Exhibit 10(a)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 7,
1995, among TOSCO CORPORATION, a Nevada corporation ("Tosco"), BAYWAY REFINING
COMPANY, a Delaware corporation ("Bayway"), and TOSCO EUROPE LIMITED, a limited
liability company organized under the laws of England and Wales ("TEL"), as
co-borrowers (collectively, the "Borrowers"), the financial institutions listed
on SCHEDULE 1.01(A) hereto (the "Banks"), THE FIRST NATIONAL BANK OF BOSTON
("FNBB") as agent hereunder for the Banks (in that capacity, the "Agent") and as
arranger hereunder, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), as co-agent and co-arranger hereunder and THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) ("Chase"), as co-agent hereunder.
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit Agreement dated as
of April 8, 1993 (as amended from time to time, the "Existing Credit Agreement")
by and among the Borrowers, Seminole Fertilizer Corporation, the Banks, the
Agent and the Co-Agents, the Banks made available certain financing to the
Borrowers upon the terms and conditions contained therein;
WHEREAS, the Borrowers have requested that the terms of the Existing
Credit Agreement be amended and restated, and the Banks, the Agent and the
Co-Agents are willing to make such amendments on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the Borrowers, the Banks, the Agent and the
Co-Agents agree that as of the Closing Date (as defined below), the Existing
Credit Agreement shall be amended and restated in its entirety as set forth
herein and shall be in full force and effect as provided herein:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINITIONS. Capitalized terms used in this
Agreement shall have the following respective meanings when used
herein:
"ACCEPTABLE ISSUER" means an issuer of any irrevocable documentary or
standby letter of credit who is rated B/C or better on the date of such issuance
by Thompson's BankWatch and/or who has an investment grade rating from a major
debt rating service and who is otherwise acceptable to the Agent.
"ACCEPTANCE" means a draft drawn by any Borrower on the Agent and
accepted and discounted by the Agent in accordance with the provisions of this
Agreement.
"ACCEPTANCE AGREEMENT" means FNBB's customary form of Bankers'
Acceptance Agreement, duly executed by the Borrowers, in substantially the form
attached as EXHIBIT A-1.
"ACCEPTANCE OBLIGATION" means, as to each Acceptance, as at any date of
determination, all Obligations relating to such Acceptance as at such date,
including, without limitation, the obligation of the Borrowers to pay to the
Agent the face amount thereof.
"ACCOUNT" means, as to any Borrower, any "account", as such term is
defined in Section 9-106 of the Code, now owned or hereafter acquired by such
Borrower and, in any event, shall include, without limitation, all accounts
receivable, book debts and all other rights to receive the payment of money or
other consideration now owned or hereafter received or acquired by or belonging
or owing to such Borrower and arising out of, pursuant to or in connection with,
services rendered or goods sold, leased or delivered whether or not evidenced by
or set forth in or arising out of any present or future chattel paper, note,
draft, lease, acceptance, writing, bond, instrument, document or general
intangible, and all extensions and renewals of any thereof, and all rights in,
to and under all purchase orders or receipts now owned or hereafter acquired by
such Borrower and arising out of, pursuant to or in connection with, services
rendered or goods sold, leased or delivered, and all of such Borrower's rights
to any goods represented by any of the foregoing (including, without limitation,
rights of rescission, replevin, reclamation and stoppage in transit and rights
to returned, reclaimed or repossessed goods), and all moneys due or to become
due to such Borrower under all contracts for the sale of goods or the
performance of services or both, now in existence or hereafter occurring,
including, without limitation, the right to receive the proceeds of any of the
foregoing, and all collateral security and guarantees of any kind given by any
Person with respect to any of the foregoing.
"ACCOUNT DEBTOR" means any Person who is or who may become obligated to
any Borrower under, with respect to, or on account of, an Eligible Receivable.
"ADJUSTED NET WORTH AMOUNT" means, as to the Company, at any given
date, an amount equal to (a) $500,000,000, plx (b) a cumulative amount,
calculated annually with respect to each Fiscal Year ending after the Closing
Date equal to (i) one hundred percent (100%) of the net cash proceeds received
by any Borrower during each Fiscal Year ending after the Closing Date from the
issuance of Stock to any Person other than an Affiliate of such Borrower, plx
(ii) fifty percent (50%) of the amount of the Company's Net Income (but not Net
Loss) during each Fiscal Year ending after the Closing Date, as set forth in the
audited annual financial statements with respect to such Fiscal Years delivered
to the Agent pursuant to Section 5.04(e) hereof.
"ADVERSE ENVIRONMENTAL CONDITION" means the occurrence of
any of the matters referred to in the definition of
Environmental Claim.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, controls such Person, or which is controlled by or is under common
control with such Person. For the purpose of this definition, "control" of a
Person shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise. Nothing in the
foregoing definition shall be interpreted to construe the Agent, any Co-Agent or
any Bank as an Affiliate of any Borrower.
"AGENCY AGREEMENT" means an agency agreement made in favor of the
Agent, as agent for the Banks, (a) substantially in the form of EXHIBIT J-1 or
EXHIBIT J-3 attached hereto, by any financial institution in which any Borrower
has deposited cash or (b) substantially in the form of EXHIBIT J-2 attached
hereto, by each financial institution in which any Borrower has deposited cash
which, upon such deposit, shall become Eligible Margin Deposits, as such agency
agreement may be amended and in effect from time to time.
"AGENT" means FNBB, in its capacity as agent hereunder and any
successor thereto appointed pursuant to Section 9.06.
"AGREEMENT" means this Second Amended and Restated Credit Agreement,
including all exhibits and schedules hereto, as the same may be amended,
modified or supplemented and in effect from time to time.
"ALASKA NORTH SLOPE CRUDE OIL" has the meaning set forth in the ARCO Exchange
Agreement.
"ANCILLARY AGREEMENTS" means, collectively, any supplemental agreement
or undertaking executed as a condition to or in connection with this Agreement
by any party hereto, including, without limitation, the Notes, the Collateral
Documents, the Applications and the Credit Instruments.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank, its
Domestic Lending Office with respect to Base Rate Loans and Federal Funds Rate
Loans, and its Eurodollar Lending Office with respect to Eurodollar Loans.
"APPLICABLE MARGIN" means at the relevant time of reference, in respect
of Base Rate Loans, Eurodollar Rate Loans or Federal Funds Rate Loans, the
applicable rate per annum, expressed in Basis Points, set forth in the column
below for such Type of Loan opposite the Debt Rating then in effect;
PROVIDED THAT, in the event of a split Debt Rating by S&P and Moody's, the lower
Debt Rating shall apply:
DEBT Eurodollar Rate Federal Funds Rate
RATING BASE RATE LOAN LOAN LOAN
S&P: BBB+ 0.0 45.0 45.0
Moody's: Baa1
S&P: BBB 0.0 60.0 60.0
Moody's Baa2
S&P: BBB- 0.0 72.5 72.5
Moody's: Baa3
S&P: BBB+ 25.0 85.0 85.0
Moody's:Ba1
S&P: BB 50.0 100.0 100.0
Moody's Ba2
or unrated
"APPLICATION" means an application by any Borrower to the Agent for a
Documentary Letter of Credit or a Standby Letter of Credit in the forms annexed
hereto as EXHIBIT A-2 or A-3, respectively (or in the event another Bank issues
a Letter of Credit, such issuing Bank's forms).
"ARCO" means ARCO Petroleum Products Company, a division of Atlantic
Richfield Company.
"ARCO EXCHANGE AGREEMENT" means the Exchange Agreement, dated as of
October2, 1986, by and between ARCO and Tosco, as the same may be amended and in
effect from time to time.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Bank and an Eligible Assignee, and accepted by the Borrower and the
Agent, in substantially the form of EXHIBIT B hereto.
"AVAILABLE TOSCO EXCESS AMOUNT" means that portion of the Tosco Excess
Amount allocated by the Borrowers to the Bayway Borrowing Base or TEL Borrowing
Base, as the case may be; provided, that the sum of the Available Tosco Excess
Amount allocated to the Bayway Borrowing Base and the TEL Borrowing Base,
respectively, will not exceed the Tosco Excess Amount.
"AVON REFINERY" means the land and improvements known as the Avon
Refinery, located in Martinez, California, together with the terminals, tanks,
pipelines and related facilities used or intended for use in connection
therewith.
"BANKS" has the meaning specified in the recitals hereof.
"BASE RATE" means the higher of (a) the annual rate of interest
announced publicly from time to time by the Agent at its principal office in
Boston, Massachusetts as its "base rate", and (b) one-half of one percent (1/2%)
above the Overnight Fed Funds Rate.
"BASE RATE LOAN" means any Loan that bears interest at a rate
determined by reference to the Base Rate.
"BASIS POINT" means one one-hundredth of one percent
(0.01%).
"BAYWAY" has the meaning set forth in the recitals hereof.
"BAYWAY ADVANCE" means any Borrowing that is supported by the Bayway
Borrowing Base and is requested by Tosco for the purpose of making intercompany
loans to Bayway.
"BAYWAY BORROWING BASE" means, at the relevant time of determination, a
Borrowing Base calculated as provided in the definition thereof by reference to
the assets and obligations of Bayway and the Paid but Unexpired Standby Letters
of Credit issued for the account of Bayway, PLUS the Available Tosco Excess
Amount allocated thereto.
"BAYWAY MORTGAGE BOND INDENTURE" means that certain Indenture, dated as
of April 1, 1993, among Tosco, Bayway as Guarantor and The First National Bank
of Boston as Trustee, as in effect on the Closing Date.
"BAYWAY MORTGAGE BONDS" means the 8 1/4% First Mortgage Bonds due May
15, 2003 of Tosco, issued pursuant to the Bayway Mortgage Bond Indenture, in the
aggregate principal amount of $150,000,000.
"BAYWAY OVERADVANCE AMOUNT" means, at the relevant time of
determination, the amount by which (a) the aggregate amount of Bayway Revolving
Credit Debt, exceeds (b) the Bayway Borrowing
Base.
"BAYWAY REFINERY" means the land and improvements known as the Bayway
Refinery, located in Linden, New Jersey, together with the terminals, tanks,
pipelines and related facilities used or intended for use in connection
therewith.
"BAYWAY REVOLVING CREDIT DEBT" means at any time, (a) the aggregate
principal amount of all Bayway Advances outstanding at such time, (b) the
aggregate principal amount of all Borrowings at such time made pursuant to
Article II and issued for the account of or requested by Bayway, including,
without limitation, (i) all such Borrowings in cash thereunder, (ii) the
aggregate principal amount of all such Letter of Credit Reimbursement
Obligations outstanding thereunder and (iii) the aggregate principal amount of
all such Acceptance Obligations outstanding thereunder.
"BOFA" has the meaning set forth in the recitals hereof.
"BORROWERS" has the meaning set forth in the recitals
hereof.
"BORROWING" means an extension of credit consisting of (a) Loans of the
same Type made, continued or converted on the same day by the Banks, and, in the
case of Federal Funds Rate Loans and Eurodollar Rate Loans, having the same
Interest Period, (b) the issuance of a Letter of Credit by the Agent and the
participation therein by the Banks, and (c) the creation of an Acceptance by the
Agent and the participation therein by the Banks.
"BORROWING BASE" means, as to the Borrowers, at any given time, the sum
of the following amounts owned by or reflected on the books of such Borrower at
such time:
(a) 100% of its Eligible Cash and Eligible Cash
Equivalents,
(b) 95% of its Eligible Investments,
(c) 90% of its Major Oil Company Receivables,
(d) 85% of the excess, if any, of its Eligible Receivables
over its Major Oil Company Receivables,
(e) 85% of its Eligible Margin Deposits; PROVIDED that no more
than $50,000,000 in aggregate of Eligible Margin Deposits may
be included in the combined Borrowing Base for all the
Borrowers,
(f) 80% of the sum of its Eligible Inventory PLUS its
Eligible Exchange Balances,
(g) 80% of its Eligible Inventory Under Contract, and
(h) 100% of its Paid but Unexpired Standby Letters of
Credit.
"BORROWING BASE REPORT" has the meaning specified in
Section 5.04(b).
"BUSINESS DAY" means any day that is not a Saturday or Sunday or a day
on which banks are required to be closed in Boston, Massachusetts or New York,
New York and, if the applicable Business Day relates to a Eurodollar Rate Loan,
a day on which dealings are also carried on in the London interbank market.
"CANADIAN SECURITY DOCUMENTS" means (i) the General Assignment of Book
Debts, the Pledge Agreement and the Demand Fixed and Floating Debenture, dated
as of August 16, 1994, between TEL and the Agent, (ii) the General Assignment of
Book Debts, the Pledge Agreement and the Demand Fixed and Floating Debenture,
dated as of August 16, 1994, between Bayway and the Agent, and (iii) any other
mortgage, pledge, charge or security agreement executed and delivered, or filing
made, in connection with the granting, attachment and perfection of security
interests by either TEL or Bayway to the Agent, on behalf of the Banks, on such
Borrower's assets in Canada, as each such document may be amended, modified,
supplemented and in effect from time to time in accordance with its terms.
"CAPITAL ASSET" means each asset which would properly be classified as
an asset other than a current asset on a balance sheet of the Person owning such
asset, prepared in accordance with GAAP, including, without limitation, all
fixed assets and investments consisting of the capital stock or Indebtedness of
any other Person.
"CAPITAL EXPENDITURES" means, (a) all expenditures by any Borrower or
any Restricted Subsidiary (including capitalized interest) for any Capital Asset
or for replacements, substitutions or additions thereto, and (b) to the extent
not included in the foregoing clause (a), deferred costs of Turnarounds with
respect to the Facilities, so classified on a basis consistent with current
practice.
"CAPITALIZED LEASE" means, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means the capitalized amount of all
obligations under Capitalized Leases.
"CASH" means, when used in connection with any Person, all monetary and
nonmonetary items owned by such Person that are treated as cash in accordance
with GAAP, consistently applied.
"CASH EQUIVALENTS" means, (a) repurchase agreements and
short-term obligations issued or guaranteed as to principal and
interest by the United States of America and having a maturity of not more than
twelve months from the date of acquisition, (b) short-term certificates of
deposit issued by any bank organized under the laws of the United States of
America or any state thereof if such bank has a short-term debt rating of not
less than P- 1 or A-1 or their equivalent by Moody's or S&P, respectively, or
any of their successors, (c) short-term certificates of deposit issued by, and
so-called Eurodollar "call deposits" at, any Bank, or any foreign subsidiary or
affiliate of such Bank, if any Investments issued by such Bank or foreign
subsidiary or affiliate, as applicable, has a rating of not less than Baa or BBB
or their equivalent, or P-2 or A-2 or their equivalent, as applicable, by
Moody's or S&P, respectively, or any of their successors, or (d) commercial
paper or finance company paper that is rated not less than P-1 or A-1 or their
equivalents by Moody's or S&P or their successors and that has a maturity of
less than twelve month.
"CASH FLOW" means, as to the Company and in respect of any fiscal
period of the Company, an amount equal to (a) the sum of (i) EBIT for such
fiscal period, PLUS (ii) charges for depreciation, amortization and other
non-cash charges during such fiscal period, PLUS (iii) an amount equal to Net
Cash Proceeds received by each of the Borrowers during such fiscal period which
in the aggregate exceed $500,000 MINUS (b) the sum of, without duplication, (i)
an amount equal to the Borrowers' cash income taxes paid or payable during such
fiscal period, PLUS (ii) the Borrowers' Non-Discretionary Capital Expenditures
paid or payable during such period, determined in each case on a consolidated
basis in accordance with GAAP.
"CHASE" has the meaning set forth in the recitals hereof.
"CHARGES" has the meaning specified in Section 4.08.
"CHIEF FINANCIAL OFFICER" means, with respect to any Borrower, its
chief financial officer, or, in case of his or her unavailability, the
treasurer, assistant treasurer or comptroller of such Borrower.
"CLOSING DATE" means the Business Day on which each of the conditions
set forth in Article III have been satisfied or waived.
"CLOSING FEES" has the meaning specified in Section
2.09(b).
"CO-AGENT(S)" means each of (i) BofA in its capacity as co-agent
hereunder, (ii) Chase in its capacity as co-agent hereunder, and (iii) any
successor thereto appointed pursuant to Section 9.06.
"CODE" means the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts from time to time.
"COLLATERAL" means any and all property and interests in property and
proceeds thereof now owned or hereafter arising or acquired by any Borrower or
any of its Subsidiaries in or upon which a Lien is granted under any of the
Collateral Documents, regardless of where any of the foregoing are or may become
located.
"COLLATERAL DOCUMENTS" means, collectively, the Custody
Agreements, the Security Agreement, the Agency Agreements, the
Canadian Security Documents, and the U.K. Security Documents.
"COLLATERAL NOTE" means the renewal collateral note, dated the date
hereof, of Seminole Fertilizer Corporation payable to the order of the Agent, as
agent on behalf of the Banks, in the aggregate principal amount of $44,112,705,
substantially in the form of EXHIBIT C-2 hereto.
"COMMITMENT" means for any Bank, the amount set forth next to the name
of such Bank on Schedule 1.01(b) hereto under the caption "Commitment", subject
to reduction in accordance with the terms hereof, including, without limitation,
Section 2.01(c).
"COMMITMENT FEE" has the meaning specified in Section 2.09(a).
"COMPANY" means the Borrowers and their Subsidiaries, on a
consolidated basis.
"COMPLIANCE CERTIFICATE" has the meaning specified in
Section 5.04(d)(iii).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum derived
substance or waste, or any constituent of such substance or waste, including,
without limitation, any substance regulated under any Environmental Law.
"CONTINGENT OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect to any
Indebtedness or Contractual Obligation of another Person, if the purpose or
intent thereof by the Person incurring the Contingent Obligation is to provide
assurance to the obligee of such Indebtedness or Contractual Obligation that
such Indebtedness or Contractual Obligation will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such Indebtedness or Contractual Obligation will be protected (in whole or in
part) against loss in respect thereof. Contingent Obligations include, without
limitation, (a) the direct or indirect guarantee, endorsement (other than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation
of another Person, and (b) any liability of such Person for the obligations of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of income or
financial condition of another, or (iii) to make take-or-pay or similar
payments, if required regardless of nonperformance by any other party or parties
to an agreement, if in the case of any agreement described under subclause (i),
(ii) or (iii) of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported.
"CONTRACTUAL OBLIGATION" of any Person, means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument to which such Person is a party or by which it
or any of its property is bound or to which any of its properties is subject.
"CREDIT INSTRUMENTS" means the Letters of Credit and the
Acceptances.
"CREDIT LIMIT" means, at any time, an amount equal to the
sum of the Commitments of all of the Banks.
"CURRENT ASSETS" of a Person means, at any date, the aggregate amount
of all assets of such Person that are classified as current assets in accordance
with GAAP plus the amount of the LIFO reserve.
"CURRENT LIABILITIES" of a Person means, at any date, the aggregate
amount of all liabilities of such Person that are classified as current
liabilities in accordance with GAAP (including, without limitation, tax and
other proper accruals and the current portion of any Indebtedness and, with
respect to any Borrower, the aggregate outstanding principal amount of the
Loans).
"CUSTODY ACCOUNT" means that certain custodianship account maintained
by the Borrowers with the Agent, the terms and conditions of which are set forth
in the Custody Agreements.
"CUSTODY AGREEMENTS" means collectively the Second Amended and Restated
Collateral Pledge and Custody Agreement (Domestic), dated as of April 7, 1995,
among Tosco, Bayway and the Agent and
the Second Amended and Restated Collateral Pledge and Custody Agreement dated as
of April 7, 1995 between TEL and the Agent, as each such Custody Agreement may
be amended, modified or supplemented and in effect from time to time in
accordance with its terms.
"DEBT RATING" means the rating issued by S&P or Moody's with respect to
(a) the First Mortgage Bonds for so long as such First Mortgage Bonds are
outstanding and (b) thereafter, secured Indebtedness of Tosco not maturing
within twelve months and not subordinated by its terms in right of payment to
other Indebtedness of Tosco.
"DEBT SERVICE" means, as to the Borrowers, and in respect of any period
consisting of one or more Fiscal Quarters, an amount equal to the sum of (a) the
total amount of all interest accrued on Indebtedness of the Borrowers during
such period, PLUS (b) the total amount of all scheduled maturities or
installments of principal of Indebtedness of the Borrowers due and payable
during such period.
"DEFAULT" means any event which with the passing of time or the giving
of notice or both would constitute an Event of Default.
"DISCRETIONARY CAPITAL EXPENDITURES" means all Capital
Expenditures of the Borrowers other than Non-Discretionary
Capital Expenditures.
"DOCUMENTARY LETTERS OF CREDIT" means the irrevocable documentary
letters of credit opened for the account of any Borrower by the Agent pursuant
to this Agreement, substantially in the form of EXHIBIT D-1 hereto.
"DOL" means the United States Department of Labor.
"DOLLARS" and the sign "$" each mean the lawful money of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" below its name on
SCHEDULE 1.01(A) hereto or such other office of such Bank as such Bank may from
time to time specify to the Borrower and the Agent.
"EBIT" means, as to the Company and in respect of any fiscal period, an
amount equal to (a) Net Income determined on a FIFO basis for such period, PLUS
(b) gross interest expense during such period, PLUS (c) an amount equal to the
Company's income tax expense as reflected on the Company's books of account
during such period, PLUS (d) any items of loss which are extraordinary items as
defined by GAAP, MINUS (e) any items of gain which are extraordinary items as
defined by GAAP.
"ELIGIBLE ASSIGNEE" means any commercial bank or nonbank financial
institution, including, without limitation, any insurance company, savings bank
or savings and loan association.
"ELIGIBLE CASH" means, as to any Borrower, any and all Cash of such
Borrower deposited with the Agent or with another Bank that has executed and
delivered to the Agent an Agency Agreement in respect of such account, and which
is subject to a valid, first priority perfected lien and security interest in
favor of the Agent on its behalf and on behalf of the Co-Agents and the Banks.
"ELIGIBLE CASH EQUIVALENTS" means, as to any Borrower, any and all Cash
Equivalents of such Borrower held by the Agent in the Custody Account and which
are subject to a valid, first priority perfected lien and security interest in
favor of the Agent on its behalf and on behalf of the Co-Agents and the Banks.
"ELIGIBLE EXCHANGE BALANCES" means, to the extent not otherwise
included in the definition of Eligible Inventory or Eligible Receivables and as
to any Borrower, an amount equal to the difference between (a) the value of any
and all products of the type consisting of Inventory which such Borrower is
entitled to receive in connection with Eligible Exchange Transactions, MINUS (b)
the value of any and all products of the type consisting of Inventory which such
Borrower is obligated to deliver in connection with Eligible Exchange
Transactions. If the amount set forth in clause (b) above exceeds the amount set
forth in clause (a) above, Eligible Exchange Balances shall be expressed as a
negative number and if the amount set forth in clause (a) above exceeds the
amount set forth in clause (b) above, Eligible Exchange Balances shall be
expressed as a positive number. With respect to each Eligible Exchange
Transaction included in the calculation of Eligible Exchange Balances, the value
of the product subject to such Eligible Exchange Transactions shall be
determined on a FIFO basis after deducting therefrom (x) the value of any
product subject to any Eligible Exchange Transaction for which performance has
not been made on the date that such performance is due, (y) the amount of all
discounts, allowances, rebates, credits and adjustments to such Eligible
Exchange Transaction and (z) the amount billed for or representing retainage, if
any, with respect to such Eligible Exchange Transaction until all prerequisites
to the immediate payment of retainage have been satisfied.
"ELIGIBLE EXCHANGE TRANSACTION" means any Exchange Transaction with respect
to which the Agent has a perfected, first priority security interest in the
rights of any Borrower arising in connection therewith or in the product
receivable in connection therewith but excluding (a) any Exchange Transaction
with a Person (i) that has filed a petition or other application for relief
under the Federal Bankruptcy Code, or (ii) with respect to whom any petition or
other application for relief under the Federal Bankruptcy Code has been filed or
(iii) that has failed, suspended normal business operations, become insolvent,
or assigned for the benefit of creditors or had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets or
affairs; and (b) in the Agent's sole and absolute discretion, any Exchange
Transaction with respect to which any representation or warranty contained in
this Agreement or any Ancillary Agreement is breached or the customer or trading
partner has disputed liability, or made any claim with respect to such Exchange
Transaction or with respect to any other Exchange Transaction due from such
customer or trading partner to such Borrower other than for a minimal adjustment
in the ordinary course of business and in accordance with regular commercial
practice.
"ELIGIBLE INVENTORY" means, as to any Borrower at any given time,
Inventory which (a) is subject to a valid, first priority perfected lien and
security interest in favor of the Agent on behalf of the Banks; PROVIDED that
Inventory in an amount not to exceed $80,000,000 at any one time which is in
transit on the high seas and which is not supported by a Documentary Letter of
Credit may be included in the Borrowing Base notwithstanding the limitation set
forth in this clause (a) so long as such Inventory satisfies the requirements
set forth in clauses (b) through (e) below; (b) is in good saleable condition,
is not deteriorating in quality and is not obsolete, (c) is owned by such
Borrower free and clear of any and all liens, security interests and
encumbrances whatsoever, other than those in favor of the Agent on behalf of the
Banks created pursuant to the Collateral Documents or those permitted under
Section 7.02(g) with respect to warehouseman's liens which secure amounts not
then overdue, (d) except with respect to Inventory which is in transit on the
high seas, is in the possession of the Borrowers on premises owned or leased by
the Borrowers and set forth in the Perfection Certificates delivered to the
Agent pursuant to Section 3.01(f) hereof or if located at any other location,
all reporting, filing and notice requirements have been complied with; PROVIDED
that in no event shall Eligible Inventory include Inventory held for sale at
retail outlets and (e) is otherwise satisfactory to the Agent, in its sole
discretion, using reasonable business judgment.
"ELIGIBLE INVENTORY UNDER CONTRACT" means, as to any Borrower at any
given time, the aggregate purchase price of Inventory contracted for purchase by
such Borrower, if (a) such Inventory has not, as of such time, been delivered to
such Borrower, (b) such Inventory has not been included for any Borrower as
Eligible Inventory in the then effective Borrowing Base Report (delivered
pursuant to Section 5.04(b) hereof) but will be eligible for inclusion in such
Borrower's Borrowing Base upon delivery thereof, and (c) such Borrower's
obligations to pay the purchase price of such Inventory is supported by a
Letter of Credit; PROVIDED that, for purposes of inclusion of such Inventory in
the Borrowing Base of such Borrower, such Inventory shall be valued at an amount
not to exceed the maximum drawing amount of the Letter of Credit supporting the
purchase price thereof.
"ELIGIBLE INVESTMENTS" means, as to any Borrower, any and all
Qualifying Investments of such Borrower held by the Agent in the Custody Account
and which are subject to a valid, first priority perfected lien and security
interest in favor of the Agent on behalf of the Banks.
"ELIGIBLE MARGIN DEPOSITS" means, as to any Borrower at any give time,
the aggregate amount of such Borrower's net equity in the aggregate amount of
all sums deposited by such Borrower with commodities brokers or nationally
recognized exchanges, after deducting therefrom the aggregate amount of all
claims, disputes, contras and offsets (contingent or otherwise) by such brokers
or any other Person against such sums, and in respect of which such brokers have
executed and delivered to the Agent an Agency Agreement.
"ELIGIBLE RECEIVABLES" means, as to any Borrower, at any given time,
the aggregate amount of all Accounts carried on the books of such Borrower in
accordance with GAAP arising in the ordinary course of business with any Person
(other than another Borrower or any Affiliate of a Borrower), and which Accounts
also meet all of the following requirements:
(a) such Accounts are originally due within thirty (30) days
of the original invoice date thereof and are not more than thirty (30)
days past due;
(b) such Accounts constitute the valid, binding and legally
enforceable obligation of the Account Debtor and are not subordinate to
any other claim against such Account Debtor;
(c) such Accounts are not evidenced by any instrument,
unless such instrument has been pledged and delivered to
the Agent on behalf of the Banks;
(d) such Accounts are owned by such Borrower free and clear of
all liens, security interests, encumbrances or claims whatsoever
(including without limitation any claims arising from the sale or
commitment to sell such Accounts in connection with a Securitization
Program), other than those in favor of the Agent on behalf of the
Banks;
(e) such Accounts are not the subject of the return,
rejection, loss of or damage to the goods, the sale of which gave rise
to the Accounts, or any request for credit or adjustment, or any other
dispute with the Account Debtor
on the Accounts and all actions required to be performed by
such Borrower with respect to such Accounts have been
performed;
(f) if the Account Debtor on any such Accounts is located
outside the United States, such Accounts are payable in full in Dollars
and an Acceptable Issuer has issued an irrevocable standby letter of
credit in the amount of such Accounts for the benefit of the Borrower
on whose books such Accounts are carried and on which such Borrower may
draw in the event of a default by such Account Debtor in respect of
such Accounts, PROVIDED that either (i) such letter of credit is
subject to a valid, first priority perfected lien and security interest
in favor of the Agent on its behalf and on behalf of the Co-Agents and
the Banks or (ii) the Agent is the collecting bank for such letter of
credit and, PROVIDED, FURTHER, that the proceeds of any drawing under
such letter of credit are to be deposited into the applicable
Borrower's account with the Agent or with a Bank that has executed and
delivered to the Agent an Agency Agreement in respect of such account;
(g) such Accounts are owing by an Account Debtor which
is creditworthy in the reasonable business judgment of the
Agent;
(h) such Accounts are owing by an Account Debtor which has not
(i) filed a petition for relief under any existing or future law
relating to bankruptcy, insolvency, reorganization or relief of
debtors, (ii) made a general assignment for the benefit of creditors,
(iii) had filed against it any petition or other application for relief
under any existing or future law relating to bankruptcy, insolvency,
reorganization or relief of debtors, (iv) failed, (v) suspended
business operations, (vi) become insolvent, (vii) called a meeting of
its creditors for the purpose of obtaining any material financial
concession or accommodation, or (viii) had or suffered a receiver or a
trustee to be appointed for all or a significant portion of its assets
or affairs;
(i) such Accounts are subject to a valid, first priority,
perfected lien and security interest in favor of the Agent on behalf of
the Banks;
(j) such Accounts are not denominated in any currency
other than Dollars or payable outside the United States; and
(k) such Accounts are otherwise satisfactory to the
Agent in its sole discretion;
LESS (A) all reserves with respect to such Accounts and (B) any
and all offsets, counterclaims or contracts in respect thereof,
including all federal, state and other taxes (but excluding income taxes) in
respect thereof. For the purpose of this definition, (x) to the extent that
Eligible Receivables owing by any Account Debtor and its Affiliates to any
Borrower exceed 25% of the aggregate amount of all Eligible Receivables of such
Borrower, such excess shall not be included in the calculation of Eligible
Receivables, and (y) to the extent that any Borrower is at any time directly or
contingently indebted for any reason to any Account Debtor, the Accounts owing
to such Borrower by such Account Debtor shall be deemed to be subject to an
offset, counterclaim or contra in the amount of such Indebtedness; PROVIDED,
HOWEVER, that solely with respect to Accounts owing to Tosco by ARCO pursuant to
the ARCO Exchange Agreement, any amounts owing by Tosco to ARCO thereunder for
the purchases of Alaska North Slope Crude Oil shall not be deemed to be an
offset, counterclaim or contra with respect to such Accounts owing by ARCO,
solely to the extent that, and for so long as, the ARCO Exchange Agreement
expressly prohibits ARCO from offsetting against the payment of any such
Accounts; and PROVIDED FURTHER, HOWEVER, that to the extent that any
Indebtedness of any Borrower to any Account Debtor is secured by a Letter of
Credit, the portion of the Indebtedness so secured (not to exceed the lesser of
(i) the face amount of the Letter of Credit and (ii) the outstanding amount of
such indebtedness) shall not be deemed to be an offset, counterclaim or contra
with respect to the Accounts of such Account Debtor owing to such Borrower. For
the purposes of this definition, at any time when the combined Borrowing Base of
all of the Borrowers does not exceed the Credit Limit by at least $50,000,000,
Eligible Receivables owing to the Borrowers by any Account Debtor shall be
determined on a consolidated basis for the Borrowers net of any and all offsets,
counterclaims or contras arising in connection with any such Account owing by
such Account Debtor such that the Eligible Receivables owing to one Borrower by
an Account Debtor shall be reduced by the amount by which any such offsets,
counterclaims or contras relating to Accounts owing to another Borrower by such
Account Debtor exceed that portion of such Accounts which would otherwise be
Eligible Receivables.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrowers or any
ERISA Affiliate, other than a Multiemployer Plan.
"ENVIRONMENTAL CLAIM" means any notice of violation, claim, demand,
abatement or other order or direction (conditional or otherwise) by any
Governmental Authority or any Person for personal injury (including sickness,
disease or death), tangible or intangible property damage, damage to the
environment, nuisance, pollution, contamination or other adverse effects on the
environment, or for fines, penalties or restrictions, resulting from or based
upon (a) the existence, or the continuation of the existence, of a Release
(including, without limitation, sudden or non-sudden, accidental or
non-accidental Releases) of, or exposure to, any substance, chemical, material,
pollutant, Contaminant, odor or audible noise or other release or emission in,
into or onto the environment (including, without limitation, the air, ground,
water or any surface) at, in, by, from, or related to the Facilities, (b) the
environmental aspects of the transportation, storage, treatment or disposal of
materials in connection with the operation of the Facilities or any other assets
of any Borrower or any of its Subsidiaries, or (c) the violation, or alleged
violation, of any statutes, ordinances, orders, rules, regulations or Permits of
or from any Governmental Authority relating to environmental matters connected
with the Facilities, or any other assets of the Borrower or any of its
Subsidiaries.
"ENVIRONMENTAL LAW" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss. 9601 ET SEQ.), the Hazardous
Material Transportation Act (49 U.S.C. ss. 1801 ET SEQ.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 ET SEQ.), the Federal Water
Pollution Control Act (33 U.S.C. ss. 1251 ET SEQ.), the Clean Air Act (42 U.S.C.
ss. 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. ss. 2601 ET
SEQ.), and the Occupational Safety and Health Act (29 U.S.C. ss. 651 ET SEQ.),
as each of the foregoing may be amended or supplemented from time to time, and
any other federal, state or local statutes, present or future, relating to
health, safety, or the environment, including, without limitation, transfer of
ownership notification statutes such as the New Jersey Environmental Cleanup
Responsibility Act (New Jersey Stat. Ann. 13:1K-6 ET SEQ.) and the Connecticut
Industrial Transfer Law of 1985 (Conn. Gen. Stat. ss. 22a-134 ET SEQ.) and
statutes such as the California Safe Drinking Water and Toxic Enforcement Act
(Cal. Health and Safety Code ss. 25249.5 ET SEQ.), the Alaska Environmental
Conservation Law (Alaska Stat. ss. 46.03 ET SEQ.), the Oregon Hazardous Waste
Remedial Action Act (Or. Rev. Stat. ss. 466.540 ET SEQ.), and the Washington
Hazardous Waste Cleanup Act (Wash. Rev. Code Chap. 70,105 B), and the
regulations promulgated pursuant thereto.
"ENVIRONMENTAL LIABILITIES AND COSTS" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all reasonable fees, disbursements and expenses
of counsel, expert and consulting fees and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand, by any Person, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
including any Environmental Law, Permit, order or agreement with any
Governmental Authority or other Person, arising from environmental, health or
safety conditions, or the Release or threatened Release of a Contaminant into
the environment, resulting from the past, present or future operations of such
Person or its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or
any successor legislation thereto), as amended from time to time, and any
regulations promulgated thereunder.
"ERISA AFFILIATE" means any Person which is treated as a single
employer, trade or business (whether or not incorporated) with the Borrowers
under Section 414 of the Revenue Code.
"ERISA REPORTABLE EVENT" means a reportable event with respect to a
Guaranteed Pension Plan within the meaning of section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR INTERBANK MARKET" means any lawful recognized market in
which deposits of U.S. dollars are offered by international banking units of
United States banking institutions and by foreign banking institutions to each
other.
"EURODOLLAR LENDING OFFICE" means, with respect to any Bank, the office
of such Bank specified as its "Eurodollar Lending Office" below its name on
SCHEDULE 1.01(A) hereto (or, if no such office is specified, its Domestic
Lending Office) or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Agent.
"EURODOLLAR RATE" means, for any Interest Period, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate of interest
determined by the Agent to be the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the
rates per annum notified to the Agent by each Reference Bank as the rate at
which deposits in Dollars in immediately available funds are offered to the
Eurodollar Lending Office of each of the Reference Banks, two Business Days
before the first day of such Interest Period by prime banks in any Eurodollar
Interbank Market, selected by the Reference Banks at or about the Relevant Local
Time of such Eurodollar Lending Office, for delivery on the first day of such
Interest Period in an amount substantially equal to the amount of the Loan to be
made or continued as, or converted into, a Eurodollar Rate Loan by such
Reference Bank and with a maturity equal to the last day of such Interest
Period, by (b) a percentage equal to 1.00 minus the Eurodollar Rate Reserve
Percentage for such Interest Period. As used herein, "Relevant Local Time", as
to any Eurodollar Lending Office, shall be 11:00 a.m. London time when such
Eurodollar Lending Office is located in Europe, or 10:00 a.m. Boston,
Massachusetts time, when such Eurodollar Lending office is located in North
America, the Caribbean or the Bahamas.
"EURODOLLAR RATE LOAN" means any Loan that bears interest at a rate
determined with reference to the Eurodollar Rate.
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period, means the
reserve percentage (expressed as a decimal) applicable two Business Days before
the first day of such Interest Period, under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for the
Agent, at its principal office with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other category
of liabilities which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined) having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in Section
8.01.
"EXCHANGE TRANSACTION" means as to any Borrower, a transaction wherein
such Borrower trades, lends, borrows or exchanges products of the type
consisting of Inventory other than pursuant to an organized mercantile exchange
in the ordinary course of business with Persons other than (a) other Borrowers
or (b) Affiliates of the Borrowers.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in
the recitals hereof.
"EXXON" means Exxon Corporation, a New Jersey corporation.
"EXXON SUPPLY AGREEMENT" means that certain product supply agreement
between Exxon Company, U.S.A., a division of Exxon and Bayway, effective upon
the consummation of the acquisition by Bayway of the Bayway Refinery, as such
agreement is in effect on the Closing Date.
"FACILITIES" means any real property owned or leased or used by any
Borrower or any of its Subsidiaries including, without limitation, the Avon
Refinery, the Bayway Refinery and the Ferndale Refinery.
"FAIR MARKET VALUE" means, in respect of any asset or property, the
value placed on such asset or property in an arm's length transaction by a buyer
who is not an Affiliate of the seller and who is under no obligation to purchase
such asset or property and a seller who is under no compulsion to sell such
asset or property.
"FEDERAL BANKRUPTCY CODE" means Title 11 of the United States Code, as
amended and in effect from time to time.
"FEDERAL FUNDS RATE" shall mean for any seven day Interest Period, the
rate of interest equal to the rate per annum at which FNBB is offered seven-day
term Federal funds in the term Federal funds market as of 10:00 a.m. (Boston
time) on the first Business Day of such Interest Period, for settlement on such
day in an amount comparable to the amount of the Federal Funds Rate Loan of FNBB
to be outstanding for such Interest Period.
"FEDERAL FUNDS RATE LOANS" means any Loan that bears interest at a rate
determined by reference to the Federal Funds Rate.
"FEDERAL RESERVE BOARD" has the meaning specified in
Section 4.07.
"FERNDALE REFINERY" means the land and improvements known as the
Ferndale Refinery, located in Ferndale, Washington, together with the terminals,
tanks, pipelines and related facilities used or intended for use in connection
therewith.
"FIFO" means the first-in-first-out method of determining value of
Inventory in accordance with GAAP.
"FINANCIAL STANDBY LETTERS OF CREDIT" means those Standby Letters of
Credit issued for the account of a Borrower under which the issuing bank is
irrevocably obligated to pay a third party beneficiary when the Borrower fails
to repay an outstanding loan or debt instrument, including, without limitation,
the FMCP L/C.
"FIRST MORTGAGE BOND INDENTURE" means that certain Indenture, dated as
of March 30, 1992, between Tosco and The First National Bank of Boston, as
Trustee, relating to the First Mortgage Bonds, as amended, modified or
supplemented and in effect on the Closing Date.
"FIRST MORTGAGE BONDS" means collectively, (a) the nine percent (9%)
Series A First Mortgage Bonds Due March 15, 1997 of Tosco, issued pursuant to
the First Mortgage Bond Indenture, in the original aggregate principal amount of
$100,000,000 and (b) the nine and five-eighths percent (9 5/8%) Series B First
Mortgage Bonds Due March 15, 2002 of Tosco, issued pursuant to the First
Mortgage Bond Indenture, in the original aggregate principal amount of
$200,000,000.
"FISCAL QUARTER" means any fiscal quarter of the Company ending on March
31, June 30, September 30 or December 31. Subsequent changes of the fiscal
quarter of the Company shall not change the term "Fiscal Quarter" as used
herein, unless the Agent shall consent in writing to such a change.
"FISCAL YEAR" means the fiscal year of the Company ending on December
31. Subsequent changes of the fiscal year of the Company shall not change the
term "Fiscal Year" as used herein, unless the Agent shall consent in writing to
such a change.
"FMCP L/C" means the irrevocable Standby Letter of Credit No.
I-047-CFSI-50078543 issued by the Agent for the account of Seminole Fertilizer
Corporation and the obligation of Tosco and Bayway under this Agreement and any
extensions or replacements of such Standby Letter of Credit, in form and
substance satisfactory to the Agent and the Banks; provided that the expiration
of such Letter of Credit shall be no later than the FMCP L/C Maturity Date and
the FMCP L/C Reimbursement Obligation shall not exceed the FMCP L/C Limit.
"FMCP L/C LIMIT" means an initial amount equal to $18,619,965 as
reduced by $2,533,383.33 on the fifteenth day of each April and October,
commencing April 15, 1995.
"FMCP L/C MATURITY DATE" means December 31, 1997.
"FMCP L/C REIMBURSEMENT OBLIGATIONS" means, as to the FMCP L/C, as at
any date of determination, all Obligations of the Borrowers relating to the FMCP
L/C as at such date, including, without limitation, the sum of (a) the maximum
aggregate amount which is available to be drawn under the FMCP L/C PLUS (b) the
aggregate amount of all drawings under such FMCP L/C honored by the Agent and
not, as of such date of determination, reimbursed by the Borrowers.
"FNBB" has the meaning specified in the recitals hereof.
"FREE CASH" means, as to the Company, an amount equal to $212,000,000 plus
the cumulative amount, if any, determined as of the last Business Day of the
Fiscal Quarter most recently ended (commencing with March 31, 1995 as the first
such date of determination), for the period commencing with the Fiscal Quarter
ending March 31, 1995 through and including the date of determination, equal to
(a) the sum of (i) 100% of Cash Flow, calculated cumulatively for such period
PLUS (ii) the net cash proceeds received by the Borrowers after December 31,
1994 with respect to the issuance by Tosco of its Stock or instruments
evidencing Indebtedness for borrowed money (other than in connection with
Indebtedness arising pursuant to this Agreement or the refinancing of then
existing Indebtedness) to the extent such proceeds have not been used to reduce
the aggregate amount of Non-Discretionary Capital Expenditures made by the
Borrowers from and including the Fiscal Quarter ending March 31, 1995 pursuant
to clause (b) of the definition of Non-Discretionary Capital Expenditures;
PROVIDED that net cash proceeds received by the Borrowers from the issuance of
instruments evidencing Indebtedness for borrowed money may only be included in
Free Cash if the maturity of the Indebtedness evidenced thereby (including any
and all interim amortization payments) occurs after April 8, 1998, MINUS (b) the
sum of, without duplication, (i) all dividends paid or declared by Tosco
pursuant to Sections 7.03 and 7.04 during such period PLUS (ii) Debt Service,
calculated cumulatively for such period, PLUS (iii) the aggregate amount of
prepayments of Indebtedness of the Company in advance of the scheduled maturity
date thereof during such period, PLUS (iv) without duplication, the amount of
any Free Cash utilized by the Borrowers or any Restricted Subsidiary at any time
during such period.
"FUNDED DEBT" of any Person means, at any time, the amount of all
Indebtedness for borrowed money (other than short-term trade credit) or for the
deferred purchase price of Capital Assets PLUS Capitalized Lease Obligations,
calculated in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time, set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such other entity as
may be in general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of determination;
PROVIDED, HOWEVER, that for purposes of computing compliance with the various
covenants contained herein and the related definitions, "GAAP" shall mean said
principles as applied by the Company in the preparation of its respective
financial statements for the fiscal year ended December 31, 1994 and
consistently followed.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTEED PENSION PLAN" means any employee pension benefit plan
within the meaning of Section (3)(2) of ERISA (other than a Multiemployer Plan)
which any Borrower, any of its Subsidiaries or any ERISA Affiliate maintains,
contributes to or has an obligation to contribute to on behalf of participants
and which is guaranteed on termination in full or in part by the PBGC pursuant
to Title IV of ERISA.
"HLT CLASSIFICATION" has the meaning specified in Section 2.15(b).
"INDEBTEDNESS" of any Person means, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase
price of property or services (including without limitation, reimbursement and
all other obligations with respect to surety bonds, letters of credit and
bankers' acceptances, whether or not matured), (b) all obligations evidenced by
notes, bonds, debentures or similar instruments, (c) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (d) all Capitalized Lease
Obligations, (e) all Contingent Obligations, (f) all Indebtedness referred to in
clause (a), (b), (c), (d) or (e) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in property (including, without limitation, accounts and
contracts rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness, (g) the Obligations, and
(h) the amount at which any redeemable preferred stock of such Person is
required to be redeemed.
"INTEREST PERIOD" means as to any Borrower, in the event that such
Borrower shall have validly and effectively elected to have any Loan bear
interest at a rate determined by reference to (a) the Eurodollar Rate, (i)
initially, the period commencing on the date that such Loan is made or on the
date of conversion of the interest rate applicable to such Loan to a rate
determined by reference to the Eurodollar Rate, as the case may be, and ending
one, two, three or six months thereafter, as selected by such Borrower in its
Notice of Borrowing or Notice of Conversion or Continuation given to the Agent
pursuant to Section 2.02 or 2.12, respectively, and (ii) thereafter, if such
Borrower validly and effectively elects to have such Loan continue to bear
interest at a rate determined by reference to the Eurodollar Rate pursuant to
Section 2.12, a period commencing on the last day of the immediately preceding
Interest Period therefor and ending one, two, three or six months thereafter, as
selected by the Borrower in its Notice of Conversion or Continuation given to
the Agent pursuant to Section 2.12, or (b) the Federal Funds Rate, (i)
initially, the seven day period commencing on the date that such Loan is made or
on the date of conversion of the interest rate applicable to such Loan to a rate
determined by reference to the Federal Funds Rate and (ii) thereafter, if such
Borrower validly and effectively elects to have such Loan continue to bear
interest at a rate determined by reference to the Federal Funds Rate pursuant to
Section 2.12, a period commencing on the last day of the immediately preceding
Interest Period therefor and ending seven (7) days thereafter, as selected by
the Borrower in its Notice of Conversion or Continuation given to the Agent
pursuant to Section 2.12; PROVIDED, HOWEVER, that all of the foregoing
provisions are subject to the following:
(A) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless with respect to Interest Periods
relating to Eurodollar Rate Loans, the result of such extension would
be to extend such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period for a Eurodollar Rate Loan that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period), shall end on the last Business Day of a
calendar month; and
(C) no Borrower may select any Interest Period which ends
after the Maturity Date.
"INVENTORY" means any "inventory" as that term is defined in Section
9-109(4) of the Code which consists of crude oil, refined petroleum products and
intermediate feedstocks and blend components commonly used in the petroleum
industry to improve characteristics of, or meet governmental or customer
specifications for, petroleum or refined petroleum products, all of which
Inventory shall be valued on a FIFO basis.
"INVESTMENT GRADE" means for S&P, a rating of BBB- or higher, and for
Moody's, a rating of Baa3 or higher.
"LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS" means, as to any Letter of
Credit, including, without limitation, the FMCP L/C, as at any date of
determination, all Obligations of any of the Borrowers relating to such Letter
of Credit as at such date, including, without limitation, the sum of (a) the
maximum aggregate amount which is then available to be drawn under such Letter
of Credit PLUS (b) the aggregate amount of all drawings under such Letter of
Credit honored by the Agent and not theretofore reimbursed by the Borrowers.
"LETTERS OF CREDIT" means Documentary Letters of Credit and Standby
Letters of Credit, including, without limitation, the FMCP L/C.
"LEVERAGE RATIO" means the ratio of Funded Debt of the Company to
Tangible Net Worth of the Company, determined on a LIFO basis.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a Capitalized Lease Obligation, any financing lease
having substantially the same economic effect as any of the foregoing and the
filing, under the Code or comparable law of any jurisdiction, of any financing
statement naming the owner of the asset to which such Lien relates as debtor.
"LIFO" means the last-in-first-out method of determining value of
Inventory in accordance with GAAP.
"LOAN" means (a) a loan made to any Borrower by any Bank pursuant to
Section 2.01, and (b) all amounts paid by the Agent under any Credit Instrument
issued or created pursuant to Article II, and not theretofore reimbursed by the
Borrowers.
"LOAN ACCOUNT" has the meaning specified in Section 2.19.
"LOAN DOCUMENTS" means this Agreement and the Ancillary
Agreements.
"LONG ISLAND FACILITY" means that certain 5,000,000 barrel petroleum
storage facility and related deep-water marine facilities located on real
property owned by Tosco in Eastern Long Island, New York.
"MAJOR OIL COMPANY RECEIVABLE" means, as to each Borrower, (a) an
Eligible Receivable carried on the books of such Borrower as to which the
Account Debtor thereon is listed on SCHEDULE 1.01(C) hereto or is a Person
considered by the Banks, in their sole discretion, to be a "major oil company,"
or (b) any Eligible Receivable as to which an Acceptable Issuer has issued an
irrevocable stand-by letter of credit in the amount of such Eligible Receivable
for the benefit of the Borrower on whose books such Eligible Receivable is
carried and on which such Borrower may draw in the event of a default by such
obligor with respect to such Eligible Receivable, PROVIDED that such letter of
credit is subject to a valid, first priority perfected lien and security
interest in favor of the Agent on its behalf and on behalf of the Co-Agents and
the Banks or that the Agent is the collecting bank for such letter of credit,
and PROVIDED further, that the proceeds of any drawing under such letter of
credit are to be deposited into the applicable Borrower's account with the Agent
or with a Bank that has executed and delivered to the Agent an Agency Agreement
in respect of such account.
"MAJOR TURNAROUND" means (a) any maintenance, repair, replacement or
inspection work involving the complete shutdown for a period of at least twenty
(20) days, or substantial curtailment of the operations for a period of at least
twenty (20) days, of the coker unit or the fluid catalytic cracker unit at the
Avon Refinery or the fluid catalytic cracker unit or the crude distillation unit
at the Bayway Refinery and (b) any other Turnaround involving the complete
shutdown or substantial curtailment of the operations, in each case for a period
of at least twenty (20) days, of any unit at any refinery owned by a Borrower if
such shutdown or curtailment of operations results in a reduction in the Cash
Flow of the Company of substantially the same magnitude as the reduction in Cash
Flow of the Company resulting from a Major Turnaround specified in clause (a)
above.
"MATERIAL ADVERSE CHANGE" means a change that results, or would result,
in a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, properties, assets, prospects or condition (financial or
otherwise) of (i) any Borrower, or (ii) the Company, or (b) the Borrowers' or
any Borrower's ability to pay the Obligations in accordance with the terms
hereof.
"MATERIAL LEASE" means (a) each of the leases listed on SCHEDULE
4.21(A)(II), and (b) any lease of real property having a market value in excess
of $5,000,000.
"MATURITY DATE" means April 8, 1998.
"MAXIMUM LETTER OF CREDIT EXPOSURE" means with respect to any Borrower,
at any given time, the sum of (a) the aggregate principal amount of all drafts
which may, then or thereafter, be presented by beneficiaries under (i)
outstanding Performance Standby Letters of Credit issued for the account of such
Borrower to support the purchase of Inventory and (ii) if the Borrower is Tosco,
the FMCP L/C; PLUS (b) the aggregate principal amount of all drafts then
outstanding under such Letters of Credit which have been presented but which
have not been paid.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOVER PLAN" means any multiemployer plan within the meaning of
ss. 3(37) of ERISA maintained or contributed to by the Borrowers or any ERISA
Affiliate.
"NET CASH PROCEEDS" means, with respect to any Sale of all or a substantial
portion of (a) the Stock of a Subsidiary by any Borrower or (b) the assets of
any Borrower or a Subsidiary of any Borrower by such Borrower or such Subsidiary
(other than the Sale of inventory in the ordinary course of business of such
Borrower or such Subsidiary), an amount equal to the aggregate amount of cash
proceeds received by such Borrower and/or such Subsidiary from such Sale, as the
case may be, LESS all fees and expenses, including customary brokerage
commissions, legal and investment banking fees and other similar commissions,
charges or fees, incurred in connection with such Sale, and cash taxes paid or
payable by such Borrower or such Subsidiary in respect of such Sale during, or
on account of, the Fiscal Year in which such Sale occurs.
"NET INCOME (LOSS)" means, as to the Company and in respect of any
fiscal period of the Company, the net income (or net loss, as the case may be)
of the Company for such period, determined on a consolidated basis in accordance
with GAAP.
"NET WORTH" of any Person means, at any date, the excess of the Total
Assets of such Person at such date over the Total Liabilities of such Person at
such date.
"1954 CODE" has the meaning specified in Section 4.08.
"NON-DISCRETIONARY CAPITAL EXPENDITURES" means for any fiscal period of
the Company, (a) all Capital Expenditures of the Company during such fiscal
period for (i) deferred costs of Turnarounds with respect to the Avon Refinery,
the Bayway Refinery, the Ferndale Refinery and any other refinery owned by Tosco
or Bayway at the relevant time of reference thereto, so classified on a basis
consistent with current practice and (ii) all other Capital Expenditures
necessarily incurred by the Company in order to maintain its property, plants
and equipment (including, without limitation, the Avon Refinery, the Bayway
Refinery, the Ferndale Refinery and such other refinery owned by Tosco or Bayway
at the relevant time of reference thereto) in compliance with applicable
Environmental Laws and other laws and regulations, minus (b) an amount equal to
the sum of (i) the net cash proceeds received by the Company with respect to the
issuance of Stock or instruments evidencing Indebtedness for borrowed money
(other than in connection with Indebtedness arising pursuant to this Agreement
or refinancings of then existing Indebtedness) during such fiscal period PLUS
(ii) the lesser of (x) the net cash proceeds received by the Company with
respect to the issuance of Stock or instruments evidencing Indebtedness for
borrowed money (other than in connection with Indebtedness arising pursuant to
this Agreement or refinancings of then existing Indebtedness) during prior
fiscal periods and (y) an amount equal to Free Cash as at the end of such fiscal
period; PROVIDED THAT in no event shall the amount subtracted in accordance with
this clause (b) reduce Non-Discretionary Capital Expenditures to an amount less
than zero ($0).
"NOTES" means, collectively, the Revolving Credit Notes.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF CONVERSION OR CONTINUATION" has the meaning
specified in Section 2.12.
"OBLIGATIONS" means all loans, advances, debts,
liabilities, obligations, covenants and duties owing by the
Borrowers or any Borrower to the Agent or any of the Banks, present or future,
whether or not evidenced by any note, guarantee or other instrument, arising
under this Agreement, any Ancillary Agreement or any other document or
instrument executed in connection herewith or therewith, whether arising by
reason of an extension of credit, opening, creation or amendment of a Credit
Instrument or payment thereunder or of any draft drawn thereunder (including,
without limitation, those arising from payment or guarantee by any Bank in
connection with a Letter of Credit opened for any Borrower), loan (including the
Loans), guarantee, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and however acquired. The
term includes, without limitation, all interest, fees, commissions, charges,
expenses, attorneys' fees and any other sum chargeable to the Borrowers or any
Borrower under this Agreement, any Ancillary Agreement or any other agreement
with any Bank with respect to any of the foregoing.
"OTHER TAXES" has the meaning specified in Section 2.20(b).
"OVERNIGHT FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal, for each day during such period, to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System, arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it in its sole discretion acting in good faith.
"PAID BUT UNEXPIRED STANDBY LETTERS OF CREDIT" means, as to any
Borrower as of any date, the excess, if any, of (a) the Maximum Letter of Credit
Exposure of such Borrower on such date over (b) the aggregate outstanding amount
due and owing as of such date (whether or not then payable) by such Borrower to
the beneficiaries under the Letters of Credit with respect to which such Maximum
Letter of Credit Exposure arises to the extent secured by such Letters of
Credit.
"PBGC" means the Pension Benefit Guaranty Corporation created by 4002
of ERISA and any successor entity or entities having similar responsibilities.
"PERFECTION CERTIFICATE" has the meaning specified in
Section 3.01(h).
"PERFORMANCE STANDBY LETTERS OF CREDIT" means Standby
Letters of Credit other than Financial Standby Letters of Credit
and shall include, without limitation, Standby Letters of Credit issued to
support the purchase of Inventory and those issued in connection with a
Borrower's performance and bonding requirements in connection with such matters
as competitive bids, excise tax liabilities and workers' compensation.
"PERMIT" means any permit, approval, consent, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"PERSON" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, limited
liability company, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof).
"PLAN" means, an employee benefit plan, as defined in Section 3(3) of
ERISA, which any Borrower or any of its Subsidiaries maintains, contributes to
or has an obligation to contribute to on behalf of participants who are or were
employed by any of them.
"PROJECTIONS" means those certain consolidated and consolidating
financial projections of the Company and the underlying assumptions relating
thereto, covering the fiscal years ending in 1995 through 1998 inclusive,
including the Company's capital expenditure program for its Facilities.
"QUALIFYING INVESTMENTS" means repurchase agreements and obligations
rated (on the date of such purchase or acquisition) AAA or A-l by S&P or Aaa or
P-1 by Moody's, obligations of the United States of America or any agency
thereof, obligations guaranteed by the United States of America or any agency
thereof, money market preferred stocks rated AA or better by S&P or Aa or better
by Moody's, money market loan participation programs with companies with
short-term credit rated AAA or A-1 by S&P or Aaa or P-1 by Moody's, and
certificates of deposit issued by any bank organized under the laws of the
United States of America or any state thereof if such bank has a short-term debt
rating of not less than P-l or A-l or their equivalent by Moody's or S&P,
respectively, or any of their successors; provided, however, that none of the
above instruments shall have a maturity of less than one year or more than five
years.
"RATABLE PORTION" means, with respect to any Bank, (i) the quotient
obtained by dividing the Commitment of such Bank by the Credit Limit or (ii) if
all of the Commitments have been terminated, such Bank's percentage interest in
all Revolving Credit Debt outstanding hereunder.
"REFERENCE BANKS" means FNBB, BofA, and Chase.
"REGISTER" has the meaning specified in Section 10.03(c).
"RELEASE" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment or into or out of any
property owned by such Person, including the movement of Contaminants through or
in the air, soil, surface water, ground water or property.
"REMEDIAL ACTION" means all actions, including corrective actions,
required to (a) clean up, remove, treat or in any other way address any
Contaminant or other substance in the indoor or outdoor environment, (b) prevent
the Release or threat of Release or minimize the further Release of any
Contaminant or other substance so it does not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment, or (c)
perform pre-remedial studies and investigations and post-remedial monitoring and
care.
"REPORTABLE EVENT" means any of the events described in Section
4043(b)(1), (2), (3), (5), (6), (8) or (9) of ERISA and the regulations
promulgated thereunder; provided, however, that the term "Reportable Event"
shall exclude all events for which the PBGC has waived the 30 day notice
requirement if the Plan to which the Reportable Event relates could be
terminated in a "standard termination" within the meaning of Section 4041(b) of
ERISA.
"REQUIRED BANKS" means, as of a particular date, Banks having at least
65% of the aggregate principal amount of all of the Loans or, if no Loans are
then outstanding, Banks having at least 65% of the aggregate of all of the
Commitments.
"REQUIREMENT OF LAW" means, as to any Person, the charter and bylaws or
other organizational or governing documents of such Person, and all federal,
state and local laws, rules, regulations, orders, decrees or other
determinations of an arbitrator, court or other Governmental Authority
including, without limitation, all disclosure requirements of ERISA and the
requirements of Environmental Laws, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"RESPONSIBLE OFFICER" means, with respect to any Person, any of the
principal executive officers of such Person (including, with respect to any
Borrower, its chief financial officer).
"RESTRICTED INVESTMENT" means, (a) any purchase or other acquisition of
any Stock or other security, obligation or other interest in any Person
(including, without limitation, any loan, advance, or other extension of credit
to such Person) or any capital contribution to any Person (including, without
limitation, any capital contribution by any Borrower or any Restricted
Subsidiary to any Subsidiary of Tosco), (b) any Contingent Obligation of any
Borrower or any Restricted Subsidiary in favor of any other Person, or (c) any
loan, advance, or other extension of credit by any Borrower or any Restricted
Subsidiary to any Subsidiary of Tosco, except:
(i) investments in Cash Equivalents or Qualifying
Investments;
(ii) investments in or capital contributions to Restricted
Subsidiaries in any Fiscal Year in an aggregate amount not in excess of
the amounts required to be repaid by such Restricted Subsidiaries in
any Fiscal Year under outstanding Indebtedness permitted in Section
7.01 plus $5,000,000;
(iii) routine security deposits made in the ordinary
course of business;
(iv) normal trade indebtedness for the sale of Inventory sold
by any Borrower or any of its Subsidiaries in the ordinary course of
business with payment terms not to exceed sixty (60) days from the date
of sale;
(v) indemnifications to officers, directors and other Persons
to the extent permitted by the corporation laws of any applicable
jurisdiction, customary indemnification to underwriters and other
Persons made in connection with any security offerings, and
indemnifications in connection with the Sale of a Capital Asset by any
Borrower or a Subsidiary of any Borrower to the extent such
indemnification is permitted by Section 7.05(a);
(vi) Contingent Obligations of any Borrower or any Restricted
Subsidiary with respect to and in an amount not to exceed the
Indebtedness or Contractual Obligation of another Borrower or
Restricted Subsidiary which is permitted under the terms of this
Agreement; and
(vii) investments in respect of intercompany loans made by
Tosco to Bayway or TEL in connection with Bayway Advances or TEL
Advances, respectively, hereunder.
"RESTRICTED PAYMENT" means (a) the declaration of any dividend on, or
the making of or the incurrence of any liability to make any other payment or
distribution in cash or other property or assets in respect of, any Stock of any
Borrower other than (i) one payable or paid solely in Stock of such Borrower,
and (ii) the payment of any dividends from Bayway or TEL to Tosco, or (b) any
payment on account of the purchase, redemption, retirement or other acquisition
of any of the Stock of any Borrower or any other payment or distribution made in
respect thereof, either directly or indirectly, except solely in exchange for
Stock of such Borrower.
"RESTRICTED PREPAYMENT" means any prepayment of any Indebtedness of any
Borrower or any of its Subsidiaries, other than the Notes, in advance of the
scheduled maturity thereof.
"RESTRICTED SUBSIDIARY" means, (i) Diablo Service Corporation, a
California corporation, (ii) Western Hemisphere Corporation, a Delaware
corporation, (iii) Tosco International Finance N.V., a Netherlands Antilles
corporation, and (iv) TPMI.
"REVENUE CODE" means the Internal Revenue Code of 1986, as the same may
be amended from time to time, and any successor statute or statutes, and any
regulations promulgated thereunder.
"REVOLVING CREDIT DEBT" means, at any time, the sum of the Tosco
Revolving Credit Debt, PLUS the TEL Revolving Credit Debt, plus the Bayway
Revolving Credit Debt outstanding at such time.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrowers
payable to the order of any Bank in an amount equal to the amount of such Bank's
Commitment, in substantially the form of EXHIBIT C-1 hereto, evidencing the
Indebtedness of the Borrowers to such Bank resulting from the Borrowings
provided by such Bank hereunder.
"S&P" means Standard & Poor's Corporation.
"SALE" or "SELL" means any sale, transfer, conveyance, assignment,
exchange, liquidation, long-term lease or other disposition of (other than the
grant of a Lien on), all or any portion of any asset or any interest therein,
whether or not for value.
"SECURED PARTIES" means the Agent, the Co-Agents and the Banks, as such
terms are defined in this Agreement.
"SECURITIZATION PROGRAM" means a receivable securitization program to
be installed and conducted by the Borrowers after the Closing Date on terms and
pursuant to documentation in form and substance in all respects acceptable to
the Banks including, without limitation, provisions relating to termination and
intercreditor arrangements and provisions affecting the Collateral or the
Borrowing Base, and pursuant to which the Borrowers will agree to sell on a
continuing basis Accounts in an amount not to exceed $ 100,000,000 at any one
time outstanding.
"SECURITY AGREEMENT" means collectively the Second Amended and Restated
Security Agreement (Domestic) dated as of April 7, 1995 among Tosco, Bayway and
the Agent and the Second Amended and Restated Security Agreement dated as of
April 7, 1995 between TEL and the Agent, as each such Security Agreement may be
amended, modified or supplemented in accordance with the terms thereof and in
effect from time to time.
"SENIOR INDEBTEDNESS" has the meaning specified in section
2.22(f).
"SOLVENT" means, with respect to any Person, that the value of the
assets of such Person (both at fair value and present fair saleable value) is,
on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities mature and does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"STANDBY LETTERS OF CREDIT" means irrevocable standby letters of credit
opened for the account of the Borrowers or any Borrower by the Agent pursuant to
this Agreement, substantially in the form of EXHIBIT D-2 hereto or, with respect
to the FMCP L/C, Letter of Credit No. I-047-CFSI-50078543 issued by the Agent.
"STOCK" means all shares, options, interests, participations or other
equivalents (regardless of how designated) of or in a corporation or equivalent
entity (including, without limitation, a partnership), whether voting or
nonvoting, and including, without limitation, common stock, preferred stock,
securities convertible into or exchangeable for stock, or warrants or options
for any of the foregoing.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other business entity of which an aggregate of more than 50% of
the outstanding Stock, having ordinary voting power to elect a majority of the
members of the board of directors of such corporation (irrespective of whether,
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,
or of which an aggregate of more than 50% of the interests in which are, at the
time, directly or indirectly, owned by such Person and/or one or more
Subsidiaries of such Person.
"SYNTHETIC LEASE" means any lease or similar arrangement entered into
after the Closing Date (but excluding renewals on substantially the same terms
of leases or similar arrangements existing prior to the Closing Date) in
connection with the acquisition or lease of real property, fixtures and other
capital assets which is treated in accordance with GAAP as an operating lease
for accounting purposes but as a capitalized lease for tax purposes.
"TANGIBLE AT WORTH" of any Person means, at any date, the Net Worth of
such Person, at such date, EXCLUDING HOWEVER, from the determination of the
Total Assets of such Person, at such date (i) all goodwill, organizational
expenses, research and development expenses, trademarks, trade names,
copyrights, patents, patent applications, licenses and rights in any thereof,
and other similar intangibles, (ii) all reserves carried and not deducted from
assets, (iii) securities which are not readily marketable, and (iv) any items
not included in clauses (i) through (iii) above which are treated as intangibles
in conformity with GAAP, all of the foregoing as determined for any such date as
of the end of the immediately preceding Fiscal Quarter in accordance with GAAP.
"TAX AFFILIATE" means, as to any Person (i) any Subsidiary of such
Person, and (ii) any Affiliate of such Person with which such Person files or is
eligible to file consolidated, combined or unitary tax returns.
"TAXES" has the meaning specified in Section 2.20(a).
"TAX RETURNS" has the meaning specified in Section 4.08.
"TEL" means Tosco Europe Limited, a limited liability company organized
under the laws of England and Wales.
"TEL ADVANCE" means any Borrowing that is supported by the TEL
Borrowing Base and is requested by Tosco for the purpose of making intercompany
loans to TEL.
"TEL BORROWING BASE" means, at the relevant time of determination, a
Borrowing Base calculated as provided in the definition thereof by reference to
the assets and obligations of TEL and the Paid but Unexpired Standby Letters of
Credit issued for the account of TEL, 121~ the Available Tosco Excess Amount
allocated thereto.
"TEL OVERADVANCE AMOUNT" means, at the relevant time of determination,
the amount by which (a) the aggregate amount of TEL Revolving Credit Debt,
exceeds (b) the TEL Borrowing Base.
"TEL REVOLVING CREDIT DEBT" means at any time, (a) the aggregate principal
amount of all TEL Advances outstanding at such time, PLUS (b) the aggregate
principal amount of all Borrowings at such time made pursuant to Article II and
issued for the account of or requested by TEL, including, without limitation,
(i) all such Borrowings in cash thereunder, (ii) the aggregate principal amount
of all such Letter of Credit Reimbursement Obligations outstanding thereunder
and (iii) the aggregate principal amount of all such Acceptance Obligations
outstanding thereunder.
"TOSCO" has the meaning set forth in the recitals hereof.
"TOSCO BORROWING BASE" means, at the relevant time of determination, a
Borrowing Base calculated as provided in the definition thereof by reference to
the assets and obligations of Tosco and the Paid but Unexpired Standby Letters
of Credit issued for the account of Tosco.
"TOSCO EXCESS AMOUNT" means, at the relevant time of determination, the
amount by which (a) the Tosco Borrowing Base exceeds (b) the aggregate amount of
Tosco Revolving Credit Debt then outstanding.
"TOSCO OVERADVANCE AMOUNT" means, at the relevant time of
determination, the amount by which (a) the aggregate amount of Tosco Revolving
Credit Debt, exceeds (b) the Tosco Borrowing
Base.
"TOSCO REVOLVING CREDIT DEBT" means at any time, (a) the aggregate
principal amount of all Borrowings at such time made pursuant to Article II and
issued for the account of or requested by Tosco, including, without limitation,
(i) all such Borrowings in cash thereunder, (ii) the aggregate principal amount
of all such Letter of Credit Reimbursement Obligations outstanding thereunder
and (iii) the aggregate principal amount of all such Acceptance Obligations
outstanding thereunder, but not including the aggregate principal amount of
Bayway Advances and TEL Advances outstanding at such time plus (b) the FMCP L/C
Reimbursement Obligation of Tosco.
"TOTAL ASSETS" means, as to the Company and as of a given date, the
total consolidated assets of the Company, determined in accordance with GAAP.
"TOTAL LIABILITIES" means, as to the Company and as of a given date,
the total consolidated liabilities of the Company, determined in accordance with
GAAP.
"TPMI" means Tosco Processing & Marketing, Inc., a Delaware
corporation.
"TURNAROUNDS" means periodic shutdowns, or the substantial curtailment
of operations, of the Avon Refinery, the Bayway Refinery, the Ferndale Refinery,
any other refinery which may be owned by any Borrower from time to time in the
future or any particular processing unit at such refineries for inspection,
repairs, replacements and other major maintenance work.
"TYPE" refers, with respect to any Loan, to whether such Loan is a Base
Rate Loan, a Eurodollar Rate Loan or a Federal Funds Rate Loan.
"U.K. SECURITY DOCUMENTS" means the Debenture, dated as of August 16,
1994, between TEL and the Agent and any other mortgage, pledge, charge or
security agreement executed and delivered, or filing made, in connection with
the granting, attachment and perfection of security interests by TEL to the
Agent, on behalf of the Banks, on its assets in the United Kingdom, as each such
document may be amended, modified, supplemented and in effect from time to time
in accordance with its terms.
"WITHDRAWAL LIABILITY" means, at any time, the aggregate amount of the
liabilities, if any, pursuant to Section 4201 of ERISA, and any increase in
contributions pursuant to Section 4243 of ERISA with respect to all
Multiemployer Plans.
"WORKING CAPITAL" means, as at any date, the amount by which Current
Assets exceeds Current Liabilities, in each case determined with respect to the
Company on a consolidated basis in accordance with GAAP.
1.02. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
1.03. ACCOUNTING TERMS. Any accounting term used in this Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given to such term in accordance with GAAP applied on a consistent
basis. All financial computations hereunder shall be computed in accordance with
GAAP. The fact that certain terms or computations are explicitly modified by the
phrase "in accordance with GAAP" shall in no way be construed to limit the
foregoing.
1.04. GENERAL PROVISIONS. The words "herein", hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole, including the
Exhibits and Schedules hereto, and not to any particular section, subsection or
clause contained in this Agreement. Wherever, from the context, it appears
appropriate, each term stated in either the singular or plural shall include the
singular and the plural, and pronouns stated in the masculine, feminine or
neuter gender shall include the masculine, the feminine and the neuter. Except
as otherwise provided herein, a reference to any document or agreement shall
include such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Agreement. A
reference to any law includes any amendment or modification to such law. A
reference to any Person includes its permitted successors and permitted assigns.
The words "include", "includes" and "including" are not limiting. All terms not
specifically defined herein or by GAAP, which terms are defined in the Code,
have the meanings assigned to them therein. Reference to a particular "ss."
refers to that section of this Credit Agreement unless otherwise indicated.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01. LOANS.
(a) On the terms and subject to the conditions contained in this
Agreement, each Bank severally agrees to make Loans to the Borrowers and to
participate in Letters of Credit and Acceptances on behalf of the Borrowers,
from time to time, in an aggregate principal amount up to but not in excess of
such Bank's Commitment as in effect from time to time, during the period
commencing on the Closing Date to but excluding the Maturity Date, subject to
compliance with Section 2.04(b)(ii) hereof. Within the limits of the
Commitments, the Borrowers may borrow, prepay pursuant to Section 2.11 (a) and
reborrow pursuant to this Section 2.01 (a).
(b) Commencing on the Closing Date to but excluding the Maturity Date,
the Borrowers may use the Commitments by (i) borrowing and prepaying Loans, in
whole or in part, and reborrowing, (ii) causing Letters of Credit to be issued,
and (iii) causing Acceptances to be created, all in accordance with the
provisions of this Agreement. In no event shall the Revolving Credit Debt at any
time exceed the Credit Limit, determined as of such time, nor shall any Tosco
Overadvance Amount, Bayway Overadvance Amount or TEL Overadvance Amount result
as a consequence of any Borrowing hereunder. If on any date (x) the Revolving
Credit Debt exceeds the Credit Limit, for whatever reason, or (y) a Tosco
Overadvance Amount, Bayway Overadvance Amount or TEL Overadvance Amount exists,
the Borrowers shall (i) reduce the Revolving Credit Debt to an amount less than
or equal to the Credit Limit, (ii) in the case of any Tosco Overadvance Amount,
reduce the aggregate Tosco Revolving Credit Debt to an amount less than or equal
to the Tosco Borrowing Base, (iii) in the case of any Bayway Overadvance Amount,
reduce the aggregate Bayway Revolving Credit Debt to an amount less than or
equal to the Bayway Borrowing Base, and (iv) in the case of any TEL Overadvance
Amount, reduce the aggregate TEL Revolving Credit Debt to an amount less than or
equal to the TEL Borrowing Base, by in each such case: (A) depositing Qualifying
Investments and/or Cash Equivalents into the Custody Account; and/or (B)
repaying amounts outstanding under the Notes, together with all accrued and
unpaid interest, commissions and fees with respect thereto to such date; and/or
(C) causing Letters of Credit to be cancelled and delivering to
the Agent the originals of all such Letters of Credit marked "cancelled" by the
respective beneficiaries thereof, or depositing with the Agent for the benefit
of the Banks and the Agent, at once and in full, all sums sufficient to
reimburse the Agent and the Banks for all payments, present or future,
contingent or otherwise, that may be required to be made by the Agent or the
Banks on account of any Letter of Credit or prepaying the Acceptances in full
prior to the maturity thereof, and such sums shall be deposited in an
interest-bearing cash collateral account maintained by the Agent, to be held by
the Agent and applied thereby in reduction of any Obligations arising out of any
Application, Letter of Credit and/or Acceptance; PROVIDED, HOWEVER, that, in the
case of any Tosco Overadvance Amount, Bayway Overadvance Amount or TEL
Overadvance Amount, all such amounts deposited or repaid shall be applied only
to the extent necessary to reduce such Tosco Overadvance Amount, Bayway
Overadvance Amount or TEL Overadvance Amount, as applicable.
(c) The Borrowers may, upon at least five Business Days' notice to the
Agent and the Banks, terminate in whole or reduce in part the Commitments,
without premium or penalty; PROVIDED THAT, each such partial reduction shall be
in an aggregate amount of $5,000,000 or an integral multiple thereof, by (i)
repaying amounts outstanding under the Notes, together with all accrued and
unpaid interest, commissions and fees with respect thereto to such date of
repayment and/or (ii) causing Letters of Credit and/or Acceptances to be
cancelled and delivering to the Agent the originals of all such Letters of
Credit or Acceptances marked "cancelled" by the respective beneficiaries thereof
and paying all accrued and unpaid commissions and fees with respect thereto, or
depositing with the Agent for the benefit of the Banks, at once and in full, all
sums sufficient to reimburse the Agent or the Banks, as applicable, for all
payments, present or future, contingent or otherwise, that may be required to be
made by the Agent or the Banks on account of any Letter of Credit and/or
Acceptance together with all accrued and unpaid commissions and fees with
respect thereto, and such sums shall be deposited in a non-interest-bearing cash
collateral account maintained by the Agent, to be held by the Agent and applied
thereby in reduction of any Obligations arising out of any Application, Letter
of Credit or Acceptance; all in amounts sufficient to reduce the Revolving
Credit Debt to (x) an amount less than or equal to the aggregate amount of the
Commitments as so reduced, if reduced, or (y) zero. if the Commitments are
terminated.
2.02. NOTICE AND METHOD OF BORROWING.
(a) Each Borrowing of Loans shall be made upon receipt of a notice (each, a
"Notice of Borrowing"), given by the Borrower requesting such Loans and received
by the Agent not later than 12:00 noon, Boston, Massachusetts time, at least (x)
three Business Days, in the case of Eurodollar Loans and (y) one Business Day,
in the case of Base Rate Loans and Federal Funds Rate Loans, prior to the date
of such Borrowing. The Notice of Borrowing shall be in substantially the form of
EXHIBIT E hereto, specifying therein:
(i) the date of such proposed Borrowing, which shall be a Business Day;
(ii) the amount of such proposed Borrowing which, in the case
of a Borrowing of Base Rate Loans and Federal Funds Rate Loans shall be
in an amount of not less than $1,000,000 or an integral multiple of
$500,000 in excess thereof and, in the case of Eurodollar Rate Loans,
shall be in an amount of not less than $ 10,000,000 or an integral
multiple of $5,000,000 in excess thereof;
(iii) the Type of such Loans;
(iv) if the proposed Borrowing is to be comprised
of Eurodollar Rate Loans, the duration of the initial
Interest Period applicable to such Loans; and
(v) if such proposed Borrowing is requested by Tosco, whether
such Borrowing (A) shall be supported by the Tosco Borrowing Base and
issued for Tosco's own account, or (B) shall be a Bayway Advance or (C)
shall be a TEL Advance.
Unless the Notice of Borrowing specifically requests that Loans initially bear
interest at a rate determined by reference to the Eurodollar Rate or the Federal
Funds Rate, such Loans shall initially bear interest at a rate determined by
reference to the Base Rate. The Agent shall give to each Bank prompt notice of
the Agent's receipt of a Notice of Borrowing and, if the Borrower has properly
requested in such Notice of Borrowing that any Loans initially bear interest at
a rate determined by reference to the Eurodollar Rate or the Federal Funds Rate,
the applicable Interest Period and interest rate under Section 2.14(b) or (c).
(b) Upon the terms and subject to the conditions set forth in this
Agreement, unless the Agent determines that one or more of the applicable
conditions set forth in Article III has not been satisfied (or waived in
accordance with Section 10.01 hereof), on the date specified in each Notice of
Borrowing, the Agent shall transfer to the applicable account or accounts set
forth on SCHEDULE 2.02(B) attached hereto specified by the requesting Borrower
to the Agent, on behalf of the respective Banks, in immediately available funds,
the amount borrowed by such Borrower hereunder and specified in its Notice of
Borrowing. Each Bank shall before 1:00 p.m. Boston, Massachusetts time on the
date proposed for a Borrowing in a Notice of Borrowing, make available to the
Agent through such Bank's Applicable Lending Office, at its address referred to
on ScHEDULE 1.01(A), in immediately available funds, such Bank's Ratable Portion
of the proposed Borrowing. Unless the Agent shall have been notified by any Bank
on or before 12:00 noon Boston, Massachusetts time on the date prior to the date
set forth in the Notice of Borrowing that such Bank does not intend to make its
Ratable Portion of the proposed Borrowing available to the Agent by 1:00p.m.
Boston, Massachusetts time on the date proposed for such Borrowing in such
Notice of Borrowing, the Agent may assume that such Bank has timely made such
amount available to the Agent and the Agent may, in reliance upon such
assumption, make such amount available to the applicable Borrower.
(c) If any amount is made available by a Bank to the Agent after 1:00
p.m. Boston, Massachusetts time on the date of a Borrowing, such Bank shall pay
to the Agent on demand an amount equal to the product of (i) the average,
computed for the period referred to in clause (iii) below, of the Overnight
Federal Funds Rate for federal funds acquired by the Agent during each day
included in such period, MULTIPLIED BY (ii) the amount not made available by
such Bank when due MULTIPLIED BY (iii) a fraction, the numerator of which is the
number of days that elapse from and including such due date to the date on which
such amount shall become immediately available to the Agent, and the denominator
of which is 360. A statement of the Agent submitted to any Bank with respect to
any amounts so owing shall be prima facie evidence of the amount due and owing.
If such Bank does not in fact make an amount owed available to the Agent by such
Bank within three Business Days of the due date therefor, the Agent shall be
entitled to recover such amount from the Borrowers on demand, with interest
thereon at the rate per annum applicable to the Loan for which such funds were
provided by the Agent pursuant to Section 2.02(b).
(d) Each Notice of Borrowing shall be irrevocable and binding on the
Borrowers. In the event that any Notice of Borrowing specifies that any Loan is
to bear interest initially at a rate determined by reference to the Eurodollar
Rate or the Federal Funds Rate, the Borrowers shall jointly and severally
indemnify each Bank against any loss, cost or expense incurred by such Bank as a
result of any failure to fulfill, on or before the date specified in such Notice
of Borrowing as the proposed date of Borrowing, any of the applicable conditions
set forth in Article III, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Bank to
fund its Loans in the event that such Loans, as a result of such failure, are
not made on such date.
(e) The failure on any date of any Bank to make its
Ratable Portion of a Borrowing available to the Agent as
hereinabove provided on the proposed date of a Borrowing shall
not relieve any other Bank of its obligation hereunder to make its Ratable
Portion of such Borrowing available to the Agent, but no Bank shall be
responsible for the failure of any other Bank to make its Ratable Portion of any
Borrowing to be made by such other Bank on such date.
2.03. USE OF PROCEEDS.
(a) LOANS, LETTERS OF CREDIT AND ACCEPTANCES. Except as provided in
Section 2.03(b) hereof, (i) Tosco shall use the proceeds of (A) all TEL Advances
solely to provide intercompany loans to TEL, (B) all Bayway Advances solely to
provide intercompany loans to Bayway, and (C) all Tosco Revolving Credit Debt
solely (I) to provide working capital in the ordinary course of its business,
including, without limitation, to fund receivables and the purchases of
Inventory, (II) to provide security in connection with its performance and
bonding requirements and the obligation secured by the FMCP L/C, or (III) to
secure Tosco's guarantee of the reimbursement obligation for the FMCP L/C's,
(ii) Bayway shall use the proceeds of all Bayway Revolving Credit Debt solely
(A) to provide working capital in the ordinary course of its business,
including, without limitation, to fund receivables and the purchases of
Inventory, or (B) to provide security in connection with its performance and
bonding requirements, and (iii) TEL shall use the proceeds of all TEL Revolving
Credit Debt solely (A) to provide working capital in the ordinary course of its
business, including, without limitation, to fund receivables and the purchases
of Inventory, or (B) to provide security in connection with its performance and
bonding requirements.
(b) FMCP L/C'S. Notwithstanding the foregoing, the FMCP L/C shall be
used solely to secure certain capitalized lease obligations originally incurred
by Ridgewood Chemical Corporation, a Delaware corporation and an inactive
subsidiary of Seminole Fertilizer Corporation which is a wholly-owned Subsidiary
of Tosco.
2.04. LETTERS OF CREDIT. Each Letter of Credit (including the FMCP L/C)
opened by the Agent under this Agreement for the account of any Borrower shall
be for one of the following purposes and shall have the following
characteristics:
(i) each Documentary Letter of Credit issued by the Agent
hereunder shall have an expiry date which is not more than 90 days
following the date of issuance thereof;
(ii) each Performance Standby Letter of Credit issued by the
Agent hereunder (A) for the purpose of supporting purchases of
Inventory shall have an expiry date which is not more than 120 days
following the date of issuance thereof, and (B) for the purpose of
securing the performance or bonding requirements of such Borrower or
any of its wholly-owned Subsidiaries shall have an expiry date which
is not more than 365 days following the date of issuance thereof;
(iii) each Financial Standby Letter of Credit issued by the
Agent hereunder shall have an expiry date which is (A) in the case of
the FMCP L/C, not later than the FMCP L/C Maturity Date and (B) for all
other Financial Standby Letters of Credit, not more than 365 days
following the date of issuance thereof;
(iv) no Letter of Credit shall be opened later than 9 Business
Days prior to the Maturity Date, or shall have an expiry date later
than the Maturity Date;
(v) the aggregate outstanding amount of Performance Standby
Letters of Credit issued to secure the Borrowers' bonding and
performance requirements and Financial Standby Letters of Credit (after
excluding therefrom the FMCP L/C) shall not at any time exceed
$35,000,000;
(vi) each Letter of Credit shall be payable by drafts drawn at
sight in accordance with the appropriate Application, and shall be used
only to support purchases of Inventory, bonding requirements for fuel
and excise taxes and other similar support for the present operations
of the Borrowers, or in the case of the FMCP L/C for the purpose set
forth in Section 2.03(b); and
(vii) if on any date the aggregate FMCP L/C Reimbursement
Obligations outstanding exceeds the FMCP L/C Limit, for whatever
reason, Tosco and Bayway shall: (x) deposit an amount of Qualifying
Investments or Cash Equivalents into a cash collateral account with the
Agent; and/or (y) either cause the FMCP L/C to be cancelled and deliver
to the Agent the original FMCP L/C marked "cancelled" by the respective
beneficiaries thereof, or deposit with the Agent for the benefit of the
Agent and the Banks, at once and in full, sums sufficient to reimburse
the Agent for all payments, present or future, contingent or otherwise,
that may be required to be made by the Agent or the Banks on account of
the FMCP L/C together with all accrued and unpaid commissions and fees
thereon, all in amounts sufficient to reduce the FMCP L/C Reimbursement
Obligation to an amount less than or equal to the FMCP L/C Limit.
2.05. PROCEDURES FOR OPENING LETTERS OF CREDIT.
(a) The requesting Borrower shall give the Agent at least one Business
Day's prior electronic, telephonic (to be confirmed in writing within
twenty-four (24) hours), written, telex, telecopy or telegraphic notice
(effective upon receipt), of any request for the establishment of a Letter of
Credit under this Agreement. Such notice from the requesting Borrower shall be
accompanied by all information which the Agent shall require for the issuance of
the Letter of Credit then being requested. Not later than 12:00 noon, Boston,
Massachusetts time, on the date specified in such notice (or, if not timely
delivered, on the second Business Day after receipt by the Agent), and upon the
terms and subject to the conditions of this Agreement, unless the Agent has
notice of any condition precedent to the establishment of such Letter of Credit
not having been fulfilled, the Agent shall establish such Letter of Credit by
forwarding the original of such Letter of Credit to the beneficiary thereof in
the manner specified by the Borrower requesting such Letter of Credit. The Agent
shall notify the other Banks on a weekly basis of all Letters of Credit issued
hereunder.
(b) Effective as of the date of opening of each Letter of Credit, the
Agent agrees to grant and does grant, and each Bank severally and irrevocably
agrees to take and does take, an undivided participating interest in such Letter
of Credit and the Application relating thereto in a percentage equal to such
Bank's Ratable Portion. All Letters of Credit, including the FMCP L/C, issued
and outstanding on the Closing Date under the Existing Credit Agreement shall be
deemed to be Letters of Credit issued and outstanding hereunder and each Bank
severally and irrevocably agrees to take and does take, an undivided
participating interest in each such Letter of Credit and the Application
relating thereto in a percentage equal to such Bank's Ratable Portion.
(c) If the Agent at any time makes a payment on account of any Letter
of Credit and is not concurrently reimbursed therefor by the Borrowers pursuant
to Section 2.06(a), the Agent shall promptly notify each Bank of such payment.
Forthwith upon its receipt of such notice, each Bank shall transfer to the
Agent, in immediately available funds, an amount equal to such Bank's Ratable
Portion of such payment, which shall be deemed a Loan (whether or not the
Commitments have been terminated or any condition precedent to the making of a
Loan has not been met) by such Bank hereunder. The obligation of each Bank to so
pay the Agent shall be absolute and unconditional and shall not be affected by
the occurrence of a Default or an Event of Default, any right of setoff or
counterclaim or defense to payment, or any other occurrence or event.
2.06. ADDITIONAL PROVISIONS REGARDING LETTERS OF CREDIT. In order to
induce the Agent to establish the Letters of Credit, including the FMCP L/C:
(a) The Borrowers jointly and severally agree to pay the Agent the
amount of all Letter of Credit Reimbursement Obligations owing to the Agent
under any Letter of Credit immediately when due, irrespective of any claim,
setoff, defense or other right which the Borrowers or any Borrower may have at
any time against the Agent or any other Person; PROVIDED, HOWEVER that TEL shall
be liable for the Letter of Credit Reimbursement Obligations only to the extent
such Obligations are part of the TEL Revolving Credit Debt. Except as limited in
the preceding sentence with respect to TEL, the Borrowers jointly and severally
agree to reimburse the Agent for all amounts which the Agent pays under such
Letter of Credit no later than the time specified in the related Application
therefor. If the Borrowers do not pay (either from the proceeds of a Borrowing
or otherwise) any such Letter of Credit Reimbursement Obligation when due, such
Letter of Credit Reimbursement Obligation shall immediately constitute, without
necessity of further act or evidence, a Loan made by the Agent, or to the extent
the Agent has received any payments from any Bank for the account of the Agent
pursuant to Section 2.05(c), a Loan made by such Bank (but only to the extent of
each such Bank's Ratable Portion of such Letter of Credit Reimbursement
Obligation) to the requesting Borrower, in a principal amount equal to such
Letter of Credit Reimbursement Obligation which is due and remaining unpaid,
such Loans to be payable on demand and bearing interest computed from the date
on which such Letter of Credit Reimbursement Obligation became due to the date
of repayment in full thereof at the rate of interest applicable to past due
Loans bearing interest at a rate based on the Base Rate during such period.
(b) The Borrowers jointly and severally agree that neither the Agent
nor any other Bank shall be responsible or liable for, and the obligation of the
Borrowers to reimburse the Agent for any payment made by the Agent under any
Letter of Credit opened by it shall not be affected by (i) the validity, form,
enforceability or genuineness of any note, draft, demand, statement or other
document (or any endorsement thereof) presented to the Agent under such Letter
of Credit which, upon examination by the Agent with reasonable care, appears on
its face to be in accordance with the terms and conditions of such Letter of
Credit even if such note, draft, demand, statement or other document (or such
endorsement) is proven to be invalid, untrue, inaccurate, unenforceable,
fraudulent or forged, or (ii) any dispute among the Borrowers or any Borrower
and the beneficiary or beneficiaries under such Letter of Credit.
(c) The Borrowers agree that any action taken or omitted to be taken by
the Agent in connection with any Letter of Credit, if taken or omitted to be
taken in good faith, shall be binding upon the Borrowers and shall not create
any liability for the Agent or any other Bank to the Borrowers.
(d) If the Agent is required at any time to return to the Borrowers or
any Borrower or to a trustee, receiver, liquidator, custodian or other similar
official any portion of the payments made by the Borrowers or such Borrower to
the Agent in reimbursement of a payment made in respect of any Letter of Credit,
each Bank participating therein shall, on demand of the Agent, forthwith return
to the Agent its Ratable Portion of any amounts so returned by the Agent,
together with interest thereon from the date such demand is made to but not
including the date such amounts are returned by such Bank to the Agent, at a
rate per annum equal to the Overnight Federal Funds Rate.
(e) Any Letter of Credit to be issued by the Agent hereunder (i) shall,
at the request of the Agent, and with the consent of the applicable Co-Agent, be
issued by such Co-Agent, and (ii) may, at the request of the Agent, and with the
consent of another Bank, be issued by such other Bank, in each case, pursuant to
the provisions of Sections 2.04 and 2.05 and this Section 2.06. In such case, to
the extent applicable, references in this Agreement with respect to the Agent
regarding such Letters of Credit shall be deemed to be references to such
Co-Agent or such other Bank, as the case may be.
(f) If any Borrower notifies the Agent that a Letter of Credit to be
issued hereunder is not, in the reasonable judgment of the intended beneficiary
thereof, satisfactory to such intended beneficiary because of the
creditworthiness of said issuer, the Agent shall, at its expense, use
commercially reasonable efforts to cause such Letter of Credit to be issued or
confirmed by such other Person as to make such Letter of Credit reasonably
acceptable to such intended beneficiary.
2.07. LETTER OF CREDIT COMMISSIONS AND FEES.
(a) Commencing on the Closing Date and thereafter, in lieu of any
Letter of Credit commissions and fees provided for in the Applications relating
thereto or otherwise, the Borrowers agree to pay the following fees and
commissions in connection with any Letters of Credit:
(i) The Borrowers agree to pay to the Agent on behalf of the
Banks in accordance with their respective Ratable Portions, with
respect to any Letter of Credit, including, without limitation, FMCP
L/C's, fees or commissions in an amount equal to the maximum drawing
amount of such Letter of Credit, MULTIPLIED BY the applicable rate per
annum, expressed in Basis Points, set forth in the table below opposite
the Debt Rating then in effect; PROVIDED that, in the event of a split
Debt Rating by S&P and Moody's, the lower Debt Rating shall apply:
DEBT Financial Standby Performance
RATING L/C's Standby L/C's Documentary L/C's
S&P: BBB+ 50.0 25.0 25.0
Moody's: Baa1
S&P: BBB 62.5 32.5 25.0
Moody's: Baa2
S&P: BBB- 75.0 37.5 25.0
Moody's: Baa3
S&P: BB+ 87.5 50.0 37.5
Moody's: Bal
S&P: BB 100.0 62.5 50.0
Moody's: Ba2
or unrated
(ii) In addition to the fees and commissions provided for in
clause (i) of this Section 2.07(a), the Borrowers agree to pay to the
Agent for the account of the issuing Bank of each Letter of Credit,
other than the FMCP L/C, a fee in an amount equal to 1/8% per annum of
the maximum drawing amount of such Letter of Credit from time to time
outstanding.
(iii) In addition to the fees and commissions provided in
clause (i) of this Section 2.07(a), the Borrowers agree to pay to the
Agent for its own account with respect to the FMCP L/C, a fee in an
amount equal to 1/4% per annum of the maximum drawing amount of the
FMCP L/C from time to time outstanding.
(iv) In addition to the fees and commissions provided in
clauses (i), (ii) and (iii) of this Section 2.07(a), the Borrowers
agree to pay to the Agent, for the account of the issuing Bank of each
Letter of Credit, minimum opening commissions and fees in respect of
any amendment or negotiations of any Letter of Credit, in accordance
with the issuing Bank's published schedule of such charges, effective
as of the date of such amendment or negotiation.
(b) All such fees specified in Section 2.07(a)(i) through (iii)
inclusive hereof shall be calculated as follows: (i) with respect to
each Standby Letter of Credit, including, without limitation, the FMCP L/C, such
fees shall be calculated based on the maximum drawing amount thereunder during
the period commencing on the date of issuance thereof (or with respect to
Standby Letters of Credit outstanding on the Closing Date, commencing on the
Closing Date) through the expiry date thereof (calculated on the basis of a
360-day year for the actual number of days elapsed) and shall be payable in
arrears within seven (7) Business Days after the end of each month during which,
or any part of which, such Standby Letter of Credit is outstanding and (ii) with
respect to any Documentary Letter of Credit, such fees shall be calculated based
on the maximum drawing amount thereunder during the period commencing on the
date of issuance thereof (or with respect to Documentary Letters of Credit
outstanding on the Closing Date, commencing on the Closing Date) through the
date of negotiation or cancellation thereof (calculated on the basis of a
360-day year for the actual number of days elapsed) and shall be payable in
arrears within seven (7) Business Days after the end of each month during which,
or any part of which, such Documentary Letter of Credit is outstanding. No later
than one (1) Business Day after receipt of such monthly payment, the Agent shall
pay to each Bank such Bank's Ratable Portion of all Letter of Credit fees
referred to in Section 2.07(a)(i) which are received. Notwithstanding any
provision contained herein to the contrary, no fees, commissions or other
amounts paid as of or prior to the Closing Date in respect of any Letter of
Credit existing as of the Closing Date shall be repaid or credited against any
amounts otherwise payable pursuant to this Section 2.07.
2.08. ACCEPTANCES.
(a) Each requesting Borrower shall give the Agent at least one Business
Day's prior telephonic (to be confirmed in writing within twenty-four hours),
written, telex, telecopy or telegraphic notice (effective upon receipt), of its
request for the creation of an Acceptance under this Agreement, and upon receipt
of such notice the Agent shall promptly notify each Bank. Such notice from the
requesting Borrower shall be accompanied by a duly completed and executed
Acceptance Agreement; PROVIDED, HOWEVER, that if telephonic, telex, telecopy or
telegraphic notice is utilized, this condition may be satisfied by such Borrower
telecopying (effective upon receipt) a copy of the duly completed and executed
Acceptance Agreement to the Agent within twenty-four hours thereafter. Not later
than 12:00 noon, Boston, Massachusetts time, on the date specified in such
notice (or if not timely delivered, on the second Business Day after receipt by
the Agent thereof), and upon the terms and subject to the conditions of this
Agreement, unless the Agent has notice of any condition precedent to the
creation of such Acceptance not having been fulfilled, the Agent shall create
such Acceptance and promptly thereafter, send written notice thereof to the
Banks.
(b) Each Acceptance created by the Agent under this Agreement for the
account of any Borrower shall be for one of the following purposes and shall
have the following characteristics:
(i) no Acceptance shall mature (A) less than thirty (30) days
after the date of the draft or (B) more than 120 days after the date of
the draft or, if earlier on the Maturity Date;
(ii) each Acceptance shall be in an amount no
less than $1,000,000 or integral multiples thereof; and
(iii) each Acceptance shall be created by the Agent by drafts
payable at sight in accordance with the Acceptance Agreement, and shall
be used only to finance the international or domestic shipment of
goods.
(c) The requesting Borrower shall have the option of (i) giving the
Agent a power of attorney to complete on its behalf blank drafts in the Agent's
customary form, or (ii) supplying the Agent promptly after the date hereof and
thereafter when needed, as specified by the Agent, with a sufficient number of
pre-signed blank drafts in the Agent's customary form. If such Borrower elects
to give the Agent such power of attorney, such power of attorney shall authorize
the Agent to sign drafts on behalf of such Borrower, to insert on such draft the
name of the Agent as drawee, and to complete such draft as to face amount,
issuance date and maturity date in accordance with the Acceptance Agreement
thereafter. Each presigned draft shall have the face amount, issuance date and
maturity date left blank, but shall have the name of the Agent inserted and
shall be executed manually in the name of and on behalf of such Borrower by a
Responsible Officer thereof.
(d) On the date of each Borrowing involving the creation
of Acceptances, the Agent shall, subject to fulfillment of the
conditions precedent specified in Article III:
(i) complete each draft to be accepted by it on behalf of the
requesting Borrower as to amount, date of creation and maturity date as
requested in the notice therefor and, if acting pursuant to a power of
attorney, complete the draft as to the name of the drawee and sign it
on behalf of such Borrower;
(ii) duly accept each such draft;
(iii) discount the Acceptance or Acceptances created by it by
deducting from the face amount thereof an amount equal to the product
of (A) the Agent's then published discount rate MULTIPLIED BY (B) the
face amount of such Acceptance multiplied by (C) a fraction, the
numerator of which is the number of days from and including the date of
creation of such Acceptance until the maturity thereof and the
denominator of which is 360;
(iv) further deduct from such face amount of such Acceptance
or Acceptances An Acceptance Commission Equal To The Product Of (A)
The Face Amount Of Such Acceptance Multiplied By (B) The Rate
Expressed In Basis Points Set Forth In The Table Below Opposite The
Debt Rating Then In Effect Multiplied By (C) A Fraction, The
Numerator Of Which Is The Number Of Days From And Including The Date
Of Creation Of Such Acceptance Until The Maturity Thereof And The
Denominator Of Which Is 360; Provided That, In The Event Of A Split
Debt Rating By S&P And Moody's, The Lower Debt Rating Shall Apply:
DEBT
RATING Commission Rate
S&P: BBB+ 25.0
Moody's: Baal
S&P: BBB 37.5
Moody's: Baa2
S&P: BBB- 50.0
Moody's: Baa3
S&P: BB+ 62.5
Moody's: Bal
S&P: BB 75.0
Moody's: Ba2
or unrated
(v) pay to the requesting Borrower an amount equal to the face
amount of such Acceptance LESS the sum of (A) the amount of such
discount calculated pursuant to clause (iii) above PLUS; (B) the
acceptance commission payable pursuant to clause (iv) above.
(e) The acceptance commission payable in respect of each Acceptance
shall be payable in full on the date of creation of such Acceptance. The
Borrowers hereby irrevocably direct the Agent to deduct the amount of such
commission from the proceeds of such Acceptance on the date of creation thereof
as provided in Section 2.08(d). The Agent shall, on the first Business Day of
each month, pay to each Bank such Bank's Ratable Portion of the acceptance
commissions deducted from Acceptances created in the previous month.
(f) Notwithstanding the foregoing, the Agent shall not be obligated to
create or discount any Acceptance (i) that would not be eligible for discount by
the Federal Reserve Banks under applicable federal regulations, (ii) if the
creation of such Acceptance would cause the Agent to exceed the maximum amount
of outstanding bankers' acceptances permitted by applicable law, or (iii) if, in
the reasonable opinion of the Required Banks, general conditions in the public
market for rediscounting bankers' acceptances render it inadvisable to do so.
(g) Effective on the date of creation thereof, the Agent
agrees to grant and does grant, and each Bank severally and
irrevocably agrees to take and does take, an undivided participating interest in
each Acceptance and each Acceptance Agreement relating thereto, in a percentage
equal to such Bank's Ratable Portion. All Acceptances created and outstanding on
the Closing Date under the Existing Credit Agreement shall be deemed to be
Acceptances created and outstanding hereunder and each Bank severally and
irrevocably agrees to take and does take, an undivided participating interest in
each such Acceptance and each Acceptance Application relating thereto, in a
percentage equal to such Bank's Ratable Portion.
(h) The Borrowers agree that any action taken or omitted to be taken by
the Agent in connection with any Acceptance, if taken or omitted to be taken in
good faith, shall be binding upon the Borrowers and shall not create any
liability for the Agent or any other Bank to the Borrowers or any Borrower.
(i) The Borrowers jointly and severally agree to pay to the Agent, the
face amount of each Acceptance created by the Agent immediately on the maturity
date of such Acceptance, or on such earlier date as may be required by the other
provisions of this Agreement irrespective of any claim, setoff, defense or other
right which the Borrowers may have at any time against the Agent or any other
Person; PROVIDED, HOWEVER that TEL shall be liable only for the Acceptance
Obligations included in the TEL Revolving Credit Debt. If the Borrowers do not
pay (either from the proceeds of a Borrowing or otherwise) any such Acceptance
Obligation when due, such Acceptance Obligation shall immediately constitute,
without necessity of further act or evidence, a Loan made by the Agent or, to
the extent the Agent has received any payments from the Banks for the account of
the Agent pursuant to Section 2.08(k), a Loan made by such Banks (but only to
the extent with respect to each Bank of each such Bank's Ratable Portion of such
Acceptance Obligation) to the Borrowers, in an aggregate principal amount equal
to such Acceptance Obligation calculated from the date such Acceptance
Obligation arose to the date of repayment in full thereof at the rate of
interest applicable to past due Loans bearing interest at a rate based on the
Base Rate during such period.
(j) Any Acceptance to be issued by the Agent hereunder may, at the
request of the Agent and with the consent of another Bank, be issued by such
other Bank pursuant to the provisions of this Section 2.08. In such case, to the
extent applicable, references in this Agreement with respect to the Agent
regarding such Acceptances shall be deemed to be references to such other Bank.
(k) If the face amount of any Acceptance created by the Agent is not
paid by the Borrowers when due, each Bank shall promptly upon demand by the
Agent reimburse the Agent for such Bank's Ratable Portion of the unreimbursed
Acceptance Obligation, which shall be deemed a Loan by such Bank hereunder.
The obligation of each Bank to so reimburse the Agent shall be absolute and
unconditional and shall not be affected by the occurrence of a Default or an
Event of Default, any right of setoff or counterclaim or defense to payment, or
any other occurrence or event.
(l) If the Agent is required at any time to return to the Borrowers or
any Borrower or to a trustee, receiver, liquidator, custodian or other similar
official any portion of the payments made by the Borrowers or such Borrower to
the Agent in reimbursement of a payment made in respect of any Acceptance, each
Bank participating therein shall, on demand of the Agent, forthwith pay to the
Agent its Ratable Portion of any amounts so returned by the Agent, plx interest
thereon from the date such demand is made to but not including the date such
amounts are returned by such Bank to the Agent, at a rate per annum equal to the
Overnight Federal Funds Rate.
2.09. FEES.
(a) COMMITMENT FEE. The Borrowers jointly and severally agree to pay to
the Agent, on behalf of the Banks, a commitment fee (the "Commitment Fee")
calculated daily for the period commencing on the date hereof through and
including the Maturity Date, or such earlier date upon which the Commitments
shall terminate, at the rate per annum (expressed in Basis Points), set forth in
the table below, opposite the Debt Rating then in effect MULTIPLIED BY the
amount by which the Credit Limit exceeds the aggregate Revolving Credit Debt
outstanding on such day; PROVIDED that, in the event of a split Debt Rating by
S&P and Moody's, the lower rating shall apply:
RATING Commission Fee Rate
S&P: BBB+ 20.0
Moody's: Baal
S&P: BBB 25.0
Moody's: Baa2
S&P: BBB- 30.0
Moody's: Baa3
S&P: BB+ 37.5
Moody's: Bal
S&P: BB 50.0
Moody's: Ba2
or unrated
The Commitment Fee shall be payable to the Agent, on behalf of each Bank,
in cash monthly in arrears within seven (7) Business Days after the end of each
month, commencing on the first of such day to occur after the Closing Date, and
on the date upon which the Commitments shall terminate. No later than one (1)
Business Day after receipt of such monthly payment, the Agent shall pay to each
Bank such Bank's Ratable Portion of such payment.
(b) CLOSING FEE. The Borrowers, jointly and severally, agree to pay to
each Bank, in cash on the Closing Date, a closing fee (collectively, the
"Closing Fees") in respect of such Bank's Commitment, in an amount equal to
$25,000 per Bank.
2.10. REPAYMENT. The aggregate outstanding principal amount of the
Loans shall be paid by the Borrowers to the Agent on the Maturity Date for the
PRO RATA account of the Banks in accordance with their respective Ratable
Portions.
2.11. OPTIONAL PREPAYMENTS OF LOANS. The Borrowers may prepay the
Notes, in whole or in part, without premium or penalty, upon prior written,
telex or telegraphic notice (effective upon receipt) to the Agent, to be
received by the Agent not later than 4:00 p.m. Boston, Massachusetts time at
least one Business Day preceding the date of the prepayment (whereupon the Agent
shall promptly notify the Banks) specifying the date and the amount of such
prepayment; PROVIDED, HOWEVER, that any prepayment of the Loans while such Loans
bear interest at a rate determined with respect to either the Eurodollar Rate or
the Federal Funds Rate shall be made on, and only on, the last day of the
relevant Interest Period applicable thereto. On the date of any such prepayment
of either Federal Funds Loans or Eurodollar Loans, the Borrowers shall pay
accrued interest to the date of such prepayment on the principal amount so
prepaid. On the date of any such prepayment of Base Rate Loans, the Borrowers
shall pay accrued interest on the principal amount of any Base Rate Loan so
prepaid as provided in Section 2.13(a) hereof, unless such prepayment is a
prepayment in full of all Loans outstanding, in which case the Borrowers shall
pay, on the date of such prepayment, accrued interest to the date of such
prepayment on the principal amount of all Loans, including, without limitation,
Base Rate Loans, so prepaid. Partial prepayments hereunder shall be in the
principal amount of $1,000,000 or any integral multiple in excess thereof
(unless the outstanding principal amount of such Loans is less than $1,000,000,
in which case the prepayment shall be in the full amount of such outstanding
amount). The Borrowers shall have no right to prepay the principal amount of the
Loans other than as provided in this Section 2.11.
2.12. CONVERSION/CONTINUATION OPTION. The Borrowers may elect (a) at
any time to convert Loans from Base Rate Loans to Federal Funds Loans or
Eurodollar Rate Loans or (b) at the end of any Interest Period with respect to
Eurodollar Rate Loans, to convert Eurodollar Rate Loans to Federal Funds Rate
Loans or Base Rate Loans, or to continue such Eurodollar Rate Loans for an
additional Interest Period, or (c) at the end of any Interest Period to convert
Federal Funds Rate Loans to Base Rate Loans or Eurodollar Rate Loans, or to
continue such Federal Funds Rate Loans for an additional Interest Period. Each
such election shall be in substantially the form of EXHIBIT F hereto (a "Notice
of Conversion or Continuation") and shall be made by giving the Agent at least
(x) in the case of conversions to or continuations of Eurodollar Rate Loans,
three Business Days' prior written notice thereof and (y) in the case of
conversions to, or continuations of, Federal Funds Rate Loans or Base Rate
Loans, one Business Day's prior written notice thereof, specifying: (i) the
amount of conversion or continuation, (ii) the Interest Period therefor, and
(iii) in the case of a conversion, the date of conversion, which date shall be a
Business Day. The Agent shall promptly notify each Bank of its receipt of a
Notice of Conversion or Continuation and of the contents thereof.
Notwithstanding the foregoing, no conversion of Base Rate Loans to either
Federal Funds Rate Loans or Eurodollar Rate Loans, and no continuation of either
Federal Funds Rate Loans or Eurodollar Rate Loans upon the expiration of any
Interest Period therefor, shall be permitted at any time at which a Default or
an Event of Default shall have occurred and be continuing. If, within the time
period required under the term of this Section 2.12, the Agent does not receive
a Notice of Conversion or Continuation from the Borrowers containing an election
to continue either Federal Funds Rate Loans or Eurodollar Rate Loans for an
additional Interest Period or to convert such Loans to another Type, then, upon
the expiration of the Interest Period therefor, such Loans will be automatically
converted to Base Rate Loans. Each Notice of Conversion or Continuation shall be
irrevocable.
2.13. INTEREST. The Borrowers shall pay interest on the unpaid
principal amount of the Loans from the date thereof until the principal amount
thereof shall be paid in full, at the following rates per annum:
(a) BASE RATE ELECTION. Unless the Borrowers shall have validly and
effectively elected to have Loans made or continued as Eurodollar Rate Loans or
Federal Funds Rate Loans pursuant to the provisions of this Agreement, at a rate
per annum at all times equal to the Base Rate PLUS the Applicable Margin in
effect from time to time, payable monthly in arrears on the first day of each
month, and on the Maturity Date.
(b) FEDERAL FUNDS RATE ELECTION. In the event that the Borrowers shall
have validly and effectively elected to have Loans made or continued as Federal
Funds Rate Loans pursuant to the provisions of this Agreement, at a rate per
annum equal at all times during the applicable Interest Period to the sum of the
Federal Funds Rate for such Interest Period PLUS the Applicable Margin in effect
on the first day of such Interest Period, payable in arrears on the last day of
such Interest Period, and on the Maturity Date.
(c) EURODOLLAR RATE ELECTION. In the event that the Borrowers shall
have validly and effectively elected to have Loans made or continued as
Eurodollar Rate Loans pursuant to the provisions of this Agreement, at a rate
per annum equal at all times during the applicable Interest Period to the sum of
the Eurodollar Rate for such Interest Period PLUS the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the last
day of such Interest Period, and on the Maturity Date, and, if such Interest
Period has a duration of more than three months, on each day during such
Interest Period which occurs every three months from the first day of such
Interest Period.
(d) DEFAULT INTEREST. During the continuance of any Event of Default,
the Borrowers shall pay, on demand, interest (after as well as before judgment
to the extent permitted by law) on the principal amount of all Loans outstanding
and on all other Obligations due and unpaid hereunder as follows:
(i) for Base Rate Loans, at a rate per annum equal to the Base
Rate PLUS the Applicable Margin in effect from time to time PLUS 2%;
and
(ii) for Eurodollar Rate Loans, at a rate per annum equal to
(A) the Eurodollar Rate PLUS the Applicable Margin in effect from time
to time PLUS 2% until the end of the Interest Period in respect of such
Eurodollar Rate Loans, and (B) thereafter, the Base Rate PLUS the
Applicable Margin in effect from time to time PLUS 2%; and
(iii) for Federal Funds Rate Loans, at a rate per annum equal
to (A) the Federal Funds Rate PLUS the Applicable Margin in effect from
time to time PLUS 2% until the end of the Interest Period in respect of
such Federal Funds Rate Loans, and (B) thereafter, the Base Rate PLUS
the Applicable Margin in effect from time to time PLUS 2%.
2.14. INTEREST RATE DETERMINATION AND PROTECTION.
(a) If any one or more of the Reference Banks does not furnish
information on a timely basis to the Agent for the purpose of determining the
Eurodollar Rate to be applied to any Eurodollar Rate Loan during any Interest
Period, the Agent shall determine such Eurodollar Rate on the basis of timely
information furnished by the remaining Reference Bank(s) and, if none of the
Reference Banks furnishes such information on a timely basis, then on the basis
of such information furnished to the Agent by such prime bank or banks in the
Eurodollar Interbank Market, that the Agent, in its sole discretion acting in
good faith, may select.
(b) The Agent shall promptly notify the Borrowers and the Banks of the
applicable interest rate determined by the Agent for purposes of Section 2.13,
including, without limitation, any change in the Base Rate or the Applicable
Margin as a consequence of a change in the Debt Rating in effect from time to
time and such notification shall be conclusive and binding for all purposes,
absent manifest error. Any change in the Base Rate and any change in the
Applicable Margin in respect of the Base Rate Loans shall be effective at 12:01
a.m. Boston, Massachusetts time on the date of such change and shall apply to
all Base Rate Loans then outstanding. Any change in the Applicable Margin in
respect of the Federal Funds Rate Loans or Eurodollar Rate Loans shall be
effective as of the first day of each Interest Period applicable thereto and
commencing after such change.
(c) If the Required Banks notify the Agent that the interest rate
determined pursuant hereto by reference to the Eurodollar Rate or the Federal
Funds Rate for any Interest Period will not adequately reflect the cost to such
Required Banks of making, funding or maintaining their respective Eurodollar
Rate Loans or Federal Funds Rate Loans, as the case may be, for such Interest
Period, the Agent shall forthwith so notify the Borrowers and the Banks,
whereupon:
(i) all such Eurodollar Rate Loans or Federal Funds Rate
Loans, as the case may be, will automatically, on the last day of the
then existing Interest Period therefor, convert into Base Rate Loans
unless the Borrowers elect another Type of Loan pursuant to the
provisions of this Agreement which is not then subject to any
restriction limiting the availability of such Type of Loan, whether
under this Section 2.14 or elsewhere in this Agreement; and
(ii) the obligations of the Banks to make Eurodollar Rate
Loans or Federal Funds Rate Loans, as the case may be, or to convert
Base Rate Loans into Eurodollar Rate Loans or Federal Funds Rate Loans,
as the case may be, shall be suspended until the Agent shall have
notified the Borrowers that the Required Banks have determined that the
circumstances causing such suspension no longer exist.
2.15. INCREASED COSTS; HIGHLY LEVERAGED TRANSACTION CLASSIFICATION.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be any increase in the cost of any Bank of agreeing to make or
making, funding or maintaining any Eurodollar Rate Loans or Federal Funds Rate
Loans, the Borrowers shall from time to time, upon demand by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrowers
and the Agent by such Bank, shall be conclusive and binding for all purposes,
absent manifest
error.
(b) The Borrowers, the Agent and each of the Banks acknowledge that as
of the date hereof, the Loans do not constitute a "highly leveraged transaction"
as defined by any Governmental Authority having jurisdiction over the Banks, and
that the Loans are being made pursuant to this Agreement upon that basis. If,
after the date hereof, the Agent is advised by any Bank that such Bank has
received notice from any Governmental Authority having jurisdiction over such
Bank that due to changes in, or the interpretation of, any Requirement of Law
its Loans hereunder are classified as a "highly leveraged transaction" (an "HLT
Classification"), the Agent shall promptly give notice of such HLT
Classification to the Borrowers and the other Banks. The Agent, the Banks and
the Borrowers shall commence negotiations in good faith to agree on the extent
to which fees, commissions, interest rates and/or margins hereunder should be
increased so as to reflect such HLT Classification. If the Borrowers and the
Required Banks agree on the amount of such increase or increases, this Agreement
shall be amended to give effect to such increases as provided in Section 10.01.
If the Borrowers and the Required Banks fail to so agree within 45 days after
notice is given by the Agent as provided above, then either (a) within 120 days
after the Agent's receipt of the advice specified in the second sentence of this
Section 2.15(b), the Borrowers shall prepay in full, without penalty or premium,
all the Obligations, or (b) on the 121st day after the Agent's receipt of the
advice specified in the second sentence of this Section 2.15(b), the Applicable
Margin and each of the commissions and fees payable in respect of Letters of
Credit, FMCP L/C's and Acceptances shall each be increased by one percent (1%).
2.16. ILLEGALITY. Notwithstanding any other provision in this
Agreement, if the introduction of, or any change in or in the interpretation of,
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Bank or its
Eurodollar Lending Office to fund any of such Bank's Eurodollar Rate Loans or to
continue to fund or maintain such Bank's Eurodollar Rate Loans, then, on notice
thereof by such Bank to the Borrowers through the Agent, (a) the obligations of
such Bank to make or continue Eurodollar Rate Loans and to convert Loans of
another Type into Eurodollar Rate Loans shall terminate, and (b) all outstanding
Eurodollar Rate Loans of such Bank shall automatically be converted to Base Rate
Loans on either (i) the last day of the Interest Period applicable to such
Eurodollar Rate Loans if such Bank may lawfully continue to maintain such
Eurodollar Rate Loans to such day(s) or (ii) immediately, if such Bank may not
lawfully maintain such Eurodollar Rate Loans to such day(s).
2.17. CAPITAL ADEQUACY. If either (i) the introduction of, or any
change in, any law or regulation or in the interpretation thereof, or (ii)
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by any Bank
or any corporation controlling any Bank, and such Bank reasonably determines
that such amount is based upon the existence of such Bank's commitment to lend
hereunder and other commitments of this type including, without limitation, in
respect of Letters of Credit or Acceptances, or similar contingent obligations,
then, upon demand by such Bank (with a copy of such demand to the Agent), the
Borrowers shall pay to the Agent for the account of such Bank, from time to time
as specified by such Bank, such additional amounts sufficient to compensate such
Bank in the light of such circumstances, to the extent that such Bank reasonably
determines such increase in capital to be allocable to the existence of such
Bank's Commitment or Loans and the issuance or maintenance of Letters of Credit
or Acceptances. A certificate as to such amounts submitted to the Borrowers and
the Agent by such Bank shall be conclusive and binding for all purposes absent
manifest error.
2.18. PAYMENTS AND COMPUTATIONS.
(a) The Borrowers shall make each payment hereunder and under the Notes
not later than 12:00 noon Boston, Massachusetts time on the day when due, in
Dollars, to the Agent at its address referred to in Section 10.09 in immediately
available funds without setoff or counterclaim. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees or commissions ratably (except as otherwise
specifically provided herein, including in Section 2.07(a)(ii), (iii) and (iv)
and Sections 2.15, 2.17 or 2.20) to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Payments received by the Agent after 12:00 noon Boston,
Massachusetts time shall be deemed to be received on the next Business Day.
Notwithstanding any term or provision of this Agreement to the contrary, the
Agent shall have no obligation under any circumstances to pay any Bank such
Bank's Ratable Portions of any amounts due and payable under this Agreement,
including, without limitation, principal, interest, fees, commissions and any
other amounts (collectively, "Payments"), unless and until such time as the
Agent shall have received immediately available funds from the Borrowers in an
amount equal to such Payments.
(b) The Borrowers hereby authorize each Bank, if and to the extent
payment owed to such Bank is not made when due hereunder or under any Note held
by such Bank, to charge from time to time against any or all of the Borrowers'
accounts with such Bank any amount so due.
(c) All computations of interest based on the Base Rate, the Federal
Funds Rate, the Eurodollar Rate or the Overnight Federal Funds Rate and of fees
and commissions shall be made by the Agent on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest and fees
or commissions are payable. Each determination by the Agent of any interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under any of the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees or
commissions, as the case may be; PROVIDED, HOWEVER, if such extension would
cause payment of interest on or principal of any Eurodollar Rate Loans to be
made in the next calendar month, such payment shall be made on the next
preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrowers
prior to the date on which any payment is due to the Banks hereunder that the
Borrowers will not make such payment in full, the Agent may assume that the
Borrowers have made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent the Borrowers shall not have so made such payment in full to the Agent,
each Bank shall repay to the Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Agent, at the Overnight Federal Funds Rate.
2.19. LOAN ACCOUNTS. The Agent shall establish on its books loan
accounts for the Borrowers in respect of the Borrowings (collectively,
the "Loan Accounts") which shall be administered by the Agent. The Agent shall
debit the Loan Accounts, and the Loan Accounts shall evidence the then
outstanding principal amount of all Borrowings from time to time made by the
Banks hereunder, including, without limitation, any Loans resulting from
payments made by the Agent or any Bank to third parties on drafts presented
under Letters of Credit and Acceptances and the Agent shall credit the Loan
Accounts with all payments made on account of the Borrowings from time to time
evidenced by the Loan Account. The Indebtedness evidenced by the Loan Accounts
shall be deemed owed to the Agent and each other Bank severally in accordance
with its respective Ratable Portion, and all payments credited to the Loan
Accounts shall be for the account of the Agent and each other Bank in accordance
with such Ratable Portion (except to the extent of any offset made in respect of
amounts paid by the Agent or any other Bank in respect of Letters of Credit or
Acceptances which were not reimbursed by any Bank in accordance with its Ratable
Portion).
2.20. TAXES.
(a) Any and all payments by the Borrowers hereunder or under the Notes
or in respect of Letters of Credit shall be made, in accordance with Sections
2.09, 2.10, 2.11, 2.13 and 2.17, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed on it by any
jurisdiction, including, without limitation, the United States of America,
Canada and the United Kingdom of Great Britain and Northern Ireland (excluding,
in the case of each Bank, the Agent and the Co-Agents, (x) taxes imposed on its
income by the jurisdiction under the laws of which such Bank, the Agent or such
Co-Agent (as the case may be) is organized or any political subdivision thereof,
(y) franchise taxes measured by income imposed on it by the jurisdiction under
the laws of which such Bank, the Agent or such Co-Agent (as the case may be) is
organized or any political subdivision thereof and, (z) if such Bank, the Agent
or such Co-Agent is entitled at such time to a total or partial exemption from
withholding that is required to be evidenced by a United States Internal Revenue
Service Form 1001 or 4224 or any successor or additional form, taxes imposed on
it by reason of any failure of such Bank, the Agent or such Co-Agent to deliver
to the Agent or the Borrowers, from time to time as required by the
Agent or the Borrowers, such Form 1001 or 4224 (as applicable) or any successor
or additional form, completed in a manner reasonably satisfactory to the Agent
or the Borrowers) (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrowers shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Bank, the Agent or any
Co-Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) such Bank, the Agent or such
Co-Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrowers shall make such
deductions, and (iii) the Borrowers shall pay the full amount deducted to the
relevant taxing authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present or future stamp
or documentary taxes, mortgage registration, transfer and recording taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or under the Notes or from the execution, delivery,
recordation or registration of, or otherwise with respect to, this Agreement,
any Ancillary Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrowers will indemnify each Bank, the Agent and the Co-Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.20) paid by such Bank, the Agent or any of such Co-Agents (as the case
may be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within thirty
(30) days from the date such Bank, the Agent or such Co-Agent (as the case may
be) makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes, the Borrowers will furnish to the Agent, at its address referred to
in Section 10.09, the original or a certified copy of a receipt evidencing
payment thereof.
(e) Prior to the Closing Date, in the case of each Bank which is an
original signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Bank in the case of each other Bank, and from
time to time thereafter if requested by the Borrowers or the Agent, each Bank
organized under the laws of a jurisdiction outside the United States that is
entitled to an exemption from United States withholding tax, or that is subject
to such tax at a reduced rate under an applicable tax treaty, shall provide the
Agent and the Borrowers with an Internal Revenue Service Form 4224 or Form 1001
or other applicable form, certificate or document prescribed by the Internal
Revenue Service of the United States certifying as to such Bank's entitlement to
such exemption or reduced rate with respect to all payments to be made to such
Bank hereunder and under the Notes. Unless the Borrowers and the Agent have
received forms or other documents satisfactory to them indicating that payments
hereunder or under any Note are not subject to United States withholding tax or
are subject to such tax at a rate reduced by an applicable tax treaty, the
Borrowers or the Agent shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Bank organized under the
laws of a jurisdiction outside the United States.
(f) Any Bank claiming any additional amounts payable pursuant to this
Section 2.20 shall use its best efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office to a jurisdiction in which such Bank already has a lending office
if the making of such a change would avoid the need for, or reduce the amount
of, any such additional amounts which may thereafter accrue and would not, in
the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.20 shall survive the payment in full of principal and interest
hereunder and under the Notes.
2.21. SHARING OF PAYMENTS, ETC.
(a) If any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) on
account of the portion of the Revolving Credit Debt owing to it (other than
pursuant to Section 2.15, 2.17 or 2.20) in excess of its Ratable Portion of
payments on account of the Revolving Credit Debt obtained by all the Banks, such
Bank shall forthwith purchase from the other Banks such participations in the
portions of the Revolving Credit Debt owing to such other Banks as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of such other Banks; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
from each other Bank shall be rescinded and such other Bank shall repay to the
purchasing Bank the purchase price to the extent of such recovery together with
an amount equal to such other Bank's ratable share (according to the proportion
of (i) the amount of such other Bank's required repayment to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrowers agree that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.21 may, to the fullest extent permitted
by law, exercise all of its rights of payment (including the right of setoff)
with respect to such participation as fully as if such Bank were the direct
creditor of the Borrowers in the amount of such participation.
(b) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.21 shall survive the payment in full of principal and interest
hereunder and under the Notes.
2.22. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder and under the Ancillary Agreements to which it is a party in
consideration of the financial accommodations to be provided by the Banks under
this Agreement, for the mutual benefit, directly and indirectly, of each of the
Borrowers and in consideration of the undertakings of each other Borrower to
accept joint and several liability for the Obligations; PROVIDED, HOWEVER, that
notwithstanding the foregoing, TEL shall have no joint and several liability for
the Tosco Revolving Credit Debt or the Bayway Revolving Credit Debt, nor for any
interest payable thereon.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrowers, with respect to the
payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this Section 2.22), it being the
intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each of the Borrowers without preferences or distinction
among them; PROVIDED, HOWEVER, that notwithstanding the foregoing, TEL shall
have no joint and several liability hereunder for the Tosco Revolving Credit
Debt and the Bayway Revolving Credit Debt, nor for any interest payable thereon.
(c) Except as limited in the proviso of Section 2.22(b), if and to the
extent that any of the Borrowers shall fail to make any payment with respect to
any of the Obligations as and when due or to perform any of the Obligations in
accordance with the terms thereof, then in each such event the other Borrowers
will make such payment with respect to, or perform, such Obligations. The
Obligations of each of the Borrowers under the provisions of this Section 2.22
constitute the full recourse Obligations of each of the Borrowers enforceable
against each such corporation to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or
any other circumstance whatsoever.
(d) Except as otherwise expressly provided in this Agreement, each of
the Borrowers hereby waives notice of acceptance of its joint and several
liability, notice of any Loans made or Credit Instruments issued under
this Agreement, notice of the occurrence of any default, or of any demand for
any payment under this Agreement, notice of any action at any time taken or
omitted by the Agent or any Bank under or in respect of any of the Obligations,
any requirement of diligence or to mitigate damages and, generally, to the
extent permitted by applicable law, all demands, notices and other formalities
of every kind in connection with this Agreement. Each of the Borrowers hereby
assents to, and waives notice of, any extension or postponement of the time for
the payment of any of the Obligations, the acceptance of any payment of any of
the Obligations, the acceptance of any partial payment thereon, any waiver,
consent or other action or acquiescence by the Agent or any Bank at any time or
times in respect of any default by any of the Borrowers in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement,
any and all other indulgences whatsoever by the Agent or any Bank in respect of
any of the Obligations, and the taking, addition, substitution or release, in
whole or in part, at any time or times, of any security for any of the
Obligations or the addition, substitution or release, in whole or in part, of
any of the Borrowers. Without limiting the generality of the foregoing, each of
the Borrowers assents to any other action or delay in acting or failure to act
on the part of the Agent or any Bank with respect to the failure by any of the
Borrowers to comply with any of its respective Obligations, including, without
limitation, any failure strictly or diligently to assert any right or to pursue
any remedy or to comply fully with applicable laws or regulations thereunder,
which might, but for the provisions of this Section 2.22, afford grounds for
terminating, discharging or relieving any of the Borrowers, in whole or in part,
from any of its Obligations under this Section 2.22, it being the intention of
each of the Borrowers that, so long as any of the Obligations hereunder remains
unsatisfied, the Obligations of such Borrowers under this Section 2.22 shall not
be discharged except by performance and then only to the extent of such
performance. The Obligations of each of the Borrowers under this Section 2.22
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to any of the Borrowers or the Banks. The joint and several
liability of the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of any of
the Borrowers or the Agent or any Bank.
(e) The provisions of this Section 2.22 are made for the benefit of the
Agent and the Banks and their respective successors and assigns, and
may be enforced by it or them from time to time against any or all of the
Borrowers as often as occasion therefor may arise and without requirement on the
part of the Agent or the Banks first to marshall any of its or their claims or
to exercise any of its or their rights against any of the other Borrowers or to
exhaust any remedies available to it or them against any of the other Borrowers
or to resort to any other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions of this
Section 2.22 shall remain in effect until all of the Obligations shall have been
indefeasibly paid in full in cash or otherwise fully satisfied in the Banks'
discretion. If at any time, any payment, or any part thereof, made in respect of
any of the Obligations, is rescinded or must otherwise be restored or returned
by the Banks upon the insolvency, bankruptcy or reorganization of any of the
Borrowers, or otherwise, the provisions of this Section 2.22 will forthwith be
reinstated in effect, as though such payment had not been made.
(f) Each of the Borrowers hereby agrees that it will not enforce any of
its rights of contribution or subrogation against the other Borrowers with
respect to any liability incurred by it hereunder or under any of the Ancillary
Agreements, any payments made by it to the Agent or the Banks with respect to
any of the Obligations or any collateral security therefor until such time as
all Indebtedness of the Borrowers owing to the Banks or the Agent hereunder and
under the Ancillary Agreements (the "Senior Indebtedness") has been indefeasibly
paid in full in cash (or in form otherwise satisfactory to the Banks in their
sole discretion). Any claim which any Borrower may have against any other
Borrower with respect to any payment to the Banks hereunder or under any of the
Ancillary Agreements are hereby expressly made subordinate and junior in right
of payment, without limitation as to any increases in the Obligations arising
hereunder or thereunder, to the prior indefeasible payment in full in cash of
the Senior Indebtedness and, in the event of any insolvency, bankruptcy,
receivership, liquidation, reorganization or other similar proceeding under the
laws of any jurisdiction relating to any Borrower, its debts or its assets,
whether voluntary or involuntary, all such Senior Indebtedness shall be
indefeasibly paid in full in cash before any payment or distribution of any
character, whether in cash, securities or other property, shall be made to any
other Borrower therefor.
(g) Each of the Borrowers hereby agrees that the payment of any amounts
due with respect to the indebtedness owing by any Borrower to any other Borrower
is hereby subordinated to the prior indefeasible payment in full in cash (or in
form otherwise satisfactory to the Banks in their sole discretion) of the Senior
Indebtedness. Each Borrower hereby agrees that after the occurrence and during
the continuance of any Event of Default, such Borrower will not demand, sue for
or otherwise attempt to collect any indebtedness of any other Borrower owing to
such Borrower until the Senior Indebtedness shall have been indefeasibly paid in
full in cash (or in form otherwise satisfactory to the Banks in their sole
discretion). If, notwithstanding the foregoing sentence, such Borrower shall
collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by such Borrower as trustee
for the Agent and be paid over to the Agent for the pro rata account of the
Banks to be applied to repay the Senior Indebtedness.
(h) It is the intention and agreement of the Borrowers, the Agent and
the Banks that the Obligations of each of the Borrowers shall be valid and
enforceable against such Borrower to the maximum extent permitted by applicable
law. Accordingly, if any provision of any Loan Document creating any obligation
of any Borrower in favor of the Agent and the Banks shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Borrowers, the Agent and the Banks that any
balance of the obligation created by such provision and all other Obligations of
such Borrower shall remain valid and enforceable. Likewise, if by final order a
court of competent jurisdiction shall declare any sums which the Banks or the
Agent may be otherwise entitled to collect from any Borrower under the Loan
Documents to be in excess of those permitted under any law (including any
federal or state fraudulent conveyance or like statute or rule of law)
applicable to the Obligations of such Borrower, it is the stated intention and
agreement of the Borrowers, the Agent and the Banks that all sums not in excess
of those permitted under such applicable law shall remain fully collectible by
the Banks and the Agent from such Borrower.
ARTICLE III
CONDITIONS PRECEDENT
3.01. CONDITIONS TO INITIAL BORROWING. This Agreement will be effective
as of the Closing Date; PROVIDED that upon the occurrence of the Closing Date,
the covenant set forth in Section 6.01(d) shall be deemed to be effective
commencing with the period consisting of the four consecutive Fiscal Quarters
ending March 31, 1995. The occurrence of the Closing Date and the obligation of
each Bank to make its initial Loan and the obligation of the Agent to extend or
renew any Letter of Credit or to create any Acceptance hereunder is subject to
the fulfillment of the following conditions precedent and receipt by the Agent
on or before the Closing Date of the following documents, each dated the Closing
Date or such other date as is satisfactory to the Agent and the Banks, in form
and substance satisfactory to the Agent and the Banks and (except for the Notes)
in sufficient copies for each Bank:
(a) the Agreement duly executed and delivered to the Agent by each of
the Borrowers, the Banks, the Agent and the Co-Agent and Revolving Credit Notes,
payable to the order of each Bank, duly executed by the Borrowers, in the amount
of such Bank's Commitment;
(b) Certificate of the Secretary or Assistant Secretary of each of the
Borrowers as to (i) the charter documents and Bylaws of such Borrowers, (ii) the
resolutions of the Board of Directors of such Borrower approving each of the
Loan Documents to be executed as of the Closing Date to which it is a party and
each of the transactions contemplated hereby and thereby, (iii) all documents
evidencing other necessary corporate action and required governmental and third
party approvals, licenses and consents with respect to this Agreement and each
Ancillary Agreement to be executed as of the Closing Date and the transactions
contemplated hereby and thereby, and (iv) the names and true signatures of the
officers of such Borrowers who have been authorized to execute and deliver such
Loan Document to which it is a party to be executed as of the Closing Date on
behalf of such Borrowers, in each case, together with copies of such documents
certified to be true, complete and in full force and effect as of the Closing
Date;
(c) A copy of the (i) articles or certificate of incorporation of each
Borrower certified as of a recent date by the Secretary of State of the state of
incorporation of such Borrower or, with respect to TEL, by the Registrar of
Companies for England and Wales, together in each case with certificates of such
official attesting to the good standing of such Borrower, and (ii) a copy of a
certificate of good standing for each Borrower, certified as of a recent date by
the Secretary of State (or comparable authority) of each State or other
jurisdiction wherein such Borrower is qualified as a foreign corporation;
(d) Copies, certified by a Responsible Officer of Tosco to be true and
complete as of the Closing Date of the First Mortgage Bond Indenture and the
Bayway Mortgage Bond Indenture or a certificate of a Responsible Officer of
Tosco certifying that such documents as delivered to the Agent in connection
with the closing of the Existing Credit Agreement are in full force and effect
and have not been amended as of the Closing Date;
(e) A favorable opinion of Stroock & Stroock & Lavan, counsel to the
Borrowers, in form and substance satisfactory to the Agent and the Banks, as to
such matters as the Agent may reasonably request and a favorable opinion of
Cameron Markby and Hewitt, counsel to TEL, in form and substance satisfactory to
the Agent and the Banks, as to such matters as the Agent may reasonably request;
(f) On the Closing Date, a completed certificate of each of the
Borrowers, substantially in the form of EXHIBIT G attached hereto (a "Perfection
Certificate") signed by a Responsible Officer of such Borrower;
(g) the Ancillary Agreements, duly executed by each of Tosco and/or
Bayway and/or TEL (as required), the Agent and, with respect to the Agency
Agreement each financial institution in which such Borrower maintains an account
with such amendments as the Agents and the Banks require in connection with this
Agreement;
(h) A copy of the Projections certified by the Chief Financial Officer
of the Company as satisfying the requirements set forth in Section 4.11(c) with
respect thereto and as to the economic assumptions providing the basis therefor;
(i) Payment by the Borrowers of the Closing Fees and all costs and
expenses referred to in Section 10.13 (including legal fees and expenses);
(j) Determination by each Bank, in its sole judgment exercised
reasonably (i) that there has been no Material Adverse Change since December 31,
1994, and (ii) that there has occurred no adverse change which such Bank deems
material in the financial markets generally, since December 31, 1994, and
nothing shall have occurred since December 31, 1994 which, in the judgment of
any Bank has had or has any reasonable likelihood of having a Material Adverse
Effect;
(k) Nothing contained in any public disclosure made by any Borrower or
any of its Subsidiaries after December 31, 1994 or in any information disclosed
to the Banks by any Borrower or any of its Subsidiaries after such date shall
lead any Bank in its sole judgment exercised reasonably, to determine that any
Borrower's or any of its Subsidiaries' condition (financial or otherwise),
operations, performance, properties or prospects are different in any material
and adverse respect from that contained in public filings of such Borrower or
any of its Subsidiaries prior to or as of December 31, 1994 or non-public
information delivered by such Borrower to the Banks prior to or as of December
31, 1994;
(l) A certificate, signed by a Responsible Officer of each Borrower,
stating that the conditions specified in Section 3.02 have been met.
3.02. CONDITIONS TO ALL LOANS, LETTERS OF CREDIT AND ACCEPTANCES. The
obligation of each Bank to make any Loan and the obligation of the Agent to
issue any Letter of Credit or make any Acceptance shall be subject to the
fulfillment of the following conditions precedent:
(a) No Default or Event of Default shall have occurred and be
continuing on the date of such Borrowing, nor would any such Default or Event of
Default result from the making of such Borrowing;
(b) The representations and warranties of the Borrowers in this
Agreement and in each of the Ancillary Agreements shall be true and correct on
and as of the date of such Borrowing and after giving effect to such Borrowing
as though made on and as of such date (except that to the extent that any such
representations and warranties are only made at or as of a specified
date, the same shall have been true at and as of such specified date); and
(c) The Agent shall have received, as appropriate, a
Notice of Borrowing, an Application or an Acceptance Agreement.
Each Borrowing under this Agreement shall constitute a representation
by the Borrowers that each of the foregoing conditions has been satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce each of the Banks and the Agent to enter into this Agreement
and to make the Loans to be made by it and to issue or purchase participations
with respect to, Credit Instruments hereunder, each of the Borrowers make the
following representations and warranties to the Banks and the Agent, each and
all of which shall be true and correct on and as of the date of execution and
delivery of this Agreement, on and as of the Closing Date, and except as
modified by Section 3.02(b) above, on and as of the date of each Notice of
Borrowing or Application, and shall survive the execution, delivery and closing
of this Agreement:
4.01. ORGANIZATION, STANDING AND QUALIFICATION.
(a) BORROWERS. Each of Tosco and Bayway is a duly organized and validly
existing corporation in good standing under the laws of the state of its
incorporation or organization, with corporate power and authority adequate for
the making and performing of this Agreement and the Ancillary Agreements to
which it is a party, for performing the Obligations and the other transactions
to be performed by it pursuant to or as contemplated by this Agreement and the
Ancillary Agreements, for owning its properties and for the carrying on of the
business now conducted or presently proposed to be conducted by it. TEL is a
duly organized and validly existing limited liability company organized under
the laws of England and Wales, with corporate power and authority adequate for
the making and performing of this Agreement and the Ancillary Agreements to
which it is a party, for performing the Obligations and the other transactions
to be performed by it pursuant to or as contemplated by this Agreement and the
Ancillary Agreements, for owning its properties and for the carrying on of the
business now conducted or presently proposed to be conducted by it. Each of the
Borrowers has taken all corporate action required to make all the provisions of
this Agreement and the Ancillary Agreements the valid and enforceable
obligations they purport to be.
(b) SUBSIDIARIES. Each of the Borrowers has only the Subsidiaries
listed on SCHEDULE 4.01(B) hereto underneath such Borrower's name, which
SCHEDULE 4.01(B) sets forth as to each Subsidiary its name, jurisdiction of
incorporation and ownership. Each such Subsidiary is a duly organized and
validly existing corporation in good standing under the laws of the jurisdiction
in which it is organized, with corporate power and authority adequate for the
carrying on of the business now conducted or presently proposed to be conducted
by it. The investments of each of the Borrowers in each of its Subsidiaries are
validly issued and, in the case of Stock, fully paid and nonassessable, and are
owned beneficially and of record as set forth on SCHEDULE 4.01(B) hereto, free
and clear of all Liens, except as set forth on SCHEDULE 4.01(B).
(c) QUALIFICATION, ETC. Each of the Borrowers and each of its
Subsidiaries is duly and legally qualified to do business as a foreign
corporation or organization and is in good standing in each state or
jurisdiction where such qualification is required, and is duly authorized,
qualified and licensed under all laws, requirements, ordinances or orders of
Governmental Authorities or otherwise to carry on its business in the places and
in the manner presently conducted, except where the failure to be so qualified,
authorized or licensed would not have a Material Adverse Effect.
4.02. LITIGATION, ETC. Except as disclosed on SCHEDULE 4.02 hereto,
there is no litigation, at law or in equity, or any proceeding before any
federal, state or municipal board or other governmental or administrative agency
or any arbitration pending or to the knowledge of any Borrower threatened which
is likely to involve any risk of any material judgment or liability not covered
by insurance or which may otherwise result in a Material Adverse Effect, or
which seeks to enjoin the consummation of, or which questions the validity of,
any of the transactions contemplated by this Agreement or any of the Ancillary
Agreements, and no judgment, decree or order of any court, board or other
governmental or administrative agency or arbitrator has been issued against or
binds any Borrower or any of its Subsidiaries which has, or could have, a
Material Adverse Effect. The performance of any actions required or contemplated
by this Agreement or any of the Ancillary Agreements by any Borrower or, to the
knowledge of each of the Borrowers, any other party thereto has not been
restrained or enjoined (either temporarily, preliminarily or permanently) and no
material adverse conditions have been imposed upon any of the foregoing
transactions.
4.03. BURDENSOME OBLIGATIONS; COMPLIANCE WITH LAWS; NO DEFAULTS.
(a) Except as set forth on SCHEDULE 4.03 (a) hereto, none of the
Borrowers nor any of their Subsidiaries is (i) a party to or bound by any
Contractual Obligation (other than this Agreement and the Ancillary Agreements)
which could have a Material Adverse Effect or the performance of which by any
thereof, either unconditionally or upon the happening of an event, will result
in the creation of a Lien on the property or assets of any thereof, or (ii)
subject to any charter or corporate restriction which could have a Material
Adverse Effect.
(b) None of the Borrowers nor any of their Subsidiaries nor, to the
best knowledge of each Borrower, any other party is in default under or with
respect to any Contractual Obligation which could have a Material Adverse
Effect.
(c) No Default or Event of Default has occurred and is continuing.
(d) Except as set forth on SCHEDULE 4.03(D), no provision of applicable
law or governmental regulation could have or, insofar as each Borrower may
reasonably foresee, may have a Material Adverse Effect.
(e) Except as set forth on SCHEDULE 4.03(E), each of the Borrowers and
each of their Subsidiaries: (i) is in compliance with its respective charter
documents; (ii) is in compliance with all applicable laws, rules, regulations,
orders or decrees of any Governmental Authority except for such noncompliance as
would not have a Material Adverse Effect; and (iii) has all necessary Permits
from or by, has made all necessary filings with, and has given all necessary
notices to, each Governmental Authority having jurisdiction, to the extent
required, to own and operate its properties, to lease the properties it operates
under lease, and to conduct its business as now conducted or presently proposed
to be conducted by it, except for (x) Permits which can be obtained by the
taking of ministerial action to secure the grant or transfer thereof and where
the failure to have such Permits would not have a Material Adverse Effect, or
(y) where the failure to have such Permits would not have a Material Adverse
Effect.
4.04. FOREIGN TRADE REGULATIONS; GOVERNMENT REGULATION.
(a) Foreign Trade Regulations. None of the Borrowers nor any of their
Subsidiaries, nor any Affiliate of any Borrower is (i) a person included within
the definition of "designated foreign country" or "designated national" in the
Foreign Assets Control Regulations (31 C.F.R., Chapter IV, Part 500, as
amended), in the Cuban Assets Control Regulations of the United States Treasury
Department (31 C.F.R., Chapter IV, Part 515, as amended) or within the meanings
of any of said orders or regulations or of any regulations, interpretations or
rulings issued thereunder, (ii) a person barred from receiving exports from the
United States or exporting to the United States by the Nicaraguan Trade Control
Regulations (31 C.F.R. Section 540), the Libyan Sanctions Regulations (31 C.F.R.
Section 550), or the Comprehensive Anti-Apartheid Act of 1986 (Pub. L. 99-440),
(iii) a person on the list of "Specially Designated Nationals" published by the
Department of the Treasury, 51 FED. REG. 44459 (1986), or (iv) an entity listed
in Section 520.101 of the Foreign Funds Control Regulations (31 C.F.R., Chapter
V, Part 520, as amended).
(b) GOVERNMENT REGULATION. None of the Borrowers nor any of their
Affiliates is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Investment Company Act of 1940 or the
Interstate Commerce Act, in each case as amended and in effect from time to
time, or is subject to any Requirement of Law which regulates the incurring by
such Borrower of Indebtedness for borrowed money, except as referred to in
Section 4.07 hereof, including, without limitation, any Requirement of Law
relating to common or contract carriers or to the sale of electricity, gas,
steam, water or other public utility services.
4.05. CORPORATE POWER; AUTHORIZATION; CONFLICTS; ENFORCEABLE
OBLIGATIONS; CAPITALIZATION; NO DEFAULTS.
(a) The execution, delivery and performance of this Agreement and the
Ancillary Agreements and the consummation of each of the transactions
contemplated hereby and thereby: (i) are within each Borrower's corporate power,
(ii) have been duly authorized by all necessary or proper corporate action
(including the consent of such Borrower's stockholders where necessary), (iii)
are not in contravention of any provision of any Borrower's or any of its
Subsidiaries' Certificate of Incorporation or Bylaws, (iv) will not violate any
Requirement of Law, or any order or decree of any court or other Governmental
Authority, (v) will not conflict with or result in the breach of, or constitute
a default under, any Contractual Obligation of any Borrower or any of its
Subsidiaries, (vi) will not result in the creation or imposition of any Lien
upon any property of any Borrower or any of its Subsidiaries other than those in
favor of the Agent and the Banks, and (vii) do not require the consent or
approval of any Governmental Authority or any other Person (including, without
limitation, the holders of (A) the First Mortgage Bonds and the Bayway Mortgage
Bonds, or (B) any other outstanding Indebtedness of any Borrower or any of its
Subsidiaries, or (C) any class or series of any Borrower's Stock) other than
those which have been obtained and copies of which have been delivered to the
Agent pursuant to Section 3.01, each of which is in full force and effect.
(b) This Agreement and the Ancillary Agreements have been duly
executed and delivered by or for the benefit of or on behalf of each of the
Borrowers, and this Agreement and the Ancillary Agreements constitute legal,
valid and binding obligations of each Borrower party hereto and thereto,
enforceable against such Borrower in accordance with their respective terms.
(c) The authorized capitalization of Tosco, as of the date hereof,
consists of 50,000,000 shares of common stock and 12,000,000 shares of preferred
stock and as of December 31, 1994, 39,598,900 shares of common stock are issued
and outstanding (including 2,548,999 treasury shares) and no shares of preferred
stock are issued and outstanding.
(d) The authorized capitalization of Bayway, as of the date hereof,
consists of 1,000 shares of common stock, of which 100 shares of common stock
are issued and outstanding. On and as of the Closing Date, all of such issued
and outstanding shares are owned beneficially and of record by Tosco, free and
clear of all Liens and encumbrances.
(e) The authorized capitalization of TEL, as of the date hereof,
consists of 100 shares of common stock, of which 2 shares of common stock are
issued and outstanding. All of such issued and outstanding shares are owned
beneficially and of record by Tosco, free and clear of all Liens and
encumbrances.
4.06. INVESTMENT COMPANY ACT. None of the Borrowers is an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss.80(a)(1), ET SEQ.). The making of
the Loans contemplated hereunder by the Banks, the application of the proceeds
and repayment thereof by the Borrowers and the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements will not violate any
provision of said Act or any rule, regulation or order issued by the Securities
and Exchange Commission thereunder.
4.07. MARGIN REGULATIONS. None of the Borrowers is engaged in the
business of extending credit for the purpose of purchasing or carrying "margin
stock" or "margin securities" within the meaning of Regulation G, T, U or X
issued by the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"). None of the Borrowers owns any margin stock or margin
securities, and the proceeds of the Loans made pursuant to or as contemplated by
this Agreement will be used only for the purposes contemplated hereunder. No
proceeds of any Loan or extension of credit made hereunder will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended. The Loans or extensions
of credit made hereunder will not be used, directly or indirectly, for the
purpose of purchasing or carrying any margin security, for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry any margin security or for any other purpose which might cause any of
the Loans under this Agreement to be considered a "purpose credit" within the
meaning of Regulation G, U or X of the Federal Reserve Board. The Borrowers will
not take nor permit any of their Subsidiaries or any agent acting on its or
their behalf to take, any action which might cause this Agreement or any
document or instrument delivered pursuant hereto to violate any regulation of
the Federal Reserve Board.
4.08. CERTAIN TAX MATTERS. All federal, state, local and foreign tax
returns, reports and statements required to be filed with or supplied to any
taxing authority by any Borrower or any of its Tax Affiliates ("Tax Returns")
have been or will be filed with or supplied to the appropriate Governmental
Authority in all jurisdictions in which such Tax Returns are required to be
filed, and all taxes, charges, fees, registration fees, revenue permit fees,
levies or other assessments, including but not limited to income, gross
receipts, excise, property, sales, transfer, license, payroll and franchise
taxes relating to the assets and operations of such Borrower and its Tax
Affiliates imposed by the United States, or any state, local or foreign
jurisdiction or subdivision or agency thereof, and including any interest,
penalty or addition to tax relating thereto ("Charges") shown thereon to be due
and payable or otherwise due and payable have been paid or will be paid prior to
the time when due and payable. To the best knowledge of each Borrower, all such
Tax Returns are or will be, as the case may be, true, complete and accurate in
all material respects. Except as set forth on hereto, none of the Borrowers nor
any of its Tax Affiliates has executed or filed with the United States Internal
Revenue Service or any other Governmental Authority any agreement or other
document currently in effect extending, or having the effect of extending, the
period for assessment or collection of any Charges, other than in the ordinary
and usual course of business. None of the Borrowers nor any of their Tax
Affiliates has filed a consent pursuant to Section 341(f) of the Revenue Code or
agreed to have Section 341(fl(2) apply to any dispositions of assets (as such
term is defined in Section 341 (f)(4) of the Revenue Code). Except as set forth
on SCHEDULE 4.08, none of the property owned by any Borrower or any of its Tax
Affiliates is property which such Borrower or such Tax Affiliate, as the case
may be, is required to treat as being owned by any other Person pursuant to the
provisions of Section 168(D(8) of the Internal Revenue Code of 1954, as amended
and in effect immediately prior to the enactment of the Tax Reform Act of 1986
(the "1954 Code") or Section 168(h)(1) of the Revenue Code, or is "tax-exempt"
use property within the meaning of Section 168(j)(3) of the 1954 Code. Each of
the Borrower's reserves for Charges reflected on the balance sheet of the
Company and its Subsidiaries delivered to the Banks pursuant to Section 4.11(a)
will be, to the best knowledge of each Borrower, sufficient for the payment of
all material unpaid Charges incurred by such Borrower and its Tax Affiliates
with respect to all taxable years or periods ended on or prior to December 31,
1992. None of the Borrowers nor any of its Tax Affiliates has agreed or been
requested to make any adjustment under Section 481(a) of the Revenue Code by
reason of a change in accounting method or otherwise. None of the Borrowers nor
any of its Tax Affiliates has any material obligation under any written tax
sharing agreement. Proper and accurate amounts have been withheld by each
Borrower and its Tax Affiliates from their respective employees for all periods
in compliance in all material respects with the income tax, social security and
unemployment withholding provisions of applicable federal, state, local and
foreign law and such withholdings have been timely paid to the respective
governmental agencies or adequate provision therefor is included on the books of
such Borrower and its Tax Affiliates.
4.09. LIENS. Except as set forth on SCHEDULE 4.09 hereto or as
permitted by Section 7.02 hereof, there are no Liens on or rights of third
parties in, nor has there occurred any event which would give any third party a
claim to such a right in, any of the properties or assets of any Borrower or any
Restricted Subsidiary. In addition, assuming no such Liens or rights are created
or such events have occurred prior to the delivery of any property as to which
possession is the only method of perfecting a security interest, and the filing
or recording of mortgages, deeds of trust, financing statements, patent
mortgages, trademark mortgages and certificates of title with respect thereto,
the Liens granted to the Banks hereunder and under the Ancillary Agreements
(except as set forth on SCHEDULE 4.09 hereto or as permitted by Section 7.02
hereof), shall be first priority Liens on the Collateral described herein and
therein, including the proceeds and products thereof.
4.10. CERTAIN INDEBTEDNESS. SCHEDULE 4.10 hereto sets forth and
identifies in reasonable detail all Indebtedness of the Borrowers or any
Borrower and each of their Subsidiaries outstanding on the date hereof,
exclusive of (a) any Indebtedness which is not material to the operations of any
Borrower, or of the Borrowers and each of their Subsidiaries taken as a whole,
and which does not exceed $1,000,000 in the aggregate, (b) trade payables
incurred in the ordinary course of business, and (c) current accounts payable
incurred in the ordinary course of business.
4.11. FINANCIAL MATTERS.
(a) EXHIBIT H sets forth a complete and correct copy of the
consolidated balance sheet of the Company as at the end of the Fiscal Year ended
December 31, 1994 and the related consolidated statements of income, retained
earnings and cash flows of the Company for such Fiscal Year, prepared in each
case in accordance with Section 5.04(e) hereof, together with the accountant's
report with respect thereto as required by such Section. Such financial
statements have been prepared in accordance with GAAP consistently applied
throughout such Fiscal Year and on a basis consistently applied throughout such
Fiscal Year and on a basis consistent with that applied in the prior Fiscal
Year. Such balance sheet presents fairly in accordance with GAAP the
consolidated financial condition of the Company as at December 31, 1994, and
such consolidated statements of income, retained earnings and cash flows present
fairly in accordance with GAAP the consolidated results of operations of the
Company for the Fiscal Year ended December 31,1994.
(b) (i) The Company is Solvent and shall remain Solvent immediately
following the Borrowings to be made by the Borrowers and the application by the
Borrowers of the proceeds of such Borrowings in accordance with Section 2.03 of
this Agreement, and (ii) immediately following the Borrowings of such Borrower's
Revolving Credit Debt and the application by such Borrower of the proceeds
thereof in accordance with Section 2.03 hereof, (A) Bayway is Solvent and shall
remain Solvent as determined after excluding from Bayway's liabilities that
portion of the Obligations in excess of the Bayway Revolving Credit Debt, and
(B) TEL is Solvent and shall remain Solvent as determined after excluding from
TEL's liabilities that portion of the Obligations in excess of the TEL Revolving
Credit Debt.
(c) The Projections disclose all material assumptions made with respect
to general economic, financial and market conditions in formulating such
Projections. The Projections are based upon reasonable estimates and
assumptions, all of which the Borrowers believe are fair in light of current
conditions, have been prepared on the basis of the assumptions stated therein,
and reflect the reasonable estimates of the Borrowers of the results of
operations and other information presented therein. No facts, to the knowledge
of each Borrower, exist which would result in any material change in any of such
Projections.
4.12. OPTIONS, WARRANTS, ETC.. On the date hereof, except as set forth
on SCHEDULE 4.12 hereto, there is no existing option, warrant, call or
commitment to which any Borrower is a party requiring, and there are no
outstanding securities convertible into or exchangeable for securities of any
Borrower which upon conversion or exchange would require, the issuance of any
Stock of such Borrower or other securities convertible into or exchangeable for
any such Stock of such Borrower.
4.13. CHANGES, ETC. Except as set forth on SCHEDULE 4.13 hereto, or as
disclosed in or reflected on the consolidated balance sheet of the Company as at
December 31,1994 referred to in Section 4.11(a), no event has occurred and is
continuing which has had or could have a Material Adverse Effect.
4.14. EMPLOYEE BENEFIT PLANS.
(a) IN GENERAL. Each Employee Benefit Plan has been maintained and
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Revenue Code, including but not limited to
the provisions thereunder respecting prohibited transactions. The Borrowers have
heretofore delivered to the Agent the most recently completed annual report,
Form 5500, with all required attachments, and actuarial statement required to be
submitted under ss.103(d) of ERISA, with respect to each Guaranteed Pension
Plan.
(b) TERMINABILITY OF WELFARE PLANS. Under each Employee Benefit Plan
which is an employee welfare benefit plan within the meaning of ss.3(1) or
ss.3(2)(B) of ERISA, no benefits are due unless the event giving rise to the
benefit entitlement occurs prior to plan termination (except as required by
Title 1, Part 6 of ERISA). The Borrowers or an ERISA Affiliate, as appropriate,
may terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of the
Borrowers or such ERISA Affiliate without liability to any Person.
(c) GUARANTEED PENSION PLANS. Each contribution required to be made to
a Guaranteed Pension Plan, without regard to any waiver or extension, whether
required to be made to avoid the incurrence of an accumulated finding
deficiency, the notice or lien provisions of ss.302(fl of ERISA, or otherwise,
has been timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the Borrowers or any
ERISA Affiliate with respect to any Guaranteed Pension Plan and there has not
been any ERISA Reportable Event, or any other event or condition which presents
a material risk of termination of any Guaranteed Pension Plan by the PBGC, other
than those ERISA Reportable Events or other events or conditions which have been
disclosed in writing to the Agent and the Banks and which have not been deemed
by the Banks to pose a material risk of termination of any Guaranteed Pension
Plan by the PBGC. Based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed for that
valuation, the aggregate benefit liabilities of all such Guaranteed Pension
Plans within the meaning of ss.4001 of ERISA did not exceed the aggregate value
of the assets of all such Guaranteed Pension Plans by more than $500,000,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
(d) MULTIEMPLOYER PLANS. None of the Borrowers nor any ERISA Affiliate
has incurred any material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under ss.4201 of ERISA or as a result of a sale of assets
described in ss.4204 of ERISA. None of the Borrowers nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated under ss.4041A of
ERISA.
4.15. NO OTHER VENTURES. Except as set forth on SCHEDULE 4.15 hereto,
none of the Borrowers nor any of their Subsidiaries is engaged in any joint
venture or partnership with any other Person.
4.16. INSURANCE. All policies of insurance of any kind or nature owned
by or issued to any Borrower or its Subsidiaries, including, without limitation,
policies of life, fire, theft, product liability, public liability, property
damage, other casualty, employee fidelity, worker's compensation, employee
health and welfare, business interruption, earthquake, title, property and
liability insurance, are in full force and effect and are of a nature and
provide such coverage as is sufficient and as is customarily carried by
companies of the size and character of such Borrower and its Subsidiaries. A
true and correct list of all policies of insurance maintained by each Borrower
or any of such Subsidiaries is set forth on SCHEDULE 4.16. In the last five
years, none of the Borrowers nor any of their Subsidiaries has been refused
insurance for which it applied or had any policy of insurance terminated (other
than at its request).
4.17. LABOR MATTERS. Except as set forth on SCHEDULE 4.17, there are no
strikes, other labor disputes or grievances pending against any Borrower or its
Subsidiaries. To the best knowledge of each Borrower, there are no such strikes
and no such disputes threatened which could have a Material Adverse Effect.
There are no unfair labor practice charges or grievances pending or in process
or, to the best knowledge of each Borrower, threatened by or on behalf of any
employee or group of employees of such Borrower or its Subsidiaries, and no
written complaints received by such Borrower or its Subsidiaries, or, to the
best knowledge of each Borrower, threatened, or, with respect to unresolved
complaints, on file, with any federal, state or local Governmental Authority
alleging employment discrimination by any Borrower or its Subsidiaries which, if
resolved adversely to such Borrower or such Subsidiary, could have a Material
Adverse Effect. All payments due from any of the Borrowers or its Subsidiaries
pursuant to the provisions of any collective bargaining agreement have been paid
or accrued as a liability on the books of the Borrower or such Subsidiaries.
SCHEDULE 4.17 sets forth each collective bargaining agreement in effect as of
the date hereof, as well as the expected expiration or termination date thereof.
4.18. USE OF PROCEEDS. The proceeds of all Borrowings are being used
by the Borrowers solely as set forth in Section 2.03.
4.19. ENVIRONMENTAL PROTECTION. Except as disclosed on SCHEDULE 4.19
hereto: (a) the operations of each of the Borrowers and each of its Subsidiaries
comply in all material respects with all Environmental Laws, (b) each of the
Borrowers and each of its Subsidiaries has obtained all material environmental,
health and safety Permits necessary for its operation, and all such Permits are
in good standing, and each of the Borrowers and each of its Subsidiaries is in
material compliance with all terms and conditions of such Permits, (c) none of
the operations of any Borrower or any of their Subsidiaries is subject to any
material proceeding by or before any Governmental Authority alleging the
violation of any Environmental Laws, (d) none of the Borrowers nor any of their
Subsidiaries (including, without limitation, all of their present Facilities and
operations, as well as their past Facilities and operations), is subject to any
material outstanding written order or agreement with any Governmental Authority
or private party respecting (i) any Environmental Laws, (ii) any Remedial
Action, or (iii) any Environmental Claims, (e) to the best of each Borrower's
knowledge, none of the operations of any Borrower or any of their Subsidiaries
is the subject of any material federal or state investigation evaluating whether
any Remedial Action is needed to respond to a Release of any Contaminant into
the environment, (fl no material Lien in favor of any Governmental Authority for
(i) any liability under Environmental Laws, or (ii) damages arising from or
costs incurred by such Governmental Authority in response to a Release of a
Contaminant into the environment has been filed or attached to any Borrower's
Facilities or the Facilities of any Subsidiary of any Borrower, (g) none of the
operations of any Borrower is subject to any other Environmental Law, enacted by
the state or federal legislatures or by popular vote, which could have a
Material Adverse Effect upon such operations, taken as a whole and (h) none of
the Borrowers nor any of their Subsidiaries has received notice that any
Contaminant which any one of them has generated, transported or disposed of has
been found at any site at which any third party (including any governmental
authority) has conducted any Remedial Action.
4.20. COPYRIGHTS, PATENTS AND TRADEMARKS. Each of the Borrowers and
their Subsidiaries own or possess all patents, trademarks, service marks,
copyrights and licenses, and all rights with respect to the foregoing, necessary
for the conduct of its business as now conducted, without any known material
conflict with the rights of others. None of the Borrowers nor any of their
Subsidiaries utilizes any material trade name in the conduct of its or their
respective business other than their respective corporate names or derivatives
thereof.
4.21. TITLE.
(a) Each of the Borrowers and each of their Subsidiaries has good and
marketable title to its assets reflected in the balance sheet for the Fiscal
Year ended December 31, 1994 referred to in Section 4.11(a) and to all real
property owned by such Borrower listed on SCHEDULE 4.21(A)(I) and to all real
property leased by such Borrower listed on SCHEDULE 4.21(A)(II) (except as set
forth on SCHEDULE 4.21(A)(I) and except for assets disposed of since such date
in the ordinary course of business), and none of the properties and assets of
such Borrower or such Subsidiary is subject to any Liens, except Liens permitted
by this Agreement. All real property owned or leased by, and all investments
owned by, each of the Borrowers and their Subsidiaries with a Fair Market Value
in excess of $1,000,000 are listed on SCHEDULES 4.21 (A)(I) in respect of such
owned real property and 4.21 (A)(II) in respect of such leased real property.
Each of the Borrowers and their Subsidiaries enjoys peaceful and undisturbed
possession under all leases of real property on which facilities operated by it
are situated (other than leases which are not, either individually or in the
aggregate, material to the operation of the business of such Borrower or such
Subsidiary), and each of such leases is valid and enforceable in accordance with
its terms and is in full force and effect. None of the Borrowers nor any of
their Subsidiaries nor, to each Borrower's knowledge, any other party to any
such lease is in default of its obligations thereunder or has delivered or
received any notice of default under any such lease, nor has any event occurred
which, with the giving of notice, the passage of time or both, would constitute
a default under any such lease, except for any default which would not have a
Material Adverse Effect.
(b) Except as set forth on SCHEDULE 4.21(B), none of the Borrowers nor
any of their Subsidiaries owns or holds, or is obligated under or a party to,
any option, right of first refusal or other contractual right to purchase,
acquire, sell, assign or dispose of any real property owned or leased by such
Borrower or any of its Subsidiaries.
(c) None of the Borrowers nor any of their Subsidiaries has received
any notice, nor has any knowledge, of any pending, threatened or contemplated
condemnation proceeding affecting any real property owned or leased by such
Borrower or any of its Subsidiaries or any part thereof, or any sale or other
disposition of any real property owned or leased by such Borrower or any of its
Subsidiaries or any part thereof in lieu of condemnation.
(d) No portion of any real property owned or leased by any Borrower or
any of its Subsidiaries has suffered any material damage by fire or other
casualty loss which has not heretofore been completely repaired and restored to
its original condition.
4.22. COMPLIANCE WITH SECURITIES LAWS. Any and all purchases or
redemptions by any Borrower and/or any of its Subsidiaries from and after
December 31, 1987 of any securities (including, without limitation, any Stock or
any securities convertible into any Stock) issued by such Borrower or any of its
Subsidiaries have been effected in compliance with all applicable federal and
state laws, including, but not limited to, the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended. Any and all offers
to sell and sales of securities or of obligations of such Borrower or any of its
Subsidiaries evidenced by notes, bonds, debentures or similar instruments,
(including, without limitation, the offer to sell and the sale of the First
Mortgage Bonds) have been effected in compliance with all applicable federal and
state laws, including, but not limited to, the Trust Indenture Act of 1939, as
amended.
4.23. FULL DISCLOSURE. Neither this Agreement (including the schedules
and exhibits hereto), nor any of the Ancillary Agreements, nor any written
statement prepared or furnished by or on behalf of any Borrower to the Agent or
any Bank in connection with the negotiation, preparation, execution or
performance of this Agreement and the Ancillary Agreements contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. There is no fact known to any Borrower
which such Borrower has not disclosed to the Banks in writing which had or would
have a Material Adverse Effect.
4.24. ACCOUNTS. Each Eligible Receivable assigned by each Borrower to
the Banks under the Collateral Documents represents a final sale and delivery of
merchandise or the rendition of services by such Borrower to customers, is owned
by such Borrower free and clear of all Liens in favor of any Person other than
the Agent on behalf of the Banks, will be for a liquidated amount maturing as
stated in the assignment thereof and in the duplicate invoice or other
supporting data covering such sale, and will not be subject to any deduction,
offset, counterclaim, return privilege or other condition, except in the
ordinary course of business. The Borrowers are, individually or in the
aggregate, the owners of all positive Eligible Exchange Balances, free and clear
of any Liens other than those granted pursuant to the Collateral Documents.
4.25. INVENTORY. The Perfection Certificates of each of the Borrowers
delivered to the Agent pursuant to Section 3.01 (fl hereof contains a true and
complete list showing all states and counties where such Borrower maintains
Inventory and where the average daily value in any month of such Inventory
exceeds $500,000. The aggregate value of the Inventory in those States omitted
from such Perfection Certificates on any date does not exceed $5,000,000. All
Eligible Inventory is of a quality which (in the locations where sold by the
Borrowers or any Borrower) is marketable at prevailing market prices for such
products and meets all applicable governmental regulations and standards at the
place of intended sale. Each item of Eligible Inventory is valued by the
applicable Borrower on a FIFO basis, and is owned by the applicable Borrower
free and clear of any Liens other than those granted pursuant to the Collateral
Documents. The Borrowers are, individually or in the aggregate, the owners of
all contract rights with respect to Eligible Inventory Under Contract, free and
clear of any Liens other than those granted pursuant to the Collateral
Documents.
4.26. SENIORITY. The Obligations are not subordinate or junior in right
of payment, in any manner, to any other Indebtedness of any Borrower (it being
understood that, notwithstanding the foregoing, the Indebtedness of Tosco
evidenced by the First Mortgage Bonds shall be secured by a first priority lien
on the Avon Refinery and the Indebtedness of Tosco evidenced by the Bayway
Mortgage Bonds shall be secured by a first priority lien on the Bayway
Refinery).
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrowers hereby jointly and severally covenant and agree
that, from and after the date hereof and so long as any of the Commitments
remains in effect or any Note remains unpaid or any Credit Instrument remains
outstanding, in whole or in part, unless the Required Banks otherwise consent in
writing:
5.01. CONDUCT OF BUSINESS.
(a) MAINTENANCE OF PROPERTIES, ETC. Each of the Borrowers shall, and
shall cause each of its Subsidiaries to, (i) maintain, improve and preserve all
of its properties and assets which are used or useful in the conduct of its
business in good working order and in a safe operating condition, (ii) perform
and observe, in all material respects, all of the terms, covenants and
conditions required to be performed and observed by it under any Contractual
Obligations, and shall do, and cause its Subsidiaries to do, all things
necessary to preserve and keep unimpaired its rights under such Contractual
Obligations unless compliance therewith is currently being contested in good
faith by appropriate proceedings or unless failure to perform and observe any
such Contractual Obligations would not have a Material Adverse Effect, and (iii)
do all things necessary to preserve, renew and keep in full force and effect and
in good standing its corporate existence and authority necessary to continue its
business (other than with respect to Subsidiaries where the failure to so
preserve, renew and keep in full force and effect and in good standing such
Subsidiary's existence and authority would not have a Material Adverse Effect),
(iv) provide the Agent with a copy of each Material Lease to which such Borrower
or any of its Subsidiaries is or hereafter may become a party, whether as lessor
or lessee, (v) comply and cause each of its Subsidiaries to comply, in all
material respects, with all of its obligations under all Material Leases now or
hereafter held by it, including the leases set forth in SCHEDULE 4.21(A)(II),
(vi) provide the Agent with a copy of each notice of default received by such
Borrower or any of its Subsidiaries under any Material Lease immediately upon
receipt of any such notice and deliver to the Agent a copy of each notice of
default sent by such Borrower or any of its Subsidiaries under any Material
Lease simultaneously with its delivery of such notice under such Lease, (vii)
notify the Agent, not later than thirty (30) days prior to the date of the
expiration of the terms of any Material Lease, of the intention of such Borrower
or any of its Subsidiaries either to renew or to not renew any such Lease, and,
if such Borrower or such Subsidiary shall intend to renew such Lease, the terms
and conditions of such renewal Lease and (viii) notify the Agent at least
fourteen (14) days prior to the date such Borrower or any of its Subsidiaries
takes possession of any new leased premises having a Fair Market Value in excess
of $40,000,000 or becomes liable under a Material Lease.
(b) STATUTORY COMPLIANCE. Each of the Borrowers shall, and shall cause
its Subsidiaries to, comply in all material respects with all Requirements of
Law applicable to such Borrower and its Subsidiaries, including those governing
the business activities of each and the ownership by each of its respective
assets (including, without limitation, all applicable Environmental Laws and any
Permits required thereunder), each as from time to time in effect, except where
compliance therewith shall be promptly contested in good faith by appropriate
proceedings which, individually or in the aggregate, have no reasonable
likelihood of having a Material Adverse Effect.
5.02. INSURANCE. Each of the Borrowers shall, and shall cause its
Subsidiaries to, keep its respective assets which are of an insurable character
insured by financially sound and reputable insurers against loss or damage by
fire, explosion and other hazards and risks, including, without limitation,
earthquake and flood damage, war damage (if such insurance becomes generally
available pursuant to governmental action), business interruption and liability
to persons and property, (i) to the extent and in the manner customary for
companies in similar businesses similarly situated and (ii) to the extent such
coverage is available on commercially reasonable terms. Each such policy (other
than liability policies) shall name the Agent as an additional insured and a
loss payee thereof. Copies of all insurance policies and renewal certificates
with respect thereto, together with written confirmation of the Company's
insurance broker (which shall be an independent broker of nationally recognized
standing reasonably satisfactory to the Agent) as to satisfaction of the
conditions set forth in clauses (i) and (ii) of this Section 5.02, shall
promptly be furnished to the Agent.
5.03. SYSTEMS OF ACCOUNTING. Each of the Borrowers shall, and shall
cause its Subsidiaries to, (a) maintain systems of accounting in which complete
entries will be made of all dealings and transactions in relation to their
respective businesses and affairs, and (b) generally maintain its respective
methods of valuing its Inventory, in accordance with GAAP, consistently applied.
5.04. REPORTS. The Borrowers shall deliver to the Agent and to each
Bank:
(a) Promptly (but in no event later than three (3) Business Days after
obtaining knowledge thereof) upon any principal officer of any Borrower
obtaining knowledge of any Default or Event of Default, a certificate of the
President or a Vice President and the Comptroller or the Treasurer of such
Borrower specifying the nature and period of existence thereof and what action
has been taken, is being taken or is proposed to be taken with respect thereto.
(b) Prior to the close of business on the fifteenth day (or, if the
fifteenth day is not a Business Day, the first Business Day thereafter) of each
month, a report substantially in the form of EXHIBIT I hereto (the "Borrowing
Base Report"), signed by the Chief Financial Officers of each of the Borrowers,
setting forth, on an itemized basis, the Tosco Borrowing Base, the Bayway
Borrowing Base and the TEL Borrowing Base as of the close of business on the
last Business Day of the immediately preceding month and the Borrowing Base
computations based thereon, as well as certifications by the Chief Financial
Officers of each of the Borrowers that from the date of the most recent
Borrowing Base Report previously delivered to the date of the new Borrowing Base
Report being delivered with such certification, no Default or Event of Default
has occurred. Each Borrowing Base Report shall become effective upon the Agent's
receipt thereof and shall remain in effect until the earlier of (A) the receipt
by the Agent of the next Borrowing Base Report to be delivered hereunder, and
(B) the close of business on the date on which the next Borrowing Base Report is
required to be delivered hereunder.
(c) As soon as available, and in any event within forty-five (45) days
after the end of each calendar month commencing with the calendar month
preceding the month during which the Closing Date occurs, detailed consolidated
and consolidating monthly statements of income or loss of the Company and
consolidated and consolidating balance sheets of the Company (including a
statement of the amount of the Company's LIFO reserve) and consolidated and
consolidating statements of cash flow of the Company as at the end of such month
and a management-prepared statement showing the contribution to Net Income
(Loss) for the fiscal period covered by such monthly statement made by the Avon
Refinery and the Ferndale Refinery, all of which shall be certified as true,
complete and correct (to the best of such officer's knowledge) by the Chief
Financial Officer of Tosco; PROVIDED that for so long as Tosco's Debt Rating by
S&P or Moody's is Investment Grade, the Borrowers shall have no obligation to
deliver monthly financial statements under this Section 5.04(c) after delivery
of the monthly financial statements for February 1996 which are required to be
delivered in April of 1996.
(d) As soon as available, and in any event within forty-five (45) days
after the last day of each Fiscal Quarter, commencing with the Fiscal Quarter
ending immediately prior to the Closing Date:
(i) the consolidated and consolidating balance sheets of the
Company (including a statement of the amount of the Company's LIFO
reserve) as at the end of such quarter and the consolidated and
consolidating statements of income, retained earnings and cash flows of
the Company for such quarter and, after the end of each of the first
three Fiscal Quarters of each Fiscal Year of the Company, for the
portion of the current Fiscal Year then ended (all in reasonable detail
and including a management statement showing the contribution to Net
Income (Loss) made by the Avon Refinery and the Ferndale Refinery for
such fiscal periods), accompanied by a certificate from the Chief
Financial Officer of Tosco stating that such statements have been
properly prepared in accordance with the books and records of the
Company and fairly present the financial condition and operations of
the Company subject only to normal year-end audit adjustments;
(ii) a report setting forth the computation and all uses of
the Free Cash of the Company as of the end of such Fiscal Quarter,
setting forth a detailed breakdown of each item comprising Free Cash,
which report shall be accompanied by a certificate of the Chief
Financial Officer of each Borrower certifying that such computations
and the statement of uses are true, complete and correct (to the best
of each such officer's knowledge); and
(iii) a certificate of the Chief Financial Officer of each
Borrower setting forth a computation showing compliance by the Company
with the financial tests set forth in Section 6.01 hereof and stating
that each signing officer has caused the provisions of this Agreement
to be reviewed and has no knowledge of any Default or Event of
Default, or, if any signing officer has such knowledge, specifying
such Default or Event of Default and the nature thereof, and what
action the Borrower has taken, is taking, or proposes to take with
respect thereto (the "Compliance Certificate"); PROVIDED, HOWEVER,
that if at any time the Company is not in compliance with any one or
more of the financial tests set forth in Section 6.01 or a Default or
Event of Default has occurred and is continuing, until the Company has
been in compliance with all of such financial tests and no Default or
Event of Default has occurred and is continuing for one full Fiscal
Quarter, the Borrowers shall be required to deliver such Compliance
Certificate within thirty (30) days after the last day of each
calendar month commencing with and including the first calendar month
in which such noncompliance occurs.
(e) As soon as available, and in any event within ninety (90) days
after the end of each Fiscal Year, the consolidated and consolidating balance
sheets of the Company (including a statement of the amount of the Company's LIFO
reserve) as at the end of such year and the consolidated and consolidating
statements of income, retained earnings and cash flows of the Company for such
Fiscal Year, setting forth in each case in comparative form the consolidated
figures for the Company for the previous Fiscal Year (all in reasonable detail),
which consolidated statements of the Company shall be audited and certified by
Coopers & Lybrand, or other independent public accountants of recognized
national standing selected by the Borrowers and reasonably satisfactory to the
Agent, which certificate shall state that such financial statements have been
prepared in accordance with GAAP applied on a basis consistent with prior years
(except as otherwise specified in such report or certificate)~ together with the
statement of such accountants that they have caused the provisions of this
Agreement to be reviewed and that in the course of their audit of the Company
nothing has come to their attention to lead them to believe that any Default or
Event of Default has occurred or is continuing.
(f) On or before March 31 of each Fiscal Year, a certificate signed by
the President or Executive Vice President of Tosco, setting forth the most
recent updated and detailed financial projections of the Company for the period
from and including such Fiscal Year through the Maturity Date, and setting forth
the comparable figures actually achieved for the two immediately preceding
Fiscal Years, and setting forth the assumptions upon which such projections are
based, all of which shall be substantially in the format of the Projections
previously delivered to the Banks.
(g) Promptly upon its receipt thereof, copies of all audit reports
(including so called "management letters") submitted by independent public
accountants in connection with each annual, interim or special audit of the
books of any Borrower or any of its Subsidiaries made by such accountants.
(h) Promptly and in any event within thirty (30) days after any
Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that any ERISA Reportable Event has occurred.
(i) The Borrowers will (i) upon request of the Agent, furnish to the
Agent a copy of the most recent actuarial statement required to be submitted
under ss.103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (ii) promptly upon
receipt or dispatch, furnish to the Agent any notice, report, demand or letter
sent or received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041,
4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer
Plan, under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
(j) Promptly and in any event within thirty (30) days after notice or
knowledge thereof, notice that any Borrower or any of its Subsidiaries has
become subject to the tax on prohibited transactions imposed by Section 4975 of
the Revenue Code in an amount which has, individually or in the aggregate, a
reasonable likelihood of resulting in a Material Adverse Effect, together with a
copy of Form 530.
(k) As soon as available, copies of all (i) reports and financial
statements which any Borrower shall send or make available to its shareholders
and all registration statements and reports which any Borrower shall file with
the Securities and Exchange Commission and (ii) press releases.
(l) With reasonable promptness, such other information respecting the
business, properties, assets, operations or condition, financial or otherwise,
of any Borrower or any of its Subsidiaries as from time to time any of the Banks
through the Agent may reasonably request.
(m) Promptly and in any event within fifteen (15) days after knowledge
thereof, the Borrowers shall give the Agent and BofA as Co-Agent notice if there
is a material likelihood that the aggregate amount by which any offsets, contras
or counterclaims, calculated on a consolidated basis, with respect to Eligible
Receivables will exceed by more than $50,000,000 the gross amount of the
Accounts comprising the Eligible Receivables to which such offsets, contras or
counterclaims relate.
5.05. RIGHT TO INSPECT PREMISES AND RECORDS. Each of the Borrowers
will agree to all reasonable requests by the Agent or any Bank (a) for access to
any and all premises leased, owned or occupied by such Borrower or any
Subsidiary of such Borrower for the purpose of inspecting the books of account
and financial records of such Borrower and its Subsidiaries as well as their
other properties or assets, (b) for consultation with such Borrower with respect
to the financial or other affairs of such Borrower and its Subsidiaries, and (c)
to make extracts from the books of account and financial records of the Borrower
or any of its Subsidiaries solely for its own use in connection with the Loans
hereunder. Without limiting the generality of the foregoing, each Borrower
agrees that annual Borrowing Base audit examinations shall be conducted at the
Borrowers' cost and expense in scope and detail satisfactory to the Agent and
BofA as Co-Agent, utilizing, at the election of the Agent and BofA as Co-Agent,
in-house personnel of the Agent and"or BofA as Co-Agent or an outside appraiser
selected by the Agent and BofA as Co-Agent, PROVIDED that in the event that any
Default or Event of Default is continuing, the Agent and BofA as Co-Agent may
conduct additional Borrowing Base audit examinations at the Borrowers' cost and
expense. In addition and without limiting the generality of the foregoing, each
Borrower agrees that the Agent and BofA as Co-Agent may conduct, at the
Borrowers' cost and expense, such additional special audits of the consolidated
netting practices used by the Company in connection with the calculation and
reporting of Eligible Receivables as the Agent and BofA as Co-Agent may deem
necessary and desirable.
5.06. PAYMENT OF LIABILITIES. Each of the Borrowers shall pay and
discharge, and shall cause each of its Subsidiaries to pay and discharge, at or
before their maturity or in accordance with customary trade terms, all of their
respective Indebtedness due and payable, except where such Indebtedness is
contested in good faith and by appropriate proceedings diligently conducted and
reserves or other appropriate provisions, if any, as shall be required by GAAP,
shall have been made therefor, and except to the extent otherwise provided by
any subordination provisions applicable to such Indebtedness.
5.07. BOOKS AND RECORDS. Each of the Borrowers shall, and shall cause
each of its Subsidiaries to, keep adequate records and books of account with
respect to their respective business activities, in which proper entries,
reflecting all of such Borrower's and each of its Subsidiaries' financial
transactions, are made in accordance with GAAP.
5.08. LITIGATION. Each of the Borrowers shall notify the Agent and each
Bank in writing, promptly upon learning of any litigation, arbitration or
administrative proceeding involving an amount in excess of $5,000,000 and
affecting such Borrower or any of its Subsidiaries, whether or not covered by
insurance, and of any other litigation, arbitration or administrative proceeding
that individually, or when aggregated with any other litigation, arbitration or
administrative proceeding, could have a Material Adverse Effect.
5.09. ACCOUNTS. Each of the Borrowers shall:
(a) promptly upon, but in no event later than three (3) Business Days
after, such Borrower's learning thereof, inform the Agent and each Bank in
writing of any material delay by any Account Debtor in the performance of any of
such Account Debtor's obligations to such Borrower and of any material
allowance, credit or other money granted by such Borrower to any Account Debtor
owing more than $ 1,000,000; and
(b) promptly upon, but in no event later than three (3) Business Days
after, such Borrower's receipt or learning thereof, furnish to and inform the
Agent and each Bank of all material information relating to the adverse
financial condition of any Account Debtor.
5.10. PAYMENT OF CHARGES AND INDEBTEDNESS. Each of the Borrowers
shall, and shall cause each of its Subsidiaries to, timely file or cause to be
filed all Tax Returns, and shall timely pay and discharge all Charges, required
to be filed or due and payable with respect to all periods including or
subsequent to the Closing Date, and shall pay all claims for labor, materials or
supplies which if unpaid might by law become a Lien or charge upon any property
of such Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that any such
Charge or claim, the nonpayment of which would not be reasonably likely to have
a Material Adverse Effect, need not be paid if the validity or amount thereof
shall currently be contested in good faith by appropriate proceedings and if
such Borrower or such Subsidiary shall, in accordance with GAAP, have set aside
on its books adequate reserves with respect thereto; and PROVIDED FURTHER,
HOWEVER, that such Borrower shall, and shall cause each Subsidiary to, pay all
such Charges or claims forthwith upon the commencement of proceedings to
foreclose any Lien which may have attached as security therefor. The obligations
of the Borrowers under this Section 5.10 with respect to the filing of Tax
Returns and the payment of Charges shall survive the payment, prepayment or
redemption of the Notes and the termination of this Agreement.
5.11. MATERIAL CHANGE IN BUSINESS. Tosco's primary business shall
continue to be petroleum refining, distribution, wholesale and retail marketing
and related businesses (other than oil and gas exploration, natural gas
marketing and petroleum trading which does not support the primary refining,
distribution and marketing business). Tosco shall notify the Agent promptly (and
in any event by no later than the next Business Day) upon (i) any termination of
the ARCO Exchange Agreement or any failure of the ARCO Exchange Agreement to be
in full force and effect and (ii) any termination of the Exxon Supply Agreement
or any failure of the Exxon Supply Agreement to be in full force and effect.
Bayway's primary business shall be petroleum refining, distribution, wholesale
and retail marketing and related businesses (other than oil and gas exploration,
natural gas marketing and petroleum trading which does not support the primary
refining, distribution and marketing business). TEL's primary business shall be
the purchase and sale of petroleum products as required to support the primary
businesses of Tosco and Bayway described in this ss.5.11; PROVIDED, HOWEVER,
that in no event shall TEL engage in (i) petroleum trading which does not
support the primary refining, distribution and marketing businesses of Tosco and
Bayway, (ii) oil and gas exploration or (iii) natural gas marketing.
5.12. COMPLIANCE WITH SECURITIES LAWS. Any and all purchases or
redemptions by any Borrower and"or any of its Subsidiaries of any securities
(including, without limitation, any Stock or any securities convertible into
Stock or any First Mortgage Bonds) issued by such Borrower or any of its
Subsidiaries or any other Person shall be effected in compliance with all
applicable Requirements of Law, including, but not limited to, the Securities
Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended.
Any and all offers to sell and sales of securities or of obligations of any
Borrower or any of its Subsidiaries evidenced by notes, bonds, debentures or
similar instruments, (including, without limitation, the offer to sell and the
sale of the First Mortgage Bonds) shall be effected in compliance with all
applicable federal and state laws, including, but not limited to, the Trust
Indenture Act of 1939, as amended.
5.13. APPLICATION OF PROCEEDS. Bayway shall apply the proceeds of all
Bayway Advances, TEL shall apply the proceeds of all TEL Advances and each
Borrower shall apply the proceeds of all Borrowings made by it in accordance
with Section 2.03.
5.14. ENVIRONMENTAL PROTECTION.
(a) Each of the Borrowers shall, and shall cause each of its
Subsidiaries to, (i) comply in all material respects with the requirements of
all Environmental Laws applicable to it, (ii) notify the Agent promptly in the
event of any Release or other Adverse Environmental Condition upon or affecting
any premises owned or occupied by such Person which Release or adverse
Environmental Condition could result in a Material Adverse Effect, and (iii)
promptly forward to the Agent copies of all orders, notices, permits,
applications or other communications and reports in connection with any such
Release or other Adverse Environmental Condition or any other matter relating to
the Environmental Laws as they may affect such premises which could result in a
Material Adverse Effect.
(b) Each of the Borrowers shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless the Agent and each Bank, their
Subsidiaries and Affiliates, and their respective directors, officers, employees
and agents from and against any action, suit, proceeding, claim, loss, cost,
damage, liability, deficiency, fine, penalty or expense (including, without
limitation, reasonable attorneys' fees, investigation, removal, cleanup and
remedial costs and modification costs incurred to permit continued or resumed
normal operation of any of such Borrower's or any of its Subsidiaries'
facilities, properties or assets) suffered or incurred by the Agent, any Bank or
any such other indemnified party: (i) under or on account of any Environmental
Laws, including, without limitation, the asserting of any Lien thereunder; (ii)
with or without respect to any Release, Contaminant or other Adverse
Environmental Condition affecting any such facilities, properties or assets,
whether or not the same originates or emanates from such facilities, properties
or assets or any contiguous facilities, properties and assets; and (iii) with
respect to any other matter affecting any such facilities, properties or assets
arising under, pursuant to or in connection with any Environmental Laws.
5.15. THE ANCILLARY AGREEMENTS. Each of the Borrowers shall comply in
all respects and perform all of its material obligations under the provisions of
each of the Ancillary Agreements to which it is a party.
ARTICLE VI
FINANCIAL COVENANTS
6.01. FINANCIAL TESTS OF THE COMPANY. The Borrowers hereby jointly and
severally covenant and agree that from and after the date hereof and for so long
as any of the Commitments remains in effect or any Note remains unpaid or any
Credit Instrument remains outstanding, in whole or in part, the Borrowers shall
be in compliance with the following tests:
(a) The Working Capital of the Company, determined on a FIFO basis,
shall not at any time be less than $90,000,000.
(b) The Tangible Net Worth of the Company, determined on a LIFO basis,
shall not at any time be less than the Adjusted Net Worth Amount.
(c) The Leverage Ratio, during any period set forth in the table below,
shall not at any time exceed the ratio set forth opposite such period in the
table below:
Period Ratio
12/31/94 through 12/31/95 1.4:1.0
1/1/96 and thereafter 1.2:1.0.
(d) The Cash Flow of the Company, determined on the last day of each
Fiscal Quarter for the four consecutive Fiscal Quarters then ended, shall not be
less than 1.25 times Debt Service for such period; PROVIDED, HOWEVER that if two
or more Major Tumarounds occur during any four consecutive Fiscal Quarters,
Tosco may, at its option, exclude the Cash Flow and Debt Service from one such
Fiscal Quarter from its compliance calculation for such four Fiscal Quarter
period.
(e) None of the Borrowers or any Restricted Subsidiary will incur any
obligations (i) under Synthetic Leases entered into directly by the Borrower or
any Restricted Subsidiary or (ii) with respect to Contingent Obligations arising
under guaranties or similar obligations in respect of the obligations of third
parties under Synthetic Leases, if the aggregate amount of all such obligations
of the Borrowers and any Restricted Subsidiary under clauses (i) and (ii) of
this Section 6.01(e) exceeds in aggregate $75,000,000 outstanding at any one
time, calculated without duplication for direct obligations under Synthetic
Leases and Contingent Obligations with respect thereto.
ARTICLE VII
NEGATIVE COVENANTS
The Borrowers hereby jointly and severally covenant and agree that from
and after the date hereof and for so long as any of the Commitments remains in
effect or any Note remains unpaid or any Credit Instrument remains outstanding,
in whole or in part:
7.01. LIMITATIONS ON INDEBTEDNESS.
(a) The Borrowers shall not, nor shall the Borrowers permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any
Indebtedness except:
(i) the Obligations;
(ii) the Indebtedness evidenced by the First Mortgage Bonds in
an aggregate principal amount not to exceed $300,000,000 and
Indebtedness evidenced by the Bayway Mortgage Bonds in an aggregate
principal amount not to exceed $150,000,000;
(iii) intercompany loans by Tosco to Bayway in respect of
Bayway Advances or by Tosco to TEL in respect of TEL Advances in
accordance with Section 2.03 hereof,
(iv) Indebtedness existing on the date hereof and listed on
SCHEDULE 4.10;
(v) Indebtedness of the Borrowers arising in connection with a
$100,000,000 dealer/jobber finance program; PROVIDED that the
Borrower's aggregate liability (both direct as a borrower thereunder
and contingent as a guarantor of the obligations of third parties
thereunder) relating to such finance program shall not exceed
$15,000,000 at any one time outstanding; and PROVIDED, FURTHER, that
the Borrowers shall not provide any security for such program other
than cash security deposits not to exceed 15% of the Borrowers'
aggregate direct and indirect liability with respect to such finance
program and Letters of Credit issued under this Agreement or, with
respect to the Borrower's direct obligations under such program, liens
on fixed service station assets acquired with the proceeds of the
financing provided through such program;
(vi) Indebtedness of the Borrowers incurred after the Closing
Date; PROVIDED, that (i) such Indebtedness may not be used for working
capital purposes, (ii) such Indebtedness is not secured by any assets
other than fixed assets (which term shall not include any capital stock
of the Borrowers or any Restricted Subsidiary) which are treated as
Capital Assets on the Borrowers' consolidated balance sheet in
accordance with GAAP, and (iii) no Default or Event of Default shall be
continuing hereunder immediately prior to the incurrence of such
Indebtedness and no Default or Event of Default shall occur under
Section 6.01 on a PRO FORMA basis after giving effect to the incurrence
of such Indebtedness, and PROVIDED FURTHER, that if requested by the
Agent, the Borrowers shall have delivered to the Agent financial
projections, based on reasonable assumptions set forth therein and
taking into account the incurrence of such Indebtedness, which
demonstrate such compliance, certified by a Responsible Officer of the
Borrowers;
(vii) Contingent Obligations arising in connection with Synthetic
Leases subject to the limitation in aggregate amount set forth in
Section 6.01(e); and
(viii) Indebtedness of the Borrowers, in an aggregate amount not
to exceed $50,000,000 outstanding at any one time, in respect of
transactional lines of credit created for the purpose of financing
specific cargoes of Inventory or receivables related to specific
cargoes of Inventory; PROVIDED that (i) any such Indebtedness is
secured only by the cargo of Inventory financed thereby or the
receivable relating thereto, (ii) such Inventory or receivable is not
included in any Borrowing Base, and (iii) the Borrowers shall have
provided, prior to or simultaneously with the incurrence of any such
Indebtedness, written notice to the Agent and the Banks describing
such Indebtedness in sufficient detail to accurately and completely
identify such Indebtedness and the cargo of Inventory or receivable
relating thereto; and PROVIDED, FURTHER, that notwithstanding the
foregoing, no Indebtedness shall be permitted under this clause (vii)
from and after such date on which any Borrower enters into
documentation implementing the Securitization Program or, if earlier,
begins to sell Accounts in connection with such Securitization
Program.
(b) The Borrowers shall not, nor shall the Borrowers permit any
Subsidiary to, use the proceeds of any Indebtedness to pay dividends or similar
distributions.
7.02. LIMITATIONS ON LIENS, ETC. The Borrowers shall not, directly or
indirectly, create, incur, assume or suffer to exist, nor shall the Borrowers
permit any of their Restricted Subsidiaries, directly or indirectly, to create,
incur, assume or suffer to exist, any Lien of any kind upon or with respect to
any of its properties or assets; PROVIDED, HOWEVER, that the foregoing
restrictions shall not apply to Liens:
(a) existing on the property or assets of any Borrowers or any of the
Restricted Subsidiaries as of the Closing Date and listed on SCHEDULE 4.09
hereto;
(b) for taxes, assessments or governmental charges or levies if the
same shall not at the time be due and delinquent or thereafter can be paid
without penalty or (if foreclosure, distraint, sale or other similar proceedings
shall not have been commenced) are being contested in good faith and by
appropriate proceedings diligently conducted, and such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been made
therefor;
(c) of mechanics and materialmen for sums not yet due or being
contested in good faith and by appropriate proceedings diligently conducted, if
such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(d) in connection with workers' compensation, unemployment
insurance and other social security, other than Liens created by
Section 4068 of ERISA;
(e) to secure the performance of statutory obligations, surety and
appeal bonds, performance and return of money bonds and other obligations of a
like nature (not involving the borrowing of money or the deferred purchase price
of property, services or assets) incurred in the ordinary course of business;
(f) constituting easements, rights of way, restrictions and other
similar encumbrances not interfering with the ordinary conduct of the business
of any Borrower or any of the Restricted Subsidiaries and not materially
detracting from the value or intended use of the property to which they are
applicable;
(g) imposed by law, carriers', warehousemen's or mechanics' liens and
liens to secure taxes, assessments and other governmental charges or levies or
claims for labor, material or supplies to the extent that payment thereof shall
not at the time be required to be made in accordance with Section 5.06 hereof,
(h) on tangible personal property located on, or constituting leasehold
improvements to, real property leased by any Borrower or any of the Restricted
Subsidiaries to secure obligations to the landlord under such lease;
(i) created pursuant to or in accordance with this Agreement or the
Ancillary Agreements;
(j) on the Avon Refinery in favor of the holders of the First Mortgage
Bonds pursuant to the "Mortgage Documents" (as such term is defined in the First
Mortgage Bond Indenture);
(k) on the Stock of Bayway; PROVIDED that Tosco shall be the record and
beneficial owner of not less than 100% of the issued and outstanding voting
stock of TPMI, free and clear of all Liens, at all times while TPMI owns any
Stock of Bayway and FURTHER that Tosco and TPMI, in aggregate, shall be the
record and beneficial owner of not less than 51% (or such greater amount as is
required to elect a majority of the members of the Board of Directors of Bayway)
of the issued and outstanding voting Stock of Bayway, free and clear of all
Liens;
(l) constituting the right granted to BofA and ITT Capital, as lessors
of certain equipment and fixtures relating to the Long Island Facility, to enter
upon the real property of and to operate the Long Island Facility upon the
occurrence of a default and acceleration of the obligations under such lease;
(m) on the Bayway Refinery and all assets used in connection with the
operation thereof, excluding therefrom Inventory, Eligible Inventory Under
Contract, Cash, Cash Equivalents, Eligible Margin Deposits and Accounts, to
secure Indebtedness under the Bayway Mortgage Bonds permitted pursuant to
Section 7.01(a)(ii);
(n) on fixed assets acquired to secure Indebtedness permitted under
Section 7.01(a)(vi);
(o) on cash security deposits as permitted by Section 7.01(a)(v) and on
certain fixed service station assets acquired with financing provided through
the dealer/jobber finance program permitted under Section 7.01(a)(v);
(p) for so long as the Borrowers are permitted to incur Indebtedness
under Section 7.01 (a)(vii) hereof, on those specific cargoes of Inventory
financed with such Indebtedness and on accounts receivable arising in connection
therewith in order, in each case, to secure Indebtedness permitted by Section
7.01 (a)(vii).
7.03. LIMITATION ON RESTRICTED PAYMENTS, RESTRICTED PREPAYMENTS,
RESTRICTED INVESTMENTS AND DISCRETIONARY CAPITAL EXPENDITURES. Except as
permitted in Section 7.04, the Borrowers shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, make any Restricted
Investment, Restricted Payment, Restricted Prepayment or Discretionary Capital
Expenditure, or enter into any agreement to make any Restricted Investment,
Restricted Payment, Restricted Prepayment or Discretionary Capital Expenditure;
PROVIDED, HOWEVER, that notwithstanding the foregoing, so long as no Default or
Event of Default shall have occurred and be continuing or would result from such
Restricted Investment, Restricted Payment, Restricted Prepayment, or
Discretionary Capital Expenditure, (a) if Tosco's Debt Rating by either S&P or
Moody's is Investment Grade, the Borrowers may, and may permit any Restricted
Subsidiary, directly or indirectly to make such Restricted Investment,
Restricted Payment, Restricted Prepayment or Discretionary Capital Expenditure
and (b) if Tosco's Debt Rating by both S&P and Moody's is below Investment
Grade, (i) Tosco may pay or provide funds for Seminole Fertilizer Corporation to
pay the FMCP L/C Reimbursement Obligations or the underlying debt secured by
such letter of credit and (ii) the Borrowers and/or any Restricted Subsidiary
may make Restricted Investments, Restricted Payments, Restricted Prepayments
and/or Discretionary Capital Expenditures solely to the extent that (w) with
respect to any Restricted Investment, such Restricted Investment is listed on
SCHEDULE 7.03, (x) such Restricted Investment, Restricted Payment, Restricted
Prepayment, or Discretionary Capital Expenditure would otherwise be permitted
under this Agreement but for the applicability of this Section 7.03, (y) with
respect to any Discretionary Capital Expenditure, such Discretionary Capital
Expenditure is listed on SCHEDULE 7.03; or (z) such Restricted Investment,
Restricted Payment, Restricted Prepayment or Discretionary Capital Expenditure
is made out of Free Cash, as set forth on the most recently certified quarterly
computation of Free Cash delivered to the Banks pursuant to Section 5.04(d)(ii)
hereof, as reduced for all other Restricted Investments, Restricted Payments,
Restricted Prepayments, and Discretionary Capital Expenditures made or to be
made since the delivery of such quarterly computation; PROVIDED, however, that
if the Leverage Ratio is greater than 1.2 to 1.0 (as set forth in the most
recent Compliance Certificate delivered to the Banks pursuant to Section
5.04(d)(iii) hereof after giving effect to all such Restricted Investments,
Restricted Payments, Restricted Prepayments and Discretionary Capital
Expenditures made or to be made since the delivery of such computation), no
Restricted Payment shall be made except as otherwise permitted by Section 7.04.
Notwithstanding any provision contained herein to the contrary, Tosco shall not,
at any time, make any Restricted Investment in an amount in excess of $5,000,000
in the stock or obligations of any Person or any Discretionary Capital
Expenditure in excess of $5,000,000 other than (x) Restricted Investments in the
stock or obligations of a Person whose primary business is petroleum refining,
distribution, wholesale and retail marketing and related businesses (other than
oil and gas exploration, natural gas marketing and petroleum trading which does
not directly support the primary refining, distribution and marketing business)
and (y) Discretionary Capital Expenditures for assets to be used in connection
with petroleum refining, distribution, wholesale and retail marketing and
related businesses (other than oil and gas exploration, natural gas marketing
and petroleum trading which does not directly support the primary refining,
distribution and marketing business). For the purposes of the preceding
sentence, the amount of Restricted Investments and Discretionary Capital
Expenditures shall be equal to the purchase price (in the case of the
acquisition of any business, exclusive of the cost of any acquired working
capital to the extent not reflected in the purchase price) plus the amount of
any liabilities assumed in connection therewith.
7.04. PERMITTED DIVIDENDS. For so long as no Default or Event of
Default shall have occurred and be continuing or would result from such
declaration or payment, Tosco may declare and pay cash dividends on or purchase,
redeem, retire or otherwise acquire its Stock; PROVIDED that if Tosco's Debt
Rating by both S&P and Moody's is below Investment Guide, the aggregate amount
of all payments made by Tosco in connection therewith may not exceed in any
Fiscal Year the greater of:
(a) (i) $35,000,000, PLUS (ii) amounts in excess thereof equal to 8
1/2% of the net proceeds received by Tosco subsequent to the Closing Date from
the issuance and sale of its preferred Stock not previously issued PLUS (iii)
amounts in excess thereof equal to 4% of the net proceeds received by Tosco
subsequent to the Closing Date from the issuance and sale of its common Stock
not previously issued; or
(b) fifty percent (50%) of the Company's Net Income (after excluding
therefrom dividends declared or paid in respect of the Company's preferred
stock) for such Fiscal Year;
PROVIDED that no mandatory redemption of Tosco's preferred Stock shall occur on
or prior to the Maturity Date. Notwithstanding anything to the contrary set
forth in this Agreement, Tosco may not declare or pay any dividends or other
payments or distributions in cash or other property or assets in respect of any
of its Stock while a Default or Event of Default shall have occurred and be
continuing.
7.05. LIMITATION ON SALE, CONSOLIDATION, MERGER, ETC.; CHANGE IN
BUSINESS.
(a) The Borrowers shall not, and shall not permit any Restricted
Subsidiary to, Sell any Capital Asset which relates to any Borrower's petroleum
refining, distribution or marketing activities; PROVIDED, HOWEVER, that as long
as no Default or Event of Default has occurred or is continuing, or would result
from the following,
(i) the Borrowers or any Restricted Subsidiary may Sell from
time to time Capital Assets relating to the Company's petroleum
refining, distribution and marketing activities having an aggregate
Fair Market Value not in excess of $25,000,000 in any one transaction,
and the Agent shall release its Lien, if any, thereon; PROVIDED,
HOWEVER, that the aggregate Fair Market Value of all of such Capital
Assets sold by the Borrowers and/or any Restricted Subsidiary at any
time after the Closing Date shall not exceed $75,000,000;
(ii) each Borrower may Sell to a Restricted Subsidiary, from
time to time, Capital Assets having an aggregate Fair Market Value not
in excess of $10,000,000; and
(iii) may sell from time to time certain Accounts in connection
with the Securitization Program.
Notwithstanding any of the other covenants set forth in Article VII of this
Agreement, the Borrowers and the Restricted Subsidiaries shall be permitted, in
connection with the Sale of any Capital Asset permitted by this Section 7.05(a),
to give reasonable indemnifications and guarantees; PROVIDED, HOWEVER that the
exposure of any Borrower and the Restricted Subsidiaries on a "worst-case" basis
as a result of any such indemnifications and/or guarantees shall not exceed the
greater of (A) the net proceeds received by such Borrower or such Restricted
Subsidiaries from the Sale of such Capital Asset and (B) the aggregate amount of
the liabilities of such Borrower and such Restricted Subsidiaries in respect of
such Capital Asset prior to the sale thereof which are transferred by such
Borrower or such Restricted Subsidiary to a third party in connection with such
Sale.
(b) The Borrowers shall not, and shall not permit any of their
Subsidiaries to, consolidate with or merge with or into any other corporation or
entity, or permit any other corporation or entity to consolidate with or merge
with or into any Borrower or any Subsidiary; except that (i) any corporation may
merge into any Borrower, PROVIDED that, after consummation of such merger, (A)
no Default or Event of Default shall exist, and (B) such Borrower shall be the
surviving corporation, (ii) Tosco may merge or consolidate one or more
Restricted Subsidiary with and into Tosco or with and into another Restricted
Subsidiary, and (iii) the Borrowers may (A) merge or consolidate any
Subsidiaries of any Borrower (other than Restricted Subsidiaries) with and into
each other, or (B) liquidate or dissolve any Subsidiary that is not a Borrower.
(c) The Borrowers shall not, and shall not permit any Restricted
Subsidiary to, issue or sell any Stock of any Restricted Subsidiary to any
Person or Persons, other than to a Borrower or a Restricted Subsidiary.
7.06. EVENTS OF DEFAULT.
(a) None of the Borrowers nor any Restricted Subsidiary shall take or
omit to take any action, which act or omission would constitute a default or an
event of default, after any applicable grace or cure periods have expired,
pursuant to the terms of any material Contractual Obligation, unless such
Borrower or such Restricted Subsidiary is contesting such default or event of
default in good faith and by appropriate proceedings diligently conducted and
such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor, PROVIDED that the consequences of the
contesting of such default or event of default would not, in the opinion of the
Required Banks using reasonable business judgment, have a Material Adverse
Effect.
(b) Notwithstanding the foregoing, none of the Borrowers nor any of
their Subsidiaries shall take or omit to take any action, which act or omission
would constitute a Default or an Event of Default hereunder.
7.07. EMPLOYEE BENEFIT PLANS. Neither the Borrowers nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of ss.406
of ERISA or ss.4975 of the Revenue Code which could result in a material
liability for the Borrowers or any of their Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated funding
deficiency", as such term is defined in ss.302 of ERISA, in excess of $500,000,
whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could result
in the imposition of a lien or encumbrance on the assets of the Borrowers or any
of their Subsidiaries pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all Guaranteed
Pension Plans exceeding the value of the aggregate assets of such Plans by more
than $500,000, disregarding for this purpose the benefit liabilities and assets
of any such Plan with assets in excess of benefit liabilities.
7.08. SALES AND LEASEBACKS. Except as listed on SCHEDULE 7.08, none of
the Borrowers shall, nor shall the Borrowers permit any of their Subsidiaries
to, enter into any arrangement with any lender or investor or to which such
lender or investor is a party providing for the leasing by any Borrower or any
of their Subsidiaries of real and/or personal property that has been or is to be
sold or transferred by any Borrower or any of its Subsidiaries to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such property or rental obligations of
such Borrower or its Subsidiaries.
7.09. LIMITATION ON RESTRICTIONS ON SUBSIDIARY DIVIDENDS AND OTHER
DISTRIBUTIONS. Except as otherwise provided in Sections 7.03 and 7.04, the
Borrowers shall not, and shall not permit any of their Subsidiaries to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital Stock or any other
interest or participation in its profits owned by any Borrower or any of its
Subsidiaries, or pay any Indebtedness owed to any Borrower or any of its
Subsidiaries, or (b) make loans or advances to any Borrower, or (c) transfer any
of its properties or assets to any Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement, or (iii) customary provisions restricting subletting or assignment of
any lease under which such Borrower or any of its Subsidiaries is lessee.
7.10. PROHIBITED USES OF PROCEEDS. No Borrower shall use the proceeds
of any Borrowings hereunder in any manner which would result in a violation of
Regulation U or X of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect.
7.11. LEASE OBLIGATIONS. The Borrowers shall not:
(a) create, incur, assume or suffer to exist, or permit any of their
Subsidiaries to create, incur, assume or suffer to exist, any obligation for the
payment of rent for any property under lease or agreement to lease having a term
of one (1) year or more; PROVIDED, HOWEVER, that each Borrower and its
Subsidiaries may create, incur, assume or suffer to exist (i) leases requiring
aggregate rental payments per year not in excess of $1,000,000, (ii) leases of
the Borrowers and their Subsidiaries in existence on the Closing Date as set
forth in SCHEDULE 4.21 (A)(II), and any renewal or extension thereof, (iii)
operating leases in the ordinary course of business and (iv) Synthetic Leases
subject, with respect to the Borrowers and the Restricted Subsidiaries to the
limitation set forth in Section 6.01(e);
(b) modify, amend, cancel or otherwise change in any materially
adverse manner any of the terms, covenants and conditions of any Material Lease;
or
(c) assign or sublet any lease on real property if such assignment or
sublet has a reasonable likelihood of having a Material Adverse Effect.
7.12. TRANSACTIONS WITH AFFILIATES. None of the Borrowers shall, nor
shall the Borrowers permit any Restricted Subsidiary to, enter into any
transaction with any Affiliate on terms that are less favorable to such Borrower
or such Restricted Subsidiary, as the case may be, than terms which might be
obtained at the time from Persons that are not Affiliates and which would be
usual and customary in similar transactions between Persons not affiliated with
each other; PROVIDED, HOWEVER, that the provisions of this Section 7.12 shall
not apply to (a) any loan, advance or other extension of credit by any Borrower
and/or any Restricted Subsidiary to one or more Subsidiaries of such Borrower
otherwise permitted under this Agreement, (b) transactions between Tosco, Bayway
and TEL and (c) transactions between Tosco and/or Bayway, on the one hand, and a
special purpose subsidiary established by Tosco or Bayway, on the other hand, to
purchase Accounts from Tosco or Bayway pursuant to the terms of the
Securitization Program.
ARTICLE VIII
EVENTS OF DEFAULT;
RIGHTS AND REMEDIES ON DEFAULT
8.01. EVENTS OF DEFAULT.
(a) If any of the following events ("Events of Default") shall occur:
(i) the failure by the Borrowers (A) to pay any portion of the
principal of any Note when due or any mandatory prepayment, or (B) to
pay any interest on any Note, any Letter of Credit commission or fee or
Acceptance commission or fee or any commitment or other fee or
commission hereunder within five (5) days after any such interest,
commission or fee becomes due; or
(ii) any representation or warranty made by the Borrowers or by
any Borrower in this Agreement or in any of the Ancillary Agreements
or by the Borrowers or by any Borrower in connection with any Loan
made hereunder or in any certificate or financial or other statement
delivered pursuant hereto or thereto shall prove to have been untrue
in any material respect on the date as of which made; or
(iii) default by the Borrowers in the observance or performance
of any term, covenant or agreement contained in Article VII or of the
covenant contained in Section 5.04(a); or
(iv) default by the Borrowers in the observance or performance
of any other term, covenant or agreement (except for those matters
referred to in clauses (i), (ii) and (iii) above) contained in this
Agreement or in any Ancillary Agreement and the continuance of the same
unremedied for a period of five (5) days after notice thereof to the
Borrowers by the Agent; or
(v) any Borrower or any Restricted Subsidiary shall (A)
default in the payment of any portion of the principal of or interest
on any Indebtedness (other than the Notes) or indebtedness for
Inventory beyond any period of grace provided with respect thereto, or
(B) default in the performance or observance of any other term,
condition or agreement contained in any such obligation or in any
agreement relating thereto if the effect of such default is to cause,
or permit the holder or holders of at least $1,000,000 of such
obligations (or a trustee on behalf of such holder or holders) to
cause, such obligations to become due prior to their stated maturity;
or
(vi) a final judgment for more than $1,000,000 (net of
insurance proceeds receivable) shall be rendered against any Borrower
or any Restricted Subsidiary and if within sixty (60) days after entry
thereof such judgment shall not have been discharged or execution
thereof stayed pending appeal; or
(vii) the security interests and liens provided for in the
Collateral Documents shall at any time cease to be of first priority
and in full force and effect for any reason; or
(viii) there shall occur any Material Adverse Change or any
event shall have occurred which could have a Material Adverse Effect;
or
(ix) with respect to any Guaranteed Pension Plan, an ERlSA
Reportable Event shall have occurred and the Required Banks shall have
determined in their reasonable discretion that such event reasonably
could be expected to result in liability of the Borrowers or any of
their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $500,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall
have been appointed by the United States District Court to administer
such Guaranteed Pension Plan; or the PBGC shall have instituted
proceedings to terminate such Guaranteed Pension Plan;
(x) a default or an event of default shall have occurred and be
continuing under the terms of the First Mortgage Bond Indenture or the
(xi) (A) Tosco shall cease to own beneficially and of record
100% of the issued and outstanding Stock of TPMI at any time while TPMI
holds any Stock of Bayway or (B) TPMI - Tosco, in aggregate, shall
cease to own beneficially and of record at least 51% (or such greater
amount as is required to elect a majority of the members of the Board
of Directors of Bayway) of the issued and outstanding voting Stock of
Bayway;
(xii) Tosco shall cease to own beneficially and of record 100% of
the issued and outstanding Stock of TEL; or
(xiii) TPMI shall conduct any business other than holding
Stock of Bayway and matters incidental thereto.
then, and in any such event, the Agent, upon the written, telex or telegraphic
request of the Required Banks shall (A) terminate forthwith the Commitments,
whereupon the Commitments shall be terminated immediately, and/or (B) declare,
by notice of default given to the Borrowers, the Notes to be forthwith due and
payable, whereupon the principal amount of the Notes, together with accrued
interest thereon, and all other Obligations shall become immediately due and
payable, and/or (C) require that the Borrowers deposit with the Agent and the
Banks, at once and in full, all sums sufficient to reimburse the Agent and the
Banks for all payments, present or future, contingent or otherwise, that may be
required to be made by the Agent or the Banks on account of any or all Credit
Instruments, and such sums shall be deposited in a non-interest-bearing cash
collateral account maintained by the Agent, to be held by the Agent and applied
thereby in reduction of any Obligations arising out of any Application,
Acceptance Agreement or Credit Instrument.
(b) If any of the following events of default shall occur (each of
which also being referred to as an "Event of Default"):
(i) any Borrower or any of its Subsidiaries shall commence any
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or
other similar official for it or for all or any substantial part of
its assets, or any Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or
(ii) there shall be commenced against any Borrower or any of
its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed or undischarged for a period of sixty (60) days; or
(iii) there shall be commenced against any Borrower or any of
its Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof, or
(iv) any Borrower or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or
(v) any Borrower or any of its Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due;
then, and in any such event, (A) the Commitments shall thereupon be immediately
terminated, (B) the principal amount of the Notes, together with accrued
interest thereon, and all other Obligations shall become immediately due and
payable and (C) the Borrowers shall thereupon deposit with the Agent at once and
in full, all sums sufficient to reimburse the Agent and the Banks for all
payments, present or future, contingent or otherwise, that may be required to be
made by the Agent on account of any and all Credit Instruments, and such sums
shall be deposited in a non-interest-bearing cash collateral account maintained
by the Agent, and such amounts shall be held by the Agent and applied by the
Agent in reduction of any Obligations of the Borrowers arising out of any Credit
Instrument.
8.02. WAIVERS BY BORROWERS. Except as otherwise provided for in this
Agreement, the Borrowers waive (a) presentment, demand and protest and notice of
presentment, dishonor, protest, default, nonpayment, maturity, release,
compromise, settlement, extension or renewal of any or all commercial paper,
accounts, contract rights, documents, instruments, chattel paper and guarantees
at any time held by the Banks on which any Borrower may in any way be liable and
hereby ratify and confirm whatever any Bank may do in this regard, (b) all
rights to notice and a hearing prior to the Agent's taking possession or control
of, or to the Agent's replevy, attachment or levy upon, the Collateral, or any
bond or security which might be required by any court prior to allowing the
Agent to exercise any of the Banks' remedies, and (c) the benefit of all
valuation, appraisement and exemption laws. Upon the occurrence of an Event of
Default the Agent may enforce the rights of the Banks hereunder and under the
Ancillary Agreements in such order and manner as it deems appropriate. The
Borrowers acknowledge that they have been advised by counsel of their choice
with respect to this Agreement, the Ancillary Agreements and the transactions
evidenced by this Agreement and the Ancillary Agreements.
8.03. SURVIVAL OF OBLIGATIONS. Except as otherwise expressly provided
for in this Agreement and in the Ancillary Agreements, no termination or
cancellation (regardless of cause or procedure) of this Agreement or of any of
the Ancillary Agreements shall in any way affect or impair the powers,
obligations, duties, rights and liabilities of the Borrowers in any way or
respect relating to any transaction or event occurring prior to such termination
or cancellation, and any of the undertakings, agreements, covenants, warranties
and representations contained in this Agreement and in the Ancillary Agreements
shall survive such termination or cancellation.
ARTICLE IX
THE AGENT AND CO-AGENTS
9.01. AUTHORIZATION. Each Bank irrevocably appoints and designates the
Agent and the Co-Agents to act on behalf of such Bank in connection with the
transactions contemplated by this Agreement to the extent provided herein or in
any document or instrument delivered hereunder or in connection herewith and to
take such other action as may be reasonably incidental thereto. Without limiting
the generality of the foregoing, each Bank hereby authorizes the Agent to act on
behalf of such Bank to execute and accept on its behalf any and all of the
Collateral and to take all such actions necessary or appropriate with respect to
management or enforcement of the Collateral provided for herein and in the
Ancillary Agreements and enforcement of the rights of the Agent and the other
Banks hereunder and thereunder. Without limiting the rights of the Banks
hereunder, each Bank authorizes the Agent to act on its behalf to execute and
accept on its behalf any and all payments and collections to be made by or for
each of them in their individual capacities pursuant to this Agreement and to
take all such actions necessary or appropriate with respect to the payment
and/or enforcement of the Obligations to each such Bank.
9.02. INDEMNIFICATION OF AGENT AND CO-AGENTS. The Banks severally
agree to indemnify each of the Agent, the Co-Agents and (to the extent not
reimbursed by the Borrowers and without limiting the obligation of the Borrowers
to do so) FNBB in its capacity as opening bank with respect to Credit
Instruments, ratably according to each Bank's Ratable Portion, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes and including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel and the allocated costs of in-house counsel)
be imposed on, incurred by or asserted against the Agent or FNBB, or any
Co-Agent or BofA or Chase, as the case may be, in any way relating to or arising
out of this Agreement, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted by the Agent
or FNBB, or any Co-Agent or BofA or Chase, under or in connection with any of
the foregoing, including, without limitation, with respect to any amounts
advanced by the Agent, on behalf of the respective Banks (together with any
interest thereon) pursuant to the provisions of Section 2.02, 2.05 or 2.08
hereof, PROVIDED, HOWEVER, that no Bank shall be liable for the losses damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's or FNBB's, or any Co-Agent's or BofA's or Chase's, as
the case may be, gross negligence or willful misconduct. The agreements in this
Section 9.02 shall survive the payment of the Notes and all other amounts
payable hereunder.
9.03. EXCULPATION, ETC.
(a) The Agent and the Co-Agents shall be entitled to rely upon the
advice of counsel concerning legal matters, and upon this Agreement and the
Ancillary Agreements, as well as any schedule, certificate, report, notice or
other writing which it believes to be genuine and to have been presented by a
proper Person. None of the Agent, any Co-Agent or any of their respective
directors, officers, employees or agents shall: (i) be responsible for any
recitals, representations or warranties contained in, or for the execution,
validity, genuineness, effectiveness or enforceability of, this Agreement, the
Ancillary Agreements or any other instrument or document delivered hereunder or
thereunder or in connection herewith or therewith; (ii) be responsible for the
validity, genuineness, perfection, effectiveness, enforceability, existence,
value or enforcement of any collateral security; (iii) be under any duty to
inquire into or pass upon any of the foregoing matters, or to make any inquiry
concerning the performance by the Borrowers or any other obligor of the
Obligations; or (iv) in any event, be liable as such for any action taken or
omitted by it or them, except for its own gross negligence or willful
misconduct. The agency hereby created shall in no way impair or affect any of
the rights and powers of, or impose any duties or obligations upon, the Agent or
any Co-Agent in its individual corporate capacity as a Bank hereunder.
(b) As to any matters not expressly set forth in this Agreement or any
Ancillary Agreement as a function or responsibility of the Agent or the
Co-Agents, neither the Agent nor the Co-Agents shall be required to exercise any
discretion or take any action, except that each of the Agent and the Co-Agents
may, in its sole discretion, act or refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Required Banks, and such instructions shall be binding upon the Agent, the
Co-Agents and all Banks. If, with respect to a proposed action to be taken by
it, the Agent or the applicable Co-Agent shall determine in good faith that the
provisions of this Agreement or any Ancillary Agreement relating to the
functions or responsibilities or discretionary powers of the Agent or such
Co-Agent are or may be ambiguous or inconsistent, the Agent or such Co-Agent may
so notify the Banks (identifying the proposed action and the provisions that it
considers are or may be ambiguous or inconsistent) and may decline either to
perform such function or responsibility or to exercise such discretionary power
unless it has received the written confirmation of the Required Banks that the
Required Banks (including the Agent or such Co-Agent) concur in the
circumstances that the action proposed to be taken by the Agent or such Co-Agent
is consistent with the terms of this Agreement or any Ancillary Agreement or is
otherwise appropriate. The Agent and the Co-Agents shall be fully protected in
acting or refraining from action upon the confirmation of the Required Banks in
this respect, and such confirmation shall be binding upon the Agent, the
Co-Agents and the Banks. Neither the Agent nor any Co-Agent shall be required to
obtain any such written confirmation of the Required Banks in order to perform
any function or responsibility or to exercise any discretionary power of the
Agent or such Co-Agent set forth in this Agreement or any Ancillary Agreement.
(c) Neither the Agent nor any Co-Agent shall in any event be required
to take any action which exposes it to personal liability or which, in the
judgment of the Agent or such Co-Agent, is contrary to the provisions of this
Agreement, any Ancillary Agreement or applicable law.
(d) If in one or more instances the Agent or any Co-Agent takes any
action or assumes any responsibility not specifically delegated to it pursuant
to the provisions of this Agreement or any Ancillary Agreement, neither the
taking of such action nor the assumption of such responsibility shall be deemed
to be an express or implied undertaking on the part of the Agent or such
Co-Agent that it will take the same or similar action or assume the same or
similar responsibility in any other instance.
9.04. RELIANCE ON DOCUMENTS. In acting as Agent and Co-Agents
hereunder, each of the Agent, the Co-Agents and their respective officers and
agents shall be under no liability to the other Banks or to the Borrowers or to
any Borrower for action or failure to act taken or suffered in good faith, and
may rely on all certificates, documents and other papers believed by such
officers and agents to be genuine, and any action or failure to act upon advice
of its counsel shall conclusively be deemed to be in good faith.
9.05. CREDIT INVESTIGATION. Each Bank acknowledges that it has made
such inquiries and taken such care on its own behalf as would have been the case
had credit been granted, and the Loans made and the Letters of Credit issued and
the Acceptances created, directly by such Bank to or for the account of the
Borrowers without the intervention of the Agent, any Co-Agent or any other Bank.
Each Bank agrees and acknowledges that none of the Agent nor the Co-Agents makes
any representations or warranties about the creditworthiness of any Borrower or
any other party to this Agreement or with respect to the legality, validity,
sufficiency or enforceability of this Agreement, any of the Ancillary Agreements
or the value of any Collateral security therefor.
9.06. RESIGNATION. The Agent or any Co-Agent may resign as such at any
time upon at least thirty (30) days' prior written notice to the Borrowers and
the Banks. In the event of any such resignation, the Required Banks may appoint
another Bank as a successor Agent or Co-Agent. If no successor Agent or Co-Agent
shall have been so appointed and shall have accepted such appointment within
thirty (30) days after receipt by the Borrowers and the Banks of such
notification from the retiring or resigning Agent or Co-Agent, as the case may
be, then such retiring or resigning Agent or Co-Agent may appoint a successor
from among the Banks. Upon the appointment of a new Agent or Co-Agent hereunder,
the term "Agent" or "Co-Agent", respectively, shall for all purposes of this
Agreement thereafter mean such successor. After any retiring Agent's or
Co-Agent's resignation hereunder, the provisions of this Agreement shall
continue to inure to the benefit of such retiring Agent or Co-Agent as to any
actions taken or omitted to be taken by it while it was Agent or Co-Agent under
this Agreement.
9.07. CO-AGENTS. Except as otherwise provided in Section 5.05 hereof,
none of the Banks identified on the signature pages of this Agreement as a
Co-Agent shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Banks as such. Each
Bank acknowledges that it has not relied, and will not rely, on any of the Banks
so identified as a Co-Agent in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01. AMENDMENTS AND WAIVERS.
(a) Subject to Section 10.01(b) below, with the written consent of the
Required Banks, the Agent and the Borrowers may, from time to time, enter into
written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or the Ancillary Agreements, or changing
in any manner the rights of the Banks or of the Borrowers hereunder or
thereunder. Subject to Section 10.01(b) below, with the consent of the Required
Banks, the Agent on behalf of the Banks may execute and deliver to the Borrower
a written instrument waiving any of the requirements of this Agreement or the
Ancillary Agreements or any Default or Event of Default and its consequences.
(b) Notwithstanding Section 10.01(a) above, no such waiver and no such
amendment, supplement or modification shall (i) extend the date fixed for any
payment of principal or interest on the Notes or the rate of interest on the
Notes or the amount of the Commitments of the Banks, in each case without the
written consent of all the Banks, (ii) amend or modify the amount of any
Obligations to pay outstanding principal hereunder or the amount of fees or
commissions hereunder, in each case without the written consent of all the
Banks, (iii) amend, modify or waive any provision of this Section 10.01, or
reduce the percentage specified in the definition of "Required Banks" or the
acceleration clauses of Section 8.01 hereof, in each case without the written
consent of all the Banks, (iv) except to the extent contemplated by Section 2.18
hereof, extend or increase, or alter the manner of computing, the agreement by
the Agent to establish the Credit Instruments or the several agreements by the
other Banks to take interests therein, or the expiration or maturity date of any
Credit Instrument beyond the Maturity Date, or to alter the amount of any Credit
Instrument commissions or fees, in each case without the written consent of all
the Banks, (v) amend or modify the definition of "Borrowing Base", "Tosco
Borrowing Base", "Bayway Borrowing Base", "TEL Borrowing Base" or
"Securitization Program", in each case without the written consent of all the
Banks, (vi) release any Collateral having a net book value in excess of
$1,000,000 in the aggregate, without the written consent of all the Banks and
(vii) amend, modify or waive any provision of Article IX hereof without the
written consent of the Agent and the Co-Agents.
(c) Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Banks and shall be binding upon the
Borrowers, the Banks, the Agent and all future holders of the Notes.
10.02. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
10.03. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Bank may sell, transfer, negotiate or assign to one or more
other Banks or Eligible Assignees, all or a portion of its Commitment hereunder,
the portion of the Loans hereunder owing to it and the Notes held by it
hereunder and a commensurate portion of its rights and obligations hereunder and
under the Ancillary Agreements; PROVIDED, HOWEVER, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all of the assigning
Bank's rights and obligations under this Agreement, (ii) the aggregate amount of
the Commitment and Loans made hereunder being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment), shall in no event be less than the lesser of (A)
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, or (B) the
aggregate amount of the assigning Bank's Commitment and Loans outstanding
immediately prior to such assignment, and (iii) the making of Loans by such
assignee hereunder would not be unlawful as set forth in Section 2.16 hereof,
and (iv) such assignee is reasonably acceptable to the Borrowers and the Agent.
The parties to each assignment shall execute and deliver to the Agent, for its
acceptance and recording, with a copy to the Borrowers for their acceptance, an
Assignment and Acceptance, together with the Notes subject to such assignment.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least three (3) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations under the Ancillary Agreements have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and thereunder, and (B) the assignor thereunder shall, to the extent
that rights and obligations under this Agreement have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement, and the Ancillary Agreements
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Bank's rights and obligations under this Agreement and
the Ancillary Agreements, such Bank shall cease to be a party hereto and
thereto).
(b) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
any Ancillary Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, or any Ancillary Agreement
or any other instrument or document furnished pursuant hereto or thereto, (ii)
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any of
its Subsidiaries or the performance or observance by any Borrower or any of its
Subsidiaries of any of its or their obligations under this Agreement, or any
Ancillary Agreement or of any other instrument or document furnished pursuant
hereto or thereto, (iii) such assignee confirms that it has received a copy of
this Agreement and each Ancillary Agreement, together with copies of the
financial statements referred to in Section 4.11 and the most recent financial
statements delivered to the Banks pursuant to Sections 5.04(d)(i) and 5.04(e) of
this Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance, (iv) such assignee will, independently and without
reliance upon such assigning Bank or any other Bank or the Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement or any Ancillary Agreement, (v) such assignee confirms that it is
an Eligible Assignee, (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement and the Ancillary Agreements as are delegated to the Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto, and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement and the
Ancillary Agreements are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in Section
10.09 a copy of each Assignment and Acceptance delivered to and accepted by it
and by the Borrowers and a register for the recordation of the names and
addresses of the Banks and the Commitments of, and principal amount of the Loans
owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers and each of their Subsidiaries, the Agent and the Banks
may treat each Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrowers, the Agent or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee, together with the Notes subject to such
assignment and a $2,500 recordation fee for the account of the Agent, the Agent
shall, if such Assignment and Acceptance has been completed and if such assignee
is reasonably acceptable to the Agent, promptly forward a counterpart thereof to
the Borrowers. If the proposed assignee is reasonably acceptable to the
Borrowers, the Borrowers shall, within five Business Days after receipt thereof
from the Agent, return said counterpart, duly executed by the Borrowers, to the
Agent (which shall thereupon accept such Assignment and Acceptance, and record
the information contained therein in the Register) together with a new Revolving
Credit Note executed by the Borrowers to the order of such Eligible Assignee in
the principal amount equal to the portion of the Loan assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Bank has assigned less than
all of its Loans hereunder, a new Revolving Credit Note to the order of the
assigning Bank in the principal amount equal to the Commitments retained by it
hereunder. Such new Revolving Credit Notes shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of EXHIBIT C-1 attached hereto.
(e) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under
this Agreement and the Ancillary Agreements (including, without limitation, all
or a portion of its Commitment, the Loans owing to it and the Notes held by it);
PROVIDED, HOWEVER, that each such participation shall in no event be less than
$5,000,000 and, if in excess of $5,000,000, shall be in integral multiples of
$1,000,000 in excess thereof. The terms of such participation shall not, in any
event, require the participant's consent for any amendments, waivers or other
modifications of any provision of this Agreement or any Ancillary Agreement, the
consent to any departure by the Borrowers or any of their Subsidiaries
therefrom, or to exercise or refrain from exercising any powers or rights which
such Bank may have under or in respect of this Agreement or the Ancillary
Agreements (including, without limitation, the right to enforce the obligations
of the Borrowers or any of their Subsidiaries), except in connection with any
such actions requiring the consent of all the Banks in accordance with Section
10.01(b). In the event of the sale of any participation by any Bank, (i) such
Bank's obligations under this Agreement and the Ancillary Agreements (including,
without limitation, its Commitment) shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Bank shall remain the holder of its Notes for all
purposes of this Agreement, (iv) such Bank shall disclose to the Borrowers and
to the Agent the identity of each bank or other entity purchasing a
participation within a reasonable time after the sale and purchase of such
participation, and (v) the Borrowers, the Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement.
(f) Anything herein to the contrary notwithstanding, the Borrowers
shall not without their prior written consent, at any time, be obligated to pay
to any assignee or participant of any interest of any Bank hereunder, under
Section 2.15 or 2.20, any sum in excess of the sum which the Borrowers would
have been obligated to pay to such Bank in respect of such interest had such
assignment not been effected or had such participation not been sold.
(g) Any Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.03, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to any Borrower or any of its Subsidiaries furnished to such Bank by or
on behalf of such Borrower; PROVIDED, that prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to such
Borrower or any of its Subsidiaries received by it from such Bank.
(h) In no event may any Borrower assign or transfer any of its rights
or obligations under this Agreement without the written consent of each Bank and
the Agent, and any such purported assignment shall be void and of no force or
effect. Subject to the foregoing provisions of this Section 10.03, this
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Banks, the Agent, the Co-Agents, and any future holders of the Notes and their
respective successors and permitted assigns.
(i) Anything contained in this Section 10.03 to the contrary
notwithstanding, any Bank may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its
Notes) to any of the twelve Federal Reserve Banks organized under ss.4 of the
Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the enforcement thereof
shall release the pledgor Bank from its obligations hereunder or under any of
the other Loan Documents.
10.04. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts each of
which shall be deemed an original and all of said counterparts, when taken
together, shall be deemed to constitute one and the same instrument. After the
execution of this Agreement, the Agent shall promptly transmit to each Bank a
conformed copy of this Agreement. A set of the copies of this Agreement signed
by all the parties shall be delivered to the Borrowers and the Agent.
10.05. GOVERNING LAW.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
(b) In the event of any foreclosure by the Banks on any Collateral,
regardless of where the Collateral is located, the parties agree and intend that
the law of the Commonwealth of Massachusetts shall govern the right of the Banks
to collect or obtain a judgment for any deficiency following foreclosure, and
the parties specifically intend that the law of other states, including, but not
limited to, Sections 580d and 726 of the California Code of Civil Procedure,
shall not be applicable.
10.06. CHOICE OF FORUM.
(a) Except as otherwise expressly provided in this Agreement and the
Ancillary Agreements, the parties hereto agree and intend that the proper and
exclusive forum for the litigation of any disputes or controversies arising out
of, or related to, this Agreement or the Ancillary Agreements shall be the
courts of the Commonwealth of Massachusetts and of any Federal court located in
such Commonwealth. The Borrowers agree that they will not commence or move to
transfer any action or proceeding, arising out of or relating to this Agreement
or the Ancillary Agreements, in or to any court other than one located in the
Commonwealth of Massachusetts.
(b) The Borrowers irrevocably consent to the service of process of any
of the aforesaid courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the
Borrowers at their respective addresses provided herein, such service to become
effective thirty (30) days after such mailing. Nothing contained in this Section
10.06 shall affect the right of the Agent, any Bank or any holder of a Note to
serve process in any other manner permitted by law or commence legal proceedings
or otherwise proceed against the Borrowers or any Borrower in any other
jurisdiction.
(c) Notwithstanding the foregoing, the parties agree that, with respect
to Collateral located in states or commonwealths other than Massachusetts, the
Banks shall be entitled to commence actions in such states against the Borrowers
or any Borrower or other Persons, for the purpose of seeking provisional
remedies, including, by way of illustration but not limitation, actions for
replevin or claim and delivery of property, or for injunctive relief or
appointment of a receiver, or actions to foreclose upon security interests or
Liens given by the Borrowers to the Banks.
(d) In the event the Borrowers or any Borrower should commence or
maintain any action arising out of or related to this Agreement or the Ancillary
Agreements, in a forum other than the courts of the Commonwealth of
Massachusetts, the Agent on behalf of the Banks shall be entitled to request the
dismissal of such action, and the Borrowers stipulate that such action shall be
dismissed.
10.07. ADJUSTMENTS; RIGHTS OF SETOFF.
(a) Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) if applicable, the making of the request specified by Section
8.01(a) to authorize the Agent to declare the Notes due and payable pursuant to
the provisions of Section 8.01(a), each Bank and the Agent is hereby authorized,
after prior written notice to, and confirmation of receipt thereof from, the
Agent, at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held, and other indebtedness at any
time owing by such Bank or the Agent, as the case may be, to or for the credit
or the account of the Borrowers against any and all of the Obligations of the
Borrowers now or hereafter existing, irrespective of whether or not such Bank
shall have made any demand under this Agreement or such Note and although such
Obligations may be unmatured. Each Bank and the Agent agrees promptly to notify
the Borrowers after any such setoff and application made by such Bank or the
Agent, as the case may be; PROVIDED, HOWEVER, that the failure to give such
notice to the Borrowers shall not affect the validity of such setoff and
application. The rights of each Bank and the Agent under this Section 10.07(a)
are in addition to, and not in limitation of, the other rights and remedies
(including, without limitation, other rights of setoff) which such Bank may
have.
(b) If any Bank shall be entitled to exercise a right of setoff
against any of the Obligations of the Borrowers to such Bank, and such Bank
shall decide to exercise such right of setoff, the proceeds of such setoff shall
be applied ratably among the Banks in accordance with their respective Ratable
Portions. Nothing contained in this Section 10.07(b) shall be deemed to require
any Bank to exercise a right of setoff; PROVIDED, HOWEVER, that any Bank which
maintains, whether or not at the request of the Agent, a lock box arrangement or
cash management facility for the Borrowers, may charge back against that account
or against any other account maintained by any Borrower, with that Bank, the
amount of any item with respect to which a right of immediate withdrawal has
been given to such Borrower or funds have been transmitted to any concentration
account maintained by the Agent and which are returned uncollected for any
reason, and such charge back shall not be considered a setoff subject to the
provisions of this Section 10.07(b) requiring any sharing of the benefits
thereof with any of the other Banks.
10.08. CONFLICT OF TERMS. Except as otherwise provided in this
Agreement, and except as otherwise provided in any of the Ancillary Agreements
by specific reference to the applicable provisions of this Agreement, if any
provision contained in this Agreement is in conflict with, or inconsistent with,
any provision in any of the Ancillary Agreements, the provision contained in
this Agreement shall govern and control.
10.09. NOTICES. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval or other
communication shall or may be given to or served upon any of the parties by
another, or whenever any of the parties desires to give or serve upon the other
any such communication with respect to this Agreement, each such notice, demand,
request, consent, approval or other communication shall be made in writing by
hand delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopy or overnight air courier guaranteeing next day
delivery, directed to the party to receive the same at its address stated below
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Except as otherwise expressly set
forth herein, every notice, demand, request, consent, approval or other
communication hereunder shall be deemed to have been duly given or served at the
time that the same shall have been actually received at the addressee's office
or at such other address as may be substituted by notice given as herein
provided, or to such other address as each party may designate for itself by
like notice.
If to the Borrowers:
To Tosco:
Tosco Corporation
72 Cummings Point Road
Stamford, Connecticut 06902
Telecopy No.: (203)964-3187
Attn: Jefferson F. Allen, Executive Vice
President and Chief Financial Officer
To TEL:
Tosco Europe Limited
Sceptre Court, Number 40
Tower Hill
London EC3 N4BB England
with a copy to TEL c/o Bayway
To Bayway:
Bayway Refining Company
1400 Park Avenue
Linden, New Jersey 07036
Telecopy No.: (908)862-6696
Attn: Dwight Wiggins, President
in each case, with a copy to:
Wilkes McClave III, Esq.
General Counsel
at the address set forth above for Tosco;
If to the Agent:
The First National Bank
of Boston
Energy & Utilities Division
100 Federal Street, 01-08-02
Boston, Massachusetts 02110
Telecopy No.: (617)434-3652
Attn: J. R. Vaughan, Jr., Director
with a copy to:
Bingham, Dana & Gould
150 Federal Street
Boston, Massachusetts 02110
Telecopy No.: (617)951-8736
Attn: Sula R. Fiszman, Esq.
10.10. SECTION TITLES. The Article and Section titles and Table of
Contents contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto.
10.11. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.12. MAXIMUM INTEREST.
(a) Anything to the contrary notwithstanding contained in this
Agreement or the Notes, the parties hereto agree and intend that the Banks shall
not charge, take or receive, and the Borrowers shall not be obligated to make
any payment to or for the account of any Bank, of interest on the Loans made
under this Agreement and evidenced by the Notes in excess of the maximum rate
from time to time permitted by applicable law, and, if the amount of interest
otherwise payable hereunder would exceed the maximum amount permitted, the
amount so payable shall be automatically reduced to such maximum permissible
amount. The provisions of this Section 10.12(a) are not intended (i) to limit,
and any Bank shall be entitled to charge, take or receive, the maximum rate of
interest which may be charged, taken or received by such Bank if under the law
applicable to it, it may charge, take or receive interest at a higher rate, or
(ii) to make the criminal laws of any jurisdiction applicable in circumstances
in which they would not otherwise apply.
(b) If the amount of interest payable for the account of any Bank, in
respect of any interest computation period, is reduced pursuant to Section
10.12(a) hereof, and the amount of interest payable for its account in respect
of any subsequent interest computation period would be less than the maximum
amount permitted by applicable law to be charged by such Bank, then the amount
of interest payable for its account in respect of such subsequent interest
computation period shall be automatically increased to such maximum permissible
amount; PROVIDED, HOWEVER, that at no time shall the aggregate amount by which
interest paid for the account of such Bank has been increased pursuant to this
Section 10.12(b) exceed the aggregate amount by which interest paid for its
account has theretofore been reduced pursuant to Section 10.12(a) hereof.
10.13. COSTS; EXPENSES; INDEMNITIES.
(a) The Borrowers jointly and severally agree to pay on demand all
costs and expenses of the Agent and, with respect to clause (iii) hereof, BofA
as Co-Agent in connection with the preparation, negotiation, execution,
delivery, administration, modification and amendment of this Agreement, each of
the other Ancillary Agreements and the other documents to be delivered hereunder
and thereunder, including, without limitation, (i) the reasonable fees and
out-of-pocket expenses of counsel to the Agent, with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement and the Ancillary Agreements, (ii) syndication, appraisal and
environmental assessment, audit and other processionals' (which professionals
may be employees of the Agent) costs and expenses, (iii) Borrowing Base audit
costs and expenses, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel and the allocated cost of in-house counsel
incurred in connection therewith, and (iv) all costs and expenses of the Banks
(including, without limitation, reasonable counsel fees, disbursements and
expenses and the allocated costs of in-house counsel), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Ancillary Agreements and the other documents to be delivered
hereunder and thereunder.
(b) The Borrowers jointly and severally agree to indemnify and hold
harmless the Agent, the Co-Agents and each Bank and their respective Affiliates,
directors, officers, employees, agents and advisors from and against any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel,
including those incurred upon any appeal and the allocated costs of in-house
counsel) which may be instituted or asserted against or incurred by the Agent,
any Co-Agent or such Bank as a result of its having entered into this Agreement
or any of the Ancillary Agreements or having extended credit hereunder;
PROVIDED, HOWEVER, that the Borrowers shall not be liable for such
indemnification to such indemnified Person to the extent that any such suit,
action, proceeding, claim, damage, loss, liability or expense results from such
indemnified Person's gross negligence or willful misconduct.
(c) If any Bank receives any payment of any principal of, or is subject
to a conversion of, any Eurodollar Rate Loan other than on the last day of an
Interest Period relating to such Loan, as a result of any payment or conversion
made by the Borrowers or acceleration of the maturity of the Notes pursuant to
Section 8.01 or for any other reason, the Borrowers shall, upon demand by such
Bank (with a copy of such demand to the Agent), pay to the Agent for the account
of such Bank all amounts required to compensate such Bank for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment or conversion, including, without limitation, any loss (including,
without limitation, loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Bank to fund or maintain such Loan.
10.14. CONFIRMATION OF COLLATERAL DOCUMENTS. Each of the Borrowers
hereby ratifies and confirms each of the Collateral Documents and the pledges
and security interests created thereby and acknowledges that the Collateral
Documents and the pledges and security interest created thereby secure the
Obligations of the Borrowers and the Agreement, as amended and restated hereby.
ARTICLE XI
TRANSITIONAL ARRANGEMENTS
11.01. EXISTING CREDIT AGREEMENT SUPERSEDED. This
- ------------------------------------ Agreement shall supersede the Existing
Credit Agreement in its entirety, except as provided in this Article XI. On the
Closing Date, the rights and obligations of the parties under the Existing
Credit Agreement and the "Notes" as defined in the Existing Credit Agreement
shall be subsumed within and be governed by this Agreement and the Notes,
PROVIDED, HOWEVER,that -------- ------- each of the "Loans" (as defined in the
Existing Credit Agreement) advanced by the Banks and outstanding under the
Existing Credit Agreement on the Closing Date shall, for purposes of this
Agreement, be Loans, and shall continue to bear interest at the Base Rate or if
such Loans are Eurodollar Rate Loans, at the then applicable Eurodollar Rate for
the remainder of the then current Interest Period; and PROVIDED, FURTHER, that
- -------- ------- each "Credit Instrument" (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement on the Closing Date
shall, for purposes of this Agreement, be a Credit Instrument. Interest with
respect to Loans outstanding under the Existing Credit Agreement on the Closing
Date shall be paid at the times provided herein for Base Rate Loans and
Eurodollar Loans.
11.02. RETURN AND CANCELLATION OF EXISTING NOTES. Upon
- ----------------------------------------- the Banks' receipt of their Revolving
Credit Notes hereunder on the Closing Date, the Banks will promptly return to
the Borrowers, marked "Cancelled", the "Revolving Credit Notes" of the Borrowers
as defined in, and held by the Banks pursuant to, the Existing Credit Agreement.
Nothing herein shall be deemed to be an acknowledgment by the Banks that the
obligations evidenced by such notes have been paid.
11.03. FEES UNDER EXISTING CREDIT AGREEMENT. All
- ------------------------------------ commitment and other fees and expenses
owing or accruing under or in respect of the Existing Credit Agreement shall be
calculated as of the Closing Date and paid by the Borrowers to the Agent for the
accounts of the Agent and/or the Banks as provided in the Existing Credit
Agreement at the times set forth therein as if such Existing Credit Agreement
were still in effect.
IN WITNESS WHEREOF, this Agreement has been duly executed as an
Agreement under seal as of the day and year first above written.
TOSCO CORPORATION
By:
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
BAYWAY REFINING COMPANY
By:
Title: Vice President and
Secretary
TOSCO EUROPE LIMITED
By:
Title: Vice President and
Secretary
THE FIRST NATIONAL BANK OF BOSTON,
individually, as FMCP L/C Bank and
as Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Co-Agent
By:
Title:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION),
individually and as co-Agent
By:
Title:
INTERNATIONAL NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
Title:
THE FUJI BANK, LIMITED
By:
Title:
ARAB BANKING CORPORATION
By:
Title:
NATIONAL CITY BANK
By:
Title:
BANK HAPOALIM B.M.
By:
Title:
By:
Title:
UNITED JERSEY BANK
By:
Title:
THE YASUDA TRUST AND BANKING CO.,
LTD.
By:
Title:
By:
Title:
THE SUMITOMO BANK, LIMITED
By:
Title:
THE DAI-ICHI KANGYO BANKS, LTD.
By:
Title:
THE SANWA BANK LIMITED
By:
Title: Dominic J. Sorresso,
Vice President
SEATTLE-FIRST NATIONAL BANK
By:
Title:
UNION BANK
By:
Title:
MIDATLANTIC BANK, N.A.
By:
Title:
NATIONAL WESTMINISTER BANK PLC NEW
YORK BRANCH
By:
Title:
NATIONAL WESTMINISTER BANK PLC
NASSAU BRANCH
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
THE SAKURA BANK, LTD.
By:
Title: ????
Senior Vice President
& Manager
PNC BANK, NATIONAL ASSOCIATION
By:
Title:
BANCA DI ROMA
By:
Title:
By:
Title:
EXHIBIT 11
TOSCO CORPORATION AND SUBSIDIARIES
COMPUTATION OF PER SHARE DATA
THOUSANDS OF DOLLARS EXCEPT PER SHARE DATA
YEAR ENDED DECEMBER 31,
1995 1994 1993
Net income $77,058 $83,843 $ 80,579
Preferred stock dividends (6,293) (10,063)
NET INCOME ATTRIBUTABLE TO
COMMON SHAREHOLDERS FOR
PRIMARY INCOME PER SHARE
COMPUTATIONS 77,058 77,550 70,516
Addback of dividends on
preferred stock for assumed
conversion 6,293 10,063
NET INCOME ATTRIBUTABLE TO
COMMON SHAREHOLDERS FOR FULLY
DILUTED EARNINGS PER SHARE
COMPUTATIONS $77,058 $83,843 $80,579
Weighted average number of
shares outstanding during the
period 37,060 33,859 29,522
Stock option equivalents 421 355 157
SHARES USED FOR COMPUTATION OF
PRIMARY EARNINGS PER SHARE 37,481 34,214 29,679
Additional stock option 257 170
equivalents
Weighted average potentially
dilutive securities for the
assumed conversion of
preferred stock (a) 3,194 4,792
SHARES AND EQUIVALENTS USED
FOR COMPUTATION OF FULLY
DILUTED EARNINGS PER SHARE 37,738 37,408 34,641
EARNINGS PER SHARE:
PRIMARY $ 2.06 $ 2.27 $ 2.38
FULLY DILUTED $ 2.04 $ 2.24 $ 2.33
(a) In August 1994, Tosco called for the redemption on September 26, 1994
(the Redemption Date) of its shares of $4.375 Series F Cumulative
Convertible Preferred Stock (Series F Stock). Of the 2,300,000 shares
of Series F Stock outstanding, 2,296,644 shares were converted to
shares of Common Stock and 3,356 were redeemed.
Exhibit 21
Subsidiaries (all Delaware corporations
except where otherwise indicated)
AZL Resources, Inc. (Arizona)
Arizona-Florida Land & Cattle Company (Florida)
AZCO Capital Corp. N.V. (Netherlands Antilles)
AZCO Properties, Inc. (Colorado)
AZL Engineering, Inc. (Arizona)
Breckenridge Nordic Village Corporation (Colorado)
Diablo Service Corporation (California)
International Energy Insurance Limited (Bermuda)
Seminole Fertilizer Corporation
Ridgewood Chemical Corporation
T Northwest Properties I, Inc.
T Northwest Properties II, Inc.
The Loil Group Limited (Bermuda)
The Oil Shale Corporation
Tosco (C-TI), Inc.
Tosco (C-TLP), Inc.
Tosco Capital Corp.
Tosco Corporation
Tosco Europe Limited (England and Wales)
Tosco International Finance N.V. (Netherlands Antilles)
Tosco Marketing, Inc.
Tosco Northwest, Inc.
Avon Marine Corp.
Riverhead Marine Corp.
Tosco Processing & Marketing, Inc.
Bayway Refining Company
Tosco Pipeline Company
Tosco Refining Company, Inc.
Tosco Trading, Transportation and Supply, Inc.
Tosco (U.K.) Ltd.
Toscopetro Corporation
EXHIBIT 23
We consent to the incorporation on Form S-3 (File No. 33-59423) and Form
S-8 (File No. 33-39303, File No. 33-51243, and File No. 33-54153) of our report
dated January 25, 1996, except as to the information in Note 16, for which the
date is February 16, 1996, on our audits of the consolidated financial
statements and the financial statement schedule of Tosco Corporation and
subsidiaries as of December 31, 1995 and 1994, and for the years ended December
31, 1995, 1994 and 1993, which report is included in this Annual Report on Form
10-K.
COOPERS & LYBRAND L.L.P.
Oakland, CA
March 19, 1996
To the Board of Directors
Tosco Corporation
Our report on the consolidated financial statements of Tosco Corporation and
subsidiaries is included on page F-2 of this Form 10-K. In connection with our
audits of such financial statements, we have also audited Exhibit 99 presented
on page F-30 of this Form 10-K.
In our opinion, Exhibit 99 referred to above, when considered in relation to
the basic financial statements taken as a whole, presents fairly, in all
material respects, the information required to be included herein.
COOPERS & LYBRAND L.L.P.
Oakland, California
January 25, 1996, except as to the information in Note 16, for which the date
is February 16,1996.
EXHIBIT 99
Condensed Consolidating Financial Information
The following tables set forth the condensed consolidating financial statements
as of December 31, 1995, 1994 and 1993 for the years then ended of Tosco,
Bayway and Tosco's other subsidiaries. They are provided to meet the reporting
and informational requirements of Bayway as a guarantor of the 8 1/4% First
Mortgage Bonds (Bayway Exchange Bonds).
Condensed Consolidating Balance Sheet
(Thousands of Dollars)
December 31, 1995
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Eliminations Consolidated
Assets
Cash and cash equivalents $ 10,188 $ 8,200 $ 760 $ 19,148
Short-term investments and deposits 1,981 - 27,144 29,125
Other current assets(a) 227,563 531,888 73,717 833,168
Total current assets 239,732 540,088 101,621 881,441
Other assets 802,873 246,103 77,120 ($ 4,366) 1,121,730
Investment in Bayway and other subsidiaries 259,982 - - ( 259,982) -
Intercompany receivables 226,086 - - ( 226,086) -
Total assets $1,528,673 $ 786,191 $ 178,741 ($ 490,434) $2,003,171
Liabilities and shareholders' equity
Current liabilities $ 241,166 $ 381,323 $ 47,802 - $ 670,291
Revolver and long-term debt 574,945 45,000 4,091 - 624,036
Other liabilities 85,452 648 - ($ 4,366) 81,734
Intercompany liabilities - 129,591 96,495 ( 226,086) -
Shareholders' equity 627,110 229,629 30,353 ( 259,982) 627,110
Total liabilities and shareholders' equity $1,528,673 $ 786,191 $ 178,741 ($ 490,434) $2,003,171
Condensed Consolidating Statement of Income
(Thousands of Dollars)
For the Year Ended December 31, 1995
Sales $ 3,220,625 $ 3,487,844 $652,179 ($ 76,597) $7,284,051
Cost of sales 3,052,442 3,374,421 652,088 ( 74,450) 7,004,501
Operating contribution 168,183 113,423 91 ( 2,147) 279,550
Selling, general, and administrative
expense (b) 72,790 28,000 ( 2,785) ( 2,147) 95,858
Interest expense, net 35,662 21,709 ( 1,118) - 56,253
Income before provision for income taxes 59,731 63,714 3,994 - 127,439
Provision for income taxes 23,637 25,166 1,578 - 50,381
Net income $ 36,094 $ 38,548 $ 2,416 $ - $ 77,058
(a) The lower of LIFO cost or market value of inventories is measured on a
consolidated basis.
(b) The condensed consolidating statement of income does not reflect an allocation of a portion of aggregate corporate
selling, general and administrative expense of $18,871,000 to Bayway and the Minor Subsidiaries. Tosco may
allocate such costs in the future.
Condensed Consolidating Financial Information (continued)
Condensed Consolidating Statement of Cash Flows
(Thousands of Dollars)
For the Year Ended December 31, 1995
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Eliminations Consolidated
Cash flows from operating activities:
Net income $ 36,094 $ 38,548 $ 2,416 - $ 77,058
Depreciation,amortization, and deferred taxes 118,843 27,265 2,446 148,554
Changes in working capital 108,873 120,369 ( 48,850) 180,392
Other 359 648 130 1,137
Net cash provided by (used in)
operating activities 264,169 186,830 (43,858) - 407,141
Cash flows from investing activities:
Purchase of property, plant and equipment ( 138,877) ( 25,028) ( 38,781) - (202,686)
Increase in deferred turnarounds, charges
and other assets ( 96,657) ( 2,182) - - ( 98,839)
Intercompany transfers ( 67,978) ( 19,416) 87,394 - -
Intercompany dividend (296) 296 - - -
Transfers to discontinued operations ( 1,270) - - - ( 1,270)
Net change in short-term investments and deposits (511) 8,167 ( 5,952) - 1,704
Net cash provided by (used in) investing activities( 305,589) ( 38,163) 42,661 - ( 301,091)
Cash flows from financing activities:
Proceeds from bond offering 125,000 - - - 125,000
Repayments under short-term borrowings
and revolver, net ( 49,500) ( 160,000) - (209,500)
Dividends on Common Stock ( 23,719) - - - ( 23,719)
Other ( 1,705) - (771) - ( 2,476)
Net cash provided by (used in) financing activities 50,076 ( 160,000) ( 771) - (110,695)
Net increase (decrease) in cash and cash
equivalents 8,656 ( 11,333) (1,968) - ( 4,645)
Cash and cash equivalents at beginning of period 1,532 19,533 2,728 - 23,793
Cash and cash equivalents
at end of period $ 10,188 $ 8,200 $ 760 - $ 19,148
Condensed Consolidating Financial Information (continued)
Condensed Consolidating Balance Sheet
(Thousands of Dollars)
December 31, 1994
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Eliminations Consolidated
Assets
Cash and cash equivalents $ 1,524 $ 19,541 $ 2,728 $ 23,793
Short-term investments and deposits 1,470 8,167 21,192 30,829
Other current assets(a) 352,459 413,536 37,497 803,492
Total current assets 355,453 441,244 61,417 858,114
Other assets 656,756 246,158 40,544 ($ 4,366) 939,092
Investment in Bayway and other subsidiaries 218,722 ( 218,722)
Intercompany receivables 158,108 ( 158,108)
Total assets $1,389,039 $ 687,402 $ 101,961 ($ 381,196) $1,797,206
Liabilities and shareholders' equity
Current liabilities $ 277,917 $ 142,610 $ 59,606 $ 480,133
Revolver and long-term debt 477,938 205,000 4,491 687,429
Other liabilities 57,720 826 ($ 4,366) 54,180
Intercompany liabilities 149,007 9,101 ( 158,108)
Shareholders' equity 575,464 190,785 27,937 ( 218,722) 575,464
Total liabilities and shareholders' equity $1,389,039 $ 687,402 $ 101,961 ($ 381,196) $1,797,206
Condensed Consolidating Statement of Income
(Thousands of Dollars)
For the Year Ended December 31, 1994
Sales $ 2,770,402 $ 3,412,498 $353,783 ($ 170,926) $6,365,757
Cost of sales 2,581,262 3,331,638 351,668 ( 170,926) 6,093,642
Operating contribution 189,140 80,860 2,115 272,115
Selling, general, and administrative
expense (b) 56,737 28,453 ( 1,067) 84,123
Interest expense, net 33,736 20,493 ( 86) 54,143
Income before provision for income taxes 98,667 31,914 3,268 133,849
Provision for income taxes 36,109 12,606 1,291 50,006
Net income $ 62,558 $ 19,308 $ 1,977 $ - $ 83,843
(a) The lower of LIFO cost or market value of inventories is measured on a
consolidated basis.
(b) The condensed consolidating statement of income does not reflect an allocation of a portion of aggregate corporate
selling, general and administrative expense of $18,602,000 to Bayway and the Minor Subsidiaries. Tosco may
allocate such costs in the future.
Condensed Consolidating Financial Information (continued)
Condensed Consolidating Statement of Cash Flows
(Thousands of Dollars)
For the Year Ended December 31, 1994
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Consolidated
Cash flows from operating activities:
Net income $ 62,558 $ 19,308 $ 1,977 $ 83,843
Depreciation and amortization 68,203 15,585 1,073 84,861
Deferred income taxes 34,734 34,734
Inventory valuation recovery ( 17,651) ( 17,651)
Environmental cost accrual 6,000 6,000
Changes in working capital (27,119) ( 65,857) 20,999 ( 71,977)
Other 4,439 1,271 5,710
Net cash provided by (used in)
operating activities 148,815 ( 48,615) 25,320 125,520
Cash flows from investing activities:
Purchase of property, plant and equipment ( 95,347) ( 44,218) ( 20,554) ( 160,119)
Increase in deferred turnarounds, charges
and other assets ( 46,411) ( 45,008) ( 91,419)
Transfers to discontinued operations ( 9,207) ( 9,207)
Intercompany transfers ( 999) 90 909
Proceeds from termination of Continental
Tosco Limited Partnership 9,519 9,519
Inter-company dividend 7,167 ( 7,167)
Net change in short-term investments and deposits 3,967 ( 1,553) ( 3,208) ( 794)
Net cash used in investing activities ( 140,830) ( 90,689) ( 20,501) ( 252,020)
Cash flows from financing activities:
Short-term borrowings and borrowings (repayments)
under revolver, net ( 5,500) 133,000 127,500
Principal payments under debt agreements ( 4) ( 2,271) ( 2,275)
Dividends on Preferred and Common Stock ( 27,767) ( 27,767)
Other ( 2,256) ( 2,256)
Net cash provided by (used in) financing activities( 35,527) 133,000 ( 2,271) 95,202
Net increase (decrease) in cash and cash
equivalents ( 27,542) ( 6,304) 2,548 ( 31,298)
Cash and cash equivalents at beginning of period 29,066 25,845 180 55,091
Cash and cash equivalents
at end of period $ 1,524 $ 19,541 $ 2,728 $ 23,793
Condensed Consolidating Financial Information (continued)
Condensed Consolidating Balance Sheet
(Thousands of Dollars)
December 31, 1993
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Eliminations Consolidated
Assets
Cash and cash equivalents $ 29,066 $ 25,845 $ 180 $ 55,091
Short-term investments and deposits 5,437 6,614 17,984 30,035
Other current assets 258,121 335,316 118 593,555
Total current assets 292,624 367,775 18,282 678,681
Other assets 615,387 172,517 30,640 ($ 4,366) 814,178
Investment in Bayway and other
subsidiaries 204,604 (204,604)
Intercompany receivables 162,865 1,083 4,67 3 ( 168,621)
Total assets $1,275,480 $ 541,375 $ 53,595 ($377,591) $1,492,859
Liabilities and shareholders' equity
Current liabilities $ 161,904 $ 147,898 $ 1,228 $ 311,030
Revolver and long-term debt 524,931 72,000 6,375 603,306
Other liabilities 61,245 ($ 4,366) 56,879
Intercompany liabilities 5,756 150,000 12,865 ( 168,621)
Shareholders' equity 521,644 171,477 33,127 ( 204,604) 521,644
Total liabilities and
shareholders' equity $1,275,480 $ 541,375 $ 53,595 ($ 377,591) $1,492,859
Condensed Consolidating Statement of Income
(Thousands of Dollars)
For the Year Ended December 31, 1993
Sales $ 1,783,387 $ 1,775,830 $ $ $ 3,559,217
Cost of sales 1,600,937 1,724,206 3,325,143
Operating contribution 182,450 51,624 234,074
Selling, general, and
administrative expenses <F1> 43,015 15,226 ( 67) 58,174
Interest expense, net 32,612 12,011 ( 477) 44,146
Income before provision
for income taxes 106,823 24,387 544 131,754
Provision for income taxes 40,950 10,007 218 51,175
Net income $ 65,873 $ 14,380 $ 326 $ $ 80,579
<FN>
<F1> The condensed consolidating statement of income which includes the
operations of Bayway since April 8, 1993, does not reflect an allocation of a
portion of aggregate corporate selling, general and administrative expenses of
$25,557,000 to Bayway and the Minor Subsidiaries.
</FN>
Tosco may allocate such costs in the future.
Condensed Consolidating Financial Information (continued)
Condensed Consolidating Statement of Cash Flows
Thousands of Dollars)
For the Year Ended December 31, 1993
Tosco Bayway Minor Subs
(Issuer) (Guarantor) (Non-guarantors) Eliminations Consolidated
Cash flows from operating activities:
Net income $ 65,873 $14,380 $ 326 $ 80,579
Depreciation and amortization 57,023 7,668 400 65,091
Deferred income taxes (10,189) (10,189)
Inventory valuation writedown 17,651 17,651
Changes in working capital ( 11,376) (31,935) ( 293) ( 43,604)
Other 20,644 (17,500) 3,144
Net cash provided by (used in)
operating activities 121,975 (9,736) 433 112,672
Cash flows from investing activities:
Purchase of property, plant and equipment, net,
and acquired inventories (225,361) (326,147) ( 551,508)
Increase in deferred turnarounds, charges
and other assets ( 22,748) ( 907) ( 23,655)
Investment in Bayway Refinery (147,675) 147,675
Intercompany transfers (199,068) 149,574 49,494
Net proceeds from sale of
discontinued operations 91,217 91,217
Transfers from discontinued operations 41,791 41,791
Proceeds from (investing in)Continental
Tosco Limited Partnership 4,880 4,880
Net change in short-term investments
and deposits 12,927 ( 6,614) ( 4,132) 2,181
Net cash provided by (used in)
investing activities ( 448,917) ( 36,419) 50,242 (435,094)
Cash flows from financing activities:
Proceeds from Bayway Exchange Bonds 150,000 150,000
Borrowings under revolver, net 75,000 72,000 147,000
Early retirement of debt (50,000) ( 50,000)
Principal payments under debt agreements ( 24) 771) ( 795)
Issuance of Common Stock, net of expenses 88,418 88,418
Dividends on Preferred and Common Stock ( 28,056) ( 28,056)
Other ( 727) ( 727)
Net cash provided by (used in)
financing activities 284,611 72,000 ( 50,771) 305,840
Net increase (decrease) in cash and cash
equivalents ( 42,331) 25,845 (96) ( 16,582)
Cash and cash equivalents at
beginning of period 71,397 276 71,673
Cash and cash equivalents at end of period $29,066 $25,845 $ 180 $ $ 55,091
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Stamford, and the State of Connecticut, on March 14, 1996.
TOSCO CORPORATION
(Registrant)
By /s/ THOMAS D. O'MALLEY
(Thomas D. O'Malley)
Chairman of the Board of Directors,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title
/s/ THOMAS D. O'MALLEY Chairman of the Board of March 14, 1996
(Thomas D. O'Malley) Directors, President and
Chief Executive Officer
/s/ JEFFERSON F. ALLEN Principal Financial Officer, March 14,1996
(Jefferson F. Allen) Executive Vice President
and Director
/s/ ROBERT I. SANTO Principal Accounting Officer March 14, 1996
(Robert I. Santo)
/s/ Joseph B. Carr Director March 14, 1996
(Joseph B. Carr)
/s Patrick M. deBarros Director March 14, 1996
Patrick M. deBarros
/s/ HOUSTON I. FLOURNOY Director March 14, 1996
(Houston I. Flournoy)
/s/ CLARENCE G. FRAME Director March 14, 1996
(Clarence G. Frame)
/s/ EDMUND A. HAJIM Director March 14, 1996
(Edmund A. Hajim)
/s/ JOSEPH P. INGRASSIA Director March 14, 1996
(Joseph P. Ingrassia)
/s/ CHARLES J. LUELLEN Director March 14, 1996
(Charles J. Luellen)