
Section 10 hereof: (1) the Letter
of Credit Agent is authorized to
make payments under Letters of
Credit upon the presentation of the
documents provided for therein and
without regard to whether the
Company has failed to fulfill any
of its obligations under this
Agreement or any other Default has
occurred; (2) the Letter of Credit
Agent shall be entitled to rely
upon any certificate, notice,
demand or other communication
(whether by cable, telegram, telex
or otherwise), believed by it to be
genuine and to have been signed or
sent by the proper Person or
Persons, and upon advice of legal
counsel selected by the Letter of
Credit Agent (and no such reliance
or failure shall place the Letter
of Credit Agent under any liability
to the Company or any Participant
Bank or limit or otherwise affect
the Company's or any Participant
Bank's obligations under this
Agreement); (3) any action,
inaction or omission on the part of
the Letter of Credit Agent under or
in connection with any Letter of
Credit or the related instruments
or documents, if in good faith and
in conformity with such laws,
regulations or customs as the
Letter of Credit Agent may
reasonably deem to be applicable,
shall be binding upon the Company
and each Participant Bank (and
shall not place the Letter of
Credit Agent under any liability to
the Company or any Participant Bank
or limit or otherwise affect the
Company's or any Participant Bank's
obligations under this Agreement);
and (4) notwithstanding any change
or modification in any Letter of
Credit or any instruments or
documents called for thereunder,
including waiver of noncompliance
of any such instruments or
documents with the terms of any
Letter of Credit, this Agreement
shall be binding on the Company
with regard to such Letter of
Credit as so changed or modified,
and to any action taken by the
Letter of Credit Agent relative
hereto.
(ix) __
No
____________________________
Responsibility for Use; etc.
Without affecting any rights that
any of the Bank Parties may have
under applicable law (including
under the UCP), the Company agrees
that no Indemnified Party shall be
liable or responsible for, and the
obligations of the Company to the
Banks and the Letter of Credit
Agent hereunder shall not in any
manner be affected by: (1) the use
which may be made of any Letter of
Credit or the proceeds thereof by
the beneficiary or any other
Person; (2) the validity,
sufficiency or genuineness of
documents other than the Letter of
Credit, or of any endorsements
thereon, even if such documents
should, in fact, prove to be in any
or all respects, invalid,
insufficient, fraudulent or forged
or any statement therein proves to
be untrue or inaccurate in any
respect whatsoever; or (3) any
other circumstances whatsoever in
making or failing to make payment
under any Letter of Credit, except
that the Company shall have a claim
against the Letter of Credit Agent,
and the Letter of Credit Agent
shall be liable to the Company, to
the extent, but only to the extent,
of any direct, as opposed to
consequential, damages suffered by
the Company which the Company
proves are caused by the Letter of
Credit Agent's willful misconduct
or gross negligence in determining
whether documents presented under
any Letter of Credit complied with
the terms of such Letter of Credit
or the Letter of Credit Agent's
willful failure to pay under such
Letter of Credit after the
presentation to it of documents
strictly complying with the terms
and conditions of such Letter of
Credit. In furtherance and not in
limitation of the foregoing, the
Letter of Credit Agent may accept
documents that appear on their face
to be in order, without
responsibility of further
investigation.
35
(x) _________________
Notice of Desired
_________
Extension. The Company shall
notify the Letter of Credit Agent
of any Letter of Credit that it
wishes to be extended, at least 30
days prior to (but not more than 60
days prior to) any date by which
such Letter of Credit Agent is
required to notify any beneficiary
of any Letter of Credit that such
Letter of Credit shall terminate,
if in the absence of such a
notification to such beneficiary
the term of such Letter of Credit
would automatically be extended.
2.4 ______________________
Changes of Commitments.
(a) The aggregate amount
of the Commitments shall be
automatically reduced to zero on
the Commitment Termination Date.
(b) The Company shall have
the right to terminate or reduce
the aggregate unused amount of the
Commitments at any time or from
time to time upon not less than
three Business Days prior notice to
the Administrative Agent (which
shall promptly notify the Banks) of
each such termination or reduction,
which notice shall specify the
effective date thereof and the
amount of any such reduction (which
shall be $5,000,000 or any higher
integral multiple of $1,000,000)
and shall be irrevocable and
effective only upon receipt by the
Administrative Agent, provided that
(i) after giving effect to each
such reduction, the aggregate
amount of the Commitments shall be
at least equal to the sum of the
aggregate outstanding principal
amount of the Loans and the
aggregate outstanding amount of
Letters of Credit Liabilities; (ii)
no such termination of the
Commitments may be effected while
any Loans are outstanding; and
(iii) no such termination may be
effected while any Letters of
Credit are outstanding unless
concurrently with notice of such
termination the Company shall pay
the Administrative Agent an amount
in immediately available funds
equal to the aggregate Letter of
Credit Liabilities with respect to
all such Letters of Credit ____
plus any
accrued fees payable under Section
2.5 hereof ____
plus (without
duplication) any letter of credit
fees payable thereafter with
respect to such Letters of Credit.
Any amount so paid to the
Administrative Agent shall be
deposited in a cash collateral
account and invested, reinvested
and used and applied by the
Administrative Agent as a
Collateral Account pursuant to
Section 9.2 hereof. No Bank's
participation in any such Letter of
Credit shall be affected by the
termination of its Commitment in
such circumstances.
(c) The Commitments once
terminated or reduced may not be
reinstated.
36
(d) The Company may, by
giving written notice to the
Administrative Agent not less than
90 nor more than 120 days prior to
the date occurring one year prior
to the then Commitment Termination
Date, request that the Commitment
Termination Date, be extended for
one year (provided that not more
than one such one-year extension
shall be permitted hereunder).
Each Bank may, in its sole
discretion, agree to such extension
or reject such extension (and the
failure of a Bank to respond to
such request within 60 days shall
be deemed to signify that such Bank
has rejected such request). In the
case of any Bank that agrees to
such extension, but not any Bank
not agreeing to such extension, the
Commitment Termination Date shall
be the date one year after the
Commitment Termination Date
previously in effect, so long as
Banks holding Commitments in an
aggregate amount equal to at least
two-thirds of the total Commitments
at such time have agreed to such
extension.
2.5 ____
Fees.
(a) The Company shall pay
to the Administrative Agent for
account of each Bank a commitment
fee on the daily unused amount of
such Bank's Commitment for the
period from and including the date
of this Agreement to but not
including the earlier of the date
such Commitment is terminated or
the Commitment Termination Date, at
a daily rate equal to 1/360th of
the Applicable Commitment Rate as
in effect on each such day.
Accrued commitment fees payable
under the preceding sentence shall
be payable on each Quarterly
Payment Date and on the earlier of
the date the Commitments are
terminated or the Commitment
Termination Date.
(b) The Company shall pay
to the Administrative Agent for the
account of each Bank a letter of
credit fee on such Bank's
Percentage of the outstanding
amount of each Standby Letter of
Credit during the period from and
including the date such Letter of
Credit is issued to and including
the date such Letter of Credit is
fully drawn, terminated or expires,
at a daily rate equal to 1/360th of
the Applicable Letter of Credit
Rate in effect on each day in such
period. Accrued letter of credit
fees in respect of Standby Letters
of Credit shall be payable in
arrears on each Quarterly Payment
Date and on the earlier of the date
the Commitments are terminated or
on the Commitment Termination Date.
The Company shall pay to the
Administrative Agent for the
account of each Bank, pro rata
according to their respective
Percentages, in advance on the date
of issuance of each Letter of
Credit that is not a Standby Letter
of Credit, a letter of credit fee
equal to the face amount of such
Letter of Credit, times the
Applicable Letter of Credit Rate in
effect on such date of issuance,
times the stated term of such
Letter of Credit (expressed in
days), divided by 360.
(c) The Company agrees to
pay an annual fee to the
Administrative Agent for its own
account and a Letter of Credit
fronting fee to the Letter of
Credit Agent for its own account,
each in the amounts specified in a
letter agreement of even date
herewith between the Company, the
Administrative Agent and the Letter
of Credit Agent.
37
(d) The Company shall also
pay to each Bank, on the Closing
Date, the front-end participation
fee which has previously been
agreed upon by the Company and such
Bank.
2.6 _______________
Lending Offices. The Loans
of each type made by each Bank
shall be made and maintained at
such Bank's Applicable Lending
Office for Loans of such type.
2.7 ____________________
Several Obligations;
____________________
Remedies Independent. The failure
of any Bank to make any Loan to be
made by it on the date specified
therefor shall not relieve any
other Bank of its obligation to
make its Loan on such date, but
neither any Bank nor the
Administrative Agent shall be
responsible for the failure of any
other Bank to make a Loan to be
made by such other Bank. The
amounts payable to each Bank by the
Company at any time hereunder or
under the Note of such Bank shall
be a separate and independent debt
and each Bank shall be entitled to
protect and enforce its rights
arising out of this Agreement and
its Note, and it shall not be
necessary for any other Bank or the
Administrative Agent to consent to,
or be joined as an additional party
in, any proceedings for such
purposes.
2.8 _____
Notes.
(a) The Loans made by each
Bank shall be evidenced by a single
promissory note of the Company in
substantially the form of Exhibit A
hereto, dated the date of the
delivery of such Note to the
Administrative Agent under this
Agreement, payable to such Bank in
a principal amount equal to the
amount of its Commitment as
originally in effect and otherwise
duly completed. The date, amount,
type, interest rate and maturity
date of each Loan made by each Bank
to the Company, and each payment
made on account of the principal
thereof, shall be recorded by such
Bank on its books and, prior to any
transfer of such Note held by it,
endorsed by such Bank on the
schedule attached to such Note or
any continuation thereof. Any
failure to make any such
endorsement shall not affect the
Company's obligations under any
Note.
(b) No Bank shall be
entitled to have its Note
subdivided, by exchange for
promissory notes of lesser
denominations or otherwise, except
in connection with a permitted
assignment of all or any portion of
such Bank's Commitment, Loans and
Note pursuant to Section 11.6(c)
hereof.
2.9 _____________________
Voluntary Prepayments. The
Company may prepay Base Rate Loans
upon prior notice to the
Administrative Agent (which shall
promptly notify the Banks), which
notice shall be given not later
than 10:00 a.m. (Dallas time) on
the day of such prepayment and
shall specify the prepayment date
(which shall be a Business Day) and
the amount of the prepayment (which
shall be $1,000,000 or a higher
integral multiple of $1,000,000)
and shall be irrevocable and
effective only upon receipt by the
Administrative Agent, provided that
interest on the principal prepaid,
accrued to the prepayment date,
shall be paid on the prepayment
date. The Company may not prepay
any Fixed Rate Loans pursuant to
this Section 2.9 (provided that
this sentence shall not affect the
Company's obligation to prepay
Loans pursuant to Section 2.10 or
the obligations of the Company
pursuant to Section 9 hereof).
38
2.10 _________
Clean-ups.
(a) _________________
Cash in Excess of
___________
$25,000,000. If at any time the
Company and the Consolidated
Subsidiaries have cash (or cash
equivalents, including Temporary
Cash Investments) in excess of
$25,000,000, the Company will
within three Business Days
thereafter apply such excess to
reduce the aggregate outstanding
principal amount of the Loans
(until such amount has been reduced
to zero).
(b) _______________
Annual Clean-up. The
Company will from time to time
prepay the Loans in such amounts
(or not borrow Loans hereunder) as
shall be necessary so that, for a
period of at least 30 consecutive
days at any time during the 12-
month period commencing on the
Closing Date and during each 12-
month period commencing on an
anniversary of the Closing Date,
the aggregate outstanding principal
amount of the Loans shall be zero.
(c) ___________________
Intermittent Clean-
___
ups. If Cumulative Adjusted
Liquidity Capacity is less than
zero as of the end of any calendar
month (e.g., February 28), the
Company will either (i) cause
Cumulative Adjusted Capacity to
exceed zero at the end of the next
following month (e.g., March 31),
or (ii) reduce the aggregate
outstanding principal amount of the
Loans to zero by the third Business
Day following the end of the next
following month (e.g., April 3).
In such event, the Letter of Credit
Agent may, at its option, and
shall, upon request by the Majority
Banks, by notice to the Company
also require the Company to pay to
the Letter of Credit Agent for the
ratable account of itself and the
Participant Banks, and there shall
be immediately due and payable
hereunder in immediately available
funds, an amount (in this
subsection called the
"LC Liquidated Fund") equal to the
maximum amount which might be drawn
on all Letters of Credit then
issued and outstanding (in this
subsection called the "Outstanding
Letters of Credit"). Such payment
shall represent liquidated damages
resulting from Cumulative Adjusted
Liquidity Capacity being less than
zero at a time when there are
Outstanding Letters of Credit,
shall not represent a penalty, and
when made shall thereby discharge
the Company from its obligation to
make Reimbursement Payments to the
Letter of Credit Agent and the
Participant Banks under Section
2.3(b)(v) hereof for any future
payments made by the Letter of
Credit Agent or the Participant
Banks under Outstanding Letters of
Credit. All of the LC Liquidated
Fund shall be retained by the
Letter of Credit Agent for its own
benefit and the benefit of the
Participant Banks and applied, as
Outstanding Letters of Credit are
drawn upon, to pay or provide
payment for the obligations of the
Letter of Credit Agent and the
Participant Banks with respect to
such Letters of Credit and such
drawings. Pending such
applications, all of the
LC Liquidated Fund shall be
invested by the Letter of Credit
Agent (in its own name, but for the
benefit of itself and the
Participant Banks) in interest
bearing time deposits with
NationsBank with terms of three
months or less (freely withdrawable
with no penalty other than the
forfeiture of interest), and all
interest paid thereon shall be
considered part of the
LC Liquidated Fund. Three months
after the full and final
termination of all obligations of
the Letter of Credit Agent and the
Participant Banks with respect to
all Outstanding Letters of Credit,
the Letter of Credit Agent shall
pay to the Company as an adjustment
to the LC Liquidated Fund an amount
equal to (i) the full amount of the
LC Liquidated Fund minus (ii) all
amounts drawn under the Outstanding
Letters of Credit which were the
basis for the LC Liquidated Fund on
or prior to the date of such
adjustment, provided, however, that
if (1) any Obligations are then due
and owing and unpaid, the Letter of
Credit Agent shall instead deliver
such remaining LC Liquidated Fund
to the Administrative Agent to be
applied to such Obligations
pursuant to Section 4.1 hereof, and
(2) any Event of Default then
exists and funds are required to be
paid to the Administrative Agent
under Section 9.2 hereof, the
Letter of Credit Agent shall
instead deliver such remaining LC
Liquidated Fund to the
Administrative Agent to be dealt
with as provided in Section 9.2
hereof.
39
(d) _____________
Miscellaneous.
Notwithstanding that any clean-up
or other payment may be required
under this Section 2.10, the
Company shall pay all amounts
required under Section 5 of this
Agreement which result from any
such clean-up or other payment. No
such clean-up or other payment
shall have the effect of
terminating or reducing the
Commitments of the Banks or any
fees payable hereunder to the Bank
Parties.
SECTION 3. ___________
Payments of
______________________
Principal and Interest.
3.1 __________________
Repayment of Loans. The
Company will pay to the
Administrative Agent for the
account of each Bank the principal
of each Loan made by such Bank, and
each Loan shall mature, on the last
day of the Interest Period
therefor.
3.2 ________
Interest. The Company will
pay to the Administrative Agent for
the account of each Bank interest
on the unpaid principal amount of
each Loan made by such Bank for the
period from and including the date
of such Loan to but excluding the
date such Loan shall be paid in
full, at the following rates per
annum:
40
(a) if such Loan is a Base
Rate Loan, the Base Rate (as in
effect from time to time); and
(b) if such Loan is a
Fixed Rate Loan, the Fixed Rate for
such Loan for the Interest Period
therefor plus the Applicable
Margin.
Notwithstanding the foregoing,
the Company will pay to the
Administrative Agent for the
account of each Bank interest at
the applicable Post-Default Rate on
any principal of any Loan made by
such Bank, and (to the fullest
extent permitted by law) on any
other amount payable by the Company
under this Agreement or under the
Note held by such Bank to or for
account of such Bank, which shall
not be paid in full when due
(whether at stated maturity, by
acceleration or otherwise), for the
period from and including the due
date thereof to but excluding the
date the same is paid in full.
Accrued interest on each Loan shall
be payable on the last day of the
Interest Period therefor and, if
such Interest Period is longer than
90 days (in the case of a CD Loan)
or three months (in the case of a
Eurodollar Loan), at 90-day or
three-month intervals,
respectively, following the first
day of such Interest Period, except
that interest payable at the Post-
Default Rate shall be payable from
time to time on demand and interest
on any Fixed Rate Loan that is
converted into a Base Rate Loan
(pursuant to Section 5.4 hereof)
shall be payable on the date of
conversion (but only to the extent
so converted). Promptly after the
determination of any interest rate
provided for herein or any change
therein, the Administrative Agent
shall give notice thereof to the
Banks to which such interest is
payable and the Company.
SECTION 4. __________________
Payments; Pro Rata
____________________________
Treatment; Computations; Etc.
4.1 ________
Payments.
(a) Except to the extent
otherwise provided herein, all
payments of principal, interest and
other amounts to be made by the
Company under this Agreement and
the Notes shall be made in Dollars,
in immediately available funds,
without deduction, set-off or
counterclaim, to the Administrative
Agent at an account (as from time
to time specified by the
Administrative Agent) maintained by
the Administrative Agent at its
Principal Office, not later than
noon Dallas time on the date on
which such payment shall become due
(each such payment made after such
time on such due date to be deemed
to have been made on the next
succeeding Business Day), provided
that, if a new Loan is to be made
by any Bank on a date the Company
is to repay any principal of an
outstanding Loan of such Bank, such
Bank shall apply the proceeds of
such new Loan to the payment of the
principal to be repaid and only an
amount equal to the excess of the
principal to be borrowed over the
principal to be repaid shall be
made available by such Bank to the
Administrative Agent as provided in
Section 2.2 hereof or only an
amount equal to the excess of the
principal to be repaid over the
principal to be borrowed shall be
paid by the Company to the
Administrative Agent pursuant to
this Section 4.1(a), as the case
may be.
41
(b) Any Bank for whose
account any such payment is to be
made may (but shall not be
obligated to) debit the amount of
any such payment which is not made
by such time to any ordinary
deposit account of the Company with
such Bank (with notice to the
Company).
(c) The Company shall, at
the time of making each payment
under this Agreement or any Note,
specify to the Administrative Agent
the Loans or other amounts payable
by the Company hereunder to which
such payment is to be applied (and
in the event that it fails to so
specify, or if an Event of Default
has occurred and is continuing, the
Administrative Agent may distribute
such payment to the Banks in such
manner as it or the Majority Banks
may determine to be appropriate,
subject to Section 4.2 hereof).
(d) Each payment received
by the Administrative Agent under
this Agreement or any Note for
account of a Bank shall be paid
promptly to such Bank, in
immediately available funds, for
account of such Bank's Applicable
Lending Office for the Loan in
respect of which such payment is
made. Each payment received by the
Letter of Credit Agent hereunder
for the account of a Bank shall be
paid promptly to such Bank (with
prompt notice to such Bank of such
payment), in immediately available
funds, for the account of such
Bank's Lending Office for the
Letter of Credit in respect of
which payment is made.
(e) If the due date of any
payment under this Agreement or any
Note would otherwise fall on a day
which is not a Business Day such
date shall be extended to the next
succeeding Business Day and
interest shall be payable for any
principal so extended for the
period of such extension.
4.2 __________________
Pro Rata Treatment. Except
to the extent otherwise provided
herein: (a) each borrowing from the
Banks under Section 2.1 hereof
shall be made from the Banks, each
payment of commitment fee under
Section 2.5 hereof shall be made
for the account of the Banks, and
each termination or reduction of
the amount of the Commitments under
Section 2.4 hereof shall be applied
to the Commitments of the Banks,
pro rata according to the amounts
of their respective Commitments;
(b) each payment of principal of
Loans by the Company shall be made
for the account of the Banks pro
rata in accordance with the
respective unpaid principal amounts
of the Loans held by the Banks; (c)
each payment of interest on Loans
by the Company shall be made for
the account of the Banks pro rata
in accordance with the amounts of
interest on Loans due and payable
to the respective Banks; and (d)
each payment of letter of credit
fees under Section 2.5 hereof
(other than fees to be retained by
the Letter of Credit Agent for its
own account pursuant to such
Section 2.5) shall be made to the
Administrative Agent for the
account of the Banks pro rata
according to their respective
Percentages.
42
4.3 ____________
Computations. Interest
on Fixed Rate Loans, commitment
fees and Letter of Credit fees
shall be computed on the basis of a
year of 360 days and actual days
elapsed (including the first day
but excluding the last day)
occurring in the period for which
payable and interest on Base Rate
Loans shall be computed on the
basis of a year of 365 or 366 days,
as the case may be, and actual days
elapsed (including the first day
but excluding the last day)
occurring in the period for which
payable.
4.4 ___________________________
Non-Receipt of Funds by the
____________________
Administrative Agent. Unless the
Administrative Agent shall have
been notified by a Bank or the
Company (in this section called the
"_____
Payor") prior to the date on which
the Payor is to make payment to the
Administrative Agent of (in the
case of a Bank) the proceeds of a
Loan to be made by it hereunder or
a payment to be made by it pursuant
to Section 2.3(a) hereof or (in the
case of the Company) a payment to
the Administrative Agent for
account of one or more of the Banks
hereunder (such payment being in
this section called the "________
Required
_______
Payment"), which notice shall be
effective upon receipt, that the
Payor does not intend to make the
Required Payment to the
Administrative Agent, the
Administrative Agent may assume
that the Required Payment has been
made and may, in reliance upon such
assumption (but shall not be
required to), make the amount
thereof available to the intended
recipients on such date and, if the
Payor has not in fact made the
Required Payment to the
Administrative Agent, the
recipients of such payment shall,
on demand, repay to the
Administrative Agent the amount so
made available together with
interest thereon in respect of each
day during the period commencing on
the date such amount was so made
available by the Administrative
Agent until the date the
Administrative Agent recovers such
amount at a rate per annum equal to
the Federal Funds Rate for such day
and, if such recipient(s) shall
fail promptly to make such payment,
the Administrative Agent shall be
entitled to recover such amount, on
demand, from the Payor, together
with interest as aforesaid.
4.5 ________________________
Sharing of Payments, Etc.
(a) The Company agrees
that, in addition to (and without
limitation of) any right of set-
off, banker's lien or counterclaim
a Bank may otherwise have, each
Bank shall be entitled, at its
option, to offset balances held by
it for the account of the Company
at any of its offices, in Dollars
or any other currency, against any
principal of or interest on any of
such Bank's Loans, or any other
amount payable to such Bank
hereunder, which is not paid when
due (regardless of whether balances
are then due to the Company), in
which case it shall promptly notify
the Company and the Administrative
Agent thereof, provided that such
Bank's failure to give such notice
shall not affect the validity
thereof.
43
(b) If any Bank shall
obtain payment of any Loan or
Reimbursement Obligation due and
owing to it, or any interest
thereon, through the exercise of
any right of set-off, lien or
counterclaim or similar right or
otherwise, and, as a result of such
payment, such Bank shall have
received a greater percentage of
the Loans or Reimbursement
Obligations or interest thereon
then due and owing by the Company
to such Bank than the percentage
received by any other Banks, it
shall promptly purchase from such
other Banks participations in (or,
if and to the extent specified by
such Bank, direct interests in) the
Loans or Reimbursement Obligations
held by such other Banks or in the
interest thereon (as the case may
be) in such amounts, and make such
other adjustments from time to time
as shall be equitable, to the end
that all the Banks shall share the
benefit of such excess payment (net
of any expenses which may be
incurred by such Bank in obtaining
or preserving such excess payment)
pro rata in accordance with the
unpaid Loans or Reimbursement
Obligations or interest held by
each of the Banks or interest
thereon (as the case may be). To
such end all the Banks shall make
appropriate adjustments among
themselves (by the resale of
participations sold or otherwise)
if such payment is rescinded or
must otherwise be restored.
(c) The Company agrees
that any Bank so purchasing a
participation (or direct interest)
in the Loans made, or Reimbursement
Obligations held, by other Banks
(or in interest due thereon, as the
case may be) may exercise all
rights of setoff, banker's lien,
counterclaim or similar rights with
respect to such participation as
fully as if such Bank were a direct
holder of Loans and Reimbursement
Obligations in the amount of such
participation. The provisions of
Section 11.6(c) and (d) hereof
shall not apply to participations
and direct interests purchased
pursuant to this Section 4.5.
(d) Nothing contained
herein shall require any Bank to
exercise any such right or shall
affect the right of any Bank to
exercise, and retain the benefits
of exercising, any such right with
respect to any other indebtedness
or obligation of the Company.
(e) If, under any
applicable bankruptcy, insolvency
or other similar law, any Bank
receives a secured claim in lieu of
a set-off to which this Section 4.5
applies, such Bank shall, to the
extent practicable, exercise its
rights in respect of such secured
claim in a manner consistent with
the rights of the Banks entitled
under this Section 4.5 to share in
the benefits of any recovery on
such secured claim.
44
SECTION 5 ________________
Yield Protection
______________
and Illegality.
5.1 ________________
Additional Costs.
(a) The Company shall pay
directly to each Bank from time to
time such amounts as such Bank may
determine to be necessary to
compensate it for any costs which
such Bank determines are
attributable to its making or
maintaining of any Fixed Rate Loans
or its obligation to make any Fixed
Rate Loans hereunder, or any
reduction in any amount receivable
by such Bank hereunder in respect
of any of such Loans or such
obligation (such increases in costs
and reductions in amounts
receivable being herein called
_________________
"Additional Costs"), resulting from
any Regulatory Change which:
(i) changes the basis
of taxation of any amounts payable
to such Bank under this Agreement
or its Note in respect of any of
such Loans (other than taxes
imposed on or measured by the
overall net income of such Bank or
of its Applicable Lending Office
for any of such Loans by the
jurisdiction in which such Bank has
its principal office or such
Applicable Lending Office); or
(ii) imposes or
modifies any reserve, special
deposit or similar requirements
(other than the Reserve Requirement
utilized in the determination of
the Fixed Rate for CD Loans or, in
the case of any Bank for any period
as to which the Company is required
to pay any amount under paragraph
(e) below, the reserves against
"Eurocurrency liabilities" under
Regulation D therein referred to)
relating to any extensions of
credit or other assets of, or any
deposits with or other liabilities
of, such Bank (including any of
such Loans or any deposits referred
to in the definition herein of
"Fixed Base Rate"), or any
commitment of such Bank (including
the Commitment of such Bank
hereunder); or
(iii) imposes any
other condition affecting this
Agreement or its Note (or any of
such extensions of credit or
liabilities) or Commitment.
If any Bank requests
compensation from the Company under
this Section 5.1(a), the Company
may, by notice to such Bank (with a
copy to the Administrative Agent),
suspend the obligation of such Bank
to make additional Loans of the
type with respect to which such
compensation is requested until the
Regulatory Change giving rise to
such request ceases to be in effect
(in which case the provisions of
Section 5.4 hereof shall be
applicable).
(b) Without limiting the
effect of the provisions of Section
5.1(a) hereof, in the event that,
by reason of any Regulatory Change,
any Bank either (i) incurs
Additional Costs based on or
measured by the excess above a
specified level of the amount of a
category of deposits or other
liabilities of such Bank which
includes deposits by reference to
which the interest rate on
Eurodollar Loans or CD Loans is
determined as provided in this
Agreement or a category of
extensions of credit or other
assets of such Bank which includes
Eurodollar Loans or CD Loans or
(ii) becomes subject to
restrictions on the amount of such
a category of liabilities or assets
which it may hold, then, if such
Bank so elects by notice to the
Company (with a copy to the
Administrative Agent), the
obligation of such Bank to make
additional Loans of such type
hereunder shall be suspended until
such Regulatory Change ceases to be
in effect (in which case the
provisions of Section 5.4 hereof
shall be applicable).
45
(c) Without limiting the
effect of the foregoing provisions
of this Section 5.1 (but without
duplication), the Company shall pay
directly to each Bank from time to
time on request such amounts as
such Bank may determine to be
necessary to compensate such Bank
(or, without duplication, the bank
holding company of which such Bank
is a subsidiary) for any costs
which it determines are
attributable to the maintenance by
such Bank (or any Applicable
Lending Office or such bank holding
company), pursuant to any law or
regulation or any interpretation,
directive or request (whether or
not having the force of law) of any
court or governmental or monetary
authority following any Regulatory
Change, or pursuant to any risk-
based capital guideline or other
requirement (whether or not having
the force of law and whether or not
the failure to comply therewith
would be unlawful) issued after the
date hereof by any government or
governmental or supervisory
authority, including any
implementation at the Federal level
of the Basle Accord (including the
Final Risk-Based Capital Guidelines
of the Board of Governors of the
Federal Reserve System (12 CFR Part
208, Appendix A; 12 CFR Part 225,
Appendix A) and the Final Risk-
Based Capital Guidelines of the
Office of the Comptroller of the
Currency (12 CFR Part 3, Appendix
A), of capital in respect of its
Commitment, Loans or obligations to
issue Letters of Credit or acquire
participations hereunder (such
compensation to include, without
limitation, an amount equal to any
reduction of the rate of return on
assets or equity of such Bank (or
any Applicable Lending Office or
such bank holding company) to a
level below that which such Bank
(or any Applicable Lending Office
or such bank holding company) could
have achieved but for such law,
regulation, interpretation,
directive or request). For the
purposes of this Section 5.1(c),
"____________
Basle Accord" shall mean the
proposals for a risk-based capital
framework described by the Basle
Committee on Banking Regulations
and Supervisory Practices in its
paper entitled "International
Convergence of Capital Measurement
and Capital Standards" dated July
1988, as modified and supplemented
and in effect from time to time.
(d) Each Bank will notify
the Company of any event occurring
after the date of this Agreement
that will entitle such Bank to
compensation under paragraph (a) or
(c) of this Section 5.1 as promptly
as practicable, but in any event
within 45 days, after such Bank
obtains actual knowledge thereof;
provided that (i) if any Bank fails
to give such notice within 45 days
after it obtains actual knowledge
of such an event, such Bank shall,
with respect to compensation
payable pursuant to this Section
5.1 in respect of any costs
resulting from such event, only be
entitled to payment under this
Section 5.1 for costs incurred from
and after the date 45 days prior to
the date that such Bank does give
such notice; and (ii) each Bank
will designate a different
Applicable Lending Office for the
Loans of such Bank affected by such
event if such designation will
avoid the need for, or reduce the
amount of, such compensation and
will not, in the sole opinion of
such Bank, be disadvantageous to
such Bank, except that such Bank
shall have no obligation to
designate an Applicable Lending
Office located in the United States
of America. Each Bank will furnish
to the Company a certificate
setting forth the basis and amount
of each request by such Bank for
compensation under paragraph (a) or
(c) of this Section 5.1.
Determinations and allocating by
any Bank for purposes of this
Section 5.1 of the effect of any
Regulatory Change pursuant to
Section 5.1(a) or (b) hereof, or of
the effect of capital maintained
pursuant to Section 5.1(c) hereof,
on its costs or rate of return of
maintaining Loans or its obligation
to make Loans, or on amounts
receivable by it in respect of
Loans, and of the amounts required
to compensate such Bank under this
Section 5.1, shall be conclusive,
provided that such determinations
and allocations are made on a
reasonable basis.
46
(e) Without limiting the
effect of the foregoing, the
Company shall pay to the
Administrative Agent for account of
each Bank on the last day of each
Interest Period so long as such
Bank is maintaining reserves
against "Eurocurrency liabilities"
under Regulation D (or, unless the
provisions of paragraph (b) above
are applicable, so long as such
Bank is, by reason of any
Regulatory Change, maintaining
reserves against any other category
of liabilities which includes
deposits by reference to which the
interest rate on Eurodollar Loans
is determined as provided in this
Agreement or against any category
of extensions of credit or other
assets of such Bank which includes
any Eurodollar Loans) an additional
amount (determined by such Bank and
notified to the Company through the
Administrative Agent) equal to the
product of the following for each
Eurodollar Loan for each day during
such Interest Period:
(i) the principal
amount of such Eurodollar Loan
outstanding on such day; times
(ii) the remainder of
(1) a fraction the numerator of
which is the rate (expressed as a
decimal) at which interest accrues
on such Eurodollar Loan for such
Interest Period as provided in this
Agreement (less the Applicable
Margin) and the denominator of
which is one _____
minus the effective
rate (expressed as a decimal) at
which such reserve requirements are
imposed on such Bank on such day
_____
minus (2) such numerator; times
47
(iii) 1/360.
5.2 ______________________
Limitation on Types of
_____
Loans. Anything herein to the
contrary notwithstanding, if, on or
prior to the determination of any
Fixed Base Rate for any Interest
Period:
(a) the Administrative
Agent determines (which
determination shall be conclusive)
that quotations of interest rates
for the relevant deposits referred
to in the definition herein of
"Fixed Base Rate" are not being
provided in the relevant amounts or
for the relevant maturities for
purposes of determining rates of
interest for any type of Fixed Rate
Loans as provided herein; or
(b) the Majority Banks
determine, which determination
shall be conclusive, and notify the
Administrative Agent that the
relevant rates of interest referred
to in the definition herein of
"Fixed Base Rate" upon the basis of
which the rate of interest for
either Eurodollar Loans or CD Loans
for such Interest Period is to be
determined are not likely
adequately to cover the cost to
such Banks of making or maintaining
such type of Loans;
then the Administrative Agent
shall give the Company and each
Bank prompt notice thereof, and so
long as such condition remains in
effect, the Banks (or such quoting
Bank) shall be under no obligation
to make additional Loans of such
type.
5.3 __________
Illegality.
Notwithstanding any other provision
of this Agreement, in the event
that it becomes unlawful for any
Bank or its Applicable Lending
Office to honor its obligation to
make or maintain Eurodollar Loans
hereunder, then such Bank shall
promptly notify the Company thereof
(with a copy to the Administrative
Agent) and such Bank's obligation
to make such Loans shall be
suspended until such time as such
Bank may again make and maintain
such Loans (in which case the
provisions of Section 5.4 hereof
shall be applicable with respect to
Eurodollar Loans).
5.4 _____________________
Treatment of Affected
_____
Loans. If the obligation of any
Bank to make either type of Fixed
Rate Loans shall be suspended
pursuant to Section 5.1 or 5.3
hereof (Loans of such type being in
this section called "________
Affected
_____
Loans" and such type being in this
section called the "________
Affected
____
Type"), then, until such Bank
notifies the Company (with a copy
to the Administrative Agent) that
the circumstances which gave rise
to such suspension no longer exist
(which such Bank agrees to do
promptly upon such circumstances
ceasing to exist) all Loans which
would otherwise be made by such
Bank as Loans of the Affected Type
shall be made instead as Base Rate
Loans, and, if an event referred to
in Section 5.1(b) or 5.3 hereof has
occurred and such Bank so requests
by notice to the Company with a
copy to the Administrative Agent,
all Affected Loans of such Bank
then outstanding shall be
automatically converted into Base
Rate Loans on the date specified by
such Bank in such notice and, to
the extent that Affected Loans are
so made (or converted), all
payments of principal which would
otherwise be applied to such Bank's
Affected Loans shall be applied
instead to such Loans.
48
5.5 ____________
Compensation. The Company
shall pay to the Administrative
Agent for account of each Bank,
upon the request of such Bank
through the Administrative Agent,
such amount or amounts as shall be
sufficient (in the reasonable
opinion of such Bank) to compensate
it for any loss, cost or expense
which such Bank determines is
attributable to:
(a) any payment, clean-up,
or conversion of a Fixed Rate Loan
made by such Bank for any reason
(including the acceleration of the
Loans pursuant to Section 9 hereof)
on a date other than the last day
of the Interest Period for such
Loan; or
(b) any failure by the
Company for any reason (including
the failure of any of the
conditions precedent specified in
Section 6 hereof to be satisfied)
to borrow a Fixed Rate Loan from
such Bank on the date for such
borrowing specified in the relevant
notice of borrowing given pursuant
to Section 2.2 hereof.
Without limiting the effect of
the preceding sentence, such
compensation shall include an
amount equal to the excess, if any,
of (i) the amount of interest which
otherwise would have accrued on the
principal amount so paid or
converted or not borrowed for the
period from the date of such
payment, conversion or failure to
borrow to the last day of the
Interest Period for such Loan (or,
in the case of a failure to borrow,
the Interest Period for such Loan
which would have commenced on the
date specified for such borrowing)
at the applicable rate of interest
for such Loan provided for herein
over (ii) the interest component of
the amount such Bank would have bid
in the London interbank market (if
such Loan is a Eurodollar Loan) or
the United States secondary
certificate of deposit market (if
such Loan is a CD Loan) for Dollar
deposits of leading banks in
amounts comparable to such
principal amount and with
maturities comparable to such
period (the calculations in this
clause (ii) being reasonably
determined by such Bank).
5.6 ___________________________
Additional Costs in Respect
____________________
of Letters of Credit. If as a
result of any Regulatory Change
there shall be imposed, modified or
deemed applicable any tax, reserve,
special deposit, deposit insurance
assessment or similar requirement
against or with respect to or
measured by reference to Letters of
Credit (or participations in
Letters of Credit) and the result
shall be to increase the cost to
any Bank of issuing or maintaining
any Letter of Credit or acquiring
or maintaining any participation in
any Letter of Credit hereunder or
maintaining its obligation
hereunder to issue, or to acquire a
participation in, any Letter of
Credit hereunder or reduce any
amount receivable by such Bank
hereunder in respect of any Letter
of Credit or participation (which
increase in cost, or reduction in
amount receivable, shall be the
result of such Bank's reasonable
allocation of the aggregate of such
increases or reductions resulting
from such event), then, upon demand
by such Bank, the Company agrees to
pay immediately to such Bank, from
time to time as specified by such
Bank, such additional amounts as
shall be sufficient to compensate
such Bank for such increased costs
or reductions in amount. A
statement as to such increased
costs or reductions in amount
incurred by any such Bank,
submitted by such Bank to the
Company in good faith, shall be
conclusive as to the amount thereof
absent manifest error.
49
5.7 ______________
No Duplication. There
shall be no duplication in amounts
payable pursuant to Section 5.1
through Section 5.6 hereof.
SECTION 6. __________
Conditions
_________
Precedent.
6.1 _____________________
Initial Extension of
______
Credit. The obligation of each
Bank to make its initial Loan
hereunder and the obligation of the
Letter of Credit Agent to issue the
initial Letter of Credit hereunder
is subject to the receipt by the
Administrative Agent of the
following documents, each of which
shall be satisfactory to the
Administrative Agent in form and
substance:
(a) ________________
Corporate Action. A
copy, certified by the appropriate
Maryland official, of the Company's
articles or certificate of
incorporation, and copies,
certified by the Company's
Secretary or Assistant Secretary,
of the Company's by-laws and of
resolutions of the Board of
Directors (or Executive Committee
of the Board of Directors) of the
Company authorizing the execution
and delivery of this Agreement, the
Notes, and the Letter of Credit
Documents and the consummation of
the transactions contemplated
hereby and thereby.
(b) __________
Incumbency. A
certificate of the Company's
Secretary or Assistant Secretary in
respect of each of the officers of
the Company (i) who is authorized
to sign Loan Documents on its
behalf and (ii) who will, until
replaced by another officer or
officers duly authorized for that
purpose, act as its representative
for the purposes of signing
documents and giving notices and
other communications in connection
with this Agreement and the
transactions contemplated hereby
(and the Administrative Agent and
each Bank may conclusively rely on
such certificate until it receives
notice in writing from the Company
to the contrary).
50
(c) __________
Compliance
___________
Certificate. A certificate of a
senior officer of the Company to
the effect set forth in the first
sentence of Section 6.2 hereof.
(d) _____________________
Opinion of Counsel to
___________
the Company. An opinion of Messrs.
McGuire, Woods, Battle & Boothe,
L.L.P., counsel to the Company,
substantially in the form of
Exhibit C hereto.
(e) _____________________
Opinion of Counsel to
_________
the Banks. An opinion of Messrs.
Donovan Leisure Newton & Irvine,
special New York counsel to the
Administrative Agent, substantially
in the form of Exhibit D hereto.
(f) _____
Notes. The Notes,
duly completed and executed.
(g) __________________
Initial Letters of
______
Credit. A list of each Letter of
Credit which the Company desires to
be issued on the Closing Date,
including the desired beneficiary,
amount and expiry date of each,
together with a Credit Certificate
and any Letter of Credit Documents
required by the Letter of Credit
Agent in connection therewith.
(h) _____________
Process Agent. A
letter from the Process Agent
accepting its appointment pursuant
to Section 11.10 hereof.
(i) _______________
Other Documents. Such
other documents relating to the
transactions contemplated hereby as
the Administrative Agent or any
Bank may reasonably request.
The Company shall deliver, or
cause to be delivered, to the
Administrative Agent sufficient
copies of each document to be
received by the Administrative
Agent under this Section 6 to
permit the Administrative Agent to
distribute a copy of each such
document to each Bank.
6.2 ______________________
Initial and Subsequent
____________________
Extensions of Credit. The
obligation of each Bank to make any
Loan hereunder and the obligation
of the Letter of Credit Agent to
issue any Letter of Credit
hereunder (including the initial
Extension of Credit) is subject to
the further conditions precedent
that, both immediately prior to
such Extension of Credit and also
after giving effect thereto:
51
(a) no Default shall have
occurred and be continuing (unless
the same shall have been waived in
accordance with Section 11.4
hereof);
(b) if such Extension of
Credit consists of Loans, the
conditions set out in Section 2.1
hereof have been satisfied, and, if
such Extension of Credit consists
of a Letter of Credit, the
conditions set out in Section 2.3
hereof have been satisfied;
(c) unless such Extension
of Credit consists of Loans that
will not result in an increase in
the aggregate principal amount of
the Loans outstanding hereunder (in
which case the condition in this
clause (c) shall not apply), the
representations and warranties made
by the Company in Section 7 hereof
(other than, in the case of an
Extension of Credit that is not the
initial Extension of Credit,
Sections 7.3, 7.11(b) and 7.16
hereof) shall be true on and as of
the date of the making of such
Extension of Credit with the same
force and effect as if made on and
(unless such representation
specifically states that it is made
as of an earlier date) as of such
date;
(d) unless such Extension
of Credit consists of Loans that
will not result in an increase in
the aggregate principal amount of
the Loans outstanding hereunder (in
which case the condition in this
clause (d) shall not apply), since
December 31, 1994, there shall have
been no material adverse change in
the Company's Consolidated
financial condition, operations,
business or prospects from that set
forth in the financial statements
identified in Section 7.2 hereof as
at such date.
Each notice requesting an
Extension of Credit hereunder by
the Company hereunder shall be
deemed to constitute a
representation by the Company to
the effect set forth in clauses
(a), (b), (c) and (d) of the
preceding sentence both as of the
date of such notice and, unless the
Company otherwise notifies the
Administrative Agent, as of the
date of such Extension of Credit.
SECTION 7. ___________________
Representations and
__________
Warranties. The Company represents
and warrants to the Banks that:
7.1 ___________________
Corporate Existence. Each
of the Company and its
Subsidiaries: (a) is a corporation
duly organized and, validly
existing under the laws of the
jurisdiction of its incorporation;
(b) has all requisite corporate
power, and has all material
governmental licenses,
authorizations, consents and
approvals necessary to own its
assets and carry on its business as
now being or as proposed to be
conducted; and (c) is qualified to
do business in all jurisdictions in
which the nature of the business
conducted by it makes such
qualification necessary and where
failure so to qualify would have a
material adverse effect on the
Consolidated financial condition,
operations, business or prospects
taken as a whole of the Company and
the Consolidated Subsidiaries.
52
7.2 ___________________
Financial Condition. The
consolidated balance sheets of the
Company and the Consolidated
Subsidiaries as at December 31,
1994 and the related consolidated
statements of operations, of
changes in stockholders' equity and
of cash flows of the Company and
the Consolidated Subsidiaries for
the fiscal year ended on such date,
with the opinion thereon of Ernst &
Young LLP, and the unaudited
consolidated balance sheets of the
Company and the Consolidated
Subsidiaries as at June 30, 1995,
and the related consolidated
statements of operations and of
cash flows of the Company and the
Consolidated Subsidiaries for the
six-month period ended on such
date, heretofore furnished to each
of the Banks, are complete and
correct and fairly present the
consolidated financial condition of
the Company and the Consolidated
Subsidiaries as at such dates and
the consolidated results, as the
case may be, of their operations
for the fiscal year and six-month
period ended on such dates
(subject, in the case of such
financial statements as at June 30,
1995, to normal year-end audit
adjustments), all in accordance
with generally accepted accounting
principles and practices applied on
a consistent basis. Neither the
Company nor any of its Subsidiaries
had on such dates any material
contingent liabilities, material
unusual forward or long-term
commitments or material unrealized
or anticipated losses from any
unfavorable commitments, except as
referred to or reflected or
provided for in such balance sheets
or as disclosed in footnotes to
such financial statements. Since
December 31, 1994, there has been
no material adverse change in the
Consolidated financial condition,
operations, business or prospects
taken as a whole of the Company and
the Consolidated Subsidiaries from
that set forth in such financial
statements as at such date.
7.3 __________
Litigation. Except as
disclosed to the Banks in the
Disclosure Letter, there are no
legal or arbitral proceedings or
any proceedings by or before any
governmental or regulatory
authority or agency, now pending or
(to the knowledge of the Company)
threatened against the Company or
any of its Subsidiaries in which
there is a reasonable possibility
of an adverse decision which would
materially and adversely affect the
Consolidated financial condition,
operations, business or prospects
taken as a whole of the Company and
the Consolidated Subsidiaries.
7.4 _________
No Breach. None of the
execution and delivery of the Loan
Documents, the consummation of the
transactions hereby and thereby
contemplated, and compliance with
the terms and provisions hereof and
thereof will conflict with or
result in a breach of, or require
any consent under, the charter or
by-laws of the Company, or any
applicable law or regulation, or
any order, writ, injunction or
decree of any court or governmental
authority or agency, or any
agreement or instrument to which
the Company or any of its
Subsidiaries is a party or by which
any of them is bound or to which
any of them is subject, or
constitute a default under any such
agreement or instrument, or result
in the creation or imposition of
any Lien upon any of the revenues
or assets of the Company or any of
its Subsidiaries pursuant to the
terms of any such agreement or
instrument.
53
7.5 ________________
Corporate Action. The
Company has all necessary corporate
power and authority to execute,
deliver and perform its obligations
under the Loan Documents; the
execution, delivery and performance
by the Company of the Loan
Documents have been duly authorized
by all necessary corporate action
on its part; and this Agreement has
been duly and validly executed and
delivered by the Company and
constitutes, and each of the Notes
and the other Loan Documents when
executed and delivered for value
will constitute, its legal, valid
and binding obligation, enforceable
in accordance with their respective
terms.
7.6 _________
Approvals. No
authorizations, approvals or
consents of, and no filings or
registrations with, any
governmental or regulatory
authority or agency are necessary
for the execution, delivery or
performance by the Company of the
Loan Documents or for the validity
or enforceability hereof and
thereof.
7.7 _______________
Use of Proceeds. The
Company will use the proceeds of
the Extensions of Credit for
working capital and general
corporate purposes (including the
payment of Indebtedness under the
Existing Agreement). Neither the
Company nor any of its Subsidiaries
is engaged principally, or as one
of its important activities, in the
business of extending credit for
the purpose, whether immediate,
incidental or ultimate, of buying
or carrying Margin Stock and no
part of the proceeds of any Loan
hereunder will be used to buy or
carry any Margin Stock or to extend
credit for such purposes.
7.8 _____
ERISA. The Company and the
ERISA Affiliates have fulfilled
their respective obligations under
the minimum funding standards of
ERISA and the Code with respect to
each Plan, are in compliance in all
material respects with the
presently applicable provisions of
ERISA and the Code, and have not
incurred any liability to the PBGC
(other than for premiums that are
not past due) or to any Plan or
Multiemployer Plan (other than to
make contributions in the ordinary
course of business).
7.9 _____
Taxes. United States
Federal income tax returns of the
Company and its Subsidiaries have
been examined and closed through
the fiscal year of the Company
ended December 31, 1987. The
Company and its Subsidiaries have
filed all United States Federal
income tax returns and all other
material tax returns which are
required to be filed by them and
have paid all taxes due pursuant to
such returns or pursuant to any
assessment received by the Company
or any of its Subsidiaries, except
for any such assessments being
contested reasonably and in good
faith and for which adequate
reserves have been set aside. The
charges, accruals and reserves on
the books of the Company and its
Subsidiaries in respect of taxes
and other governmental charges are,
in the opinion of the Company,
adequate.
54
7.10 ______________________
Investment Company Act.
Neither the Company nor any of its
Subsidiaries is an "investment
company", or a company "controlled"
by an "investment company", within
the meaning of the Investment
Company Act of 1940, as amended.
7.11 ________________________
Environmental Conditions.
Except as disclosed in the
Disclosure Letter:
(a) to the best of
Company's knowledge (after due
inquiry), the Company and each of
its Subsidiaries have obtained all
Environmental Permits which are
required under all Environmental
Laws, except to the extent that
failure to have any such
Environmental Permit would not have
a material adverse effect on the
consolidated financial condition,
operations, business or prospects
of the Company and its Subsidiaries
taken as a whole; and the Company
and each of its Subsidiaries are in
compliance with the terms and
conditions of all such
Environmental Permits and all
Environmental Laws, except to the
extent failure to be in compliance
would not have a material adverse
effect on the consolidated
financial condition, operations,
business or prospects of the
Company and its Subsidiaries taken
as a whole.
(b) no notice,
notification, demand, request for
information, citation, summons or
order has been issued, no complaint
has been filed, no penalty has been
assessed, and, to the best of the
Company's knowledge (after due
inquiry) no investigation or review
is pending or threatened by any
governmental or other entity with
respect to any alleged failure by
the Company or any of its
Subsidiaries to have any
Environmental Permit required in
connection with the conduct of the
business of the Company or any of
its Subsidiaries or with respect to
failure by the Company or any of
its Subsidiaries to comply with any
Environmental Law, except to the
extent that the Company reasonably
anticipates that such failure would
not have a material adverse effect
on the consolidated financial
condition, operations, business or
prospects taken as a whole of the
Company and its Subsidiaries; and
(c) to the best of the
Company's knowledge (after due
inquiry) neither the Company nor
any of its Subsidiaries has stored,
treated, disposed of, or otherwise
handled any Hazardous Waste, other
than as a generator, on any
property now or previously owned or
leased by the Company or any of its
Subsidiaries in violation of any
Environmental Permit or
Environmental Law, except to the
extent that the Company reasonably
anticipates that such violation
would not have a material adverse
effect on the consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and its
Subsidiaries; and
55
(d) to the best of the
Company's knowledge (after due
inquiry) no Hazardous Waste
generated by the Company or any of
its Subsidiaries has been recycled,
treated, stored, disposed of, or
resulted in an Environmental
Release by the Company or any of
its Subsidiaries at any location
(other than those listed in the
Environmental Disclosure Letter) in
violation of any Environmental
Permit or Environmental Law, except
to the extent that the Company
reasonably anticipates that any
such violations would not have a
material adverse effect on the
consolidated financial condition,
operations, business or prospects
taken as a whole of the Company and
its Subsidiaries; and
(e) no notice has been
provided to the Company or any of
its Subsidiaries that the Company
or any of its Subsidiaries has
transported or arranged for the
transportation of any Hazardous
Waste to any location which is
listed on the National Priorities
List under the Comprehensive
Environmental Response,
Compensation and Liability Act of
1980, as amended ("______
CERCLA"), listed
for possible inclusion on the
National Priorities List by the
Environmental Protection Agency in
its Comprehensive Environmental
Response, Compensation and
Liability Information System List
("_______
CERCLIS") or on any similar state
list or, to the best of the
Company's knowledge (after due
inquiry), which is the subject of
federal, state or local enforcement
actions or other investigations
which may lead to claims against
the Company or any of its
Subsidiaries for clean-up costs,
remedial work, damages to natural
resources or for personal injury
claims, including, but not limited
to, claims under CERCLA, except to
the extent that the Company
reasonably anticipates that the
same would not have a material
adverse effect on the consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and its
Subsidiaries; and
(f) no oral or written
notification of an Environmental
Release of a Hazardous Waste has
been filed by or on behalf of the
Company or any of its Subsidiaries
with any governmental authority,
and no notice has been provided to
the Company or its Subsidiaries
that any property now or previously
owned or leased by the Company or
any of its Subsidiaries is listed
or proposed for listing on the
National Priority list promulgated
pursuant to CERCLA, on CERCLIS or
on any similar state list of sites
requiring investigation or clean-up
as a result of any Environmental
Conditions on such property caused
in whole or in part by the Company
or any of its Subsidiaries, except
to the extent that such notice of
an Environmental Release or notice
of listing relates to matters which
the Company reasonably anticipates
would not have a material adverse
effect on the consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and its
Subsidiaries; and
56
(g) to the best of the
Company's knowledge, there are no
Liens arising under or pursuant to
any Environmental Laws on any of
the real property or properties now
owned or leased by the Company or
any of its Subsidiaries, and no
government actions have been taken
or are in process which could
subject any of such properties to
such Liens and neither the Company
nor any of its Subsidiaries would
be required to place any notice or
restriction relating to the
presence of Hazardous Materials at
any property owned by it in any
deed to such property, except to
the extent that the Company
reasonably anticipates that the
same would not have a material
adverse effect on the consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and its
Subsidiaries.
7.12 ____________
Indebtedness. Schedule 2
hereto is a complete and correct
list, as of August 31, 1995, of all
Indebtedness of $100,000 or more
existing under credit agreements,
indentures, purchase agreements,
guaranties, Capitalized Lease
Obligations and other agreements,
arrangements and instruments
presently in effect providing for
or relating to extensions of credit
(including agreements and
arrangements for the issuance of
letters of credit or for acceptance
financing) in respect of which the
Company or any of its Subsidiaries
is in any manner directly or
contingently obligated; and the
maximum principal or face amounts
of the credit in question,
outstanding and which may be
outstanding, are correctly stated
in, and all Liens of any nature
given or agreed to be given as
security therefor are correctly
described in, such Schedule 2. The
amounts of such Indebtedness have
not changed materially since August
31, 1995.
7.13 _____________________
Operation of Business.
Each of the Company and its
Subsidiaries possesses all
licenses, permits, franchises,
patents, copyrights, trademarks and
trade names, or rights thereto,
necessary to conduct its business
substantially as now conducted and
as presently proposed to be
conducted, and neither the Company
nor any of its Subsidiaries is in
violation of any material valid
rights of others with respect to
any of the foregoing.
7.14 __________________________
No Defaults on Outstanding
___________________
Judgments or Orders. Neither the
Company nor any of its Subsidiaries
is in default with respect to any
judgment, writ, injunction, decree,
rule or regulation of any court,
arbitrator or governmental or
regulatory agency or authority,
which default could reasonably be
expected to have a material adverse
effect on the Consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and the
Consolidated Subsidiaries.
57
7.15 _______________________
No Defaults under Other
_______________
Agreements, Etc. Neither the
Company nor any of its Subsidiaries
is a party to any indenture, loan
or credit agreement or any lease or
other agreement or instrument or
subject to any charter or corporate
restriction which could reasonably
be expected to have a material
adverse effect on the Consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and the
Consolidated Subsidiaries, or on
the ability of the Company to
perform or observe any of its
obligations under the Loan
Documents. Neither the Company nor
any of its Subsidiaries is in
default in any material respect in
the performance or observance of
any of the obligations, covenants
or conditions contained in any
agreement or instrument material to
its business to which it is a
party.
7.16 __________________________
Labor Disputes and Acts of
___
God. Except as disclosed to the
Banks in the Disclosure Letter,
neither the business nor the
properties of the Company or of any
of its Subsidiaries has been
affected by any fire, explosion,
accident, strike, lockout or other
labor dispute, drought, storm,
hail, earthquake, embargo, act of
God or of the public enemy or other
casualty (whether or not covered by
insurance), which materially and
adversely affects the Consolidated
financial condition, properties or
operations (taken as a whole) of
the Company and the Consolidated
Subsidiaries.
7.17 _________________
Subsidiaries, Etc. Set
forth in Schedule 3 hereto is a
complete and correct list, as of
the date of this Agreement, of all
Subsidiaries of the Company (and
the respective jurisdiction of
incorporation of each such
Subsidiary) and of all Investments
(other than Temporary Cash
Investments) held by the Company or
any of its Subsidiaries in any
joint venture or other Person.
Except as disclosed in Schedule 3
hereto, as of the date of this
Agreement, the Company owns, free
and clear of Liens, all outstanding
shares of such Subsidiaries (and
each such Subsidiary owns, free and
clear of Liens, all outstanding
shares of its Subsidiaries) and all
such shares are validly issued,
fully paid and non-assessable and
the Company (or the respective
Subsidiary) also owns, free and
clear of Liens, all such
Investments.
SECTION 8. ________________
Covenants of the
_______
Company.
The Company agrees that, unless
the Majority Banks otherwise
consent, until the termination of
this Agreement as provided in
Section 11.7:
8.1 ________________________
Maintenance of Existence.
The Company shall preserve and
maintain, and cause each of its
Subsidiaries to preserve and
maintain, its corporate existence
and good standing in the
jurisdiction of its incorporation,
and qualify and remain qualified,
and cause each such Subsidiary to
qualify and remain qualified, as a
foreign corporation in each
jurisdiction in which such
qualification is required provided
that nothing in this Section 8.1
shall prevent the abandonment or
termination of the corporate
existence, rights and franchises of
any Subsidiary if, in the opinion
of the Company, such abandonment or
termination is in the best
interests of the Company and does
not in any material respect
adversely affect the Banks.
58
8.2 ___________________
Conduct of Business. The
Company shall continue, either
directly or indirectly through its
Subsidiaries, to engage in an
efficient and economical manner in
the businesses of the same general
type as conducted by it on the
Closing Date.
8.3 _________________________
Maintenance of Properties.
The Company shall maintain, keep
and preserve, and cause each of its
Subsidiaries to maintain, keep and
preserve, all of its properties
(tangible and intangible) necessary
or useful in the proper conduct of
its business in good working order
and condition, ordinary wear and
tear excepted.
8.4 ______________________
Maintenance of Records.
The Company shall keep, and cause
each of its Subsidiaries to keep,
adequate records and books of
account, in which complete entries
will be made in accordance with
GAAP consistently applied,
reflecting all financial
transactions of the Company and its
Subsidiaries.
8.5 ________________________
Maintenance of Insurance.
The Company shall maintain, and
cause each of its Subsidiaries to
maintain, insurance with
financially sound and reputable
insurance companies or associations
in such amounts and covering such
risks as are usually carried by
companies engaged in the same or a
similar business and similarly
situated, which insurance may
provide for reasonable deductibles
from the coverage thereof.
8.6 ________________________
Compliance with Laws and
__________
Agreements. The Company shall
comply, and cause each of its
Subsidiaries to comply, in all
respects with all applicable laws,
rules, regulations, and orders
(including all applicable
Environmental Laws), such
compliance to include, without
limitation, paying before the same
become delinquent all taxes,
assessments and governmental
charges imposed upon it or upon its
property except as to such taxes,
assessments and governmental
charges as are being contested in
good faith. Each of the Company
and its Subsidiaries will perform
all of its obligations under the
Loan Documents and all material
obligations it is required to
perform under the terms of each
indenture, mortgage, deed of trust,
security agreement, lease,
franchise, agreement, contract or
other instrument or obligation to
which it is a party or by which it
or any of its properties is bound.
8.7 ___________________
Right of Inspection. The
Company shall, at any reasonable
time and from time to time, permit
the Administrative Agent or any
Bank or any agent or representative
thereof to examine and make copies
of any abstracts from the records
and books of account, and visit the
properties of, the Company and any
of its Subsidiaries, and to discuss
the affairs, finances and accounts
of the Company or any of its
Subsidiaries with any of their
respective officers and directors
and independent accountants.
59
8.8 ______________________
Reporting Requirements.
The Company shall furnish directly
to each of the Banks:
(a) ________________
Annual Financial
__________
Statements. As soon as available
and in any event within 90 days
after the end of each fiscal year
of the Company, the Company's
Consolidated balance sheet as of
the end of such fiscal year and the
Company's Consolidated statements
of operations, changes in
stockholders' equity and cash flows
for such fiscal year, all in
reasonable detail and stating in
comparative form the respective
Consolidated figures for the
corresponding date and period in
the prior fiscal year, and
accompanied by an opinion thereon
of independent certified public
accountants of recognized national
standing, which opinion shall state
that such financial statements
fairly present the financial
condition, results of operations,
and cash flows of the Company and
the Consolidated Subsidiaries for
such fiscal year.
(b) ___________________
Quarterly Financial
__________
Statements. As soon as available
and in any event within 45 days
after the end of each fiscal
quarter of the Company, the
Company's quarterly Consolidated
balance sheets as at the end of the
immediately preceding fiscal
quarter and the Company's
Consolidated statements of
operations and of cash flows for
the portion of the fiscal year
ended with the last day of such
fiscal quarter, all in reasonable
detail and certified by a senior
financial officer of the Company
(subject to year-end audit
adjustments). To the extent that
any Unconsolidated Subsidiaries
exist during any such fiscal
quarter, the Company will with such
quarterly Consolidated financial
statements provide a separate
balance sheet as of the same date,
and separate statements of
operations and of cash flows for
the same period, for each
Unrestricted Subsidiary.
(c) ___________________
Accountants' Report.
Simultaneously with the delivery of
the annual financial statements
referred to in Section 8.8(a)
hereof, (i) a certificate of the
independent public accountants who
audited such statements to the
effect that, in making the
examination necessary for the audit
of such statements, they have
obtained no knowledge of any
Default, or if such accountants
shall have obtained knowledge of
any such Default, specifying in
such certificate each such Default
of which they have knowledge and
the nature and status thereof, and
(ii) a calculation in reasonable
detail of the financial ratios
required to be maintained by the
Company pursuant to this Section 8
and pursuant to Section 9.1(l)
hereof as of the last day of the
immediately preceding fiscal year.
60
(d) ________________
Calculations and
_______________________________
Reports of Financial Compliance.
On or before:
(i) the last day of
each calendar month (or if such day
is not a Business Day, on the next
succeeding Business Day), a
certificate of a senior financial
officer of the Company that the
Company was in Financial Compliance
on the last day of the immediately
preceding calendar month (or
specifying how the Company was not
in Financial Compliance), and
(ii) the last day of
each January, April, July, and
October (or if such day is not a
Business Day, on the next
succeeding Business Day),
calculations in reasonable detail
showing that the Company was in
Financial Compliance on the last
day of each month in the
immediately preceding fiscal
quarter (or specifying how the
Company was not in Financial
Compliance), certified by a senior
financial officer of the Company,
and a certificate of such an
officer to the effect that no
Default has occurred and is
continuing (or, if any Default has
occurred and is continuing,
describing the same in reasonable
detail and describing the action
that the Company has taken and
proposes to take with respect
thereto).
(e) ____________________
Notice of Litigation.
Promptly after obtaining knowledge
thereof, notice of all actions,
suits, and proceedings commenced
or, to the knowledge of the
Company, threatened, against or
affecting the Company or any of its
Subsidiaries before any court,
arbitrator or governmental or
regulatory authority or agency in
which, individually or in the
aggregate, there is a reasonable
possibility of an adverse decision
which would materially and
adversely affect the Consolidated
financial condition, properties or
operations taken as a whole of the
Company and the Consolidated
Subsidiaries.
(f) __________________
Notice of Defaults.
As soon as possible and in any
event within ten days after the
occurrence of any Default of which
the Company is aware or in the
exercise of reasonable diligence
should have been aware, a notice
setting forth the details of such
Default and the action which the
Company proposes to take with
respect thereto.
(g) _____________
ERISA Reports.
(i) Together with the
annual financial statements
required under Section 8.8(a), a
schedule prepared as of the end of
such year for all Plans, separately
showing the funding status of each
Plan (i.e. the amount by which such
Plan was overfunded or the amount
of any Unfunded Vested Liabilities
with respect to such Plan) and the
sum by which the aggregate Unfunded
Vested Liabilities of the Company
and the ERISA Affiliates with
respect to all Plans exceeds, or is
exceeded by, the aggregate amount
by which all Plans are overfunded;
61
(ii) Together with
the annual financial statements
required under Section 8.8(a), a
schedule prepared as of the end of
such year for all Multiemployer
Plans, separately showing all
contributions and other payments by
the Company and its Subsidiaries
during such year with respect to
each Multiemployer Plan and, if
requested by the Administrative
Agent, the approximate amounts
which the Company expects it and
its Subsidiaries will pay with
respect to each Multiemployer Plan
during the then current fiscal
year;
(iii) Promptly after
the receiving thereof, copies of
all notices which the Company or
any of its Subsidiaries receives
from the PBGC or the U.S.
Department of Labor under ERISA
with respect to any Plan or any
Multiemployer Plan and copies of
all notices which the Company or
any of its Subsidiaries receives
from the sponsor of any
Multiemployer Plan claiming or
otherwise indicating that the
Company or any of its Subsidiaries
has any liability with respect to
such Multiemployer Plan beyond the
obligation to make normal
contributions as specified in the
applicable contract; and
(iv) As soon as
possible, and in any event within
10 days after the Company or any of
its Subsidiaries knows or has
reason to know that (1) any
"reportable event" (as defined in
Section 4043 of ERISA) has occurred
with respect to any Plan, or (2)
any transaction prohibited under
Section 406 of ERISA (and not
exempted under Section 408 of
ERISA) has occurred with respect to
any Plan, or (3) that the PBGC or
the Company or such Subsidiary or
any sponsor of any Multiemployer
Plan has instituted or will
institute proceedings under Title
IV of ERISA to terminate any Plan
or any Multiemployer Plan, a
certificate of the chief financial
officer of the Company setting
forth details as to such reportable
event, prohibited transaction, or
termination and the action, if any,
which the Company proposes to take
with respect thereto.
62
(h) _____________________
Environmental Reports.
Promptly after obtaining knowledge
thereof, notice of any event or
change in circumstances which would
cause any of the Company's
representations and warranties in
Section 7.11 hereof to be incorrect
if such representations and
warranties were to be made as of
the date of such occurrence and
after giving effect thereto.
(i) ________________
Reports to Other
_________
Creditors. Promptly after the
furnishing thereof, copies of any
statement or report furnished to
any Person pursuant to the terms of
the Senior Notes Indenture or of
any indenture, loan or credit or
similar agreement other than this
Agreement and not otherwise
required to be furnished to the
Banks pursuant to any other
provision of this Section 8.8.
(j) _____________________
Proxy Statements, Etc.
Promptly after the sending or
filing thereof, copies of all proxy
statements, financial statements
and reports which the Company sends
to its stockholders, and copies of
all regular, periodic and special
reports, and all registration
statements which the Company files
with the Securities and Exchange
Commission or any governmental
authority which may be substituted
therefor, or with any national
securities exchange.
(k) ___________
Projections. On or
before February 28 of each fiscal
year, projections by the Company,
in reasonable detail for each
quarter in such fiscal year, of
anticipated (i) Consolidated
Capital Expenditures, (ii)
throughput volumes for each of the
Pasadena and Tyler refineries,
(iii) operating expenses by
operating division, and (iv)
Consolidated administrative
expense.
(l) _________________
Other Information.
Promptly, such other information
with respect to the business,
condition or operations (financial,
environmental, or otherwise) of the
Company or any of its Subsidiaries
as any Bank Party may from time to
time reasonably request.
8.9 _____
Liens. The Company shall
not create, incur, assume or suffer
to exist, or permit any of its
Subsidiaries to create, incur,
assume or suffer to exist, any Lien
upon or with respect to any of its
properties, now owned or hereafter
acquired, except for the following:
(a) Liens for taxes or
assessments or other governmental
charges or levies if not yet due
and payable or, if due and payable,
if they are being contested in good
faith by appropriate proceedings
and for which appropriate reserves
are maintained.
(b) Liens imposed by law,
such as mechanic's, materialmen's,
landlord's, warehousemen's and
carrier's Liens, and other similar
Liens, securing obligations
incurred in the ordinary course of
business which are not past due for
more than 30 days or which are
being contested in good faith by
appropriate proceedings and for
which appropriate reserves have
been established.
63
(c) Liens under workmen's
compensation, unemployment
insurance, social security or
similar legislation.
(d) Liens, deposits or
pledges to secure the performance
of bids, tenders, leases (to the
extent permitted under the terms of
this Agreement), public or
statutory obligations, surety,
stay, appeal, indemnity,
performance or other similar bonds,
or other similar obligations
arising in the ordinary course of
business and not constituting
Indebtedness (other than
Indebtedness with respect to surety
bonds and instruments similar
thereto which are described in
clause (e) of the definition herein
of "Indebtedness").
(e) Judgment and other
similar Liens arising in connection
with court proceedings; provided
that the execution or other
enforcement of such Liens is
effectively stayed and the claims
secured thereby are being actively
contested in good faith and by
appropriate proceedings.
(f) Easements, rights-of-
way, restrictions and other similar
encumbrances which, in the
aggregate, do not materially
interfere with the occupation, use
and enjoyment by the Company or any
of its Subsidiaries of the property
or assets encumbered thereby in the
normal course of its business or
materially impair the value of the
property subject thereto.
(g) Liens securing
obligations of a Restricted
Subsidiary to the Company or
another Restricted Subsidiary.
(h) Liens in existence on
the Closing Date and described in
Schedule 2 but not the extension of
any such Lien to some other
Indebtedness or obligation.
(i) Purchase Money Liens
on any property hereafter acquired
or constructed by the Company or
any of its Subsidiaries.
(j) Liens securing
reimbursement obligations with
respect to commercial letters of
credit permitted under Section 8.10
hereof, but only on goods being
financed by such letters of credit
or on title documents related
thereto.
(k) Liens granted in
connection with the sale by the
Company or any of its Subsidiaries
of credit card receivables, to the
extent and only to the extent that
(i) such Liens burden only the
receivables sold and are given as a
precautionary measure in the event
that such sales are recharacterized
as grants of security interests,
and (ii) the Company is in
Financial Compliance both
immediately before and immediately
after the granting of such Liens.
64
(l) Liens on assets of
Unrestricted Subsidiaries to secure
Nonrecourse Indebtedness.
8.10 ____________
Indebtedness. The Company
shall not create, issue, assume,
guarantee, or otherwise in any
manner become directly or
indirectly liable for or with
respect to or otherwise incur
(collectively, "_____
incur") any
Indebtedness, and the Company shall
not permit any of its Subsidiaries
to incur any Indebtedness, except
that:
(a) the Company may incur
Indebtedness to the Banks or the
Letter of Credit Agent hereunder,
in accordance with the terms
hereof;
(b) the Company may incur
Indebtedness to any Person other
than one of its Subsidiaries
(excluding liabilities and
obligations prohibited under
Section 8.25 hereof), provided that
the Company is in Financial
Compliance both immediately before
and immediately after such
incurrence and further provided, if
such Indebtedness is for Hedging
Obligations, that such Hedging
Obligations are Product Hedging
Obligations or Rate Hedging
Obligations incurred for hedging
purposes (and not speculation) in
order to protect the Company or a
Restricted Subsidiary against
fluctuations in the interest rates
applicable to their existing or
reasonably anticipated floating
rate indebtedness or against
fluctuations in the prices
applicable to their existing or
reasonably anticipated requirements
(for the reasonable operations of
the Company's two lines of
business) of crude oil, other
feedstocks, retail petroleum
products, or additives thereto or
components thereof or their
existing or reasonably anticipated
requirements for energy supplies.
(c) the Company and the
Restricted Subsidiaries may incur
Indebtedness in respect of
commercial letters of credit,
provided that the Company is in
Financial Compliance both
immediately before and immediately
after such incurrence;
(d) the Company and the
Restricted Subsidiaries may incur
Indebtedness secured by Purchase
Money Liens, provided that the
Company is in Financial Compliance
both immediately before and
immediately after such incurrence;
(e) the Company and the
Restricted Subsidiaries may incur
Indebtedness under Guarantees
permitted by Section 8.11 hereof;
65
(f) any Restricted
Subsidiary may incur Indebtedness
to the Company or to any other
Restricted Subsidiary, and the
Company may incur Indebtedness to
any Restricted Subsidiary so long
as the aggregate amount of such
Indebtedness of the Company to the
Restricted Subsidiaries does not
exceed $15,000,000 at any one time
outstanding; and
(g) any Unrestricted
Subsidiary may incur Nonrecourse
Indebtedness to Persons other than
the Company and the Restricted
Subsidiaries.
8.11 _______________
Guaranties, Etc. The
Company shall not assume,
guarantee, endorse or otherwise be
or become directly or contingently
responsible or liable, or permit
any of its Restricted Subsidiaries
to assume, guarantee, endorse or
otherwise be or become directly or
indirectly responsible or liable
(including by means of an agreement
to purchase any obligation, stock,
assets, goods or services, or to
supply or advance any funds,
assets, goods or services, or to
maintain or cause any Person to
maintain a minimum working capital
or net worth or otherwise to assure
the creditors of such Person
against loss) for obligations of
any Person (each such obligation
herein referred to as a
"_________
Guarantee") other than the Company
or a Restricted Subsidiary, except:
(a) guaranties by
endorsement of negotiable
instruments for deposit or
collection or similar transactions
in the ordinary course of business;
(b) a Guarantee of an
obligation of any Person to the
extent, but only to the extent,
that a payment by the Company or a
Restricted Subsidiary pursuant to
such Guarantee shall reduce by the
same amount any obligation of the
Company or such Subsidiary which
the Company or such Subsidiary is
permitted to incur pursuant to the
provisions of this Agreement, other
than this Section 8.11; and
(c) liabilities imposed by
law on the Company or a Restricted
Subsidiary for acts by Persons
other than the Company or such
Subsidiary.
8.12 ____________
Mergers, Etc. The Company
shall not merge or consolidate with
any Person, or acquire all or any
substantial part (in one
transaction or a series of related
transactions) of the business or,
except in the ordinary course of
business, the assets of any Person,
or permit any of its Subsidiaries
to do so, except that: (a) any
Restricted Subsidiary may merge
into or transfer assets to the
Company; (b) any Restricted
Subsidiary may merge into or
consolidate with or transfer assets
to any other Restricted Subsidiary;
and (c) the Company or any of its
Subsidiaries may acquire the
capital or fixed assets or business
of any Person pursuant to an
Investment permitted under Section
8.13 hereof.
66
8.13 ___________
Investments. The Company
shall not make, or permit any of
its Subsidiaries to make, any
Investments except:
(a) Temporary Cash
Investments; and
(b) provided that the
Company is in Financial Compliance
both immediately before and
immediately after making such
Investments, other Permitted
Investments.
8.14 ______________
Sale of Assets. The
Company shall not, and shall not
permit any of its Subsidiaries to,
make any Asset Sale except for:
(a) transfers by any
Subsidiary of the Company of assets
to the Company or to a Restricted
Subsidiary;
(b) the substantially
contemporaneous exchange of assets
for assets of the same type and of
substantially the same value;
(c) the sale of undivided
interests of 25% or less in either
or both of the Company's refineries
in Pasadena and Tyler, Texas,
provided that (i) the Company (or
one or more of its wholly-owned
Subsidiaries) must retain operating
control of both such refineries
after any such sale, (ii) the
Company must be in Financial
Compliance both before and
immediately after any such sale,
and (iii) FIFO Net Worth must
exceed $286,000,000 immediately
after such sale, without giving
effect to any gain recognized upon
such sale; and
(d) Asset Sales other than
those described in clauses (a) or
(b) of the definition herein of
"Asset Sales", provided that (i)
the Company must be in Financial
Compliance both before and
immediately after any such Asset
Sale and (ii) to the extent the
proceeds of any such permitted
Asset Sale constitute "Excess
Proceeds" under Section 1011 of the
Senior Notes Indenture (or would,
if not applied to pay the Loans,
similarly be required to be used to
prepay or purchase other
Indebtedness under any other
indenture, loan agreement, note
purchase agreement, or similar
agreement), the Company will prepay
the Loans (to the extent thereof)
and permanently reduce the
Commitments by the amount of such
prepayment.
The Company shall not, and shall
not permit any of its Subsidiaries
to, sell its or their credit card
receivables unless the Company is
in Financial Compliance both
immediately before and immediately
after such sale.
8.15 ______________________
Stock of Subsidiaries,
___
Etc. The Company shall not sell or
otherwise dispose of, or permit any
of its Subsidiaries to sell or
otherwise dispose of, any shares of
capital stock of or any
Indebtedness or other obligation of
any of such Subsidiaries, except to
the Company or a Restricted
Subsidiary, or permit any such
Subsidiary to issue any additional
shares of its capital stock (except
directors' qualifying shares) to
any Person other than the Company
or a Restricted Subsidiary.
67
8.16 _________________
Transactions with
__________
Affiliates. The Company shall not
enter into any transaction
(including the purchase, sale or
exchange of property or the
rendering of any service) with any
Affiliate or permit any of its
Subsidiaries to enter into any such
transaction, except in the ordinary
course of, and pursuant to the
reasonable requirements of, the
Company's or such Subsidiary's
business and upon terms not less
favorable to the Company or such
Subsidiary than would obtain in a
comparable arm's length transaction
with a Person not an Affiliate;
provided that the foregoing
restrictions shall not be deemed to
prevent (a) any Subsidiary of the
Company (or the Company) from
entering into any transaction with
the Company or a Restricted
Subsidiary on terms no less
favorable to the Company or such
Restricted Subsidiary than those
that would obtain in an arm's
length transaction, and (b) the
Company or any Subsidiary of the
Company from entering from time to
time into isolated transactions
with Affiliates (not material to
the Company's Consolidated
financial condition) pursuant to
which such Affiliates are allowed
to temporarily use assets of the
Company and its Subsidiaries and to
reimburse the Company and such
Subsidiaries for the allocable
costs thereof without any
additional payment for profit.
8.17 ________________
Line of Business. The
Company shall not enter into, or
permit any of its Subsidiaries to
enter into, any material line of
business other than businesses of
the same general type it is engaged
in on the Closing Date.
8.18 ________________________
Accounts Payable; Senior
_____
Notes. The Company shall not
permit accounts payable of the
Company and its Subsidiaries to
trade creditors for goods or
services to age more than 60 days
from the later of the due date
thereof or the date of receipt of
the invoice therefor, or permit
other current operating liabilities
(other than for borrowed money) to
be more than 30 days past due;
provided that the 60 and 30 day
limitations referred to above shall
not apply to accounts or operating
liabilities which are being
contested on a reasonable basis in
good faith by appropriate
proceedings. The Company shall
make all required payments on the
Senior Notes when due but shall not
make any optional prepayment or
redemption of the Senior Notes
unless no Default then exists and
the Company is in Financial
Compliance both before and after
such optional prepayment or
redemption.
8.19 _______________________
FIFO Tangible Net North.
The Company shall cause FIFO
Tangible Net Worth to be at least
$240,000,000 at the end of each
calendar month.
68
8.20 _________________
CFD/Capital Ratio. The
Company shall cause the CFD/Capital
Ratio to be less than .45 to 1.0 at
the end of each calendar month.
8.21 ____________________
Net Adjusted Working
_______
Capital. The Company shall cause
Adjusted Current Assets to exceed
Adjusted Liabilities by $40,000,000
or more at the end of each calendar
month.
8.22 ______________________
Adjusted Current Ratio.
The Company shall cause the
Adjusted Current Ratio to equal or
exceed 1.2 to 1.0 at the end of
each calendar month.
8.23 __________________________
Short-Term FIFO Net Income
______
(Loss). The Company shall cause
FIFO Net Income (Loss) to be
greater than ($20,000,000) for each
short-term measurement period
commencing on or after July 1, 1995
(i.e., either to be positive or, if
a loss, not to be a loss of more
than $20,000,000). As used in this
Section 8.23, "short-term
measurement period" means any
period of twelve consecutive
calendar months, provided that
until June 30, 1996, a short-term
measurement period shall be any
period (from one to eleven months
in length) beginning on July 1,
1995 and ending on the last day of
a calendar month prior to June 30,
1996.
8.24 ________________________
Mid-Term FIFO Net Income
______
(Loss). The Company shall cause
FIFO Net Income (Loss) to be
greater than ($30,000,000) for each
mid-term measurement period
commencing on or after July 1, 1995
(i.e., either to be positive or, if
a loss, not to be a loss of more
than $30,000,000). As used in this
Section 8.24, "mid-term measurement
period" means any period of twenty-
four consecutive calendar months,
provided that until June 30, 1997,
a mid-term measurement period shall
be any period (from one to twenty-
three months in length) beginning
on July 1, 1995 and ending on the
last day of a calendar month prior
to June 30, 1997.
8.25 _________________________
Unrestricted Subsidiaries.
The Company may from time to time
form new Subsidiaries and designate
such Subsidiaries as Unrestricted
Subsidiaries, subject to the terms
and provisions set out in the
definition herein of "Unrestricted
Subsidiary". The Company shall not
(and shall not allow any of its
Subsidiaries to) make any
Investment in an Unrestricted
Subsidiary except for:
(a) Investments which are
contemplated in clause (c) of the
definition herein of "Unrestricted
Subsidiary" and which are made at
or about the time any Subsidiary of
the Company is designated as an
Unrestricted Subsidiary; and
(b) other capital
contributions or loans thereafter
made to such Unrestricted
Subsidiary, provided that (i)
neither the Company nor any
Consolidated Subsidiary may make
any advance commitment to any
Person to make any such capital
contribution or loan, and (ii) the
making of such capital contribution
or loan does not cause a Default to
occur and the Company is in
Financial Compliance immediately
after such capital contribution or
loan is made.
69
Neither the Company nor any
Restricted Subsidiary shall
otherwise transfer assets to any
Unrestricted Subsidiary, or have or
incur any liability or obligation
to or for the benefit of any
Unrestricted Subsidiary (or to or
for the benefit of any other Person
in connection with any Nonrecourse
Indebtedness of any Unrestricted
Subsidiary, including any liability
or obligation as a co-maker of such
Nonrecourse Indebtedness, under any
Guarantee thereof, or under any
indemnity or undertaking given to
the holder thereof, to such
Unrestricted Subsidiary or to any
other Person), except that the
Company and its other Subsidiaries
may make payments to an
Unrestricted Subsidiary if such
payments are made in compliance
with Section 8.16 hereof and are
made for goods or services received
by the payor from such Unrestricted
Subsidiary. An Unrestricted
Subsidiary can be converted by the
Company into a Restricted
Subsidiary if (and only if):
(1) the Company gives the
Administrative Agent at least ten
days' advance written notice
redesignating such Unrestricted
Subsidiary as a Restricted
Subsidiary, specifying the date on
which such conversion is to occur
and containing calculations showing
that the Company will be in
Financial Compliance on such date
after giving effect to such
conversion and to the consequent
treatment of such Subsidiary as a
Restricted Subsidiary and a
Consolidated Subsidiary for the
purposes of determining Cumulative
Adjusted Liquidity Capacity and the
Company's compliance with Sections
8.18 through and including Section
8.26 hereof,
(2) the Company is in fact
in Financial Compliance on such
date, after giving effect to such
conversion, and
(3) no Default otherwise
exists on such date, after giving
effect to such conversion.
8.26 _______________________
Restricted Subsidiaries.
No Restricted Subsidiary shall
enter into or consent to any
agreement with any creditor which
prohibits it, either directly or
indirectly, from paying dividends
or making other distributions to
the Company without such creditor's
consent.
SECTION 9. _________________
Events of Default.
9.1 _________________
Events of Default. If one
or more of the following events
(herein called "_________________
Events of Default")
shall occur and be continuing (and
shall not have been waived pursuant
to Section 11.4 hereof):
(a) The Company shall
default in the payment when due of
any principal of or interest on any
Loan, Letter of Credit Liability or
any other amount payable by it
hereunder, and such payment shall
not be made in full within one
Business Day thereafter; or
70
(b) The Company or any of
its Subsidiaries shall default in
the payment when due of any
principal of or interest on any of
its other Indebtedness aggregating
$1,000,000 or more; or any event
(including any "Change of Control"
as defined in the Senior Notes
Indenture) specified in any note,
agreement, indenture or other
document evidencing or relating to
any such Indebtedness shall occur
if the effect of such event is to
cause, or (with the giving of any
notice or the lapse of time or
both) to permit the holder or
holders of such Indebtedness (or a
trustee or agent on behalf of such
holder or holders) to cause, such
Indebtedness to become due, or to
be prepaid in full (whether by
redemption, purchase or otherwise),
prior to its stated maturity; or
(c) Any representation,
warranty or certification made or
deemed made in any Loan Document
shall prove to have been false or
misleading in any material respect
as of the time made or deemed made;
or
(d) The Company shall
default in the performance of any
of its obligations under Section
2.10 hereof or Sections 8.8 through
and including 8.26 hereof; or
(e) The Company shall
default in the performance of any
of its other obligations in any
Loan Document and such default
shall continue unremedied for a
period of 30 consecutive days after
notice thereof to the Company by
the Administrative Agent; or
(f) The Company or any of
its Subsidiaries shall admit in
writing its inability to, or be
generally unable to, pay its debts
as such debts become due; or
(g) The Company or any of
its Subsidiaries shall (i) apply
for or consent to the appointment
of, or the taking of possession by,
a receiver, custodian, trustee or
liquidator of itself or of all or a
substantial part of its property,
(ii) make a general assignment for
the benefit of its creditors, (iii)
commence a voluntary case under the
Bankruptcy Code (as now or
hereafter in effect), (iv) file a
petition seeking to take advantage
of any other law relating to
bankruptcy, insolvency,
reorganization, winding-up,
composition or readjustment of
debts, (v) fail to controvert in a
timely and appropriate manner, or
acquiesce in writing to, any
petition filed against it in an
involuntary case under the
Bankruptcy Code, or (vi) take any
corporate action for the purpose of
effecting any of the foregoing; or
71
(h) A proceeding or case
shall be commenced, without the
application or consent of the
Company or any of its Subsidiaries,
in any court of competent
jurisdiction, seeking (i) its
liquidation, reorganization,
dissolution or winding-up, or the
composition or readjustment of its
debts, (ii) the appointment of a
trustee, receiver, custodian,
liquidator or the like of the
Company or such Subsidiary or of
all or any substantial part of its
assets, or (iii) similar relief in
respect of the Company or such
Subsidiary under any law relating
to bankruptcy, insolvency,
reorganization, winding-up, or
composition or adjustment of debts,
and such proceeding or case shall
continue undismissed, or an order,
judgment or decree approving or
ordering any of the foregoing shall
be entered and continue unstayed
and in effect, for a period of 60
or more days; or an order for
relief against the Company or such
Subsidiary shall be entered in an
involuntary case under the
Bankruptcy Code; or
(i) A final judgment or
judgments for the payment of money
in excess of $1,000,000 in the
aggregate shall be rendered by a
court or courts against the Company
or any of its Subsidiaries and the
same shall not be discharged (or
provision shall not be made for
such discharge), or a stay of
execution thereof shall not be
procured, within 30 days from the
date of entry thereof and the
Company or the relevant Subsidiary
shall not, within such period of 30
days, or such longer period during
which execution of the same shall
have been stayed, appeal therefrom
and cause the execution thereof to
be stayed during such appeal; or
(j) An event or condition
specified in Section 8.8(g)(iii) or
(iv) hereof shall occur or exist
with respect to any Plan or
Multiemployer Plan and, as a result
of such event or condition,
together with all other such events
or conditions, the Company or any
ERISA Affiliate shall incur or in
the reasonable opinion of the
Majority Banks shall be reasonably
likely to incur a liability (other
than a liability to make
contributions in the ordinary
course of business) to a Plan, a
Multiemployer Plan or the PBGC (or
any combination of the foregoing)
which is, in the determination of
the Majority Banks, material in
relation to the Consolidated
financial condition, operations,
business or prospects taken as a
whole of the Company and the
Consolidated Subsidiaries; or
(k) During any period of
25 consecutive calendar months, (i)
individuals who were directors of
the Company on the first day of
such period, (ii) individuals who
were elected or nominated to
replace directors who have retired,
and (iii) other individuals whose
election or nomination by the Board
of Directors of the Company was
approved by at least a majority of
the Board of Directors of the
Company who either (x) were
directors on the first day of such
period, (y) whose election or
nomination was previously so
approved, or (z) who were elected
or nominated to replace directors
who had retired, shall no longer
constitute a majority of the Board
of Directors of the Company; or
72
(l) the aggregate Unfunded
Vested Liabilities of the Company
and the ERISA Affiliates with
respect to all Plans exceed the sum
of (i) the aggregate amounts by
which all Plans are overfunded,
plus (ii) $8,000,000;
THEREUPON: (i) in the case of
an Event of Default other than one
referred to in clause (g) or (h) of
this Section 9.1 with respect to
the Company, the Administrative
Agent may and, upon request of the
Majority Banks, shall, by notice to
the Company, cancel the Commitments
or declare any or all of the
Obligations (including any amounts
payable under Section 5.5 hereof)
to be forthwith due and payable,
whereupon such amounts shall be
immediately due and payable without
presentment, demand, protest,
notice of demand or of dishonor,
notice of intention to accelerate,
notice of acceleration, or any
other notice or other formalities
of any kind, all of which are
hereby expressly waived by the
Company; and (ii) in the case of
the occurrence of an Event of
Default referred to in clause (g)
or (h) of this Section 9.1 with
respect to the Company, the
Commitments shall automatically be
canceled and all of the Obligations
(including any amounts payable
under Section 5.5 hereof) shall
automatically become immediately
due and payable without
presentment, demand, protest,
notice of demand or of dishonor,
notice of intention to accelerate,
notice of acceleration, or any
other notice or other formalities
of any kind, all of which are
hereby expressly waived by the
Company.
9.2 _______________________
Cash Collateral Account.
Without limiting its obligations
under Section 9.1 hereof, the
Company hereby agrees that upon the
occurrence and during the
continuance of any Event of Default
it shall, upon demand by the
Majority Banks through the
Administrative Agent, pay (and in
the case of any Event of Default
specified in paragraph (g) or (h)
of Section 9.1 hereof with respect
to the Company, forthwith, without
any demand or the taking of any
other action by any of the Bank
Parties, pay) to the Administrative
Agent an amount in immediately
available funds equal to the then
aggregate undrawn face amount of
all Letters of Credit. All amounts
received by the Administrative
Agent pursuant to this Section 9.2
(and all investments of such
amounts and earnings therein and
proceeds thereof) shall be held by
the Administrative Agent in a cash
collateral account in the name of
the Administrative Agent entitled
"Crown Central Petroleum Letter of
Credit Cash Collateral Account"
(the "__________________
Collateral Account") as
collateral for the prompt payment
and performance when due of all
Letter of Credit Liabilities, and
following the satisfaction of all
Letter of Credit Liabilities, as
collateral for all other
Obligations. The balance in the
Collateral Account from time to
time (including all earnings
thereon and proceeds thereof) shall
be invested and reinvested by the
Administrative Agent in the name of
the Administrative Agent in
Temporary Cash Investments
(maturing not later than 15 days
after the date acquired) as the
Company shall from time to time
specify to the Administrative Agent
(failure by the Company to make any
such specification being deemed a
specification to make an investment
with NationsBank of a type
described in clause (e) of the
definition herein of "Temporary
Cash Investments"), and the Company
hereby authorizes and directs the
Administrative Agent to collect and
receive any earnings and proceeds
of any such obligations and to
credit the net amount of all such
receipts to the Collateral Account.
If and to the extent so requested
by the Company from time to time,
the Administrative Agent will debit
the Collateral Account (and
liquidate any investments therein
to the extent necessary) in an
amount equal to the excess, if any,
of the then outstanding balance in
the Collateral Account over the
then aggregate outstanding amount
of Letter of Credit Liabilities,
and pay such amount to the Company
(by depositing the same in an
account of the Company maintained
with NationsBank and designated by
the Company), provided that no such
debit or payment shall be made if a
Default has occurred and is
continuing or would result
therefrom. When all of the
Obligations shall have been paid in
full and the Commitments and all
Letter of Credit Liabilities and
all Letters of Credit shall have
expired or been terminated, the
Administrative Agent shall transfer
to the Company (by depositing the
same in an account of the Company
maintained with NationsBank and
designated by the Company) the then
outstanding balance in the
Collateral Account.
73
9.3 _________
Indemnity. The Company
agrees to indemnify each
Indemnified Party, upon demand,
from and against any and all
liabilities, obligations, claims,
losses, damages, penalties, fines,
actions, judgments, suits,
settlements, costs, expenses or
disbursements (including reasonable
fees of attorneys, accountants,
experts and advisors) of any kind
or nature whatsoever (in this
section collectively called
"liabilities and costs") which to
any extent (in whole or in part)
may be imposed on, incurred by, or
asserted against such Indemnified
Party growing out of, resulting
from or in any other way associated
with any of the Loan Documents and
the transactions and events
(including the enforcement or
defense thereof) at any time
associated therewith or
contemplated therein (including any
violation or noncompliance with any
Environmental Laws by the Company
or any of its Subsidiaries or any
liabilities or duties of the
Company or any of its Subsidiaries
or of any Indemnified Party with
respect to Hazardous Materials
found in or released into the
environment). THE FOREGOING
INDEMNIFICATION SHALL APPLY WHETHER
OR NOT SUCH LIABILITIES AND COSTS
ARE IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY
KIND BY ANY INDEMNIFIED PARTY,
PROVIDED THAT NO INDEMNIFIED PARTY
SHALL BE ENTITLED UNDER THIS
SECTION TO RECEIVE INDEMNIFICATION
FOR THAT PORTION, IF ANY, OF ANY
LIABILITIES AND COSTS WHICH IS
PROXIMATELY CAUSED BY ITS OWN
INDIVIDUAL GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
74
SECTION 10. __________________
The Administrative
______________________________
Agent and the Letter of Credit
_____
Agent.
10.1 _______________________
Appointment, Powers and
__________
Immunities. Each Bank hereby
irrevocably appoints and authorizes
the Administrative Agent and the
Letter of Credit Agent to act as
its agents hereunder and under the
Letter of Credit Documents with
such powers as are specifically
delegated to each by the terms of
this Agreement the Letter of Credit
Documents, and the other Loan
Documents, together with such other
powers as are reasonably incidental
thereto. The "_________________
Administrative/LC
______
Agents" (which term as used herein
shall include the Administrative
Agent, the Letter of Credit Agent,
their respective Affiliates, and
their own and their respective
Affiliates' officers, directors,
employees, representatives and
agents) and the Agents (and their
respective Affiliates and their own
and their respective Affiliates'
officers, directors, employees,
representatives and agents): (a)
shall have no duties or
responsibilities except those
expressly set forth in this
Agreement and the other Loan
Documents and shall not by reason
of this Agreement or any of the
other Loan Documents be or be
deemed a fiduciary or trustee for
any Bank; (b) shall not be
responsible to the Banks for any
recitals, statements,
representations or warranties
contained in this Agreement or any
of the other Loan Documents, or in
any certificate or other document
referred to or provided for in, or
received by any of them under, this
Agreement or any other Loan
Document, or for the value,
validity, effectiveness,
genuineness, enforceability or
sufficiency of this Agreement, any
other Loan Document or any other
document referred to or provided
for herein or for any failure by
the Company or any other Person to
perform any of its obligations
hereunder or thereunder; (c) shall
not be required to initiate or
conduct any litigation or
collection proceedings hereunder;
and (d) shall not be responsible
for any action taken or omitted to
be taken by it hereunder or under
any other document or instrument
referred to or provided for herein
or in connection herewith, except
for its own gross negligence or
willful misconduct. Each of the
Administrative Agent and the Letter
of Credit Agent may employ agents
and attorneys-in-fact and shall not
be responsible for the negligence
or misconduct of any such agents or
attorneys-in-fact selected by it in
good faith. Each of the
Administrative Agent and the Letter
of Credit Agent may deem and treat
each Bank as the beneficial holder
of the Extensions of Credit made by
it for all purposes hereof unless
and until a written notice of the
assignment or transfer thereof
shall have been filed with it by
such Bank, together with the
written consent of the Company to
such assignment or transfer.
10.2 ________
Reliance. The
Administrative Agent and the Letter
of Credit Agent shall be entitled
to rely upon any certification,
notice or other communication
(including any thereof by
telephone, telex, telegram or
cable) believed by it to be genuine
and correct and to have been signed
or sent by or on behalf of the
proper Person or Persons, and upon
advice and statements of its legal
counsel, independent accountants
and other experts selected by it.
As to any matters not expressly
provided for by this Agreement or
the other Loan Documents, the
Administrative Agent and the Letter
of Credit Agent shall in all cases
be fully protected in acting, or in
refraining from acting, hereunder
in accordance with instructions
signed by the Majority Banks, and
such instructions of the Majority
Banks and any action taken or
failure to act pursuant thereto
shall be binding on all of the
Banks.
75
10.3 ________
Defaults. Neither the
Administrative Agent nor the Letter
of Credit Agent shall be deemed to
have knowledge or notice of the
occurrence of a Default (other than
the non-payment of any obligation
to the extent the same is required
to be paid to it for the account of
the Banks) unless it has received
notice from a Bank or the Company
specifying such Default and stating
that such notice is a "Notice of
Default". In the event that either
the Administrative Agent or the
Letter of Credit Agent receives
such a notice of the occurrence of
a Default, it shall give prompt
notice thereof to the Banks (and
shall give each Bank prompt notice
of each such non-payment) and shall
(subject to Section 10.7 hereof)
take such action with respect to
such Default as shall be directed
by the Majority Banks, provided
that, unless and until it shall
have received such directions, it
may (but shall not be obligated to)
take such action, or refrain from
taking such action, with respect to
such Default as it shall deem
advisable in the best interest of
the Bank Parties.
10.4 ________________
Rights as a Bank. With
respect to its Commitment and the
Extensions of Credit made by it,
each Administrative/LC Agent and
Agent shall, in its capacity as a
Bank hereunder, have the same
rights and powers hereunder as any
other Bank and may exercise the
same as though it were not acting
as an Administrative/LC Agent or an
Agent, and the term "Bank" or
"Banks" shall, unless the context
otherwise indicates, include each
Administrative/LC Agent and each
Agent in its individual capacity.
Each Bank Party (and any successor
thereto) and its Affiliates may
(without having to account therefor
to any Bank) accept deposits from,
lend money to and generally engage
in any kind of banking, trust or
other business with the Company
(and any of its Subsidiaries or
Affiliates) as if it were not
acting as an Administrative/LC
Agent, an Agent or a Bank, and each
Bank Party and its Subsidiaries or
Affiliates may accept fees and
other consideration from the
Company for services in connection
with this Agreement or otherwise
without having to account for the
same to the Banks.
10.5 _______________
Indemnification. The
Banks agree to indemnify the
Administrative/LC Agents (to the
extent not reimbursed under Section
11.3 hereof, but without limiting
the obligations of the Company
under such Section 11.3), ratably
in accordance with their respective
Commitments, for any and all
liabilities, obligations, losses,
damages, penalties, actions,
judgments, suits, costs, expenses
or disbursements of any kind and
nature whatsoever which may be
imposed on, incurred by or asserted
against either Administrative/LC
Agent in any way relating to or
arising out of this Agreement or
any Loan Documents or other
documents contemplated by or
referred to herein or the
transactions contemplated hereby
(including the costs and expenses
which the Company is obligated to
pay under Section 11.3 hereof but
excluding, unless a Default has
occurred and is continuing, normal
administrative costs and expenses
incident to the performance of
their agency duties hereunder) or
the enforcement of any of the terms
hereof or of any such other
documents, provided that no Bank
shall be liable for any of the
foregoing to the extent they arise
from the gross negligence or
willful misconduct of the party to
be indemnified.
76
10.6 __________________________
Non-Reliance on other Bank
_______
Parties. Each Bank agrees that it
has, independently and without
reliance on the Administrative/LC
Agents or any other Bank Party, and
based on such documents and
information as it has deemed
appropriate, made its own credit
analysis of the Company and its
Subsidiaries and decision to enter
into this Agreement and that it
will, independently and without
reliance upon the Administrative/LC
Agents or any other Bank Party, and
based on such documents and
information as it shall deem
appropriate at the time, continue
to make its own analysis and
decisions in taking or not taking
action under this Agreement.
Neither Administrative/LC Agent
shall be required to keep itself
informed as to the performance or
observance by the Company of this
Agreement or any Loan Document or
other document referred to or
provided for herein or to inspect
the properties or books of the
Company or any of its Subsidiaries.
Except for notices, reports and
other documents and information or
expressly required to be furnished
to the Banks by either
Administrative/LC Agent hereunder,
neither Administrative/LC Agent
shall have any duty or
responsibility to provide any Bank
with any credit or other
information concerning the affairs,
financial condition or business of
the Company or any of its
Subsidiaries (or any of their
affiliates) which may come into the
possession of such
Administrative/LC Agent or any of
its Affiliates.
10.7 ______________
Failure to Act. Except
for specific actions expressly
required of it hereunder or under
any Letter of Credit Document, each
of the Administrative Agent, the
Letter of Credit Agent and the
Agents shall in all cases be fully
justified in failing or refusing to
act hereunder unless it shall
receive further assurances to its
satisfaction from the Banks of
their indemnification obligations
under Section 10.5 hereof against
any and all liability and expense
which may be incurred by it by
reason of taking or continuing to
take any such action.
10.8 ______________________
Resignation or Removal.
Subject to the appointment and
acceptance of a successor as
provided below, either or both of
the Administrative Agent and the
Letter of Credit Agent may resign
at any time by giving notice
thereof to the Banks and the
Company, and either may be removed
at any time with or without cause
by the Majority Banks, provided
that the Letter of Credit Agent
shall not be removed as Letter of
Credit Agent with respect to
Letters of Credit issued by it.
Upon any such resignation or
removal, the Majority Banks shall
have the right to appoint a
successor Administrative Agent or
Letter of Credit Agent. If no
successor shall have been so
appointed by the Majority Banks and
shall have accepted such
appointment within 30 days after
the retiring Administrative Agent
or Letter of Credit Agent has given
its notice of resignation or after
the Majority Banks have removed
such Administrative Agent or Letter
of Credit Agent, then the retiring
or removed Administrative Agent or
Letter of Credit Agent may, on
behalf of the Banks, appoint a
successor, which shall be a bank
which has an office in the United
States of America and which has a
combined capital and surplus of at
least $500,000,000. Upon the
acceptance of any appointment as
Administrative Agent or Letter of
Credit Agent hereunder by such a
successor, such successor shall
thereupon succeed to and become
vested with all the rights, powers,
privileges and duties of the
retiring Administrative Agent or
Letter of Credit Agent, and the
retiring Administrative Agent or
Letter of Credit Agent shall be
discharged from its duties and
obligations hereunder. After any
retiring Administrative Agent or
Letter of Credit Agent's
resignation or removal hereunder,
the provisions of this Section 10
shall continue in effect for its
benefit in respect of any actions
taken or omitted to be taken by it
while it was acting as
Administrative Agent or Letter of
Credit Agent. Notwithstanding the
foregoing the same entity shall act
as Administrative Agent and Letter
of Credit Agent. However, the
Company, the Administrative Agent
and the Majority Banks may
designate a Bank or Banks to serve
as co-Letter of Credit Agent which
shall be entitled to all of the
rights and obligations of the
Letter of Credit Agent hereunder.
77
10.9 _________
Documents. Each of the
Administrative Agent and the Letter
of Credit Agent will forward to
each Bank, promptly after its
receipt thereof, a copy of each
report, notice or other document
required by this Agreement to be
delivered to such it for each Bank.
SECTION 11. _____________
Miscellaneous.
11.1 _________
No Waiver. No failure on
the part of any Bank Party to
exercise and no delay in
exercising, and no course of
dealing with respect to, any right,
power or privilege under this
Agreement or any other Loan
Document shall operate as a waiver
thereof, nor shall any single or
partial exercise of any right,
power or privilege under this
Agreement or any other Loan
Document preclude any other or
further exercise thereof or the
exercise of any other right, power
or privilege. The remedies
provided herein are cumulative and
not exclusive of any remedies
provided by law.
11.2 _______
Notices. All notices and
other communications provided for
herein (including any modifications
of, or waivers or consents under,
this Agreement) shall be given or
made in writing (including by
telecopy or other facsimile
transmission) and telecopied,
mailed or otherwise delivered (or
telephoned, as the case may be) to
the intended recipient at the
"Address for Notices" specified
below its name on the signature
pages hereof; or, as to any party,
at such other address as shall be
designated by such party in a
notice to each other party. Except
as otherwise provided in this
Agreement, all such communications
shall be deemed to have been duly
given when transmitted by
telecopier, personally delivered,
or, in the case of a notice sent by
certified or registered United
States mail, three days after
deposit in the mails, and in each
case given or addressed as
aforesaid.
78
11.3 _____________
Expenses, Etc. The
Company agrees to pay (or reimburse
each of the Bank Parties for
paying): (a) all reasonable out-of-
pocket costs and expenses of the
Administrative Agent or the Letter
of Credit Agent (including the
reasonable fees and expenses of
Thompson & Knight, P.C., their
counsel, and of Messrs. Donovan
Leisure Newton & Irvine, their
special New York counsel, as
contemplated in a letter agreement
of even date herewith between the
Company and the Administrative
Agent) in connection with (i) the
negotiation, preparation, execution
and delivery of this Agreement and
the other Loan Documents and the
making of the Extensions of Credit
hereunder and (ii) any amendment,
modification or waiver of any of
the terms of this Agreement or any
of the other Loan Documents; (b)
all reasonable costs and expenses
of the Bank Parties (including
reasonable attorneys' fees) in
connection with the enforcement or
defense of the Loan Documents and
their rights and remedies
thereunder (including any
determination of whether or how to
carry out such enforcement or
defense) or in connection with any
workout or restructuring or any
bankruptcy proceeding relating to
the Company, any Default, or any
Loan Document; and (c) all
transfer, stamp, documentary or
other similar taxes, assessments or
charges levied by any governmental
or revenue authority in respect of
this Agreement, any of the other
Loan Documents or any other
document referred to herein. If
the Company fails to pay any
expenses, attorneys' fees or other
amounts it is required to pay under
any Loan Document, the
Administrative Agent may pay the
same. The Company shall
immediately reimburse the
Administrative Agent for any such
payments and each amount paid by
the Administrative Agent shall
constitute an Obligation owed
hereunder which is due and payable
on the date such amount is paid by
the Administrative Agent. The
Company hereby promises to the Bank
Parties to pay interest at the
applicable Post-Default Rate on all
Obligations which the Company has
in this Agreement promised to pay
(including Obligations to pay fees
or to reimburse or indemnify any
Indemnified Party) and which are
not paid when due. Such interest
shall accrue from the date such
Obligations become due until they
are paid.
79
11.4 _________________
Whole Agreements,
_______________
Amendments, Etc. The Loan
Documents, and the other agreements
referred to in Section 2.5(d)
hereof for the sole purpose of
determining the fees payable under
such section and in no other
respect, set forth the entire
agreement of the parties with
respect to the subject matter
hereof and thereof and supersede
all previous understandings,
written or oral, in respect
thereof. Except as otherwise
expressly provided in this
Agreement, any provision of this
Agreement may be amended, waived or
otherwise modified only by an
instrument in writing signed by the
Company, the Administrative Agent,
the Letter of Credit Agent, and the
Majority Banks, or by the Company,
the Administrative Agent and the
Letter of Credit Agent acting with
the consent of the Majority Banks;
provided that no amendment, waiver
or modification shall, unless by an
instrument signed by all of the
Banks or by the Administrative
Agent acting with the consent of
all of the Banks: (i) except to the
extent contemplated in Section
2.4(d) hereof, increase the amount
of the Commitments or extend the
term of the Commitments, or extend
the time or waive any requirement
for the reduction or termination of
the Commitments, (ii) extend the
date fixed for the payment or
prepayment of principal of any Loan
or Reimbursement Obligation or
interest on any Loan or
Reimbursement Obligation or any
fees provided for herein, (iii)
reduce the amount of any payment or
prepayment of principal of any Loan
or Reimbursement Obligation or the
rate at which interest is payable
thereon or any fee is payable
hereunder other than any fee
payable to the Administrative Agent
or the Letter of Credit Agent for
its own account, (iv) alter the
terms of this Section 11.4, (v)
amend the definition herein of the
term "Majority Banks", or (vi)
release any collateral which the
Administrative Agent or the Letter
of Credit Agent may from time to
time hold on behalf of the Banks,
except to the extent such release
is required under the Loan
Documents under which such
Collateral is held; and provided,
further, that any amendment, waiver
or modification of Section 10
hereof, or which affects the rights
or obligations of the
Administrative Agent or the Letter
of Credit Agent, shall require the
consent of such Person.
11.5 _______________________
Survival After Closing;
____________
Severability. All of the Company's
(and any of its Subsidiaries')
representations, warranties,
covenants and agreements in the
Loan Documents shall survive the
execution and delivery of this
Agreement and the other Loan
Documents and the performance
hereof and thereof, including the
making of the Loans and the
delivery of the Notes and the other
Loan Documents, and shall further
survive until all of the
Obligations are paid in full to the
Bank Parties and this Agreement is
terminated as provided in Section
11.7 hereof. If any term or
provision of any Loan Document is
ever determined to be illegal or
unenforceable, all other terms and
provisions of the Loan Documents
shall nevertheless remain effective
and shall be enforced to the
fullest extent permitted by
applicable law.
80
11.6 _______________
Assignments and
______________
Participations.
(a) This Agreement shall
be binding upon and inure to the
benefit of the parties hereto and
their respective successors and
permitted assigns.
(b) The Company may not
assign its rights or obligations
hereunder or under the other Loan
Documents without the prior consent
of all of the Bank Parties.
(c) A Bank may assign its
Loans, its Notes, its rights or
obligations in respect of Letters
of Credit or its Commitment but
only with the prior consent of the
Company, the Administrative Agent
and the Letter of Credit Agent,
provided that no such consent of
the Company shall be required after
the Obligations have become due and
payable in full (by acceleration or
otherwise) and further provided,
unless the Administrative Agent
otherwise consents, each partial
assignment of a Bank's Loans,
Notes, rights or obligations in
respect of Letters of Credit or
Commitments shall (i) be in the
amount of $5,000,000 or a higher
integral multiple of $1,000,000 and
(ii) consist of a ratable
proportion of each of its Loans,
Notes, rights and obligations in
respect of Letters of Credit and
Commitments. The Company shall not
unreasonably withhold its consent
to any request by a Bank to make an
assignment pursuant to the
foregoing sentence. Upon notice to
the Company and the Administrative
Agent of an assignment permitted by
the preceding sentence (which
notice shall identify the assignee,
the amount of the assignor's Loans
and Commitments and obligations in
respect of Letters of Credit
assigned in detail reasonably
satisfactory to the Administrative
Agent), and upon the effectiveness
of any other assignment consented
to by the Company, the
Administrative Agent and the Letter
of Credit Agent, the assignee shall
have, to the extent of such
assignment (unless otherwise
provided in such assignment with
the consent of the Company, the
Administrative Agent and the Letter
of Credit Agent), the obligations,
rights and benefits of a Bank
hereunder holding the Loans and
Commitments and obligations in
respect of Letters of Credit (or
portions thereof) assigned to it
(in addition to the Loans and
Commitments and obligations in
respect of Letters of Credit, if
any, theretofore held by such
assignee) and the assigning Bank
shall, to the extent of such
assignment, be released from the
Commitments and obligations in
respect of Letters of Credit (or
portions thereof) so assigned. The
assignor Bank shall pay an
assignment fee of $2500 to the
Administrative Agent at the time of
each assignment or partial
assignment under this subsection
(c).
81
(d) A Bank may sell to
one or more other Persons (herein
called "____________
Participants") a
participation in all or any part of
any Loans or Letter of Credit
Liabilities held by it, provided
that no Participant shall have any
rights under or with respect to
this Agreement, any other Loan
Document or any Reimbursement
Obligation of the Company (a
Participant's rights against such
Bank in respect of such
participation to be those set forth
in the agreement (in this section
the "_______________________
Participation Agreement")
executed by such Bank in favor of
the Participant), and such Bank
shall not be relieved of any of its
obligations hereunder to the other
parties hereto. All amounts
payable by the Company to any Bank
hereunder (including under Section
5 hereof) shall be determined as if
such Bank had not sold any
participations and as if such Bank
were funding each Loan and Letter
of Credit Liability in which
participations have been sold in
the same way that it is funding the
portion of such Loan in which no
participations have been sold. In
no event shall a Bank that sells a
participation be or become
obligated to the Participant under
the Participation Agreement to take
or refrain from taking any action
hereunder or under any other Loan
Document (including granting
approval of any amendment or
waiver) except that such Bank may
agree in the Participation
Agreement that it will not, without
the consent of the Participant,
agree to (i) the extension of any
date fixed for the payment of
principal of or interest on or
other amount payable with respect
to such Bank's Loans or Letter of
Credit Liabilities, (ii) the
reduction of any such payment, or
(iii) the reduction of the rate at
which either interest is payable
thereon or (if the Participant is
entitled to any part thereof) fees
are payable hereunder to a level
below the rate at which the
Participant is entitled to receive
interest or fees in respect of such
participation.
(e) In addition to the
assignments and participations
permitted under the foregoing
provisions of this Section 11.6,
any Bank may assign and pledge all
or any portion of its Loans and its
Notes to any Federal Reserve Bank
as collateral security pursuant to
Regulation A and any Operating
Circular issued by such Federal
Reserve Bank. No such assignment
shall release the assigning Bank
from its obligations hereunder.
11.7 ____________________
Termination; Limited
________
Survival. In its sole and absolute
discretion the Company may -- at
any time when all of the
Commitments have been terminated,
no Letters of Credit are in effect,
and all Obligations have been paid
in full -- elect in a written
notice delivered to the
Administrative Agent to terminate
this Agreement. Upon receipt by
the Administrative Agent of such a
notice at such a time, this
Agreement and all other Loan
Documents shall thereupon be
terminated and the parties hereto
and thereto released from all
prospective obligations thereunder.
Notwithstanding the foregoing or
anything herein to the contrary,
any waivers or admissions made by
the Company or any of its
Subsidiaries in any Loan Document,
any Obligations under Sections 5.1,
5.5, 5.6, 9.3, 10.5, or 11.3
hereof, and any other obligations
which any Person may have to
indemnify or compensate any Bank
Party or any Indemnified Party
shall survive any termination of
this Agreement or any other Loan
Document. At the request and
expense of the Company, the
Administrative Agent shall prepare
and execute all necessary
instruments to reflect and effect
such termination of the Loan
Documents. The Administrative
Agent is hereby authorized to
execute all such instruments on
behalf of all Banks, without the
joinder of or further action by any
Bank.
82
11.8 ___________________
Acknowledgments and
__________
Admissions. The Company hereby
represents, warrants, acknowledges
and admits that (a) it has made an
independent decision to enter into
this Agreement and the other Loan
Documents to which it is a party,
without reliance on any
representation, warranty, covenant
or undertaking by any Bank Party,
whether written, oral or implicit,
other than as expressly set out in
this Agreement or in another Loan
Document, (b) there are no
representations, warranties,
covenants, undertakings or
agreements by any Bank Party as to
the Loan Documents except as
expressly set out in this Agreement
or in another Loan Document, (c) no
Bank Party has any fiduciary
obligation toward the Company with
respect to any Loan Document or the
transactions contemplated thereby,
and the Administrative Agent, the
Letter of Credit Agent and the
Agents are not the Company's agents
but are agents for the Banks, and
(d) no partnership or joint venture
exists with respect to the Loan
Documents between the Company and
any of the Bank Parties.
11.9 ____________
Counterparts. This
Agreement may be executed in any
number of counterparts, all of
which taken together shall
constitute one and the same
instrument and any of the parties
hereto may execute this Agreement
by signing any such counterpart.
11.10 _________________________
Governing Law; Submission
_______________
to Jurisdiction. This Agreement
and the Notes shall be governed by,
and construed in accordance with,
the law of the State of New York.
The Company hereby submits to the
nonexclusive jurisdiction of (a)
the United States District Court
for the Southern District of New
York and of any New York State
Court sitting in New York City, and
(b) the United States District
Court for the Northern District of
Texas and of any Texas State Court
sitting in Dallas, for the purposes
of all legal proceedings arising
out of or relating to this
Agreement or the transactions
contemplated hereby. The Company
irrevocably waives, to the fullest
extent permitted by law, any
objection which it may now or
hereafter have to the laying of the
venue of any such proceeding
brought in such a court and any
claim that any such proceeding
brought in such a court has been
brought in an inconvenient forum.
The Company hereby irrevocably
appoints the Process Agent as its
agent to receive on behalf of the
Company and its property service of
copies of the summons and complaint
and any other process which may be
served in any such action or
proceeding. Such service may be
made by mailing or delivering a
copy of such process to the Company
in care of the Process Agent at the
Process Agent's New York or Texas
address, as applicable, specified
below, and the Company hereby
irrevocably authorizes and directs
the Process Agent to accept such
service on its behalf. As an
alternative method of service, the
Company also irrevocably consents
to the service of any and all
process in any such action or
proceeding by the mailing of copies
of such process to the Company at
its address specified in Section
11.2 hereof. For the purpose of
this Agreement, the Process Agent's
New York and Texas addresses are:
83
New York: 500 Central Avenue
Albany, New York 12206
Texas: c/o CSC-Lawyers
Incorporating Service Company
Congress Ave., Suite 1100
Austin, Texas 78701
11.11 ____________________
WAIVER OF JURY TRIAL.
EACH OF THE COMPANY AND THE BANK
PARTIES HEREBY IRREVOCABLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.12 _______________
Confidentiality. Each
Bank Party agrees (on behalf of
itself and each of its Affiliates,
directors, officers, employees and
representatives) to use reasonable
precautions to keep confidential,
in accordance with their customary
procedures for handling
confidential information of this
nature and in accordance with safe
and sound banking practices, any
non-public information supplied to
it by the Company pursuant to this
Agreement which is identified by
the Company as being confidential
at the time the same is delivered
to the Bank Parties, provided that
nothing herein shall limit the
disclosure of any such information
(i) to the extent required by
statute, rule, regulation or
judicial process, (ii) to counsel
for any of the Bank Parties, (iii)
to bank examiners, auditors or
accountants, (iv) to any other Bank
Party or any Affiliate of any Bank
Party, (v) in connection with any
litigation in connection with this
Agreement or the transaction
contemplated hereby to which any
one or more of the Bank Parties is
a party, (vi) to any assignee or
Participant (or prospective
assignee or Participant) so long as
such assignee or Participant (or
prospective assignee or
Participant) first executes and
delivers to the respective Bank a
confidentiality agreement having
substantially the same terms as
this Section 11.12 or (vii) to the
extent that such information is
obtained from a source other than
the Company (whether before or
after receipt of such information
from the Company) on a non-
confidential basis; provided,
further, that, unless specifically
prohibited by applicable law or
court order, each Bank shall, prior
to disclosure thereof, notify the
Company of any request for
disclosure of any such non-public
information (1) by any governmental
agency or representative thereof
(other than any such request in
connection with an examination of
the financial condition of such
Bank by such governmental agency)
or (2) pursuant to legal process;
and provided, finally, that in no
event shall any Bank Party be
obligated or required to return any
materials furnished by the Company.
The provisions this Section 11.12
shall survive the repayment of the
Obligations and the termination of
the Commitments.
84
11.13 ____________________
Replacement of Banks. If
any Bank (a) requests compensation
pursuant to Section 5.1 or Section
5.6 hereof, or such Bank's
obligation to make Fixed Rate Loans
shall be suspended pursuant to
Section 5.2 or 5.3 hereof, or (b)
does not agree to extend its
Commitment Termination Date
pursuant to request by the Company
as contemplated by Section 2.4(d)
hereof, the Company, upon not less
than three Business Days prior
notice to such Bank (with a copy to
the Administrative Agent), may
require that such Bank assign (in
which case such Bank shall assign)
as provided in Section 11.6(b)
hereof, all (but not less than all)
of its Loans and Commitment to
another bank or banks (which may be
"Banks" hereunder) specified in
such notice that are willing to
accept such assignment (and are
acceptable to the Administrative
Agent and the Letter of Credit
Agent) for an amount equal to the
aggregate principal amount of such
Bank's Loans then outstanding and
interest thereon accrued to the
date of the consummation of such
assignment and pursuant to
documentation reasonably acceptable
to such Bank, provided that the
Company shall pay to such Bank upon
consummation of such assignment (i)
such amounts (if any) as are then
payable to such Bank under Section
5 hereof including the amounts (if
any) the Company would be required
to pay to such Bank under Section
5.5 hereof if the Loans assigned by
it were being prepaid by the
Company, (ii) the commitment fee
payable for the account of such
Bank pursuant to Section 2.5 hereof
accrued to the date such Bank's
Commitment is assigned in full
pursuant to this Section 11.13, and
(iii) all other amounts then
payable by the Company to or for
the account of such Bank hereunder
(other than the principal of and
interest on its Loans).
85
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement
to be duly executed as of the day
and year first above written.
CROWN CENTRAL PETROLEUM
CORPORATION
By: ___________________________
/s/ Thomas S. Owsley
________________________
Name: Thomas L. Owsley
Title: Vice President-Legal
for mail delivery:
Box 1168
Baltimore, Maryland 21203
for hand delivery:
One North Charles Street
Baltimore, Maryland 21201
Facsimile No.: (410) 659-4747
Telephone No.: (410) 539-7400
Attention: John E. Wheeler, Jr.
with a copy to:
John S. Graham, III
McGuire, Woods, Battle & Boothe,
L.L.P.
One North Charles Street
Baltimore, Maryland 21201
Facsimile No.: (410) 659-4599
Telephone No.: (410) 659-4416
86
__________
Commitment
$18,000,000
NATIONSBANK OF TEXAS, N.A., as
Administrative Agent, Letter of
Credit
Agent and a Bank
By: ___________________________
/s/ William D. Clift
_________________________
Name: William D. Clift
Title: Senior Vice President
Lending Office for all Loans and
Address
for all Notices:
901 Main Street
Box 830104
Dallas, Texas 78283-0104
Attn: William D. Clift
Facsimile No.: (214) 508-1285
Telephone No.: (214) 508-1242
with a copy (for all matters in
respect of Letters of Credit) to
the attention of:
Barbara Teague
Facsimile (214) 508-2543
Telephone (214) 508-3097
__________
Commitment
$17,500,000
THE FIRST NATIONAL BANK OF
BOSTON, as an Agent and Bank
By: ___________________________
/s/ Michael Kane
_____________________
Name: Michael Kane
Title: Managing Director
Lending Office for All Loans
and Address for Notices:
100 Federal Street
Mail Code 01-08-02
Boston, Massachusetts 02110
Attn: Michael Kane
Facsimile (617) 434-3652
Telephone (617) 434-5358
__________
Commitment
$17,500,000
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as an Agent and a
Bank
By: ___________________________
/s/ Martha S. Gurwit
________________________
Name: Martha S. Gurwit
Title: Vice President
Lending Office for All Loans
and Address for Notices:
707 Travis, Mail Station 7 North
Houston, Texas 77002
Attn: Martha Gurwit
Facsimile (713) 236-4117
Telephone (713) 236-4986
__________
Commitment
$17,000,000
FIRST NATIONAL BANK OF MARYLAND,
as a
Bank
By: ___________________________
/s/ Mark S. Furst
______________________
Name: Mark S. Furst
Title: Vice President
Lending Office for All Loans
and Address for Notices:
Maryland Division
25 South Charles Street
18th Floor, 101-744
Baltimore, Maryland 21201
Attn: Kellie M. Matthews
Facsimile (410) 244-2494
Telephone (410) 244-4864
__________
Commitment
$17,000,000
SIGNET BANK/MARYLAND,
as a Bank
By: ___________________________
/s/ Janice E. Godwin
_________________________
Name: Janice E. Godwin
Title: Vice President
Lending Office for All Loans
and Address for Notices:
7 St. Paul Street, 18th Floor
Baltimore, Maryland 21202
Attn: Janice E. Godwin
Facsimile (410) 625-6365
Telephone (410) 332-5450
__________
Commitment
$11,000,000
THE BANK OF NOVA SCOTIA,
as a Bank
By: ___________________________
/s/ J. Alan Edwards
________________________
Name: J. Alan Edwards
Title: Authorized Signatory
Lending Offices for all Loans
and Address for Notices:
One Liberty Plaza
26th Floor
New York, New York 10006
Attn: Leslie Colin
Facsimile No.: (212) 225-5090
Telephone No.: (212) 225-5013
Attn. Eleanor Fiore
Loan Administration Dept.
Telephone No.: (212) 225-5047
Facsimile No.: (212) 225-5145
__________
Commitment
$11,000,000
DEN NORSKE BANK AS
as a Bank
By: ___________________________
/s/ Alfred C. Jones, III
_____________________________
Name: Alfred C. Jones, III
Title: Senior Vice President
and General Counsel
By: ________________________
/s/ Edward Einer Gruner-
__________________________________
Hegge
___
Name: Edward Einar Gruner-Hegge
Title: Vice President
Lending Offices for all Loans
and Address for Notices:
Attn: Customer Service
200 Park Avenue, 31st Floor
New York, New York 10166-0396
Telephone No.: (212) 681-3843
Facsimile No.: (212) 681-4123
With a copy to:
333 Clay Street, Suite 4890
Houston, Texas 77002
Telephone No.: (713) 757-0246
Facsimile No.: (713) 757-1167
__________
Commitment
$11,000,000
SOCIETE GENERALE,
as a Bank
By: ___________________________
/s/ Gordon Saint-Denis
___________________________
Name: Gordon Saint-Denis
Title: Vice President
Lending Offices for all Loans
and Address for Notices:
1221 Avenue of the Americas
New York, New York 10020
Facsimile No.: (212) 278-7430
Attn: Gordon St. Denis
Telephone No.: (212) 278-7141
Facsimile No.: (212) 278-7430
__________
Commitment
$10,000,000
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED, New York
Branch,
as a Bank
By: __________________________
/s/ Rohn Laudenschlager
_____________________________
Name: Rohn Laudenschlager
Title: Senior Vice President
Lending Office for all Loans
and Address and Notices:
666 Fifth Avenue, 8th Floor
New York, New York 10103
Attn: Michael G. Haggarty
Facsimile No.: (212) 373-5796
Telephone No.: (212) 373-5722
SCHEDULE 1
___________________
Pricing Grid Tables
TABLE 1
($65,000,000 or less)
Debt/Cash Flow Debt/Cash Flow Debt/Cash Flow Debt/Cash Flow
<2.0 >= 2.0 and <3.0 >=3.0 and < 4.0 >=4.0
-------------- --------------- --------------- --------------
Commitment Fee 30.0 35.0 37.5 40.0
LIBOR Margin 100.0 112.5 125.0 150.0
Ins/Misc Lcs 100.0 112.5 125.0 150.0
Inventory Lcs 62.5 75.0 87.5 100.0
TABLE 2
(More than $65,000,000)
Debt/Cash Flow Debt/Cash Flow Debt/Cash Flow Debt/Cash Flow
<2.0 >= 2.0 and <3.0 >=3.0 and < 4.0 >=4.0
-------------- --------------- --------------- --------------
Commitment Fee 30.0 35.0 37.5 40.0
LIBOR Margin 125.0 137.5 150.0 175.0
Ins/Misc Lcs 125.0 137.5 150.0 175.0
Inventory Lcs 87.5 100.0 112.5 125.0
The amounts or rates in the
foregoing tables are expressed in
Basis Points. As used in such
tables, "Debt/Cash Flow" means the
ratio, determined as of June 30,
1995, and as of the last day of
each March, June, September and
December thereafter, of (a)
Consolidated Funded Debt at the end
of such day, to (b) the sum of (i)
FIFO Net Income (Loss) for the
twelve-month period then ending
plus (ii) any Consolidated Interest
Expense, Consolidated Income Tax
Expense, or Consolidated Non-Cash
Charges deducted in determining
such FIFO Net Income (Loss);
provided that if the Senior Notes
ever receive a credit rating below
BB- by S&P or a credit rating below
Ba3 by Moody's, then Debt/Cash Flow
shall be deemed to be greater than
4.0 until such time as the Senior
Notes are rated both BB- or higher
by S&P and Ba3 or higher by
Moody's.
SCHEDULE 2
Crown Central Petroleum Corporation
Indebtedness and Liens
As of August 31, 1995
(In Thousands)
$125 Million Senior Notes
dated January 24, 1995 $
125,000
Outstanding Letters of Credit
under the Existing Agreement:
No. P0633758 3,000
P0636345 4,400
P0770116 400
P0770117 1,768
P0770174 9,092
P0770395 600
--------
19,260
Purchase Money Liens (BOT Financial)*
4,862
Surety Bonds
1,572
Capitalized Lease Obligations
799
Hedging Obligations (Marked to Market)
Interest Rate Swaps
Chase Manhattan # A06263 180
A06703 133
A06843 38
NationsBank 115070 109
116480 208
125850 13
Bank of Nova Scotia S05992 49
-------
731
Deferred Purchase Price
Tongue, Brooks and Company
Purchase of the Following:
Health Plan Administrators, Inc.
133
------
-
$
152,357
========
<FN>
*As more fully described in Note C, Item 8, of the Form 10-K
for the fiscal year ended December 31, 1994.
SCHEDULE 3
INVESTMENTS AND SUBSIDIARIES
Nation or State
Subsidiary of Incorporation
Continental American Corporation Delaware
Coronet Security Systems, Inc. Delaware
Coronet Software, Inc. Delaware
Crown Central Holding Corporation Maryland
Crown Central International (U.K.),
Limited United Kingdom
Crown Central Pipe Line Company Texas
Crown Gold, Inc. Maryland
Crown Oil and Gas Company Maryland
Crown-Rancho Pipe Line Corporation Texas
Crown Stations, Inc. Maryland
Crowncen International N.V. Netherlands Antilles
F Z Corporation Maryland
Fast Fare, Inc. Delaware
Health Plan Administrators, Inc. Maryland
La Gloria Oil and Gas Company Delaware
Locot, Inc. Maryland
McMurrey Pipe Line Company Texas
Tongue, Brooks & Company, Inc. Maryland
Tiara Insurance Company Vermont
Tiara Properties, Inc. Maryland
__________________________________________________
INVESTMENTS OTHER THAN INVESTMENTS IN SUBSIDIARIES
Oil Casualty Insurance Limited $800,000
Flowdril 300,000
Saber Equipment Company 75,000
Oil Insurance Limited 10,000
SCHEDULE 4
Calculations of Financial Compliance
As of June 30, 1995
(In Thousands)
Section 8.19 _______________________
FIFO Tangible Net Worth - must be at least
$240,000.
(a) Net Worth $ 257,299
(b) Intangible Assets -0-
(c) (i) LIFO Reserve 49,595
(ii) Times Tax Adjustment
Factor .65 32,237
-------- --------
FIFO Tangible Net Worth $ 289,536
=======
Section 8.20 _________________
CFD/Capital Ratio - must be less than .45 to 1.0.
(a) Consolidated Funded Debt $ 130,870
(b) Consolidated Funded Debt, plus $ 130,870
Net Worth 257,299 $ 388,169
--------- ---------
.34 to 1.0
Section 8.21 ____________________________
Net Adjusted Working Capital - Adjusted Current
Assets must exceed Adjusted Liabilities by
$40 million.
Adjusted Current Assets $ 302,892
Adjusted Liabilities 212,260
------------
Net Adjusted Working Capital $ 90,632
=======
Section 8.22 ______________________
Adjusted Current Ratio - must be at least 1.2 to
1.0.
Adjusted Current Assets $ 302,892
Adjusted Liabilities $ 212,260
1.43 to 1.0
For Illustration Only
Cumulative Adjusted Liquidity Capacity
Section 1.1
As of June 30, 1995
(in thousands)
Beginning Balance $ 28,000
Adjusted Net Income (Loss) 7,030
LIFO provision (recovery) 668
Consolidated Non-Cash Charges 9,492
Capital Expenditures (including deferred
turnarounds) (6,019)
Deferred Assets (3,375)
Deferred Liabilities (9,157)
Consolidated Funded Debt to 40% (324)
Consolidated Funded Debt > 2/3 of Net Worth 0
Dividends Declared 0
Restricted Payments 0
Consolidated Funded Short-Term Indebtedness 0
Net Contributions to Unrestricted Subsidiaries 0
---------
$ 26,318
=======
<FN>
NOTE: This illustration of the Cumulative Adjusted Liquidity
Capacity text has been prepared as if the cumulative period had
commenced as of 4/1/95 and was measured as of the period ended
6/30/95.
Crown Central Petroleum Corporation
Debt/Cash Flow
For the Four Quarters Ended 6/30/95
3Q 94 4Q 94 1Q 95 2Q 95 Total
-------- ------- ------- ------- ------
-
FIFO Net Income (Loss) (21,810) (9,462) (6,052) 7,698
(29,626)
Consolidated Interest
Expense 2,041 2,259 3,555 3,913
11,768
Consolidated Income Tax
Expense (14,753) (5,856) (2,289) 4,396
(18,502)
Consolidated Non-cash
Charges 29,564 8,357 9,735 9,076
56,732
Cash Flow (B) (4,958) (4,702) 4,949 25,083
20,372
Total Consolidated Funded Debt at 6/30/95 (A)
130,870
Ratio (A/B)
6.42
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$___________ ___________199__
FOR VALUE RECEIVED, CROWN
CENTRAL PETROLEUM CORPORATION, a
Maryland corporation (the
"Company"), hereby promises to pay
to the order of
________________________ (the
"Bank"), for account of its
respective Applicable Lending
Offices provided for by the Credit
Agreement referred to below, at the
principal office of NationsBank of
Texas, N.A. at 901 Main Street,
Dallas, Texas 75202, the principal
sum of _____________ Dollars (or
such lesser amount as shall equal
the aggregate unpaid principal
amount of the Loans made by the
Bank to the Company under the
Credit Agreement), in lawful money
of the United States of America and
in immediately available funds, on
the dates and in the principal
amounts provided in the Credit
Agreement, and to pay interest on
the unpaid principal amount of each
such Loan, at such office, in like
money and funds, for the period
commencing on the date of such Loan
until such Loan shall be paid in
full, at the rates per annum and on
the dates provided in the Credit
Agreement.
The date, amount, type, interest
rate and maturity date of each Loan
made by the Bank to the Company,
and each payment made on account of
the principal thereof, shall be
recorded by the Bank on its books
and, prior to any transfer of this
Note, endorsed by the Bank on the
schedule attached hereto or any
continuation thereof. Any failure
to make any such endorsement shall
not affect the Company's
obligations under this Note.
This Note is one of the Notes
referred to in the Credit Agreement
(as modified and supplemented and
in effect from time to time, the
"________________
Credit Agreement") dated as of
September 25, 1995, among the
Company, the banks named therein
(including the Bank) and
NationsBank of Texas, N.A., as
Administrative Agent and Letter of
Credit Agent, and evidences Loans
made by the Bank thereunder.
Capitalized terms used in this Note
have the respective meanings
assigned to them in the Credit
Agreement.
The Credit Agreement provides
for the acceleration of the
maturity of this Note upon the
occurrence of certain events and
for prepayments of Loans upon the
terms and conditions specified
therein.
1
Except as permitted by Section
11.6 of the Credit Agreement, this
Note may not be assigned by the
Bank to any other Person.
The Company may at its option
prepay all or any part of any Base
Rate Loan before maturity, but only
on the terms provided in the Credit
Agreement.
[Notwithstanding the foregoing
paragraphs and all other provisions
of this Note and the Credit
Agreement, none of the terms and
provisions of this Note or the
Credit Agreement shall ever be
construed to create a contract to
pay to the Bank, for the use,
forbearance or detention of money,
interest in excess of the maximum
amount of interest permitted to be
charged by the Bank to the Company
under applicable state or federal
law from time to time in effect,
and the Company shall never be
required to pay interest in excess
of such maximum amount. If for any
reason interest is paid hereon in
excess of such maximum amount
(whether as a result of the payment
of this Note prior to its maturity
or otherwise), then promptly upon
any determination that such excess
has been paid the Bank will, at its
option, either refund such excess
to the Company or apply such excess
to the principal owing hereunder.
1/ ]
THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
CROWN CENTRAL PETROLEUM
CORPORATION
By:____
_
Name:
Title:
--------------------------------
-----------
1/ To be inserted only in the
Notes payable to Texas Commerce
Bank National association and
NationsBank of Texas, N.A.
2
SCHEDULE OF LOANS
This Note evidences Loans made
under the within-described Credit
Agreement to the Company, on the
dates, in the principal amounts, of
the types, bearing interest at the
rates and maturing on the dates set
forth below, subject to the
payments and prepayments of
principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal
Notation
Loan Loan Loan Rate Loan Prepaid Amount Made
By
------ --------- ------ -------- --------- ------- --------- -----
---
3
EXHIBIT B
__________________
CREDIT CERTIFICATE
Reference is made to that
certain Credit Agreement dated as
of September 25, 1995 (as from time
to time amended, the "Agreement"),
by and among Crown Central
Petroleum Corporation, as borrower,
NationsBank of Texas, N.A., as
administrative agent, and certain
financial institutions, as lenders
and co-agents. Terms which are
defined in the Agreement are used
herein with the meanings given them
in the Agreement. Pursuant to the
terms of the Agreement the Company
hereby requests the following
Extension of Credit:
[if Extension of Credit consists
of Loans:]
Loans in the aggregate principal
amount of $ __________, to be made
on ____________, 19__, and which
shall be [Base Rate Loans // CD
Loans with an Interest Period of
___ days // Eurodollar Loans with
an Interest Period of __ months].
[if Extension of Credit consists
of an Inventory or Insurance
Letter of Credit:]
an [Inventory // Insurance]
Letter of Credit as described in
[refer to separate application for
Letter of Credit].
[if Extension of Credit consists
of a Miscellaneous Letter of
Credit:]
a Miscellaneous Letter of Credit
as described in [refer to separate
application for Letter of Credit].
Such Letter of Credit shall be
used for the following purpose:
__________
___________________________________
____________.
As an inducement to the making
of such Extension of Credit, the
Company hereby represents,
warrants, acknowledges and agrees
to and with the Bank Parties that:
(a) The officer of the Company
signing this instrument is the duly
elected, qualified and acting
officer of the Company as indicated
below such officer's signature
hereto, having all necessary
authority to act for the Company in
making the request herein
contained.
(b) The aggregate outstanding
principal amount of Loans and the
aggregate outstanding amount of all
Letter of Credit Liabilities will
not exceed the aggregate amount of
the Commitments after giving effect
to such Extension of Credit on a
pro-forma basis as if such
Extension of Credit had been made
and outstanding on the last day of
the calendar month immediately
prior to the date hereof.
1
(c) Cumulative Adjusted
Liquidity Capacity will exceed zero
after giving effect to such
Extension of Credit.
(d) The Company reasonably
expects that Cumulative Adjusted
Liquidity Capacity will exceed zero
at the end of the fiscal quarter in
which such Extension of Credit is
made.
(e) No Default or Event of
Default has occurred which is
continuing (except for any which
have been waived in accordance with
Section 11.4 of the Agreement).
(f) The representations and
warranties made by the Company in
Section 7 of the Agreement (other
than Sections 7.3, 7.11(b), and
7.16 thereof) [2/] are true on and
as of the date hereof and will be
true and correct on the date on
which such Extension of Credit is
made, with the same force and
effect as if made on and (unless
any such representation
specifically states that it is made
as of an earlier date) as of such
date. [3/]
(g) Since December 31, 1994,
there has been no material adverse
change in the Company's
Consolidated financial condition,
operations, business or prospects
from that set forth in the
financial statements as at such
date which are identified in
Section 7.2 of the Agreement.
(h) Except to the extent waived
in writing as provided in Section
11.4 of the Agreement, the Company
has performed and complied with all
agreements and conditions in the
Agreement required to be performed
or complied with by the Company on
or prior to the date hereof, and
each of the conditions precedent to
Extensions of Credit contained in
the Agreement remains satisfied.
(i) The Loan Documents have not
been modified, amended or
supplemented by any unwritten
representations or promises, by any
course of dealing, or by any other
means not provided for in Section
11.4 of the Agreement. The
Agreement and the other Loan
Documents are hereby ratified,
approved, and confirmed in all
respects.
The officer of the Company
signing this instrument hereby
certifies that, to the best of his
knowledge after due inquiry, the
above representations, warranties,
acknowledgments, and agreements of
the Company are true, correct and
complete.
-------------------------------
[2/] This parantheticaal phrase
shall be deleted from the Borrowing
Certificate for the initial
Extension of Credit.
[3/] This paragraph (f) and the
following paragraph (g) need not be
included in the Borrowing
Certificate for the Loans which do
not result in an increase in the
aggregate principle amount of all
Loans outstanding under the
Agreement.
2
IN WITNESS WHEREOF, this
instrument is executed as of
CROWN CENTRAL PETROLEUM
CORPORATION
By:____
_
Title:
3
EXHIBIT C
FORM OF OPINION
OF COUNSEL TO THE COMPANY
September _____, 1995
Each of the Banks party
to the Credit Agreement
referred to below
NationsBank of Texas, N.A.
as Administrative Agent and
Letter of Credit Agent for
such
Banks
901 Main Street
Dallas, Texas 75202
Ladies and Gentlemen:
We have acted as counsel to
Crown Central Petroleum
Corporation, a Maryland corporation
(the "Company"), in connection with
the Credit Agreement dated as of
September ___, 1995 (the "Credit
Agreement") among the Company, the
Banks party thereto and NationsBank
of Texas, N.A., as Administrative
Agent and Letter of Credit Agent,
providing for extensions of credit
(by making loans and issuing
letters of credit) to be made by
such Banks to the Company in an
aggregate principal or face amount
not to exceed $130,000,000 at any
one time outstanding. All
capitalized terms used but not
defined herein have the respective
meanings given to such terms in the
Credit Agreement.
In rendering the opinions
expressed below, we have examined:
(i) the Credit Agreement;
(ii) the Notes
(collectively with the Credit
Agreement, the "Loan Documents");
and
(iii) such corporate
records of the Company,
certificates of public officials
and other documents as we have
deemed necessary or advisable as a
basis for the opinions expressed
below.
In our examination, we have
assumed the genuineness of all
signatures, the authenticity of all
documents submitted to us as
originals and the conformity with
authentic original documents of all
documents submitted to us as
copies. When relevant facts
were not independently
established, we have relied upon
statements of governmental
officials and upon representations
made in or pursuant to the Credit
Agreement and certificates of
appropriate representatives of the
Company.
In rendering the opinions
expressed below, we have assumed,
with respect to all of the
documents referred to in this
opinion letter, that:
(i) such documents have been
duly authorized by, have been duly
executed and delivered by, and
constitute legal, valid, binding
and enforceable obligations of, all
of the parties to such documents
(other than the Company); and
(ii) all of the parties to such
documents (other than the Company)
are duly organized and validly
existing and have the power and
authority (corporate or other) to
executive, deliver and perform such
documents.
Based upon and subject to the
foregoing and subject also to the
assumptions, limitations and
qualifications set forth below, and
having considered such questions of
law as we have deemed necessary as
a basis for the opinions expressed
below, we are of the opinion that:
1. The Company is a corporation
duly organized, validly existing
and in good standing under the laws
of the State of Maryland and has
the necessary corporate power to
execute and deliver, and to perform
its obligations under, each Loan
Document and to borrow Loans and
incur Letter of Credit Liabilities
under the Credit Agreement.
2. Each Subsidiary of the
Company listed on Exhibit I to this
letter is a corporation duly
incorporated, validly existing and
in good standing under the laws of
its jurisdiction of incorporation,
as indicated on such Exhibit I.
3. In addition to the
jurisdiction of its incorporation,
the Company and each of its
Subsidiaries listed in Exhibit I
attached hereto is duly qualified
to transact business in the
jurisdictions indicated under its
name in such Exhibit I.
4. The execution and delivery
by the Company of, and the
performance by the Company of its
obligations under, the Loan
Documents, and the borrowings of
Loans and the incurrence of Letter
of Credit Liabilities under the
Credit Agreement, have been duly
authorized by all necessary
corporate action on the part of the
Company.
5. The execution and delivery
by the Company of, and the
performance by the Company of its
obligations under, the Loan
Documents do not (i) violate any
provision of the articles of
incorporation or by-laws of the
Company, (ii) violate any
applicable State of Maryland or
United States federal law, rule or
regulation, (iii) to the best of
our knowledge (after reasonable
investigation and subject to the
qualifications set forth below),
result in a breach of, constitute a
default under or require prepayment
of any indebtedness pursuant to the
terms of, any agreement or other
instrument of which we have
knowledge evidencing indebtedness
for borrowed money (or other
material agreement of which we have
knowledge) binding upon the Company
or (iv) result in the creation or
imposition of any Lien upon any
property of the Company pursuant to
the terms of any such agreement or
other instrument. To the best of
our knowledge and except as
disclosed by the Company in the
Disclosure Letter, the Company is
not in default under or in
violation of any law, rule,
regulation, judgment, order,
decree, determination, award,
indenture, mortgage, deed of trust,
note, loan agreement, license
agreement or other material
agreement or instrument of which we
have knowledge or in violation of
its articles or by-laws.
6. The Credit Agreement
constitutes, and each of the notes
(after the giving of value
therefor) will constitute, the
legal, valid and binding obligation
of the Company, enforceable against
the Company in accordance with its
or their terms, except as the same
may be limited by bankruptcy,
insolvency, reorganization,
moratorium or other similar laws
relating to or affecting the rights
of creditors generally and by the
application of general principles
of equity (regardless of whether
considered in a proceeding at law
or in equity), including, without
limitation, (i) the possible
unavailability of specific
performance, injunctive relief, or
other equitable remedies and (ii)
concepts of materiality,
reasonableness, good faith and fair
dealing.
7. A Maryland court or a
federal court sitting in Maryland
in a diversity action should, under
conflicts of law principles
observed by the courts of Maryland,
if properly presented with the
issue, give effect to the
provisions of the Credit Agreement
providing that the Loan Documents
are to be governed by and construed
in accordance with the laws of the
State of New York, insofar as such
provisions relate to the
substantive laws of the State of
New York and to the validity,
nature, interpretation and effect
of the Loan Documents, except (i)
to the extent, if any, that federal
law applies, (ii) to the extent
procedural (as opposed to
substantive) laws are involved or
(iii) to the extent that the
applicable laws of the State of New
York violate a fundamental policy
of Maryland. If, however, the laws
of the State of Maryland were to be
applied to the Credit Agreement,
notwithstanding the provisions of
the Credit Agreement providing that
the Loan Documents are to be
governed by and construed in
accordance with
the laws of the State of New
York, the Credit Agreement
constitutes, and each of the Notes
(after the giving of value
therefore) will constitute, the
legal, valid and binding obligation
of the Company, enforceable against
the Company in accordance with its
or their terms, subject to the
exceptions set forth in paragraph 6
above.
8. To the best of our knowledge
(after reasonable investigation),
except for the matters referred to
in the Disclosure Letter, there are
no legal or arbitral proceedings,
or proceedings by or before any
governmental or regulatory
authority or agency, now pending or
(to our knowledge) threatened
against or affecting the Company or
any of its Subsidiaries, or any
properties or rights of the Company
or any of its Subsidiaries, in
which there is a reasonable
possibility of an adverse decision
which would materially and
adversely affect the consolidated
financial condition, operations, or
business, taken as a whole, of the
Company and the Consolidated
Subsidiaries.
9. No authorization, approval
or consent of, and no filing or
registration with, any governmental
or regulatory authority or agency
of the State of Maryland, the
United States of America, or any
third party is required on the part
of the Company in connection with
the execution and delivery by it
of, or the performance by it of its
obligations under, the Loan
Documents.
The foregoing opinions are
subject to the following
limitations and qualifications:
A. The enforceability of
Sections 9.3 and 11.3 of the Credit
Agreement may be limited by laws
rendering unenforceable
indemnification contrary to federal
or state securities laws and the
public policy underlying such laws.
B. The enforceability of
provisions in the Credit Agreement
to the effect that terms may not be
waived or modified except in
writing may be limited under
certain circumstances.
C. We express no opinion as to
(i) the effect of the laws of any
jurisdiction in which any Bank is
located (other than the State of
Maryland and the State of New York)
including, without limitation, laws
that limit the interest, fees or
other charges such Bank may impose,
(ii) Section 4.5(c) of the Credit
Agreement, (iii) the second
sentence of Section 11.10 of the
Credit Agreement, insofar as such
sentence relates to the
jurisdiction of the United States
District Court for the Southern
District of New York or the
Northern District of Texas to
adjudicate any controversy related
to the Credit Agreement, or (iv)
the waiver of inconvenient forum
set forth in Section 11.10 of the
Credit Agreement with respect to
proceedings in the United States
District Court for the Southern
District of New York or the
Northern District of Texas.
D. We respect to the opinion
expressed in Paragraph 5 above, we
have been advised by the Company
that as of September __, 1995, (i)
the total Indebtedness (as such
term is defined in the Indenture
dated as of January 24, 1995 (the
"Indenture") between the Company,
as Issuer, and The First National
Bank of Boston, as Trustee) of the
Company under the Loan Documents,
after giving effect to any Loans
and the issuance of any Letters of
Credit as of such date, does not
exceed $125,000,000 and (ii) that
such Indebtedness which constitutes
borrowed money, after giving effect
to any Loans as of such date, does
not exceed $50,000,000. We note
that if the total amount of such
Indebtedness at any time exceeds
$125,000,000 or if the amount of
such Indebtedness which constitutes
borrowed money at any time exceeds
$50,000,000, then the Company must
comply with the provisions of
Section 1008 of the Indenture at
such time so that the incurrence of
such Indebtedness does not result
in a breach of, or constitute a
default under, the Indenture.
The foregoing opinions are
limited in all respects solely to
matters governed by the internal
laws of the State of Maryland, the
internal laws of the State of New
York and the federal laws of the
United States of America.
This opinion is issued solely
for your benefit and is not to be
relied upon by any other entity.
Very truly yours,
EXHIBIT I
_______________________________________________
Schedule of Jurisdictions, Certain Subsidiaries
Name of Jurisdictions Jurisdiction of Foreign
Company or Subsidiary Incorporation (if any)
---------------------- ---------------- --------
Crown Central Petroleum
Corporation Maryland Alabama
Delaware
Florida
Georgia
Indiana
New York
New Jersey
North
Carolina
Oklahoma
Pennsylvania
South
Carolina
Texas
Virginia
Washington,
DC
West
Virginia
Crown Stations, Inc. Maryland Alabama
Georgia
North
Carolina
Pennsylvania
South
Carolina
Virginia
Fast Fare, Inc. Delaware Alabama
Florida
Georgia
Indiana
Maryland
North
Carolina
South
Carolina
Texas
Virginia
West
Virginia
La Gloria Oil and Gas
Company Delaware Arkansas
Illinois
Indiana
Louisiana
Mississippi
Ohio
Oklahoma
Texas
EXHIBIT D
FORM OF OPINION
OF SPECIAL NEW YORK COUNSEL
TO THE ADMINISTRATIVE AGENT
[Letterhead of Donovan Leisure
Newton & Irvine]
[Date]
NATIONSBANK OF TEXAS, N.A., as
Administrative and
Letter of Credit Agent for the
Banks
901 Main Street
Dallas, Texas 75202
Ladies and Gentlemen:
We have been retained to render
an opinion as to matters of New
York law with respect to the
documents and transactions
described below. This opinion is
being delivered to you pursuant to
Section 6.1(e) of that certain
Credit Agreement dated as of
September ___, 1995 (the
"Agreement") among Crown Central
Petroleum Corporation (the
"Company"), yourself and the other
financial institutions named
therein. Terms which are defined
in the Agreement and which are used
but not defined herein shall have
the meanings given them in the
Agreement.
In rendering the opinions set
forth herein, we have examined
copies of the following
(hereinafter referred to
collectively as the "Principal
Documents"):
a. The Agreement; and
b. The notes issued pursuant to
the Agreement.
In preparing this opinion we
have examined executed counterparts
or photostatic copies of executed
counterparts of the Principal
Documents. In making this
examination, we have assumed the
genuineness of all signatures, the
authenticity of all documents
submitted to us as originals, the
conformity to original documents of
all documents submitted to us as
photostatic copies, and the
authenticity of the originals of
such copies.
We have made such examination of
law and of facts as we deemed
necessary in order to render the
opinions set forth below.
In expressing the following
opinions, we have assumed that the
Principal Documents have each been
duly authorized, executed and
delivered by all parties thereto,
that each such party is validly
existing, has the necessary power
to execute, deliver and perform its
obligations under the Principal
Documents and that, except for the
Company as to which our opinion is
stated below, the Principal
Documents constitute valid, binding
and enforceable obligations of such
parties. We have also assumed that
the Notes included in the Principal
Documents were issued for value in
the manner provided for in the
Principal documents.
Based upon the foregoing, and
subject to the qualifications and
exceptions herein set forth, we are
of the opinion that:
1. Each of the Principal
Documents constitutes the legal,
valid and binding obligation of the
Company, enforceable against the
Company in accordance with its
terms.
2. As to the provisions of the
Principal Documents providing that
the Principal Documents are to be
governed by and construed in
accordance with the laws of the
State of New York, the courts of
the State of New York and federal
courts purporting to apply choice
of law principles of the State of
New York should hold that such
provisions are valid and
enforceable.
This opinion is limited by, and
subject to, the following
additional qualifications:
a. The enforceability of the
obligations of the Company under
the Principal Documents is subject
to (i) bankruptcy, insolvency,
reorganization, fraudulent
conveyance, moratorium and other
similar laws affecting creditors'
rights generally and (ii) equitable
principles (whether considered in
an action at law or in equity).
b. Provisions in the Principal
Documents which purport to render
all rights and remedies cumulative
may be subject to election of
remedies principles under New York
law.
c. Provisions in the Principal
Documents which permit a party to
take actions or make determinations
may be subject to a requirement
that such actions be taken or such
determinations be made on a
commercially reasonably basis and
in good faith.
d. No opinion is expressed as
to any agreement referred to in, or
incorporated by reference into, any
Principal Document but not
specifically reviewed by us as
stated above.
e. We express no opinion with
respect to title to any collateral
provided for or referred to in the
Principal Documents or with respect
to any security interests provided
for or referred to therein.
f. Provisions in the Principal
Documents which permit parties to
take actions or make determinations
may be subject to a requirement
that such actions be taken or such
determinations be made on a
commercially reasonable basis and
in good faith. Without limiting
the generality of the foregoing, no
opinion is expressed concerning the
enforceability of provisions in
Section 11.3 of the Agreement
insofar as they may require the
Company to pay interest at the
Post-Default Rate on reimbursement
obligations of the Company without
notice to or demand of the Company.
g. No opinion is expressed
concerning the enforceability of
provisions in the Principal
Documents to the extent they
purport to limit the jurisdiction
of courts or the power of the
parties to present evidence
thereto.
h. Our opinion with respect to
Section 11.8(c) of the Agreement is
subject to the possible application
of principles of New York law
imposing certain responsibilities
on lenders which may not be
contractually waived or modified.
We are qualified to practice law
in the State of New York and do not
purport to express any opinion
herein concerning the effect upon
the Principal Documents of any law
other than the laws of the State of
New York.
This letter is furnished to you
and the Banks and is solely for the
benefit of you and the Banks.
Very truly yours,