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EXHIBIT 4.6
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$500,000,000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
TESORO PETROLEUM CORPORATION,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
LEHMAN BROTHERS INC.,
AS ARRANGER,
LEHMAN COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT,
PARIBAS
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS CO-ADMINISTRATIVE AGENTS
THE FIRST NATIONAL BANK OF CHICAGO,
AS GENERAL ADMINISTRATIVE AGENT
PARIBAS,
AS COLLATERAL AGENT
AND
THE BANK OF NOVA SCOTIA,
AS DOCUMENTATION AGENT
DATED AS OF JULY 2, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS ................................................... 2
1.1 Defined Terms .................................................... 2
1.2 Other Definitional Provisions .................................... 27
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ............................... 27
2.1 Term Loan Commitments ............................................ 27
2.2 Procedure for Term Loan Borrowing ................................ 28
2.3 Repayment of Term Loans .......................................... 29
2.4 Revolving Credit Commitments ..................................... 30
2.5 Procedure for Revolving Credit Borrowing ......................... 31
2.6 Repayment of Loans; Evidence of Debt ............................. 31
2.7 Commitment Fees, etc ............................................. 32
2.8 Termination or Reduction of Commitments .......................... 33
2.9 Optional Prepayments ............................................. 33
2.10 Mandatory and Special Prepayments and Commitment Reductions ..... 33
2.11 Conversion and Continuation Options ............................. 34
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches ....... 35
2.13 Interest Rates and Payment Dates ................................ 35
2.14 Computation of Interest and Fees ................................ 36
2.15 Inability to Determine Interest Rate ............................ 36
2.16 Pro Rata Treatment and Payments ................................. 37
2.17 Requirements of Law ............................................. 39
2.18 Taxes ........................................................... 40
2.19 Indemnity ....................................................... 42
2.20 Illegality ...................................................... 42
2.21 Change of Lending Office ........................................ 43
SECTION 3. LETTERS OF CREDIT ............................................. 43
3.1 L/C Commitment ................................................... 43
3.2 Procedure for Issuance of Letter of Credit ....................... 44
3.3 Fees and Other Charges ........................................... 44
3.4 L/C Participations ............................................... 45
3.5 Reimbursement Obligation of the Borrower ......................... 46
3.6 Obligations Absolute ............................................. 46
3.7 Letter of Credit Payments ........................................ 47
3.8 Applications ..................................................... 47
3.9 Indemnification of Issuing Banks ................................. 47
SECTION 4. REPRESENTATIONS AND WARRANTIES ................................ 47
4.1 Financial Condition .............................................. 47
4.2 No Change ........................................................ 49
4.3 Corporate Existence; Compliance with Law ......................... 49
4.4 Corporate Power; Authorization; Enforceable Obligations .......... 50
4.5 No Legal Bar ..................................................... 50
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TABLE OF CONTENTS
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4.6 No Material Litigation ........................................... 50
4.7 No Default ....................................................... 51
4.8 Ownership of Property; Liens ..................................... 51
4.9 Intellectual Property ............................................ 51
4.10 Taxes ........................................................... 51
4.11 Federal Regulations ............................................. 51
4.12 Labor Matters ................................................... 51
4.13 ERISA ........................................................... 52
4.14 Investment Company Act; Other Regulations ....................... 52
4.15 Subsidiaries .................................................... 52
4.16 Use of Proceeds ................................................. 52
4.17 Environmental Matters ........................................... 52
4.18 Accuracy of Information, etc .................................... 54
4.19 Security Documents .............................................. 54
4.20 Solvency ........................................................ 55
4.21 Senior Indebtedness ............................................. 55
4.22 Year 2000 Matters ............................................... 55
4.23 Regulation H .................................................... 56
4.24 Excluded Subsidiaries ...................................... 56
SECTION 5. CONDITIONS PRECEDENT .......................................... 56
5.1 Conditions to Initial Extension of Credit ........................ 56
5.2 Conditions to Each Extension of Credit ........................... 60
SECTION 6. AFFIRMATIVE COVENANTS ......................................... 61
6.1 Financial Statements ............................................. 61
6.2 Certificates; Other Information .................................. 61
6.3 Payment of Obligations ........................................... 63
6.4 Conduct of Business and Maintenance of Existence, etc.
Except with respect to Excluded Subsidiaries: .............. 63
6.5 Maintenance of Property; Insurance ............................... 63
6.6 Inspection of Property; Books and Records; Discussions ........... 63
6.7 Notices .......................................................... 63
6.8 Environmental Laws ............................................... 64
6.9 Additional Collateral, etc ....................................... 65
6.10 Further Assurances .............................................. 67
6.11 Satisfaction of Obligations Related to Washington
Escrow Release ............................................. 67
SECTION 7. NEGATIVE COVENANTS ............................................ 70
7.1 Financial Condition Covenants .................................... 70
7.2 Limitation on Indebtedness ....................................... 71
7.3 Limitation on Liens .............................................. 72
7.4 Limitation on Fundamental Changes ................................ 75
7.5 Limitation on Disposition of Property ............................ 76
7.6 Limitation on Restricted Payments ................................ 77
7.7 Limitation on Investments ........................................ 77
7.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc ........................................... 79
7.9 Limitation on Transactions with Affiliates ....................... 79
7.10 Limitation on Sales and Leasebacks .............................. 80
7.11 Limitation on Changes in Fiscal Periods ......................... 80
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TABLE OF CONTENTS
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7.12 Limitation on Negative Pledge Clauses ........................... 80
7.13 Limitation on Restrictions on Subsidiary Distributions .......... 80
7.14 Limitation on Lines of Business ................................. 80
7.15 Limitation on Amendments to Acquisition Documents ............... 81
SECTION 8. EVENTS OF DEFAULT ............................................. 81
SECTION 9. THE AGENTS .................................................... 84
9.1 Appointment ...................................................... 84
9.2 Delegation of Duties ............................................. 85
9.3 Exculpatory Provisions ........................................... 85
9.4 Reliance by Agents ............................................... 85
9.5 Notice of Default ................................................ 85
9.6 Non-Reliance on Agents and Other Lenders ......................... 86
9.7 Indemnification .................................................. 86
9.8 Agent in Its Individual Capacity ................................. 87
9.9 Successor Agents ................................................. 87
9.10 Authorization of Collateral Agent ............................... 88
9.11 The Arranger, the Co-Administrative Agents and
Documentation Agent ....................................... 88
SECTION 10. MISCELLANEOUS ................................................ 88
10.1 Amendments and Waivers .......................................... 88
10.2 Notices ......................................................... 89
10.3 No Waiver; Cumulative Remedies .................................. 90
10.4 Survival of Representations and Warranties ...................... 90
10.5 Payment of Expenses ............................................. 91
10.6 Successors and Assigns; Participations and Assignments .......... 91
10.7 Adjustments; Set-off ............................................ 94
10.8 Counterparts .................................................... 95
10.9 Severability .................................................... 95
10.10 Integration ..................................................... 95
10.11 GOVERNING LAW ................................................... 95
10.12 Submission To Jurisdiction; Waivers ............................. 95
10.13 Acknowledgements ................................................ 96
10.14 Confidentiality ................................................. 96
10.15 Enforceability; Usury ........................................... 97
10.16 Accounting Changes .............................................. 98
10.17 WAIVERS OF JURY TRIAL ........................................... 98
10.18 Purchase of Loans Under Existing Credit Agreement; Reallocation . 98
10.19 Notice of Remedies Pursuant to Alaskan Law ...................... 100
10.20 Delivery of Lender Addenda ...................................... 100
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ANNEXES:
A Pricing Grids for Revolving Credit Loans, Tranche A Term Loans and
Tranche B Term Loans
SCHEDULES:
1.1A Initial Mortgaged Properties
1.1B Washington Mortgaged Property
1.1C Mortgaged Oil and Gas Properties
1.1D Owned Marine Terminals
3.1 Existing Letters of Credit
4.4 Consents, Authorizations, Filings and Notices
4.9 Intellectual Property Claim
4.13 Certain ERISA Events
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
4.19(c) Oil and Gas Mortgage Filing Jurisdictions
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage
D-2 Form of Oil and Gas Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Fulbright & Jaworski L.L.P.
F-2 Form of Legal Opinion of James C. Reed, Jr.
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Consent and Confirmation
K Form of Lender Addendum
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 2,
1998, among TESORO PETROLEUM CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), LEHMAN BROTHERS INC.
("LBI"), as advisor and arranger (in such capacity, the "Arranger"), LEHMAN
COMMERCIAL PAPER INC. ("LCPI"), as syndication agent (in such capacity, the
"Syndication Agent"), PARIBAS and THE FIRST NATIONAL BANK OF CHICAGO, as
co-administrative agents (in such capacity, the "Co-Administrative Agents"), THE
FIRST NATIONAL BANK OF CHICAGO, as general administrative agent (in such
capacity, the "General Administrative Agent"), PARIBAS, as collateral agent (in
such capacity, the "Collateral Agent"), and THE BANK OF NOVA SCOTIA, as
documentation agent (in such capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, on May 29, 1998, the Borrower acquired (the "Hawaii
Acquisition") all of the capital stock of BHP Petroleum Americas Refining Inc.,
a Hawaii corporation, and BHP Petroleum South Pacific Inc., a California
corporation (the "Acquired Hawaii Companies"), from Hawaii Energy Resources
Inc., a Hawaii corporation, and BHP Petroleum Pacific Islands Inc., a Hawaii
corporation (the "Hawaii Sellers"), respectively;
WHEREAS, the Borrower has entered into the Second Amended and
Restated Credit Agreement, dated as of May 29, 1998 (the "Existing Credit
Agreement"), with the lenders parties thereto, LCPI, as administrative agent,
and the arranger and other agents parties thereto, pursuant to which the
Borrower financed the Hawaii Acquisition, refinanced certain existing
indebtedness, paid certain fees and expenses relating to such transactions and
provided for working capital needs and general corporate needs (including
capital expenditures) of the Borrower and its Subsidiaries;
WHEREAS, the Borrower also has agreed to acquire (the "Washington
Acquisition"; together with the Hawaii Acquisition, the "Acquisitions") all of
the Capital Stock of Shell Anacortes Refining Company, a Delaware corporation
(the "Acquired Washington Company"), from Shell Refining Holding Company, a
Delaware corporation (the "Washington Seller"), pursuant to a Stock Purchase
Agreement, dated as of May 1, 1998 (including all related agreements, the
"Washington Acquisition Agreement"), between the Borrower and the Washington
Seller;
WHEREAS, the Borrower has requested the Lenders to make available
the credit facilities described in this Agreement and to amend and restate the
Existing Credit Agreement in order to finance the Washington Acquisition, the
payment of certain fees and expenses relating to such transactions and the
repayment of certain existing indebtedness (including the Existing Credit
Agreement); and to provide for the ongoing working capital and general corporate
needs (including capital expenditures) of the Borrower and its Subsidiaries;
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WHEREAS, the Borrower intends to consummate an offering of the
Senior Subordinated Notes and to issue common stock and mandatorily convertible
preferred stock, of which $223,125,000 shall be in the form of common stock and
mandatorily convertible preferred stock, and not more than $143,437,500 shall be
in the form of mandatorily convertible preferred stock (collectively, the
"Capital Markets Instruments") yielding gross cash proceeds of $523,125,000;
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth;
and
WHEREAS, at the time the Existing Credit Agreement was entered into,
the parties thereto contemplated that the Existing Credit Agreement would be
amended and restated as provided herein;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree that on the Closing Date
the Existing Credit Agreement is hereby amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this subsection 1.1 shall have the respective meanings set forth in this
subsection 1.1.
"Additional Tranche A Term Loan Commitment": as to any
Lender, the obligation of such Lender, if any, to make Additional
Tranche A Term Loans to the Borrower hereunder in an aggregate
principal amount not to exceed the amount set forth under the
heading "Additional Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender or, as the case may be, in Schedule 1 to the Assignment and
Acceptance pursuant to which such Lender acquired such Additional
Tranche A Term Loan Commitment. The original aggregate amount of the
Additional Tranche A Term Loan Commitments is $50,000,000.
"Additional Tranche A Term Loan Commitment Period": the
period from and including the Closing Date to and including the
earlier of (a) the date that is six months after the Closing Date
and (b) the date on which the Additional Tranche A Term Loan
Commitment is terminated in accordance with this Agreement.
"Additional Tranche A Term Loans": as defined in
subsection 2.1(a).
"Adjustment Date": as defined in the Pricing Grid.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting
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power for the election of directors (or persons performing similar
functions) of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication
Agent, the General Administrative Agent, the Collateral Agent and
the Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any
time, an amount equal to the sum of (a) the aggregate undrawn amount
of such Lender's Commitments at such time and (b) the aggregate
principal amount of such Lender's Term Loans and Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any
Lender at any time, the ratio (expressed as a percentage) of such
Lender's Aggregate Exposure at such time to the Aggregate Exposure
of all Lenders at such time.
"Agreement": this Third Amended and Restated Credit
Agreement, as amended, supplemented or otherwise modified from time
to time.
"Applicable Margin": for each Type of Loan, the rate per
annum set forth under the relevant column heading below:
Eurodollar Base Rate
Loans Loans
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Revolving Credit Loans 1.875% 0.375%
Tranche A Term Loans 1.875% 0.375%
Tranche B Term Loans 2.125% 0.625%;
provided, that on and after the date which is three months after the
Closing Date, the Applicable Margin shall be determined pursuant to
the Pricing Grid (subject to the exceptions set forth therein).
"Application": an application, in such form as the
relevant Issuing Bank may specify from time to time, requesting such
Issuing Bank to open, increase or extend a Letter of Credit.
"Asset Sale": any Disposition of Property or series of
related Dispositions of Property (excluding (i) any such Disposition
permitted by clause (a), (b), (c), (d), (f) or (j) of subsection 7.5
and (ii) any other Disposition of Property having a fair market
value at the time of such Disposition not in excess of $25,000,
provided that in no event shall the aggregate fair market value
(measured at the time of each such Disposition) of all Property the
Dispositions of which are excluded pursuant to this clause (ii)
during the term of this Agreement exceed $1,000,000).
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"Assignee": as defined in subsection 10.6(c).
"Assignment and Acceptance": as defined in subsection
10.6(c).
"Assignor": as defined in subsection 10.6(c).
"Available Additional Tranche A Term Loan Commitment":
as to any Tranche A Term Loan Lender at any time, an amount equal to
the excess, if any, of (a) such Lender's Additional Tranche A Term
Loan Commitment then in effect over (b) such Lender's Additional
Tranche A Term Loans then outstanding.
"Available Revolving Credit Commitment": as to any
Revolving Credit Lender at any time, an amount equal to the excess,
if any, of (a) such Lender's Revolving Credit Commitment then in
effect over (b) such Lender's Revolving Extensions of Credit then
outstanding.
"Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime
Rate" shall mean a rate per annum equal to the corporate base rate
of interest announced from time to time by the Reference Lender,
changing when and as said corporate base rate changes; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; and "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day),
or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Reference
Lender from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. Any change in the
Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate
of interest is based upon the Base Rate.
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"Benefitted Lender": as defined in subsection 10.7.
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrowing Date": any Business Day specified by the
Borrower as a date on which the Borrower requests the relevant
Lenders to make Loans hereunder.
"Business Day": (i) for all purposes other than as
covered by clause (ii) below, a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York or
Chicago, Illinois are authorized or required by law to close and
(ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) and which is
also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to
any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during
such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as a liability for
capital leases on a balance sheet of such Person under GAAP, and,
for the purposes of this Agreement, the amount of such obligations
at any time shall be the liability amount thereof at such time
determined in accordance with GAAP.
"Capital Markets Instruments": as defined in the
recitals hereto.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within
one year from the date of acquisition; (b) certificates of deposit,
time deposits, eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition
issued by any Lender, or by any commercial bank organized under the
laws of the United States of America or any state thereof having
combined capital and surplus of not less than $500,000,000; (c)
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commercial paper of an issuer rated at least A-2 by Standard &
Poor's Ratings Services ("S&P") or P-2 by Moody's Investors Service,
Inc. ("Moody's"), or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having
a term of not more than 30 days with respect to securities issued or
fully guaranteed or insured by the United States government; (e)
securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by
any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's; (f) securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued
by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; or (g) shares of money market mutual
or similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any
Base Rate Loan, the annual assessment rate (rounded upwards to the
higher multiple of 1/100 of 1%) in effect on such day which is
payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the
meaning of 12 C.F.R. Section 327.3(e) (or any successor provision)
to the FDIC (or any successor) for the FDIC's (or such successor's)
insuring time deposits at offices of such institution in the United
States, as estimated by the General Administrative Agent.
"C/D Reserve Percentage": for any day as applied to any
Base Rate Loan, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board, for determining the
maximum reserve requirement for a Depositary Institution (as defined
in Regulation D of the Board as in effect from time to time) in
respect of new non-personal time deposits in Dollars having a
maturity of 30 days or more.
"Closing Date": the date on which the conditions
precedent set forth in subsection 5.1 shall have been satisfied or
waived, which date is July 2, 1998.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral": all Property of the Loan Parties, now
owned or hereafter acquired, upon which a Lien is purported to be
created by any Security Document.
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"Collateral Agent": Paribas, in its capacity as
Collateral Agent under this Agreement and the Security Documents,
and any successor thereto in such capacity.
"Commitment": as to any Lender, the sum of the Tranche A
Term Loan Commitment, the Tranche B Term Loan Commitment and the
Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 0.375% per annum.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer
under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by
a Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated June 1998 and furnished to the Lenders.
"Consent and Confirmation": the Consent and
Confirmation, substantially in the form of Exhibit J, to be executed
and delivered by each Subsidiary Guarantor which is a party to the
Guarantee and Collateral Agreement on the Closing Date.
"Consolidated EBITDA": for any period, Consolidated Net
Income for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net
Income for such period, the sum of (a) income and franchise tax
expense (but excluding Bolivian taxes paid in kind), (b) interest
expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans), (c)
depreciation, depletion and amortization expense, (d) amortization
of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring
expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary
course of business), (f) any other non-cash charges, and (g) cash
not to exceed $15,000,000 and all non-cash items, in each case
related to that certain special incentive compensation award program
(the "Special Incentive Plan") which was funded as a result of the
Borrower's stock price having reached an average price per share of
$20 or higher over 20 consecutive trading days after June 30, 1997,
and before December 31, 1998, and minus, to the extent included in
the statement of such Consolidated Net Income for such period, the
sum of (a) interest income, (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated
Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income,
all as determined on a consolidated basis.
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"Consolidated Fixed Charge Coverage Ratio": for any
period, the ratio of (a) Consolidated EBITDA for such period to (b)
the sum of Consolidated Interest Expense for such period and the
aggregate amount of cash dividends actually paid by the Borrower
during such period in respect of its Capital Stock (including,
without limitation, the Mandatorily Convertible Preferred Stock).
"Consolidated Interest Expense": for any period, total
interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to bankers'
acceptance financing and net costs under Hedge Agreements (but
excluding hydrocarbon swaps or other similar agreements providing
protection against fluctuations of hydrocarbon prices) in respect of
interest rates to the extent such net costs are allocable to such
period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period; provided that for purposes of calculating Consolidated
EBITDA of the Borrower and its Subsidiaries for any period, the
Consolidated EBITDA of any Person acquired by the Borrower or its
Subsidiaries during such period shall be included on a pro forma
basis for such period (assuming the consummation of such acquisition
and the incurrence or assumption of any Indebtedness in connection
therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements
of income and stockholders' equity and of cash flows for the period
in respect of which Consolidated EBITDA is to be calculated (i) have
been previously provided to the General Administrative Agent and the
Lenders and (ii) either (A) have been reported on without a
qualification arising out of the scope of the audit by independent
certified public accountants of nationally recognized standing or
(B) have been found acceptable by the General Administrative Agent.
"Consolidated Net Income": for any period, the
consolidated net income (or loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded (a) the income (or
deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit)
of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by
the Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary
of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the
time permitted by the terms of any Contractual Obligation (other
than under any Loan
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Document) or Requirement of Law (other than fraudulent conveyance or
similar laws) applicable to such Subsidiary.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP, not including any letters of credit issued in
the ordinary course of business and outstanding on such date.
"Continuing Directors": the directors of the Borrower on
the Closing Date, after giving effect to the Hawaii Acquisition and
the other transactions contemplated hereby, and each other director,
if, in each case, such other director's nomination for election to
the board of directors of the Borrower is recommended by at least
66-2/3% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or
by which it or any of its Property is bound.
"Default": any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse
of time, or both, has been satisfied.
"Disposition": with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United
States of America.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including
common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, approvals, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without duplication) of
the maximum rates (expressed as a
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decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per
annum determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first
day of such Interest Period appearing on Page 3750 of the Dow Jones
Markets screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Dow Jones Markets
screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such
other comparable publicly available service for displaying
eurodollar rates as may be selected by the General Administrative
Agent or, in the absence of such availability, by reference to the
rate at which the General Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised
therein.
"Eurodollar Loans": Loans for which the applicable rate
of interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to
Eurodollar Loans the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the
same day).
"Event of Default": any of the events specified in
Section 8, provided that any requirement for the giving of notice,
the lapse of time, or both, as applicable, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower,
the excess, if any, of (a) Consolidated EBITDA for such fiscal year
minus (b) the sum, without duplication, of (i) the aggregate amount
of all regularly scheduled principal payments of (x)
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Funded Debt (including, without limitation, the Term Loans) and
(y) other Indebtedness of the type described in clause (b) of the
definition thereof not to exceed $50,000,000 in aggregate principal
amount, in each case of the Borrower and its Subsidiaries made
during such fiscal year (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (ii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the
principal amount of Indebtedness incurred in connection with such
expenditures and any such expenditures financed with the proceeds of
any Reinvestment Deferred Amount), (iii) the aggregate amount
actually paid by the Borrower and its Subsidiaries in cash during
such fiscal year on account of income and franchise taxes, (iv)
transaction costs, to the extent excluded from Consolidated EBITDA,
related to the Acquisitions, the issuance of the Capital Markets
Instruments and the financing contemplated by this Agreement, (v)
cash interest expense during such fiscal year, (vi) the aggregate
amount of cash dividends actually paid by the Borrower during such
fiscal year, as permitted by subsection 7.6, in respect of the
Borrower's common stock and the Mandatorily Convertible Preferred
Stock and (vii) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such period on account of the
costs and expenses associated with shutting down a refinery or a
portion thereof for maintenance and repair in the ordinary course of
business, to the extent that such costs and expenses (A) have been
added to Consolidated Net Income as a non-cash charge in determining
Consolidated EBITDA for a prior period or (B) will be amortized as
non-cash charges in subsequent periods and added to Consolidated Net
Income in determining Consolidated EBITDA for such subsequent
periods.
"Excess Cash Flow Application Date": as defined in
subsection 2.10(c).
"Excluded Foreign Subsidiary": any Foreign Subsidiary in
respect of which either (i) the pledge of all of the Capital Stock
of such Subsidiary as Collateral or (ii) the guaranteeing by such
Subsidiary of the Obligations, would, in the good faith judgment of
the Borrower, result in adverse tax consequences to the Borrower.
"Excluded Subsidiaries": the collective reference to
Tesoro Indonesia Petroleum Company, a Delaware corporation; Tesoro
Equipment Company, a Delaware corporation; Tesoro Crude Oil Company,
a Delaware corporation; Tesoro Gasoline Marketing Company, a
Delaware corporation; Tesoro Pump & Valve Company, a Delaware
corporation; Tesoro Environmental Resources Company, a Delaware
corporation; Tesoro Environmental Products Company, a Delaware
corporation; Tesoro Technology Partners Company, a Delaware
corporation; and Coastwide Marine Services, Inc., a Texas
corporation.
"Existing Credit Agreement": as defined in the recitals
to this Agreement.
"Existing Letters of Credit": as defined in subsection
3.1.
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"Facility": each of (a) the Tranche A Term Loan
Commitments and the Tranche A Term Loans made thereunder (the
"Tranche A Term Loan Facility"), (b) the Tranche B Term Loan
Commitments and the Tranche B Term Loans made thereunder (the
"Tranche B Term Loan Facility"; together with the Tranche A Term
Loan Facility, the "Term Loan Facilities") and (c) the Revolving
Credit Commitments and the extensions of credit made thereunder (the
"Revolving Credit Facility").
"Federal Funds Effective Rate": for any day, an interest
rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the immediately
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 the day (at approximately
11:00 A.M., Chicago, Illinois time) of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it in its sole discretion.
"Foreign Subsidiary": any Subsidiary of the Borrower
that is not a Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of
such Person that matures more than one year from the date of its
creation or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one
year from such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit
during a period of more than one year from such date, including,
without limitation, all current maturities and current sinking fund
payments in respect of such Indebtedness whether or not required to
be paid within one year from the date of its creation and, in the
case of the Borrower, Indebtedness in respect of the Loans.
"Funding Office": the office specified from time to time
by the General Administrative Agent as its funding office by notice
to the Borrower and the Lenders in accordance with subsection 9.2.
"GAAP": generally accepted accounting principles in the
United States of America as in effect from time to time, except that
for purposes of subsection 7.1, GAAP shall be determined on the
basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the most recent audited
financial statements delivered pursuant to subsection 4.1(b).
"Governmental Authority": 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 (including,
without limitation, the National Association of Insurance
Commissioners).
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"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement, dated as of May 29, 1998, a copy of which is
attached hereto as Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Hawaii Sellers": as defined in the recitals to this
Agreement.
"Hedge Agreements": all interest rate swaps, caps,
collar agreements, hydrocarbon swaps or similar arrangements entered
into by the Borrower providing for protection against fluctuations
in interest rates, currency exchange rates or hydrocarbon prices or
the exchange of nominal interest obligations, either generally or
under specific contingencies.
"Hydrocarbons": oil, gas, casinghead gas, condensate,
distillate, liquid hydrocarbons, gaseous hydrocarbons and all
products refined or separated therefrom, and all other substances
produced in association therewith.
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"Hydrocarbon Interest": with respect to any Person, all
rights, titles, interests and estates now owned or hereafter
acquired by such Person in and to oil, gas and mineral leases or
other liquid or gaseous hydrocarbon leases, mineral fee interests,
overriding royalty and royalty interests, operating rights, net
profit interests, production payment interests and other similar
types of interests, including any reserved or residual interest of
whatever nature.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price
of Property or services (other than current trade payables incurred
in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) 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), (e) all Capital Lease Obligations of such Person, (f) all
reimbursement obligations of such Person, contingent or otherwise,
as an account party under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for
value any Capital Stock of such Person, (h) all Guarantee
Obligations of such Person for obligations of the kind referred to
in clauses (a) through (g) above; (i) for the purposes of
subsections 7.2 and 8(e) only, all obligations of the kind referred
to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on Property (including,
without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for
the payment of such obligation, (j) for the purposes of subsection
8(e) only, all obligations of such Person in respect of Hedge
Agreements and (k) the liquidation value of any mandatorily
redeemable preferred Capital Stock of such Person or its
Subsidiaries held by any Person other than such Person and its
Wholly Owned Subsidiaries. Obligations of the Borrower and its
Subsidiaries to Marine Spill Response Corporation in an aggregate
amount of up to $8,100,000 shall not be deemed to constitute
Indebtedness.
"Indemnified Liabilities": as defined in subsection
10.5.
"Indemnitee": as defined in subsection 10.5.
"Initial Mortgaged Properties": the real properties
listed on Schedule 1.1A, as to which the Collateral Agent for the
benefit of the Lenders shall be granted a Lien pursuant to the
relevant Mortgages on or prior to the Closing Date.
"Initial Tranche A Term Loan": as defined in subsection
2.1(a).
"Initial Tranche A Term Loan Commitment": as to any
Lender, the obligation of such Lender, if any, to make an Initial
Tranche A Term Loan to the Borrower
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hereunder in a principal amount not to exceed the amount set forth
under the heading "Initial Tranche A Term Loan Commitment" opposite
such Lender's name on Schedule 1 to the Lender Addendum delivered by
such Lender or, as the case may be, in Schedule 1 to the Assignment
and Acceptance pursuant to which such Lender acquired such Initial
Tranche A Term Loan Commitment. The original aggregate amount of the
Initial Tranche A Term Loan Commitments is $50,000,000.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws
or otherwise, including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Intercreditor Agreement": the Intercreditor Agreement,
dated as of the Closing Date, between the Collateral Agent and the
trustee under the Senior Subordinated Note Indenture, relating to
the relative priorities of such parties' interests in any amounts
released to the Borrower from the Washington Escrow.
"Interest Payment Date": (a) as to any Base Rate Loan,
the last day of each March, June, September and December to occur
while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as
to any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Revolving
Credit Loan that is a Base Rate Loan), the date of any repayment or
prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a)
initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each
period commencing on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and ending one, two, three
or six months thereafter, as selected by the Borrower by irrevocable
notice to the General Administrative Agent not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto; provided, that all of the foregoing
provisions relating to Interest Periods are subject to the
following:
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(i) if any Interest Period would otherwise
end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to
carry such Interest Period into another calendar month
in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Revolving Credit Termination Date or
beyond the date final payment is due on the Tranche A
Term Loans or the Tranche B Term Loans, as the case may
be, shall end on the Revolving Credit Termination Date
or such due date, as applicable;
(iii) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall
end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest
Periods so as not to require a payment or prepayment of
any Eurodollar Loan during an Interest Period for such
Loan.
"Investments": as defined in subsection 7.7.
"Issuing Bank": Paribas, The First National Bank of
Chicago and First Union National Bank, each in its capacity as an
issuer of any Letter of Credit, at the option of the Borrower.
"L/C Commitment": $200,000,000.
"L/C Fee Payment Date": the last day of each March,
June, September and December and the last day of the Revolving
Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of the
then outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit which have not then been reimbursed
pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of
Credit, the collective reference to all the Revolving Credit Lenders
other than the Issuing Bank that issued such Letter of Credit.
"Lender Addendum": with respect to any Lender which
becomes a party hereto on the date hereof, a Lender Addendum,
substantially in the form of Exhibit K, to be executed and delivered
by such Lender as provided in subsection 10.20.
"Letters of Credit": as defined in subsection 3.1(a).
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"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any 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 and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security
Documents, each Consent and Confirmation and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any
Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Term Loans or the Total Revolving Extensions
of Credit, as the case may be, outstanding under such Facility (or,
in the case of the Revolving Credit Facility, prior to any
termination of the Revolving Credit Commitments, the holders of more
than 50% of the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the
Majority Facility Lenders in respect of the Revolving Credit
Facility.
"Majority Tranche A Term Loan Facility Lenders": the
Majority Facility Lenders in respect of the Tranche A Term Loan
Facility.
"Majority Tranche B Term Loan Facility Lenders": the
Majority Facility Lenders in respect of the Tranche B Term Loan
Facility.
"Mandatorily Convertible Preferred Stock": the
mandatorily convertible preferred stock issued as a part of the
Capital Markets Instruments.
"Material Adverse Effect": a material adverse effect on
(a) the Washington Acquisition, (b) the business, assets, property,
condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents
or the rights or remedies of the Agents or the Lenders hereunder or
thereunder. The termination of the Washington Acquisition Agreement
and the failure to consummate the Washington Acquisition as
contemplated by subsection 2.10(e) shall not constitute a Material
Adverse Effect.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any
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other substances or forces of any kind, whether or not any such
substance or force is defined as hazardous or toxic under any
Environmental Law, that is regulated pursuant to or could give rise
to liability under any Environmental Law.
"Mortgaged Oil and Gas Properties": the real properties
listed on Schedule 1.1C, as to which the Collateral Agent for the
benefit of the Lenders shall be granted a Lien pursuant to the Oil
and Gas Mortgages on or prior to the Closing Date.
"Mortgaged Properties": the collective reference to the
Initial Mortgaged Properties and the Washington Mortgaged Property.
"Mortgages": each of the mortgages and deeds of trust
made by any Loan Party in favor of, or for the benefit of, the
Collateral Agent for the benefit of the Lenders, substantially in
the form of Exhibit D-1 (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage
or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset
Sale or any Recovery Event, the proceeds thereof in the form of cash
(including any such proceeds received by way of deferred payment of
principal pursuant to any Cash Equivalents, a note or installment
receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Asset Sale or Recovery Event, net
of attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness
secured by and any other amounts required for the release of a Lien
expressly permitted hereunder on any asset which is the subject of
such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses incurred in
connection therewith and net of taxes paid or reasonably estimated
to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of
equity securities or debt securities, the cash proceeds received
from such issuance or incurrence, net of attorneys' fees, investment
banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees, expenses and other transaction
costs incurred in connection therewith.
"Non-Excluded Taxes": as defined in subsection 2.18(a).
"Non-U.S. Lender": as defined in subsection 2.18(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
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"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and
all other obligations and liabilities of the Borrower to the General
Administrative Agent or to any Lender (or, in the case of Hedge
Agreements, any affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which arise under this Agreement,
any other Loan Document, the Letters of Credit, any Hedge Agreement
entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given by any Loan Party pursuant
hereto or thereto, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements
of counsel to the General Administrative Agent or to any Lender that
are required to be paid by the Borrower pursuant hereto) or
otherwise.
"Oil and Gas Lease Obligations": obligations, whether
current or long term, in the normal course of business under or
pursuant to customary oil, gas and mineral leases, royalties and oil
and gas operating agreements, farm-out and farm-in agreements,
development agreements and other agreements which are customary in
the oil and gas industry.
"Oil and Gas Mortgages": each of the mortgages made by
any Loan Party in favor of, or for the benefit of, the Collateral
Agent for the benefit of the Lenders, substantially in the form of
Exhibit D-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"Oil and Gas Properties": the Hydrocarbon Interests of
the Borrower and its Subsidiaries; all property now or hereafter
pooled or unitized with such Hydrocarbon Interests; all presently
existing or future unitization, pooling agreements and declarations
of pooled units and the units created thereby (including without
limitation all units created under orders, regulations and rules of
any Governmental Authority have jurisdiction) which may affect all
or any portion of such Hydrocarbon Interests; all operating
agreements, contracts and other agreements which relate to any of
such Hydrocarbon Interests or the production, sale, purchase,
exchange or processing of Hydrocarbons from or attributable to such
Hydrocarbon Interest; all Hydrocarbons in and under and which may be
produced and saved or attributable to such Hydrocarbon Interests,
the lands covered thereby and all oil in tanks and all rents,
issues, profits, proceeds, products, revenues and other income from
or attributable to such Hydrocarbon Interests; all tenements,
hereditaments, appurtenances and properties in any manner
appertaining, belonging, affixed or incidental to such Hydrocarbon
Interests, properties, rights, titles, interests and estates
described or referred to above, including any and all Property, real
or personal, now owned or hereinafter acquired and situated upon,
used, held for use or useful in connection with the operating,
working or development of any of such Hydrocarbon Interests or
Property (excluding
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drilling rigs, automotive equipment or other personal property which
may be on such premises for the purpose of drilling a well or for
other similar temporary uses) and including any and all oil wells,
gas wells, injection wells or other wells, buildings, structures,
fuel separators, liquid extraction plants, plant compressors, pumps,
pumping units, field gathering systems, tanks and tank batteries,
fixtures, valves, fittings, machinery and parts, engines, boilers,
meters, apparatus, equipment, appliances, tools, implements, cables,
wires, towers, casing, tubing and rods, surface leases,
rights-of-way, easements and servitudes together with all additions,
substitutions, replacements, accessions and attachments to any and
all of the foregoing.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document, other than, in each case,
any franchise tax or similar tax based upon the income, capital,
assets or other properties of any Lender.
"Owned Marine Terminals": the marine terminals owned by
the Borrower and its Subsidiaries, as set forth on Schedule 1.1D.
"Participant": as defined in subsection 10.6(b).
"Payment Office": the office specified from time to time
by the General Administrative Agent as its payment office by notice
to the Borrower and the Lenders in accordance with subsection 10.2.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as
Annex A.
"Pricing Grid Commencement Date": as defined in Annex A
(the Pricing Grid).
"Pro Forma Balance Sheet": as defined in subsection
4.1(a).
"Projections": as defined in subsection 6.2(c).
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"Property": any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, including, without limitation, Capital
Stock.
"Recovery Event": any settlement of or payment in
respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of the Borrower or any
of its Subsidiaries.
"Reference Lender": The First National Bank of Chicago.
"Register": as defined in subsection 10.6(d).
"Regulation U": Regulation U of the Board as in effect
from time to time.
"Reimbursement Obligation": the obligation of the
Borrower to reimburse the relevant Issuing Bank pursuant to
subsection 3.5 for amounts drawn under Letters of Credit issued by
such Issuing Bank.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Borrower or any of its Subsidiaries in connection therewith which
are not applied to prepay the Term Loans pursuant to subsection
2.10(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event
in respect of which the Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred
and is continuing and that the Borrower (directly or indirectly
through a Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event
to acquire, construct, develop, improve or repair Property useful in
its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating
thereto less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire, construct, develop, improve or repair
Property useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring twelve
months after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to acquire, construct, develop,
improve or repair Property useful in the Borrower's business with
all or any portion of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the
meaning of Section 4241 of ERISA.
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"Reportable Event": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty day notice period is waived under subsections .27, .28, .29,
.30, .31, .32, .34 or .35 of PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more
than 50% of the sum of (a) the undrawn Commitments and (b) the
aggregate unpaid principal amount of the Term Loans and Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility
Lenders in respect of each Facility.
"Requirement of Law": as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, 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": the chief executive officer,
president, chief financial officer, general counsel or treasurer of
the Borrower, but in any event, with respect to financial matters,
the chief financial officer or treasurer of the Borrower.
"Restricted Payments": as defined in subsection 7.6.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans
and participate in Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the
heading "Revolving Credit Commitment" opposite such Lender's name on
Schedule 1 to the Lender Addendum delivered by such Lender or, as
the case may be, in Schedule 1 to the Assignment and Acceptance
pursuant to which such Lender acquired such Revolving Credit
Commitment, as the same may be changed from time to time pursuant to
the terms hereof. The original amount of the Total Revolving Credit
Commitments is $300,000,000.
"Revolving Credit Commitment Period": the period from
and including the Closing Date to the Revolving Credit Termination
Date.
"Revolving Credit Lender": each Lender which has a
Revolving Credit Commitment or which is the holder of Revolving
Credit Loans.
"Revolving Credit Loans": as defined in subsection 2.4.
"Revolving Credit Percentage": as to any Revolving
Credit Lender at any time, the percentage which such Lender's
Revolving Credit Commitment then constitutes of the Total Revolving
Credit Commitments (or, at any time after the Revolving Credit
Commitments shall have expired or terminated, the percentage which
the aggregate
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principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": July 2, 2001.
"Revolving Extensions of Credit": as to any Revolving
Credit Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by
such Lender then outstanding and (b) such Lender's Revolving Credit
Percentage of the L/C Obligations then outstanding.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, the Oil and Gas
Mortgages and all other security documents hereafter delivered to
the Collateral Agent granting a Lien on any Property of any Person
to secure the obligations and liabilities of any Loan Party under
any Loan Document.
"Senior Subordinated Note Indenture": the Indenture,
dated as of July 2, 1998, entered into by the Borrower, certain of
its Subsidiaries and U.S. Bank Corporate Trust Services, as trustee,
in connection with the issuance of the Senior Subordinated Notes,
together with all instruments and other agreements entered into by
the Borrower or such Subsidiaries in connection therewith, as the
same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 7.8.
"Senior Subordinated Notes": the collective reference to
(i) the up to $300,000,000 aggregate principal amount of senior
subordinated notes of the Borrower issued on the Closing Date
pursuant to the Senior Subordinated Note Indenture in connection
with the issuance of the Capital Markets Instruments and (ii) the
additional up to $50,000,000 aggregate principal amount of senior
subordinated notes of the Borrower that may be issued after the
Closing Date pursuant to the Senior Subordinated Note Indenture,
subject to compliance with subsection 7.2(e).
"Shipping Joint Venture": a joint venture or similar
business arrangement on terms reasonably satisfactory to the General
Administrative Agent between the Borrower or any of its Subsidiaries
and a shipping company pursuant to which the Borrower or such
Subsidiary acquires the right to use a vessel, provided that in no
event shall the Borrower or any of its Subsidiaries contribute or
otherwise be liable for the payment of cash or Cash Equivalents in
connection with such arrangement in an amount in excess of
$15,000,000.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the
"present fair saleable value" of the assets of such Person will, as
of such date, exceed the amount of all "liabilities of such Person,
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contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of
such date, be greater than the amount that will be required to pay
the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as
they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"South American Letter of Credit": any letter of credit
issued to support performance guarantees or bonds on behalf of
Tesoro Bolivia or Tesoro Latin American Company.
"Special Incentive Plan": as defined in the definition
of Consolidated EBITDA.
"Specified Change of Control": a "Change of Control" as
defined in the Senior Subordinated Note Indenture.
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity of which
shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or
the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower
other than any Excluded Subsidiary and any Excluded Foreign
Subsidiary.
"Term Loan Commitments": the collective reference to the
Tranche A Term Loan Commitments and the Tranche B Term Loan
Commitments.
"Term Loan Lenders": the collective reference to the
Tranche A Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A
Term Loans and the Tranche B Term Loans.
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"Tesoro Bolivia": Tesoro Bolivia Petroleum Company, a
Texas corporation.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the
Revolving Credit Lenders outstanding at such time.
"Tranche A Term Loan Commitment": as to any Lender, the
sum of the Initial Tranche A Term Loan Commitment of such Lender and
the Additional Tranche A Term Loan Commitment of such Lender.
"Tranche A Term Loan Lender": each Lender which has a
Tranche A Term Loan Commitment or is the holder of Tranche A Term
Loans.
"Tranche A Term Loan Percentage": as to any Tranche A
Term Loan Lender at any time, the percentage which such Lender's
Tranche A Term Loan Commitment then constitutes of the aggregate
Tranche A Term Loan Commitments (or, at any time after the Closing
Date, the percentage which the aggregate principal amount of such
Lender's Tranche A Term Loans then outstanding constitutes of the
aggregate principal amount of the Tranche A Term Loans then
outstanding).
"Tranche A Term Loans": as to any Lender, the collective
reference to the Initial Tranche A Term Loans and Additional Tranche
A Term Loans of such Lender, if any.
"Tranche B Term Loan": as defined in subsection 2.1.
"Tranche B Term Loan Commitment": as to Tranche B Term
Loan Lender, the obligation of such Lender, if any, to make a
Tranche B Term Loan to the Borrower hereunder in a principal amount
not to exceed the amount set forth under the heading "Tranche B Term
Loan Commitment" opposite such Lender's name on Schedule 1 to the
Lender Addendum delivered by such Lender or, as the case may be, in
Schedule 1 to the Assignment and Acceptance pursuant to which such
Lender acquired such Tranche B Term Loan Commitment. The original
aggregate amount of the Tranche B Term Loan Commitments is
$100,000,000.
"Tranche B Term Loan Lender": each Lender which has a
Tranche B Term Loan Commitment or which is the holder of a Tranche B
Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at
any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan
Commitments (or, at any time after the Closing Date, the percentage
which the aggregate principal amount of such Lender's
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Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding).
"Transferee": as defined in subsection 10.15.
"Type": as to any Loan, its nature as a Base Rate Loan
or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No.E500, as the same may be amended from time
to time.
"Washington Acquisition": as defined in the recitals to
this Agreement.
"Washington Acquisition Agreement": as defined in the
recitals to this Agreement.
"Washington Escrow": the escrow effected under the
Washington Escrow Agreement, pursuant to which there shall be
deposited in escrow on the Closing Date, to be withdrawn on the
Washington Escrow Release Date, the purchase price payable pursuant
to the Washington Acquisition Agreement.
"Washington Escrow Agreement": an escrow agreement and
related documents, in form and substance satisfactory to the
Syndication Agent and the General Administrative Agent, which
agreement and related documents shall in any event provide that the
escrow agent thereunder is instructed (which instruction may not be
permitted by the Borrower to be changed without the written consent
of the General Administrative Agent) that in the event that funds
deposited in the Washington Escrow are to be released to the
Borrower, then, instead, $151,500,000 of such deposited funds shall
be released by the escrow agent to the trustee under the Senior
Subordinated Note Indenture as required therein and the remainder of
such deposited funds shall be released by the escrow agent to the
General Administrative Agent (for application by the General
Administrative Agent toward prepayment of the Loans as set forth in
subsection 2.10(e)).
"Washington Escrow Release Date": the date specified in
the Washington Escrow Agreement on which the funds delivered on the
Closing Date to the escrow agent under the Washington Escrow
Agreement shall be released from escrow in the manner specified
therein, which date is expected to be the date on which all relevant
actions of Governmental Authorities in respect of the Washington
Acquisition have been accomplished.
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"Washington Mortgaged Property": the real property
listed on Schedule 1.1B, as to which the Collateral Agent for the
benefit of the Lenders shall be granted a Lien pursuant to the
relevant Mortgage within five Business Days after the Washington
Escrow Release Date.
"Washington Seller": as defined in the recitals to this
Agreement.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly
and/or through other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
hereof:
(a) Each Tranche A Term Loan Lender severally agrees to make (i) a
term loan (an "Initial Tranche A Term Loan") to the Borrower on the Closing Date
in a principal amount not to exceed the amount of the Initial Tranche A Term
Loan Commitment of such Lender and (ii) no more than five additional term loans
("Additional Tranche A Term Loans") to the Borrower during the Additional
Tranche A Term Loan Commitment Period in an aggregate principal amount for all
Tranche A Term Loan Lenders that, taken together with the aggregate principal
amount all other Additional Tranche A Term Loans made by the Lenders during the
Additional Tranche A Term Loan Commitment Period, shall not exceed the aggregate
Additional Tranche A Term Loan Commitments of the Lenders; provided that, at the
end of the last day of the Additional Tranche A Term Loan Commitment Period, the
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Available Additional Tranche A Term Loan Commitment of each Lender, if any,
automatically shall be reduced to zero. Each Tranche A Term Loan made pursuant
to this subsection 2.1(a) shall be made in the manner set forth in subsection
10.18, to the extent subsection 10.18 is applicable to such Tranche A Term Loan.
(b) Each Tranche B Term Loan Lender severally agrees to make a term
loan (a "Tranche B Term Loan") to the Borrower on the Closing Date in an amount
not to exceed the amount of the Tranche B Term Loan Commitment of such Lender.
Each Tranche B Term Loan made pursuant to this subsection 2.1(b) shall be made
in the manner set forth in subsection 10.18, to the extent subsection 10.18 is
applicable to such Tranche B Term Loan.
The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the General Administrative Agent in
accordance with subsections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. (a) The Borrower shall give
the General Administrative Agent irrevocable notice (which notice must be
received by the General Administrative Agent prior to 11:00 A.M., Chicago,
Illinois time, (i) three Business Days prior to the anticipated Closing Date, if
all or any part of the Initial Tranche A Term Loans or the Tranche B Term Loans,
as the case may be, are to be initially Eurodollar Loans, or (ii) one Business
Day prior to the anticipated Closing Date, otherwise) requesting that the
Tranche A Term Loan Lenders make the Initial Tranche A Term Loans and the
Tranche B Term Loan Lenders make the Tranche B Term Loans, in each case on the
Closing Date, and specifying (i) the amounts and Types of Initial Tranche A Term
Loans and Tranche B Term Loans, respectively, to be borrowed and (ii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Period therefor. Upon receipt of
such notice the General Administrative Agent shall promptly notify each Tranche
A Term Loan Lender and each Tranche B Term Loan Lender thereof. Not later than
1:00 P.M., Chicago, Illinois time, on the Closing Date each Tranche A Term Loan
Lender shall make available to the General Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Initial Tranche A
Term Loan to be made by such Lender and each Tranche B Term Loan Lender shall
make available to the General Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Tranche B Term Loan to be
made by such Lender. The General Administrative Agent shall make available to
the Borrower the aggregate of the amounts made available to the General
Administrative Agent by the Tranche A Term Loan Lenders and the Tranche B Term
Loan Lenders in like funds as received by the General Administrative Agent.
(b) Subject to subsection 2.1(a), the Borrower may borrow under the
Additional Tranche A Term Loan Commitments during the Additional Tranche A Term
Loan Commitment Period on any Business Day, provided that the Borrower shall
give the General Administrative Agent irrevocable notice (which notice must be
received by the General Administrative Agent prior to 11:00 A.M., Chicago,
Illinois time, (a) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying (i) the amount and
Type of Additional Tranche A Term Loans to be borrowed, (ii) the requested
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Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Each borrowing under the Additional Tranche A Term Loan
Commitments shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then aggregate Available Additional
Tranche A Term Loan Commitments are less than $10,000,000, such lesser amount).
Upon receipt of any such notice from the Borrower, the General Administrative
Agent shall promptly notify each Tranche A Term Loan Lender thereof. Each
Tranche A Term Loan Lender will make the amount of its pro rata share of each
borrowing of Additional Tranche A Term Loans available to the General
Administrative Agent for the account of the Borrower at the Funding Office prior
to 1:00 P.M., Chicago, Illinois time, on the Borrowing Date requested by the
Borrower in funds immediately available to the General Administrative Agent. The
General Administrative Agent shall make available to the Borrower the aggregate
of such amounts made available to the General Administrative Agent by the
Tranche A Term Loan Lenders in like funds as received by the General
Administrative Agent.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loans of each
Tranche A Term Loan Lender shall mature in 16 consecutive quarterly
installments, commencing on September 30, 1999, each of which shall be in an
amount equal to such Lender's Tranche A Term Loan Percentage multiplied by the
amount set forth below opposite such installment (provided, that if less than
the full amount of the Tranche A Term Loan Commitments is actually drawn by the
Borrower, then the amount of each such installment shall be proportionally
reduced):
Installment Principal Amount
----------- ----------------
September 30, 1999 $ 5,000,000
December 31, 1999 $ 5,000,000
March 31, 2000 $ 5,000,000
June 30, 2000 $ 5,000,000
September 30, 2000 $ 6,250,000
December 31, 2000 $ 6,250,000
March 31, 2001 $ 6,250,000
June 30, 2001 $ 6,250,000
September 30, 2001 $ 6,250,000
December 31, 2001 $ 6,250,000
March 31, 2002 $ 6,250,000
June 30, 2002 $ 6,250,000
September 30, 2002 $ 7,500,000
December 31, 2002 $ 7,500,000
March 31, 2003 $ 7,500,000
June 30, 2003 $ 7,500,000.
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(b) The Tranche B Term Loan of each Tranche B Term Loan Lender shall
mature in 22 consecutive quarterly installments, commencing on September 30,
1998, each of which shall be in an amount equal to such Lender's Tranche B Term
Loan Percentage multiplied by the amount set forth below opposite such
installment (provided, that if less than the full amount of the Tranche B Term
Loan Commitments is actually drawn by the Borrower, then the amount of each such
installment shall be proportionally reduced):
Installment Principal Amount
----------- ----------------
September 30, 1998 $ 250,000
December 31, 1998 $ 250,000
March 31, 1999 $ 250,000
June 30, 1999 $ 250,000
September 30, 1999 $ 250,000
December 31, 1999 $ 250,000
March 31, 2000 $ 250,000
June 30, 2000 $ 250,000
September 30, 2000 $ 250,000
December 31, 2000 $ 250,000
March 31, 2001 $ 250,000
June 30, 2001 $ 250,000
September 30, 2001 $ 250,000
December 31, 2001 $ 250,000
March 31, 2002 $ 250,000
June 30, 2002 $ 250,000
September 30, 2002 $ 250,000
December 31, 2002 $ 250,000
March 31, 2003 $ 250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 250,000
December 31, 2003 $ 94,750,000.
2.4 Revolving Credit Commitments. (a) Each Revolving Credit Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrower from time to time during the Revolving Credit Commitment Period in
an aggregate principal amount at any one time outstanding which, when added to
such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the General
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Administrative Agent in accordance with subsections 2.5 and 2.11, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that
is one month prior to the Revolving Credit Termination Date. Each Revolving
Credit Loan made pursuant to this subsection 2.4(a) shall be made in the manner
set forth in subsection 10.18, to the extent subsection 10.18 is applicable to
such Revolving Credit Loan.
(b) The Borrower shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
General Administrative Agent irrevocable notice (which notice must be received
by the General Administrative Agent prior to 12:00 Noon, Chicago, Illinois time,
(a) in the case of Eurodollar Loans, three Business Days prior to the requested
Borrowing Date, or (b) in the case of Base Rate Loans, on the requested
Borrowing Date), specifying (i) the amount and Type of Revolving Credit Loans to
be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (x) in the case
of Base Rate Loans, $1,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if the then aggregate Available Revolving Credit Commitments are
less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any such notice from the Borrower, the General Administrative Agent
shall promptly notify each Revolving Credit Lender thereof. Each Revolving
Credit Lender will make the amount of its pro rata share of each borrowing
available to the General Administrative Agent for the account of the Borrower at
the Funding Office prior to 3:00 P.M., Chicago, Illinois time, on the Borrowing
Date requested by the Borrower in funds immediately available to the General
Administrative Agent. The General Administrative Agent shall make available to
the Borrower the aggregate of the amounts made available to the General
Administrative Agent by the Revolving Credit Lenders in like funds as received
by the General Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the General Administrative Agent for the
account of the appropriate Revolving Credit Lender or Term Loan Lender, as the
case may be, (i) the then unpaid principal amount of each Revolving Credit Loan
of such Revolving Credit Lender on the Revolving Credit Termination Date (or
such earlier date on which the Loans become due and payable pursuant to Section
8) and (ii) the principal amount of each Term Loan of such Term Loan Lender in
installments according to the amortization schedules set forth in subsection 2.3
(or on such earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 2.13.
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(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The General Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to subsection 10.6(e), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder and any Note evidencing such Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the General
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence (in the absence of manifest error) of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the General Administrative
Agent to maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of the Borrower to repay (with
applicable interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the General
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans or
Revolving Credit Loans, as the case may be, of such Lender, substantially in the
forms of Exhibit G-1 or G-2, respectively, with appropriate insertions as to
date and principal amount.
2.7 Commitment Fees, etc. (a) The Borrower agrees to pay to the
General Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the General Administrative Agent
for the account of each Term Loan Lender a commitment fee for the period from
and including the Closing Date to the last day of the Additional Tranche A Term
Loan Commitment Period, computed at the Commitment Fee Rate on the average daily
amount of the undrawn Term Loan Commitments of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the last day of the Additional
Tranche A Term Loan Commitment Period, commencing on the first of such dates to
occur after the date hereof.
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(c) The Borrower agrees to pay to the Syndication Agent the fees in
the amounts and on the dates previously agreed to in writing by the Borrower and
the Syndication Agent.
(d) The Borrower agrees to pay to the General Administrative Agent
the fees in the amounts and on the dates from time to time agreed to in writing
by the Borrower and the General Administrative Agent.
2.8 Termination or Reduction of Commitments. The Borrower shall have
the right, upon not less than three Business Days' notice to the General
Administrative Agent, to terminate any of the Commitments or, from time to time,
to reduce the amount of any of the Commitments; provided that no such
termination or reduction of Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit Loans
made on the effective date thereof, the Total Revolving Extensions of Credit
would exceed the Total Revolving Credit Commitments. Any such reduction shall be
in an amount equal to $1,000,000, or a whole multiple thereof (or, if the then
aggregate Commitments are less than $1,000,000, such lesser amount), and shall
reduce permanently the relevant Commitments then in effect.
2.9 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the General Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and prior to 11:00
A.M., Chicago, Illinois time, on the date of such prepayment in the case of Base
Rate Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided, that
if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to subsection 2.19. Upon receipt of any such notice the General
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans which are Base Rate Loans) accrued interest to such date
on the amount prepaid. Partial prepayments of Term Loans and Revolving Credit
Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
2.10 Mandatory and Special Prepayments and Commitment Reductions.
(a) Unless the Required Prepayment Lenders shall otherwise agree, if any
Indebtedness shall be incurred by the Borrower or any of its Subsidiaries
(excluding Indebtedness permitted by subsection 7.2 as in effect on the date
hereof), an amount equal to 100% of the Net Cash Proceeds thereof shall be
applied on the date of receipt of such Net Cash Proceeds by the Borrower or such
Subsidiary, as the case may be, toward the prepayment of the Term Loans and the
reduction of the Term Loan Commitments as set forth in subsection 2.10(d).
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied as promptly as practicable but in any event
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not later than five Business Days after such date toward the prepayment of the
Term Loans as set forth in subsection 2.10(d); provided that on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans as set forth in subsection 2.10(d).
(c) Unless the Required Prepayment Lenders shall otherwise agree, if
in any fiscal year of the Borrower (commencing with the fiscal year ending
December 31, 1998), there shall be Excess Cash Flow, then the Borrower shall, on
the relevant Excess Cash Flow Application Date, apply (i) if the Consolidated
Leverage Ratio on the last day of such fiscal year is greater than or equal to
2.5:1.0, then 50% of such Excess Cash Flow, and (ii) if the Consolidated
Leverage Ratio on the last day of such fiscal year is less than 2.5:1.0, then
25% of such Excess Cash Flow, in either case toward the prepayment of the Term
Loans as set forth in subsection 2.10(d). Each such prepayment shall be made on
a date (an "Excess Cash Flow Application Date") no later than five days after
the earlier of (i) the date on which the financial statements of the Borrower
referred to in subsection 6.1(a), for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to paragraphs (a), (b) and (c) of this
subsection 2.10 shall be applied, subject to subsection 2.16(d), first, to the
prepayment of the Term Loans ratably and to the installments thereof ratably in
accordance with the then outstanding amounts thereof and, second, to reduce
permanently the Term Loan Commitments. The application of any such prepayment
pursuant to this subsection 2.10 shall be made first to Base Rate Loans and
second to Eurodollar Loans. Each such prepayment shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
(e) Unless the Required Prepayment Lenders shall otherwise agree,
if, pursuant to the Washington Escrow Agreement, the escrow agent thereunder
releases any funds deposited in the Washington Escrow to the General
Administrative Agent, then (i) such funds shall be applied, first, to the
prepayment of the Tranche B Term Loans ratably and to the installments thereof
ratably in accordance with the then outstanding amounts thereof and, second, to
the prepayment of the Tranche A Term Loans ratably and to the installments
thereof ratably in accordance with the then outstanding amounts thereof, and
(ii) simultaneously with such prepayments, (x) the Total Revolving Credit
Commitments and the L/C Commitment in each case shall be permanently reduced by
$50,000,000 and (y) the aggregate undrawn Additional Tranche A Term Loan
Commitments shall be permanently reduced by an amount equal to the aggregate
outstanding principal amount of the Tranche A Term Loans after giving effect to
the prepayments made pursuant to the foregoing clause (i). The application of
any such prepayments pursuant to this subsection 2.10(e) shall be made first to
Base Rate Loans and second to Eurodollar Loans. Each such prepayment shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.11 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
General
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Administrative Agent not later than 11:00 A.M., Chicago, Illinois time, at least
one Business Day's prior irrevocable notice of such election, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert Base Rate Loans to Eurodollar Loans by giving the General
Administrative Agent not later than 11:00 A.M., Chicago, Illinois time, at least
three Business Days' prior irrevocable notice of such election (which notice
shall specify the length of the initial Interest Period therefor), provided that
no Base Rate Loan under a particular Facility may be converted into a Eurodollar
Loan (i) when any Event of Default has occurred and is continuing and the
General Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility. Upon receipt of any
such notice, the General Administrative Agent shall promptly notify each
relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the General Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued as
such (i) when any Event of Default has occurred and is continuing and the
General Administrative Agent has or the Majority Facility Lenders in respect of
such Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to Base Rate Loans
on the last day of such then expiring Interest Period. Upon receipt of any such
notice, the General Administrative Agent shall promptly notify each relevant
Lender thereof.
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall
be outstanding at any one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
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(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is equal to (x) in the case of the Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection 2.13 plus 2% or (y) in the case of Reimbursement Obligations,
the rate applicable to Base Rate Loans under the Revolving Credit Facility plus
2%, and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate then applicable to Base Rate Loans under the relevant Facility plus 2%
(or, in the case of any such other amounts that do not relate to a particular
Facility, the rate then applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%), in each case, with respect to clauses (i) and (ii) above,
from the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.13 shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The General
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The General
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the General
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The General Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by the
General Administrative Agent in determining any interest rate pursuant to
subsection 2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the General Administrative Agent shall have determined in good
faith (which determination shall be conclusive and binding upon the
Borrower) that, by
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reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the General Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the last day of the Interest
Period then in effect with respect to such Eurodollar Loans, to Base Rate Loans.
Until such notice has been withdrawn by the General Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall the Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower
from the Lenders hereunder, each payment by the Borrower on account of any
commitment fee and any reduction of the Commitments of the Lenders shall be made
pro rata according to the respective Tranche A Term Loan Percentages, Tranche B
Term Loan Percentages or Revolving Credit Percentages, as the case may be, of
the relevant Lenders. Each payment (other than prepayments) in respect of
principal or interest in respect of the Loans, each payment in respect of fees
payable hereunder, and each payment in respect of Reimbursement Obligations,
shall be allocated among the Facilities in respect of which such amounts are
owing pro rata according to the amounts then due and owing under the respective
Facilities.
(b) Except as otherwise provided in subsection 2.16(d), each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Loan
Lenders, and the amount of each principal prepayment of the Term Loans shall be
applied to reduce the then remaining installments of the Tranche EA Term Loans
and the Tranche EB Term Loans, as the case may be, pro rata based upon the then
remaining principal amount thereof. Amounts prepaid on account of the Term Loans
may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the Revolving Credit Lenders.
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(d) Notwithstanding anything to the contrary in subsections 2.10(a), (b),
(c) or (d) or subsection 2.16, so long as any Tranche A Term Loans are
outstanding, each Tranche B Term Loan Lender may, at its option, decline all or
any portion of any optional prepayment or mandatory prepayment applicable to the
Tranche B Term Loans of such Lender (other than any mandatory prepayment made
pursuant to subsection 2.10(e)); accordingly, with respect to the amount of any
such optional prepayment or mandatory prepayment that is allocated to Tranche B
Term Loans (such amounts, the "Tranche B Prepayment Amount"), at any time when
Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of
any optional prepayment which the Borrower wishes to make, not later than 10
days prior to the date on which the Borrower wishes to make such optional
prepayment, and (ii) in the case of any such mandatory prepayment required to be
made pursuant to subsection 2.10, in lieu of applying such amount to the
prepayment of Tranche B Term Loans on the date specified in subsection 2.10 for
such prepayment, give the General Administrative Agent telephonic notice
(promptly confirmed in writing) requesting that the General Administrative Agent
prepare and provide to each Tranche B Term Loan Lender a notice (each, a
"Prepayment Option Notice") as described below. As promptly as practicable after
receiving such notice from the Borrower, the General Administrative Agent will
send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall
be in the form of Exhibit H, and shall include an offer by the Borrower to
prepay on the date (each a "Prepayment Date") that is 5 days after the date of
the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an
amount equal to the portion of the Prepayment Amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loans. On the Prepayment Date, (i) the Borrower shall pay to the General
Administrative Agent the aggregate amount necessary to prepay that portion of
the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan
Lenders have not declined to accept prepayment as described above (such Lenders,
the "Accepting Lenders"), and such amount shall be applied to reduce the Tranche
B Repayment Amounts with respect to each Accepting Lender and (ii) the Borrower
shall pay to the General Administrative Agent an amount equal to the portion of
the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such
amount shall be applied to the prepayment of the Tranche A Term Loans.
(e) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
Chicago, Illinois time, on the due date thereof to the General Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The General Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
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(f) Unless the General Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
General Administrative Agent, the General Administrative Agent may assume that
such Lender is making such amount available to the General Administrative Agent,
and the General Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the General Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the General Administrative
Agent, on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the General Administrative Agent. A certificate
of the General Administrative Agent submitted to any Lender with respect to any
amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Lender's share of such borrowing is not made available
to the General Administrative Agent by such Lender within three Business Days of
such Borrowing Date, the General Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum equal to the
interest rate applicable for such period to such borrowing, on demand, from the
Borrower.
(g) Unless the General Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the General Administrative
Agent, the General Administrative Agent may assume that the Borrower is making
such payment, and the General Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders
their respective pro rata shares of a corresponding amount. If such payment is
not made to the General Administrative Agent by the Borrower within three
Business Days of such required date, the General Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was
made available pursuant to the preceding sentence, such amount with interest
thereon at the rate per annum equal to the daily average Federal Funds Effective
Rate. Nothing herein shall be deemed to limit the rights of the General
Administrative Agent or any Lender against the Borrower.
2.17 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law (exclusive of any organizational or governance document of
any Lender or Agent) or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 2.18 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other
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liabilities in or for the account of, advances, loans or other extensions
of credit by, or any other acquisition of funds by, any office of such
Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition; and the
result of any of the foregoing is to increase the cost to such Lender, by
an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection 2.17, it shall promptly notify the
Borrower (with a copy to the General Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law (exclusive of any organizational or governance
document of any Lender or Agent) regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the General
Administrative Agent) of a written request therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender for
such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this subsection 2.17 submitted by any Lender to the Borrower (with a copy to the
General Administrative Agent) shall be conclusive in the absence of manifest
error. The obligations of the Borrower pursuant to this subsection 2.17 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.18 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under,
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or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to any Agent or any Lender hereunder, the amounts so
payable to such Agent or such Lender shall be increased to the extent necessary
to yield to such Agent or such Lender (after payment of all Non-Excluded Taxes
and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e) of this
subsection 2.18 or (ii) that are United States withholding taxes imposed on
amounts payable to such Lender at the time the Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this subsection
2.18(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
General Administrative Agent for the account of the relevant Agent or Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof or other evidence of payment thereof
satisfactory to the General Administrative Agent. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Agents the required receipts or other
required documentary evidence, the Borrower shall indemnify the General
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by any Agent or any Lender as a result of any
such failure. The agreements in this subsection 2.18 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the General Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form 1001 or
Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit I and a Form W-8, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases
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the related participation). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
General Administrative Agent), at the time or times prescribed by applicable law
or reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
2.19 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this subsection 2.19
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law (exclusive of any
organizational or governance document of any Lender or Agent) or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this
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Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans,
continue Eurodollar Loans as such and convert Base Rate Loans to Eurodollar
Loans shall forthwith be cancelled and (b) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to subsection
2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of subsection 2.17, 2.18(a)
or 2.20 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this subsection 2.21 shall
affect or postpone any of the obligations of any Borrower or the rights of any
Lender pursuant to subsection 2.17, 2.18(a) or 2.19.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Pursuant to the Existing Credit Agreement,
Paribas, as issuing bank thereunder, has issued the Letters of Credit described
in Schedule 3.1 (the "Existing Letters of Credit"). From and after the Closing
Date, the Existing Letters of Credit shall constitute "Letters of Credit"
hereunder issued by Paribas, in its capacity as an Issuing Bank. Subject to the
terms and conditions hereof, each Issuing Bank, in reliance on the agreements of
the other Revolving Credit Lenders set forth in subsection 3.4(a), agrees to
issue letters of credit (together with the Existing Letters of Credit, the
"Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Credit Commitment Period in such form as may be approved from time
to time by such Issuing Bank; provided that such Issuing Bank shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date (unless, in the case of this clause (y), the Borrower
fully cash collateralizes such Letter of Credit in a manner satisfactory to such
Issuing Bank and the General Administrative Agent, in which case the expiration
date of such Letter of Credit shall be no later than 364 days after the
Revolving Credit Termination Date, except that any South American Letter of
Credit so cash collateralized may have an expiry date of up to two years from
the date of issuance thereof), provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the applicable date referred to
in clause (y) above).
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(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of (i) in the case of a
Letter of Credit issued by Paribas, the State of Texas, (ii) in the case of a
Letter of Credit issued by The First National Bank of Chicago, the State of
Illinois and (iii) in the case of a Letter of Credit issued by First Union
National Bank, the State of New York.
(c) No Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would violate or cause violation by
such Issuing Bank or any L/C Participant of any limits imposed by any applicable
Requirement of Law (exclusive of any organizational or governance document of
any Lender or Agent) imposed after the Closing Date.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that an Issuing Bank issue a Letter of Credit by
delivering to such Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Bank, and
such other certificates, documents and other papers and information as such
Issuing Bank may request. Upon receipt of any Application, the relevant Issuing
Bank will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall such Issuing Bank be required to issue
any Letter of Credit earlier than one Business Day after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Bank and the Borrower. The relevant Issuing Bank shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
The relevant Issuing Bank shall promptly furnish to the General Administrative
Agent, which shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans under the Revolving Credit
Facility minus the fronting fee referred to below, shared ratably among the
Revolving Credit Lenders and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date. In addition, the Borrower shall pay to the
relevant Issuing Bank for its own account with respect to each Letter of Credit
a fronting fee calculated at a rate per annum equal to 0.125% on the face amount
thereof (provided that in no event shall the fronting fee for any Letter of
Credit be less than $300), payable quarterly in arrears on each L/C Fee Payment
Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the relevant Issuing Bank for its own account for such normal and
customary costs and expenses as are incurred or charged by such Issuing Bank in
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
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3.4 L/C Participations. (a) Effective on the Closing Date (with
respect to the Existing Letters of Credit), and effective on the date of
issuance thereof (with respect to Letters of Credit issued after the Closing
Date), the relevant Issuing Bank irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce such Issuing Bank to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from such Issuing Bank, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in such Issuing Bank's obligations and rights under the Letters of
Credit issued by such Issuing Bank hereunder and the amount of each draft paid
by the relevant Issuing Bank thereunder in accordance with the terms of this
Agreement. Notwithstanding the provisions contained in the next to last sentence
of subsection 3.5, each L/C Participant unconditionally and irrevocably agrees
with each Issuing Bank that, if a draft is paid under any Letter of Credit for
which the relevant Issuing Bank is not reimbursed in full by the Borrower for
all Reimbursement Obligations in accordance with the terms of this Agreement,
such L/C Participant shall pay to such Issuing Bank upon demand at such Issuing
Bank's address for notices specified herein an amount equal to such L/C
Participant's Revolving Credit Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit is
paid to such Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to such Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to such
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not made available to the relevant Issuing Bank by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the rate per
annum applicable to Base Rate Loans under the Revolving Credit Facility. A
certificate of the relevant Issuing Bank submitted to any L/C Participant with
respect to any amounts owing under this subsection 3.4(b) shall be conclusive in
the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), such Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Bank), or any payment of interest on account thereof, such
Issuing Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by such
Issuing Bank shall be required to be returned by such Issuing Bank, such L/C
Participant shall immediately return to such Issuing Bank the portion thereof
previously distributed by such Issuing Bank to it.
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3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the relevant Issuing Bank on each date on which such Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
unexpired Letter of Credit and paid by such Issuing Bank for the amount of (a)
such draft so paid and (b) any costs or expenses provided for in subsection
3.3(b) which are incurred by such Issuing Bank in connection with such payment.
Each such payment shall be made to such Issuing Bank at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this subsection 3.5 from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, subsection 2.13(b)
and (ii) thereafter, subsection 2.13(c). Each drawing under any Letter of Credit
shall (unless an event of the type described in clause (i) or (ii) of subsection
8(f) shall have occurred and be continuing with respect to the Borrower, in
which case the procedures specified in subsection 3.4 for funding by L/C
Participants shall apply) constitute a request by the Borrower to the General
Administrative Agent for a borrowing pursuant to subsection 2.5 of Base Rate
Loans in the amount of such drawing plus interest and expenses incurred by the
Issuing Bank. The Borrowing Date with respect to such borrowing shall be the
date of such drawing and all proceeds of such borrowing shall be paid to the
relevant Issuing Bank.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the relevant Issuing Bank, any beneficiary
of a Letter of Credit or any other Person; provided, that in honoring each
Letter of Credit, the relevant Issuing Bank has acted in good faith and has
examined such Letter of Credit and the accompanying document or documents, as
the case may be, with such care as to ascertain that on their face they appear
to comply with the terms of such Letter of Credit. The Borrower also agrees with
each Issuing Bank, subject to the proviso contained in the preceding sentence,
that such Issuing Bank shall not be responsible for, and the Borrower's
Reimbursement Obligations under subsection 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Bank
shall be liable for (i) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Bank, (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason, (iii) failure
of the beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit, which failure is not the
result of gross negligence or willful misconduct of such
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Issuing Bank as determined by a final and nonappealable decision of a court of
competent jurisdiction, (iv) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing thereunder and (v) any
consequences arising from causes beyond the control of such Issuing Bank,
including, without limitation, the actions of any Governmental Authority. The
Borrower agrees that any action taken or omitted by any Issuing Bank under or in
connection with any Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance with
the standards or care specified in the Uniform Commercial Code of the State of
New York, shall be binding on the Borrower and shall not result in any liability
of such Issuing Bank to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Bank shall promptly
notify the Borrower of the date and amount thereof. The responsibility of the
relevant Issuing Bank to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit and appear on their face to comply with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9 Indemnification of Issuing Banks. To the extent the relevant
Issuing Bank is not reimbursed and indemnified by the Borrower, each Lender will
reimburse and indemnify such Issuing Bank in proportion to its Revolving Credit
Percentage, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such Issuing
Bank in performing its duties hereunder, in any way relating to or arising out
of this Agreement and by reason of the ordinary negligence of such Issuing Bank;
provided that no Lender shall be liable to such Issuing Bank for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct. The provisions of this subsection 3.9 shall
survive any termination of this Agreement and the payment of the Obligations and
shall continue thereafter in full force and effect.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and issue or participate in the Letters of Credit, the
Borrower hereby represents and warrants to each Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at March 31,
1998 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
which have heretofore been
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furnished to each Lender, has been prepared giving effect (as if such events had
occurred on such date) to (i) the consummation of the Acquisitions, (ii) the
Loans to be made hereunder and the use of proceeds thereof, (iii) the issuance
of the Capital Markets Instruments and the use of proceeds thereof and (iv) the
payment of fees and expenses in connection with the foregoing. The Pro Forma
Balance Sheet has been prepared based on the best information available to the
Borrower as of the date of delivery thereof, and presents fairly on a pro forma
basis the estimated financial position of the Borrower and its consolidated
Subsidiaries as at March 31, 1998, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at December 31, 1997 and December 31, 1996, and the
related statements of consolidated income and cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from Deloitte & Touche LLP, present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such dates, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at March 31, 1998, and the
related unaudited statements of consolidated income and cash flows for the
three-month period ended on such date, present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Borrower and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any material long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, which are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1997 to and
including the date hereof there has been no Disposition by the Borrower and its
Subsidiaries of any material part of its business or Property.
(c) To the best knowledge of the Borrower, the audited consolidated
balance sheets of each Acquired Hawaii Company and its consolidated Subsidiaries
as at May 31, 1997 and May 31, 1996, and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from Arthur Andersen LLP, present
fairly the consolidated financial condition of such Acquired Hawaii Company and
its consolidated Subsidiaries as at such dates, and the consolidated results of
its operations and its consolidated cash flows for the respective fiscal years
then ended. To the best knowledge of the Borrower, the unaudited consolidated
balance sheet of each Acquired Hawaii Company and its consolidated Subsidiaries
as at December 31, 1997, and the related unaudited consolidated statements of
income and cash flows for the seven-month period ended on such date, present
fairly the consolidated financial condition of such Acquired Hawaii Company and
its consolidated Subsidiaries as at such date, and the
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consolidated results of its operations and its consolidated cash flows for the
seven-month period then ended (subject to normal year-end audit adjustments). To
the best knowledge of the Borrower, all such financial statements, including the
related notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). To the best knowledge
of the Borrower, each Acquired Hawaii Company and its Subsidiaries do not have
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any material long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, which are not reflected in the most recent financial statements
referred to in this paragraph. To the best knowledge of the Borrower, during the
period from December 31, 1997 to and including the date hereof there has been no
Disposition by any Acquired Hawaii Company or its Subsidiaries of any material
part of its business or Property.
(d) To the best knowledge of the Borrower, (A) the audited balance
sheets of the Acquired Washington Company as at December 31, 1997 and December
31, 1996, and the related statements of income and of cash flows for the fiscal
year ended on December 31, 1997 and the nine months ended on December 31, 1996,
reported on by and accompanied by an unqualified report from Price Waterhouse
LLP, present fairly the financial condition of the Acquired Washington Company
as at such dates, and the results of its operations and its cash flows for the
respective fiscal years then ended, (B) the unaudited balance sheet of the
Acquired Washington Company as at March 31, 1998, and the related unaudited
statements of income and cash flows for the three-month period ended on such
date, presents fairly the financial condition of the Acquired Washington Company
as at such date, and the results of its operations and its cash flows for the
three-month period then ended (subject to normal year-end audit adjustments),
(C) all such financial statements, including the related notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein), (D) the Acquired Washington Company does not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any material long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, which are not reflected in the most recent financial statements
referred to in this paragraph and (E) during the period from December 31, 1997
to and including the date of this Agreement there has been no Disposition by the
Acquired Washington Company of any material part of its business or Property.
4.2 No Change. Since December 31, 1997 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in
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good standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder and to consummate the Acquisitions. Each
Loan Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement and the Acquisitions. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the consummation of
the Acquisitions and the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 4.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect (except as noted in Schedule
4.4), (ii) the filings referred to in subsection 4.19 and (iii) any consent that
may be required to be obtained by or on behalf of any Lender. Each Loan Document
has been duly executed and delivered on behalf of each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder, the use of the proceeds thereof and the consummation of
the Acquisitions will not violate any Requirement of Law applicable to, or any
material Contractual Obligation of, the Borrower or any of its Subsidiaries and
will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation applicable to the
Borrower or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any
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of the transactions contemplated hereby or thereby, or (b) which could
reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default of its Contractual Obligations in any respect which could reasonably
be expected to have a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has indefeasible title to, or a valid leasehold interest in, all of
its material real property, and good title to, or a valid leasehold interest in,
all its other material Property, and none of such Property is subject to any
Lien except as permitted by subsection 7.3.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted. Except as set forth in Schedule 4.9, no
material claim has been asserted and is pending against the Borrower or any of
its Subsidiaries by any Person challenging or questioning the use of any such
Intellectual Property by the Borrower or any of its Subsidiaries or the validity
or effectiveness of any such Intellectual Property, nor does the Borrower know
of any valid basis for any such claim. The use of such Intellectual Property by
the Borrower and its Subsidiaries does not infringe on the rights of any Person
known by the Borrower to have a legal right therein.
4.10 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all Federal, state and other material tax returns which are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its Property and all
other taxes, fees or other charges imposed on it or any of its Property by any
Governmental Authority, and no tax Lien has been filed, and, to the knowledge of
the Borrower, no claim which could reasonably be expected to have a Material
Adverse Effect is being asserted, with respect to any such tax, fee or other
charge (other than any such claim the amount or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as the case may be).
4.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by any Lender or the General
Administrative Agent, the Borrower will furnish to the General Administrative
Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other
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applicable Requirement of Law dealing with such matters that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse Effect.
All payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if not paid have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.13 ERISA. Except as set forth on Schedule 4.13, neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan which has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to finance, in part, the Washington Acquisition and to pay related fees and
expenses, to refinance certain existing Indebtedness of the Borrower and its
Subsidiaries (including the Existing Credit Agreement) and to finance certain
capital expenditures. The proceeds of the Revolving Credit Loans and the Letters
of Credit shall be used to finance, in part, the Washington Acquisition and to
provide for the ongoing working capital and general corporate needs (including
certain capital expenditures) of the Borrower and its Subsidiaries in the
ordinary course of business.
4.17 Environmental Matters. (a) Other than exceptions to any of the
following that could not, individually or in the aggregate, reasonably be
expected to have a
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Material Adverse Effect, the Borrower and each of its Subsidiaries: (i) is, and
within the period of all applicable statutes of limitation has been, in
compliance with all applicable Environmental Laws; (ii) holds all Environmental
Permits (each of which is in full force and effect) required for any of its
current or intended operations or for any property owned, leased, or otherwise
operated by it; (iii) is, and within the period of all applicable statutes of
limitation has been, in compliance with all of its Environmental Permits; and
(iv) reasonably believes that: each of its Environmental Permits will be timely
renewed and complied with, without material expense; any additional
Environmental Permits that may be required of any of it will be timely obtained
and complied with, without material expense; and compliance with any
Environmental Law that is or is expected to become applicable to it will be
timely attained and maintained, without material expense.
(b) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or operated
by the Borrower or any of its Subsidiaries or at any other location (including,
without limitation, any location to which Materials of Environmental Concern
have been sent for re-use or recycling or for treatment, storage, or disposal)
which could reasonably be expected to (i) give rise to liability of the Borrower
or any of its Subsidiaries under any applicable Environmental Law or otherwise
result in costs to any of them, or (ii) interfere with the Borrower's or any of
its Subsidiaries' continued operations, or (iii) impair the fair saleable value
of any real property owned or leased by the Borrower or any of its Subsidiaries.
(c) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: there is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating to
any Environmental Law to which the Borrower or any of its Subsidiaries is, or to
the knowledge of any of them will be, named as a party that is pending or, to
the knowledge of any of them, threatened.
(d) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has received
any request for information, or been notified that it is a potentially
responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(e) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has entered
into or agreed to any consent decree, order, or settlement or other agreement,
nor is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative, arbitral, or other forum, relating to compliance with
or liability under any Environmental Law.
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(f) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any liabilities of any kind, fixed or
contingent, known or unknown, under any Environmental Law or with respect to any
Materials of Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the General Administrative Agent or the Lenders or any of them, by or on
behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished (or,
in the case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such financial information as
it relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount. As of the
date hereof, the representations and warranties contained in the Hawaii
Acquisition Agreement and the Washington Acquisition Agreement are true and
correct in all material respects. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the General Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. (a) Except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles,
the Guarantee and Collateral Agreement is effective to create in favor of the
Collateral Agent, for the benefit of the Lenders, a legal, valid and enforceable
security interest in the Collateral described therein and proceeds thereof. In
the case of the Pledged Stock described in the Guarantee and Collateral
Agreement, when stock certificates representing such Pledged Stock are delivered
to the Collateral Agent, and in the case of the other Collateral described in
the Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule E4.19(a), the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person except as permitted thereby.
(b) Except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights
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generally and by general equitable principles, each of the Mortgages is
effective to create in favor of the Collateral Agent, for the benefit of the
Lenders, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof, and when the Mortgages are filed in the
offices specified on Schedule E4.19(b), each such Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each case
prior and superior in right to any other Person except as permitted thereby.
(c) Except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles, each of the Oil
and Gas Mortgages is effective to create in favor of the Collateral Agent, for
the benefit of the Lenders, a legal, valid and enforceable Lien on the Mortgaged
Oil and Gas Properties described therein and proceeds thereof, and when the Oil
and Gas Mortgages are filed in the offices specified on Schedule E4.19(c), each
such Oil and Gas Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Mortgaged Oil and Gas Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Oil and Gas Mortgage), in each case
prior and superior in right to any other Person except as permitted thereby.
4.20 Solvency. Each Loan Party is, and after giving effect to the
Acquisitions and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to be,
Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior Debt"
and "Designated Senior Debt" of the Borrower under and as defined in the Senior
Subordinated Note Indenture. The obligations of each Subsidiary Guarantor under
the Guarantee and Collateral Agreement constitute "Senior Debt" of such
Subsidiary Guarantor under and as defined in the Senior Subordinated Note
Indenture.
4.22 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others), and the testing of all
such systems and other equipment as so reprogrammed, will be completed by June
30, 1999. The costs to the Borrower and its Subsidiaries that have not been
incurred as of the date hereof for such reprogramming and testing and for the
other reasonably foreseeable consequences to them of any improper functioning of
other computer systems and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected to result in a
Default or Event of Default or to have a Material Adverse Effect. Except for any
reprogramming referred to above, the computer systems of the Borrower and its
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for
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the term of this Agreement to be, in all material respects sufficient for the
conduct of their business as currently conducted.
4.23 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act
of 1968.
4.24 Excluded Subsidiaries. The aggregate book value of the assets
of all Excluded Subsidiaries does not and will not at any time exceed $1,000,000
in the aggregate.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Syndication Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of
the Borrower and each Agent, and a Lender Addendum with respect to each
initial Lender, executed and delivered by the parties thereto, (ii) the
Guarantee and Collateral Agreement, executed and delivered by a duly
authorized officer of the Borrower and each Subsidiary Guarantor, (iii) a
Mortgage covering each of the Initial Mortgaged Properties, and an Oil and
Gas Mortgage covering each of the Mortgaged Oil and Gas Properties,
executed and delivered by a duly authorized officer of each party thereto,
(iv) for the account of each Lender so requesting in accordance with
subsection 2.6(e), Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the Borrower and
(v) a Consent and Confirmation executed and delivered by a duly authorized
officer of each Subsidiary Guarantor. The Security Documents described in
clauses (ii) and (iii) of the preceding sentence were delivered on May 29,
1998.
(b) Capital Markets Instruments. The Borrower shall have issued and
sold the Capital Markets Instruments. The General Administrative Agent
shall have received certified true and correct copies of (i) the Senior
Subordinated Note Indenture and (ii) the Certificate of Designations and
Preferences for the Mandatorily Convertible Preferred Stock.
(c) Washington Escrow Deposit; Washington Seller Letter Agreement;
Intercreditor Agreement. (i) The Borrower shall have made the required
deposit in the Washington Escrow pursuant to the Washington Escrow
Agreement.
(ii) The Borrower, the Washington Seller, the General Administrative
Agent and the Collateral Agent shall have entered into a satisfactory
letter agreement
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pursuant to which (i) the Washington Seller acknowledges that the Borrower
has granted to the Collateral Agent a security interest in the Borrower's
rights under the Washington Acquisition Agreement and the Washington
Escrow Agreement and (ii) the Washington Seller agrees that, upon release
to the Washington Seller on the Washington Escrow Release Date of funds
from the Washington Escrow, the Washington Seller will promptly deliver to
the Collateral Agent the stock certificate or stock certificates
representing all Capital Stock of the Acquired Washington Company, duly
endorsed in blank.
(iii) The Intercreditor Agreement shall have been executed and
delivered by the parties thereto.
(d) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower and its consolidated Subsidiaries,
audited consolidated financial statements of the Acquired Hawaii Companies
and their consolidated Subsidiaries, and audited financial statements of
the Acquired Washington Company, in each case for the 1997 and 1996 fiscal
years, and (iii) unaudited interim consolidated financial statements of
the Borrower and its consolidated Subsidiaries, unaudited interim
consolidated financial statements of each Acquired Hawaii Company and its
consolidated Subsidiaries, and unaudited interim financial statements of
the Acquired Washington Company, in each case for each fiscal quarterly
period ended subsequent to the date of the latest applicable financial
statements delivered pursuant to clause (ii) of this paragraph (d) as to
which such financial statements are available, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of the
Borrower and its consolidated Subsidiaries, the Acquired Hawaii Companies
and their consolidated Subsidiaries, and the Acquired Washington Company,
in each case as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.
(e) Approvals. All governmental and third party approvals necessary
in connection with the Loan Documents and the financing contemplated
thereby and the continuing operations of the Borrower and its Subsidiaries
shall have been obtained and be in full force and effect.
(f) Related Agreements. The Syndication Agent shall have received
(in a form reasonably satisfactory to such Agent), with a copy for each
Lender, true and correct copies, certified as to authenticity by the
Borrower, of the Hawaii Acquisition Agreement, the Washington Acquisition
Agreement and such other documents or instruments as may be reasonably
requested by the Syndication Agent, including, without limitation, a copy
of any debt instrument, security agreement or other material contract for
borrowed money to which any of the Loan Parties may be a party.
(g) Fees. The Lenders, the Agents and the Arranger shall have
received all fees required to be paid, and all reasonable expenses for
which invoices have been
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presented, on or before the Closing Date. All such amounts shall be paid
with proceeds of Loans made on the Closing Date and will be reflected in
the funding instructions given by the Borrower to the General
Administrative Agent on or before the Closing Date.
(h) Business Plan. The Lenders shall have received satisfactory
financial projections, together with satisfactory assumptions, for fiscal
years 1998-2005 of the Borrower.
(i) Solvency Certificate. The Lenders shall have received a
certificate of a Responsible Officer in form and substance reasonably
satisfactory to the Syndication Agent certifying as to the solvency of the
Borrower and its Subsidiaries considered as a whole after giving effect to
the Acquisitions and the transactions contemplated hereby.
(j) Environmental Assessment. The General Administrative Agent shall
have received, with a copy for each Lender, an environmental assessment,
in form, scope and substance satisfactory to the Syndication Agent and
from a firm satisfactory to the Syndication Agent, with respect to the
Acquired Hawaii Companies, the Acquired Washington Company and the
Borrower and its Subsidiaries.
(k) Closing Certificates. The Syndication Agent shall have received,
with counterparts for each Lender, certificates of each Loan Party, dated
the Closing Date, which together contain the information set forth in
Exhibit C, with appropriate insertions and attachments.
(l) Legal Opinions. The Syndication Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Fulbright & Jaworski L.L.P., counsel
to the Borrower and its Subsidiaries, substantially in the form of
Exhibit F-1;
(ii) the legal opinion of James C. Reed, Jr., general counsel
of the Borrower and its Subsidiaries, substantially in the form of
Exhibit F-2;
(iii) the legal opinion of local counsel in each of Louisiana,
Alaska and Hawaii and of such other special and local counsel as may
be required by the Syndication Agent; and
(iv) title opinions or other evidence of the Borrower's title
with respect to the Oil and Gas Properties as reasonably required by
the Syndication Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Syndication Agent may
reasonably require.
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(m) Pledged Stock; Stock Power. The Syndication Agent shall have
received the certificates representing the shares of Capital Stock pledged
pursuant to the Guarantee and Collateral Agreement (other than the Capital
Stock of the Acquired Washington Company), together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(n) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Collateral Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein (other than
any Collateral in which the Acquired Washington Company has any right,
title or interest), prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by subsection 7.3), shall
be in proper form for filing, registration or recordation.
(o) Title Insurance; Flood Insurance. (i) If requested by the
Collateral Agent, the Collateral Agent shall have received, and the title
insurance company issuing the policy referred to in clause (ii) below (the
"Title Insurance Company") shall have received, maps or plats of an
as-built survey of the sites of the Initial Mortgaged Properties (other
than the Owned Marine Terminals) certified to the Collateral Agent and the
Title Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the Collateral Agent and the Title Insurance Company by an
independent professional licensed land surveyor satisfactory to the
Collateral Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without limiting
the generality of the foregoing, there shall be surveyed and shown on such
maps, plats or surveys the following: (A) the locations on such sites of
all the buildings, structures and other improvements and the established
building setback lines; (B) the lines of streets abutting the sites and
width thereof; (C) all access and other easements appurtenant to the
sites; (D) all roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting the site,
whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining
property by the building structures and improvements on the sites; (F) if
the site is described as being on a filed map, a legend relating the
survey to said map; and (G) the flood zone designations, if any, in which
such Initial Mortgaged Properties are located.
(ii) The Collateral Agent shall have received in respect of each
Initial Mortgaged Property (other than the Owned Marine Terminals) a
mortgagee's title insurance policy (or policies) or marked up
unconditional binder for such insurance. Each such policy shall (A) be in
an amount reasonably satisfactory to the Collateral Agent; (B) be issued
at ordinary rates; (C) insure that the Mortgage insured thereby
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creates a valid first Lien on such Initial Mortgaged Property free and
clear of all defects and encumbrances, except as disclosed therein; (D)
name the Collateral Agent for the benefit of the Lenders as the insured
thereunder; (E) be in the form of ALTA Loan Policy - 1970 (Amended
10/17/70 and 10/17/84) (or equivalent policies); (F) contain such
endorsements and affirmative coverage as the Collateral Agent may
reasonably request and (G) be issued by title companies satisfactory to
the Collateral Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Collateral Agent). The
Collateral Agent shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage
recording tax, and all related expenses, if any, have been paid.
(iii) If requested by the Collateral Agent, the Collateral Agent
shall have received (A) a policy of flood insurance which (1) covers any
parcel of improved real property which is encumbered by any Mortgage, (2)
is written in an amount not less than the outstanding principal amount of
the indebtedness secured by such Mortgage which is reasonably allocable to
such real property or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood
Insurance Act of 1968, whichever is less, and (3) has a term ending not
later than the maturity of the Indebtedness secured by such Mortgage and
(B) confirmation that the Borrower has received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board.
(iv) The Collateral Agent shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title
policy or policies referred to in clause (ii) above and a copy of all
other material documents affecting the Initial Mortgaged Properties.
(p) Insurance. The Collateral Agent shall have received insurance
certificates satisfying the requirements of subsection 5.3 of the
Guarantee and Collateral Agreement.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance or extension of a Letter of Credit on behalf of
the Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of
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such extension of credit that the conditions contained in this subsection 5.2
have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or any Agent hereunder, the Borrower shall and (except in
the case of subsection 6.1) shall cause its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each Lender:
(a) as soon as available, but in any event within 105 days after the
end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited statements
of consolidated income and cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Deloitte & Touche
LLP or other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited statements of consolidated income and cash flows
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in comparative form the figures for the
corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year on the statements of consolidated income and cash
flows and, in the case of the balance sheet only, the last day of the
immediately preceding fiscal year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and each
Lender, or, in the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor
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no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to subsection 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to which it is a party to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) in the case of quarterly
or annual financial statements, (x) a Compliance Certificate containing
all information necessary for determining compliance by the Borrower and
its Subsidiaries with the provisions of this Agreement referred to therein
as of the last day of the fiscal quarter or fiscal year of the Borrower,
as the case may be, and (y) to the extent not previously disclosed to the
General Administrative Agent, a listing of any county or state within the
United States where any Loan Party keeps inventory or equipment and of any
Intellectual Property acquired by any Loan Party since the date of the
most recent list delivered pursuant to this clause (y) (or, in the case of
the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 60 days
after the end of each fiscal year of the Borrower, a detailed consolidated
budget for the following fiscal year (including a projected consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of the
following fiscal year, and the related consolidated statements of
projected cash flow, projected changes in financial position and projected
income), and, as soon as available, significant revisions, if any, of such
budget and projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that such Projections are
based on reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) no later than 3 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to (i) the Senior
Subordinated Note Indenture, (ii) the Hawaii Acquisition Agreement or
(iii) the Washington Acquisition Agreement;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports (excluding the related exhibits thereto unless
specifically requested by such Agent or Lender) which the Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
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(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc. Except
with respect to Excluded Subsidiaries: (a) (i) preserve, renew and keep in full
force and effect its corporate existence and (ii) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
subsection 7.4 and except, in the case of clause (ii) above, to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law
applicable to it except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted (as determined by the Borrower in its reasonable
discretion), (b) maintain with financially sound and reputable insurance
companies (or, to the extent reasonable, customary among companies engaged in
the same or a similar business and, in any event, consistent with the past
business practices of the Borrower, through self-insurance) insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law applicable to it shall be made
of all dealings and transactions in relation to its business and activities and
(b) permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time during normal business hours and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers of the
Borrower and its Subsidiaries and with its independent certified public
accountants.
6.7 Notices. Promptly give notice to the General Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
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(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding in which the Borrower
or any of its Subsidiaries is a party in which the amount involved
is $5,000,000 or more and not covered by insurance or in which
material injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any
Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws. (a) (i) Comply with all Environmental Laws
applicable to it, and obtain, comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (ii) take
all reasonable efforts to ensure that all of its tenants, subtenants,
contractors, subcontractors, and invitees comply with all Environmental Laws,
and obtain, comply with and maintain any and all Environmental Permits,
applicable to any of them insofar as any failure to so comply, obtain or
maintain, or take such efforts, reasonably could be expected to adversely affect
the Borrower. For purposes of the preceding sentence, the Borrower or any of its
Subsidiaries shall not be deemed to be in noncompliance or default with any
applicable Environmental Law or Environmental Permit if, upon learning of any
actual or suspected noncompliance, the Borrower and/or Subsidiary, as the case
may be, shall promptly undertake all reasonable efforts to achieve compliance;
provided, that, in any case, such noncompliance, and any other noncompliance
with Environmental Laws, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders
and directives as to which an appeal has been timely and properly taken in good
faith (provided, that the pendency of any and all such appeals could not
reasonably be expected to have a Material Adverse Effect).
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(c) (i) Prior to acquiring any ownership or leasehold interest in
real property, or other interest in any real property (other than interests in
Oil and Gas Properties which are not being operated or occupied) that could give
rise to the Borrower being found to be an operator subject to potential
liability under any Environmental Law (or any entity with such interests in any
real property), obtain a written report by an environmental consulting firm
reasonably acceptable to the Syndication Agent and the General Administrative
Agent (an "Environmental Consultant") of the Environmental Consultant's
assessment of the presence or potential presence of significant levels of any
Materials of Environmental Concern on, under, in, or about the property, or of
other conditions that could give rise to potentially significant liability under
or violations of Environmental Law relating to such acquisition, and notify the
General Administrative Agent and the Syndication Agent of such acquisition no
later than promptly following the closing thereof; and (ii) if requested by the
General Administrative Agent or the Syndication Agent, provide such report to
the General Administrative Agent and the Syndication Agent and afford the
General Administrative Agent and the Syndication Agent a reasonable opportunity,
if requested by either of them, to discuss such report with the Environmental
Consultant who prepared it and a knowledgeable representative of the Borrower.
The General Administrative Agent and the Syndication Agent shall have the right,
but shall not have any duty, to obtain, review, or discuss any such report.
6.9 Additional Collateral, etc. (a) With respect to any Property
(including any vessel as to which all or any portion of the purchase price has
been funded with the proceeds of Loans) acquired after the Closing Date by the
Borrower or any of its Subsidiaries (other than (w) any Property described in
paragraph (b), (c) or (d) below, (x) any Property subject to a Lien expressly
permitted by subsection 7.3(g), (y) vessels acquired with the proceeds of
transactions permitted by subsection 7.2(b) and (z) leasehold interests in real
property) as to which the Collateral Agent, for the benefit of the Lenders, does
not have a perfected Lien, promptly (i) execute and deliver to the General
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the General Administrative Agent deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Lenders, a
security interest in such Property and (ii) take all actions necessary or
reasonably advisable to grant to the Collateral Agent, for the benefit of the
Lenders, a perfected first priority security interest in such Property,
including, without limitation, the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be requested by the General
Administrative Agent.
(b) (i) With respect to any fee interest in any real property having
a value (together with improvements thereof) of at least $2,500,000 acquired
after the Closing Date by the Borrower or any of its Subsidiaries (other than
any such real property subject to a Lien expressly permitted by subsection
7.3(g), and other than any such real property interest owned by the Acquired
Washington Company, which shall be governed by subsection 6.11), promptly (A)
execute and deliver a first priority Mortgage in favor of the Collateral Agent,
for the benefit of the Lenders, covering such real property, (B) if requested by
the General Administrative Agent, provide the Lenders with (x) title and
extended coverage insurance covering such real property (other than Owned Marine
Terminals) in an amount at least equal to the purchase price of such real estate
(or such other amount as shall be reasonably
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specified by the General Administrative Agent) as well as a current ALTA survey
thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the General Administrative
Agent in connection with such mortgage or deed of trust, each of the foregoing
in form and substance reasonably satisfactory to the General Administrative
Agent, and (C) if requested by the General Administrative Agent, deliver to the
General Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the General Administrative Agent.
(ii) With respect to any Oil and Gas Properties in any single field
having an aggregate value for such field (together with improvements thereof) of
at least $2,500,000 acquired after the Closing Date by the Borrower or any of
its Subsidiaries, promptly (A) execute and deliver a first priority Oil and Gas
Mortgage in favor of the Collateral Agent, for the benefit of the Lenders,
covering such Oil and Gas Property and (B) deliver to the General Administrative
Agent legal opinions and title opinions or other evidence of the Borrower's
title, in each case as reasonably required by the General Administrative Agent,
relating to the matters described above, which opinions or evidence of title, as
the case may be, shall be in form and substance, and from counsel, reasonably
satisfactory to the General Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date (which, for the
purposes of this paragraph, shall include any existing Subsidiary that ceases to
be an Excluded Foreign Subsidiary) by the Borrower or any of its Subsidiaries
(other than the Acquired Washington Company, which shall be governed by
subsection 6.11), promptly (i) execute and deliver to the General Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the General
Administrative Agent deems necessary or advisable to grant to the Collateral
Agent, for the benefit of the Lenders, a perfected first priority security
interest in the Capital Stock of such new Subsidiary which is owned by the
Borrower or any of its Subsidiaries, (ii) deliver to the Collateral Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary
(A) to become a party to the Guarantee and Collateral Agreement and (B) to take
such actions necessary or advisable to grant to the Collateral Agent for the
benefit of the Lenders a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
General Administrative Agent, and (iv) if requested by the General
Administrative Agent, deliver to the General Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the General
Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by the Borrower or any of its Subsidiaries,
promptly (i) execute and deliver to the General Administrative Agent such
amendments to the Guarantee
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and Collateral Agreement as the General Administrative Agent deems necessary or
advisable in order to grant to the Collateral Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Capital Stock of
such new Subsidiary which is owned by the Borrower or any of its Subsidiaries
(provided that in no event shall more than 65% of the total outstanding Capital
Stock of any such new Subsidiary be required to be so pledged), (ii) deliver to
the Collateral Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, and take such
other action as may be necessary or, in the opinion of the General
Administrative Agent, desirable to perfect the Lien of the Collateral Agent
thereon, and (iii) if requested by the General Administrative Agent, deliver to
the General Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the General Administrative Agent.
6.10 Further Assurances. (a) In the case of the Borrower, from time
to time execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and take all such actions, as
the General Administrative Agent may reasonably request, for the purposes of
implementing or effectuating the provisions of this Agreement and the other Loan
Documents, or of more fully perfecting or renewing the rights of the Agents and
the Lenders with respect to the Collateral (or with respect to any additions
thereto or replacements or proceeds thereof or with respect to any other
property or assets hereafter acquired by the Borrower which may be deemed to be
part of the Collateral) pursuant hereto or thereto. Upon the exercise by the
General Administrative Agent or any Lender of any power, right, privilege or
remedy pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority, the Borrower will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other
documents and papers that the General Administrative Agent or such Lender may be
required to obtain from the Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.
6.11 Satisfaction of Obligations Related to Washington Escrow
Release. On the Washington Escrow Release Date, if on such date funds are
released to the Washington Seller and ownership of the Capital Stock of the
Acquired Washington Company is transferred to the Borrower (subject to the
security interest of the Collateral Agent), the Borrower shall satisfy the
conditions set forth in paragraphs (a), (b), (d), (e) and (f) below, and within
five Business Days after the Washington Escrow Release Date, the Borrower shall
satisfy each of the other conditions set forth below:
(a) Washington Acquisition. The Washington Acquisition shall have
been consummated pursuant to the Washington Acquisition Agreement on terms
and conditions reasonably satisfactory to the Lenders, and no material
provision thereof shall have been waived, amended, supplemented or
otherwise modified without the consent of the Syndication Agent (which
consent shall not be unreasonably withheld, conditioned or delayed).
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(b) Guarantee and Pledge By and With Respect to Acquired Washington
Company. The Borrower shall have and shall have caused the Acquired
Washington Company to, as the case may be, (i) execute and deliver to the
General Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the General Administrative Agent deems necessary
or advisable to grant to the Collateral Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Capital Stock
of the Acquired Washington Company, (ii) deliver to the Collateral Agent
the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or the Acquired Washington Company, as the case
may be and (iii) cause the Acquired Washington Company (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such
actions necessary or advisable to grant to the Collateral Agent for the
benefit of the Lenders a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with
respect to the Acquired Washington Company, including, without limitation,
the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement
or by law or as may be requested by the General Administrative Agent.
(c) Washington Mortgage. The General Administrative Agent shall have
received a Mortgage covering the Washington Mortgaged Property, executed
and delivered by a duly authorized officer of each party thereto.
(d) Approvals. All governmental and third party approvals necessary
in connection with the Washington Acquisition shall have been obtained and
be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse
conditions on the Washington Acquisition.
(e) Lien Searches. The General Administrative Agent shall have
received the results of a recent lien search in each of the jurisdictions
where the Acquired Washington Company does business, and such search shall
reveal no material liens on any of the assets of the Acquired Washington
Company except for liens permitted by subsection 7.3.
(f) Legal Opinions. The General Administrative Agent shall have
received the following executed legal opinions:
(i) to the extent consented to by the relevant counsel, each
legal opinion, if any, delivered in connection with the Washington
Acquisition Agreement, accompanied by a reliance letter in favor of
the Lenders; and
(ii) the legal opinion of local counsel in Washington and of
such other special and local counsel as may be required by the
Syndication Agent.
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(g) Title Insurance; Flood Insurance. (i) If requested by the
General Administrative Agent, the General Administrative Agent shall have
received, and the Title Insurance Company shall have received, maps or
plats of an as-built survey of the site of the Washington Mortgaged
Property certified to the General Administrative Agent and the Title
Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the General Administrative Agent and the Title Insurance
Company by an independent professional licensed land surveyor satisfactory
to the General Administrative Agent and the Title Insurance Company, which
maps or plats and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there shall be
surveyed and shown on such maps, plats or surveys the following: (A) the
locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (B) the lines of
streets abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites; (D) all roadways, paths, driveways,
easements, encroachments and overhanging projections and similar
encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (E)
any encroachments on any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as being on a
filed map, a legend relating the survey to said map; and (G) the flood
zone designations, if any, in which the Washington Mortgaged Property is
located.
(ii) The General Administrative Agent shall have received in respect
of the Washington Mortgaged Property a mortgagee's title insurance policy
(or policies) or marked up unconditional binder for such insurance. Such
policy shall (A) be in an amount reasonably satisfactory to the General
Administrative Agent; (B) be issued at ordinary rates; (C) insure that the
Mortgage insured thereby creates a valid first Lien on the Washington
Mortgaged Property free and clear of all defects and encumbrances, except
as disclosed therein; (D) name the Collateral Agent for the benefit of the
Lenders as the insured thereunder; (E) be in the form of ALTA Loan Policy
- 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F)
contain such endorsements and affirmative coverage as the General
Administrative Agent may reasonably request and (G) be issued by title
companies satisfactory to the General Administrative Agent (including any
such title companies acting as co-insurers or reinsurers, at the option of
the General Administrative Agent). The General Administrative Agent shall
have received evidence satisfactory to it that all premiums in respect of
such policy, all charges for mortgage recording tax, and all related
expenses, if any, have been paid.
(iii) If requested by the General Administrative Agent, the General
Administrative Agent shall have received (A) a policy of flood insurance
which (1) covers any parcel of improved real property which is encumbered
by the Mortgage covering the Washington Mortgaged Property, (2) is written
in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which
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is reasonably allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of property
under the National Flood Insurance Act of 1968, whichever is less, and (3)
has a term ending not later than the maturity of the Indebtedness secured
by such Mortgage and (B) confirmation that the Borrower has received the
notice required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(iv) The General Administrative Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in clause (ii) above and a copy
of all other material documents affecting the Washington Mortgaged
Property.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or any Agent hereunder, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower and its consolidated Subsidiaries ending during any period set
forth below to exceed the ratio set forth below opposite such period:
Consolidated
Period Leverage Ratio
------ --------------
July 1, 1998 - September 30, 1999 3.25:1.00
October 1, 1999 - September 30, 2000 3.00:1.00
October 1, 2000 - September 30, 2001 2.50:1.00
Thereafter 2.00:1.00
; provided, that for the purposes of determining the ratio described above for
the fiscal quarters of the Borrower ending September 30, 1998, December 31, 1998
and March 31, 1999, Consolidated EBITDA for the relevant period shall be deemed
to equal Consolidated EBITDA for such fiscal quarter (and, in the case of the
latter two such determinations, each previous fiscal quarter commencing on or
after July 1, 1998) multiplied by 4, 2 and 4/3, respectively.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower and its consolidated Subsidiaries ending during
any period set forth below to be less than the ratio set forth below opposite
such period:
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Consolidated Fixed
Period Charge Coverage Ratio
------ ---------------------
July 1, 1998 - September 30, 1999 3.00:1.00
October 1, 1999 - September 30, 2000 3.25:1.00
Thereafter 3.50:1.00
; provided, that for the purposes of determining the ratio described above for
the fiscal quarters of the Borrower ending September 30, 1998, December 31, 1998
and March 31, 1999, Consolidated EBITDA for the relevant period shall be deemed
to equal Consolidated EBITDA for such fiscal quarter (and, in the case of the
latter two such determinations, each previous fiscal quarter commencing on or
after July 1, 1998) multiplied by 4, 2 and 4/3, respectively.
7.2 Limitation on Indebtedness. Create, incur, assume or permit to
exist (collectively, "incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by subsection 7.3(g) in an
aggregate principal amount not to exceed $30,000,000 at any one time
outstanding;
(c) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof (other than
for payment of related expenses, fees and premiums, if any) or any
shortening of the maturity of any principal amount thereof);
(d) Guarantee Obligations made in the ordinary course of business by
the Borrower or any of its Subsidiaries of obligations of the Borrower or
any Subsidiary Guarantor;
(e) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$300,000,000; provided that the Borrower may incur additional Indebtedness
in respect of the Senior Subordinated Notes after the Closing Date in an
aggregate principal amount of up to $50,000,000, so long as (i) no Default
or Event of Default shall have occurred and be continuing on the date of
such incurrence before or after giving effect thereto and (ii) the
Borrower shall be in compliance, on a pro forma basis after giving effect
to such incurrence, with the covenants contained in subsection 7.1, in
each case recomputed as at the last day of the most recently ended fiscal
quarter of the Borrower with respect to which financial statements have
been delivered pursuant to subsection 6.1(b) as if such incurrence had
occurred on the first day of each relevant period for testing such
compliance;
(f) Indebtedness owing by (i) the Borrower to Subsidiaries which are
not Subsidiary Guarantors not to exceed $7,500,000 in the aggregate, (ii)
any Subsidiary
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of the Borrower to the Borrower, (iii) the Borrower to any Subsidiary
Guarantor, and (iv) any Subsidiary Guarantor to any other Subsidiary
Guarantor;
(g) Indebtedness not to exceed $15,000,000 in the aggregate at any
one time outstanding in respect of letters of credit (other than Letters
of Credit) or bank guaranties provided for the account of the Borrower or
any of its Subsidiaries in the ordinary course of their respective
businesses conducted in South America and used in lieu of or in support of
performance guarantees or performance, surety or other similar bonds or
bankers' acceptances;
(h) Guarantee Obligations of the Borrower and its Subsidiaries in
respect of the obligations incurred by branded dealers and distributors in
connection with retail gasoline station improvements; provided, that the
aggregate amount of outstanding Guarantee Obligations incurred pursuant to
this subsection 7.2(h), taken together with the aggregate amount of
Investments made pursuant to subsection 7.7(k), shall not exceed (i) at
any time during 1998, $10,000,000, and (ii) at any time thereafter,
$20,000,000;
(i) Indebtedness assumed by the Borrower or any of its Subsidiaries
in connection with purchases of all or substantially all of the Capital
Stock of Persons organized under the laws of the United States or any
state thereof and engaged in lines of business similar to the line of
business of the Borrower on the date of this Agreement, but in no event in
contravention of subsection 4.16; provided, that the aggregate amount of
Indebtedness so assumed pursuant to this subsection 7.2(i), taken together
with the aggregate amount of Investments made pursuant to subsection
7.7(i), shall in no event exceed $75,000,000;
(j) Indebtedness of the Borrower or any of its Subsidiaries not
otherwise permitted by this subsection 7.2 in an aggregate principal
amount (for the Borrower and all of its Subsidiaries) at any one time
outstanding not to exceed $75,000,000;
(k) any refinancings, refundings, renewals or extensions, in whole
or in part, of any Indebtedness referred to in subsection 7.2(a) or (j)
(without any increase in the principal amount thereof (other than for
payment of related expenses, fees and premiums, if any) or any shortening
of the maturity of any principal amount thereof); and
(l) Indebtedness secured by Liens on a vessel permitted by
subsection 7.3(s) in an aggregate principal amount not to exceed
$55,000,000; provided that no Indebtedness shall be permitted pursuant to
this subsection 7.2(l) if the Borrower or any of its Subsidiaries has
entered into the Shipping Joint Venture with respect to such vessel or any
portion of the purchase price of such vessel has been funded with the
proceeds of Loans.
7.3 Limitation on Liens. Create, incur, assume or permit to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except for:
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(a) Liens for taxes, assessments or other governmental charges not
yet due or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or which are
being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the Property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by subsection 7.2(c), provided that no such Lien
is spread to cover any additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to subsection 7.2(b) to finance the acquisition or
construction of, or repairs, improvements or additions to, fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any Property of the Borrower or its
Subsidiaries other than the Property financed by such Indebtedness and (iii) the
amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into
by the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased;
(j) any Lien securing Indebtedness, neither assumed nor guaranteed
by the Borrower or any of its Subsidiaries nor on which it customarily pays
interest, existing upon real estate or rights in or relating to real estate
acquired by the Borrower for
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substation, metering station, pump station, storage, gathering line,
transmission line, transportation line, distribution line or for right-of-way
purposes, any Liens reserved in leases for rent and for compliance with the
terms of the leases in the case of leasehold estates, to the extent that any
such Lien referred to in this clause (j) does not materially impair the use of
the Property covered by such Lien for the purposes of which such Property is
held by the Borrower or any of its Subsidiaries;
(k) inchoate Liens arising under ERISA;
(l) Liens reserved in customary oil, gas and/or mineral leases for
bonus or rental payments and for compliance with the terms of such leases and
Liens reserved in customary operating agreements, farm-out and farm-in
agreements, exploration agreements, development agreements and other similar
agreements for compliance with the terms of such agreements;
(m) any obligations or duties affecting any of the Property of the
Borrower or its Subsidiaries to any municipality or public authority with
respect to any franchise, grant, license or permit which do not materially
impair the use of such Property for the purposes for which it is held;
(n) defects, irregularities and deficiencies in title of any rights
of way or other Property of the Borrower or any Subsidiary which in the
aggregate do not materially impair the use of such rights of way or other
Property for the purposes for which such rights of way and other Property are
held by the Borrower or any Subsidiary, and defects, irregularities and
deficiencies in title to any Property of the Borrower or its Subsidiaries, which
defects, irregularities or deficiencies have been cured by possession under
applicable statutes of limitation;
(o) royalties, overriding royalties, revenue interests, production
payments (other than production payments granted or created by the Borrower in
connection with the borrowing of money), advance payment obligations (other than
obligations in respect of advance payment received by the Borrower in connection
with the borrowing of money) and other similar burdens now existing on Oil and
Gas Properties now owned or, as to Oil and Gas Properties hereafter acquired, at
the time of acquisition by the Borrower or any of its Subsidiaries;
(p) Liens arising out of all present and future division and
transfer orders, advance payment agreements, processing contracts, gas
processing plant agreements, operating agreements, gas balancing or deferred
production agreements, pooling, unitization or communitization agreements,
pipeline, gathering or transportation agreements, platform agreements, drilling
contracts, injection or repressuring agreements, cycling agreements,
construction agreements, salt water or other disposal agreements, leases or
rental agreements (but only as otherwise permitted by this Agreement), farm-out
and farm-in agreements, exploration and development agreements, and any and all
other contracts or agreements covering or arising out of production, sale, use,
purchase, exchange, storage, separation, dehydration, treatment,
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compression, gathering, transportation, processing, improvement,
marketing, disposal or handling of any Property of the Borrower or its
Subsidiaries, provided such agreements are entered into in the ordinary
course of business and contain terms customary for such agreements in the
industry;
(q) Liens securing Indebtedness permitted pursuant to subsection
7.2(i), so long as the aggregate fair market value (determined, in the
case of each such Lien, as of the date such Lien is incurred) of the
assets subject thereto does not at any time exceed an amount equal to the
product of (i) 1.5 and (ii) the aggregate outstanding principal amount of
the obligations secured thereby;
(r) Liens securing Indebtedness permitted pursuant to subsection
7.2(j), so long as (i) the aggregate outstanding principal amount of the
obligations secured thereby does not exceed $60,000,000, and (ii) the
aggregate fair market value (determined, in the case of each such Lien, as
of the date such Lien is incurred) of the assets subject thereto does not
at any time exceed an amount equal to the product of (x) 1.5 and (y) the
aggregate outstanding principal amount of the obligations secured thereby;
(s) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or
instruments of the Borrower or any of its Subsidiaries on deposit with or
in possession of such bank;
(t) Liens securing Indebtedness of the Borrower or any of its
Subsidiaries incurred pursuant to subsection 7.2(l) to finance the
acquisition of a vessel, provided that (i) such Liens shall be created
substantially simultaneously with such acquisition, (ii) such Liens do not
at any time encumber any Property of the Borrower or its Subsidiaries
other than such vessel and (iii) the amount of Indebtedness secured
thereby is not increased; and
(u) Liens in favor of the trustee under the Senior Subordinated Note
Indenture on up to $151,500,000 of the net cash proceeds of the Senior
Subordinated Notes (including any Lien in favor of such trustee on the
Borrower's interest, up to $151,500,000, in the Washington Escrow)
securing the payment of the Borrower's obligations under the Senior
Subordinated Notes.
7.4 Limitation on Fundamental Changes. Except for Excluded
Subsidiaries, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its Property or
business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary
Guarantor (provided that the Subsidiary Guarantor shall be the continuing
or surviving corporation); and
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(b) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon dividend, distribution, voluntary liquidation or otherwise)
to the Borrower or any Subsidiary Guarantor.
7.5 Limitation on Disposition of Property. Except for Excluded
Subsidiaries, dispose of any of its Property (including, without limitation,
receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out Property in the ordinary
course of business;
(b) the sale of inventory, hydrocarbon production, other mineral
products and products refined therefrom in the ordinary course of
business;
(c) Dispositions permitted by subsection 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary Guarantor;
(e) any Recovery Event; provided, that the requirements of
subsection 2.10(b) are complied with in connection therewith;
(f) other Dispositions outside the ordinary course of business
occurring during the term of this Agreement which yield gross proceeds to
the Borrower or any of its Subsidiaries (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in an aggregate amount not in excess of $25,000,000;
(g) Asset Sales not otherwise permitted by this subsection 7.5;
provided, that (i) the aggregate book value of all assets which are the
subject thereof does not exceed, during the term of this Agreement, 1% of
the aggregate book value of the assets of the Borrower and its
Subsidiaries after giving effect to the Acquisitions and (ii) the
requirements of subsection 2.10(b) are complied with in connection
therewith;
(h) any trade or exchange by the Borrower or any Subsidiary
Guarantor of any Oil and Gas Property for Property owned or held by
another Person; provided that (i) the fair market value of the Oil and Gas
Property so traded or exchanged by (together with any accompanying cash or
Cash Equivalents paid by) the Borrower or such Subsidiary Guarantor, as
the case may be (the "Released Property"), is substantially equivalent to
the fair market value of the Property (together with any accompanying cash
or Cash Equivalents) received by the Borrower or such Subsidiary
Guarantor, as the case may be, in connection with such trade or exchange
(the "Received Property") and (ii) if the Released Property constitutes
Collateral immediately prior to such trade or exchange, then the Received
Property shall
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constitute Collateral and, accordingly, shall be pledged to the Collateral
Agent, for the benefit of the Lenders, in the manner provided in the
applicable paragraph or paragraphs of subsection 6.9; provided, further,
that the aggregate value of all Oil and Gas Properties traded or exchanged
and any accompanying cash or Cash Equivalents paid by the Borrower and the
Subsidiary Guarantors pursuant to this subsection 7.5(h) in connection
with the business of the Borrower and its Subsidiaries conducted outside
of South America shall not exceed $50,000,000;
(i) the sale or transfer (whether or not in the ordinary course of
business) of crude oil or natural gas properties or direct or indirect
interests in real property; provided, that at the time of any such sale or
transfer, the Property being sold or transferred does not have associated
with it any proved reserves; and
(j) the abandonment, farmout, lease or sublease of developed or
undeveloped crude oil or natural gas properties in the ordinary course of
business.
7.6 Limitation on Restricted Payments. Declare or pay any dividend
(other than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Borrower or any
Subsidiary, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that (a) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary Guarantor and (b) so long as no Default or Event of
Default shall be in existence, the Borrower may pay dividends (i) on the
Mandatorily Convertible Preferred Stock at the stated rate and (ii) on its
common stock in an aggregate amount not to exceed $10,000,000 in any fiscal year
of the Borrower.
7.7 Limitation on Investments. Make any advance, loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by subsections 7.2(d) and (f);
(d) loans and advances to officers, directors and employees of the
Borrower or any of its Subsidiaries in the ordinary course of business
(including, without limitation, for travel, entertainment and relocation
expenses) in an aggregate amount for the Borrower and its Subsidiaries not
to exceed $7,500,000 at any one time outstanding;
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(e) the Acquisitions;
(f) Investments in assets useful in the Borrower's business made by
the Borrower or any of its Subsidiaries with the proceeds of any
Reinvestment Deferred Amount;
(g) entering into a joint venture or partnership in connection with
the sale to such joint venture or partnership of all or a portion of the
assets of Tesoro Bolivia;
(h) (i) the purchase of stock issued by the Borrower from
participants in the incentive stock plans of the Borrower made for the
purpose of satisfying federal withholding tax obligations of such
participants as provided for under the terms of such incentive stock plans
or stock incentive grants thereunder or (ii) the purchase existing options
issued to such participants pursuant to such incentive stock plans in
order to make stock available for issuance to current employees, provided
that the aggregate amount of Investments permitted pursuant to the
foregoing clause (ii) during the term of this Agreement shall in no event
exceed $5,000,000;
(i) purchases of all or substantially all of the Capital Stock of
Persons organized under the laws of the United States or any state thereof
and engaged in lines of business similar to the line of business of the
Borrower on the date of this Agreement, but in no event in contravention
of subsection 4.16; provided, that the aggregate amount of Investments
made pursuant to this subsection 7.7(i), taken together with the aggregate
amount of Indebtedness assumed by the Borrower and its Subsidiaries
pursuant to subsection 7.2(i), shall in no event exceed $75,000,000;
(j) Investments (other than those relating to the incurrence of
Indebtedness permitted by subsection 7.7(c)) by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such investment,
is a Subsidiary Guarantor; provided that any such Investments in Tesoro
Bolivia shall not in the aggregate exceed (i) during the period from the
Closing Date until the first anniversary of the Closing Date, $75,000,000,
(ii) during the period from the first anniversary of the Closing Date
until the second anniversary of the Closing Date, $75,000,000, (iii)
during the period from the second anniversary of the Closing Date until
the third anniversary of the Closing Date, $50,000,000 or (iv) after the
third anniversary of the Closing Date, the amounts permitted by subsection
7.7(k);
(k) Investments (other than those relating to the incurrence of
Indebtedness permitted by subsection 7.7(c) by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such investment,
is a Subsidiary Guarantor; provided that, (i) any such Investments in
Tesoro Latin American Company or any other Subsidiary (other than Tesoro
Bolivia) which conducts a material portion of its operations outside the
United States shall not in the aggregate exceed $25,000,000 during the
first three one-year periods following the Closing Date and (ii) any such
Investment in Tesoro Latin America Company or any other Subsidiary
(including Tesoro Bolivia) which conducts a material portion of its
operations outside the United
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States shall not in the aggregate exceed $40,000,000 in any one-year
period following the Closing Date;
(l) Investments by the Borrower or any of its Subsidiaries in the
businesses of branded dealers and distributors in connection with retail
gasoline station improvements; provided, that the aggregate amount of
Investments made pursuant to this subsection 7.7(k), taken together with
the aggregate amount of outstanding Guarantee Obligations incurred
pursuant to subsection 7.2(h), shall not exceed (i) at any time during
1998, $10,000,000, and (ii) at any time thereafter, $20,000,000;
(m) Investments by the Borrower or any of its Subsidiaries
consisting of the receipt by the Borrower or such Subsidiary of Capital
Stock or other securities, obligations or production payments in
settlement of debts created in the ordinary course of business and owing
to, or in satisfaction of judgments in favor of, the Borrower or any of
its Subsidiaries; provided, that the aggregate amount of debts so settled
and judgments so satisfied during the term of this Agreement shall not
exceed $10,000,000;
(n) the Shipping Joint Venture; provided that the Shipping Joint
Venture shall not constitute an Investment permitted by this subsection
7.7 if any Indebtedness is outstanding pursuant to subsection 7.2(l) or if
all or any portion of the purchase price of the vessel owned by such
Shipping Joint Venture has been funded with the proceeds of Loans; and
(o) entering into a joint venture or partnership in connection with
the sale to such joint venture or partnership of all or a portion of the
assets of Tesoro Marine Services, Inc.; provided, that the fair market
value of the investment by Tesoro Marine Services, Inc. to such joint
venture or partnership shall in no event exceed $50,000,000 and the terms
of such joint venture or partnership shall be reasonably satisfactory to
the General Administrative Agent in all material respects and the
interests of the Borrower and any of its Subsidiaries in such joint
venture or partnership shall be pledged to the Collateral Agent, for the
benefit of the Lenders, in the manner provided in clauses (i) and (ii) of
subsection 6.9(a).
7.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, or deposit any funds with any trustee or create any trust to defease,
the Senior Subordinated Notes, (b) amend, modify or otherwise change, or consent
or agree to any amendment, modification, waiver or other change to, any of the
terms of the Senior Subordinated Notes (other than any such amendment,
modification, waiver or other change which (i) would extend the maturity or
reduce the amount of any payment of principal thereof, reduce the rate or extend
the date for payment of interest thereon or relax any covenant or other
restriction applicable to the Borrower or any of its Subsidiaries and (ii) does
not involve the payment of a consent fee), (c) designate any Indebtedness (other
than the Obligations) as "Designated Senior Debt" for the purposes of the Senior
Subordinated Note Indenture or (d) amend its certificate of
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incorporation in any manner determined by the General Administrative Agent to be
adverse to the Lenders.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise
not prohibited by this Agreement, (b) in the ordinary course of business of the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's-length transaction with
a Person which is not an Affiliate.
7.10 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of the Borrower to end on a day other than December 31 or change the Borrower's
method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter into or permit to
exist or become effective any agreement which prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or permit to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any Subsidiary
Guarantor, its obligations under the Guarantee and Collateral Agreement, other
than (a) this Agreement and the other Loan Documents and (b) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby).
7.13 Limitation on Restrictions on Subsidiary Distributions. Enter
into or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant
to an agreement which has been entered into in connection with the Disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary
and (iii) solely in the case of the foregoing clause (c), customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with the past practices of the Borrower and its
Subsidiaries.
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7.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto.
7.15 Limitation on Amendments to Acquisition Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities and licenses furnished to the Borrower or any of
its Subsidiaries pursuant to the Hawaii Acquisition Agreement, the Washington
Acquisition Agreement, or any other document delivered by the Hawaii Sellers,
the Washington Seller or any of their respective affiliates in connection
therewith such that after giving effect thereto such indemnities or licenses
shall be materially less favorable to the interests of the Loan Parties or the
Lenders with respect thereto or (b) otherwise amend, supplement or otherwise
modify the terms and conditions of the Hawaii Acquisition Agreement, the
Washington Acquisition Agreement or any such other documents except to the
extent that any such amendment, supplement or modification could not reasonably
be expected to have a Material Adverse Effect.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) (i) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of subsection
6.4(a) (with respect to the Borrower only), subsection 6.7(a), Section 7
of this Agreement or Section 5 of the Guarantee and Collateral Agreement
or (ii) an "Event of Default" under and as defined in any Mortgage shall
have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section 8),
and such default shall continue unremedied for a period of 30 days; or
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(e) Any Loan Party shall (i) default in making any payment of any
principal of any Indebtedness (including, without limitation, any
Guarantee Obligation constituting Indebtedness, but excluding the Loans)
on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute
an Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the aggregate outstanding principal amount of which is at
least $15,000,000; or
(f) (i) Any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law 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 to adjudicate it a bankrupt or insolvent, 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, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Loan Party
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, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against any Loan Party 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 Loan Party 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 Loan Party shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a
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Plan shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole judgment of
the Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $10,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) Any of the Security Documents covering material collateral shall
cease, for any reason, to be in full force and effect, or any Loan Party
or any Affiliate of any Loan Party shall so assert, or any Lien created by
any of the Security Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party shall so assert; or
(k) (i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) shall become, or obtain rights (whether by
means or warrants, options or otherwise) to become, the "beneficial owner"
(as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly
or indirectly, of more than 25% of the outstanding common stock of the
Borrower; (ii) the board of directors of the Borrower shall cease to
consist of a majority of Continuing Directors; or (iii) a Specified Change
of Control shall occur; or
(l) At any time, the Senior Subordinated Notes or the guarantees
thereof shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and Collateral Agreement, as the case may be, as provided in the
Senior Subordinated Note Indenture, or any Loan
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Party, the trustee in respect of the Senior Subordinated Notes or the
holders of at least 25% in aggregate principal amount of the Senior
Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken, so long as such Event of Default is in existence and has not otherwise
been cured or waived in accordance herewith: (i) with the consent of the
Majority Revolving Credit Facility Lenders, the General Administrative Agent
may, or upon the request of the Majority Revolving Credit Facility Lenders, the
General Administrative Agent shall, by notice to the Borrower declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving
Credit Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the General Administrative Agent may, or upon the request of
the Required Lenders, the General Administrative Agent shall, by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the General
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit. Amounts held in such cash collateral account
shall be applied by the General Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder and under
the other Loan Documents. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere
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in this Agreement, no Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by the General Administrative Agent. The Agents may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the General Administrative Agent. Each Agent shall be fully justified
in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders),
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and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the General Administrative
Agent receives such a notice, the General Administrative Agent shall give notice
thereof to the Lenders. The General Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders (or, if so specified by this Agreement, all Lenders);
provided that unless and until the General Administrative Agent shall have
received such directions, the General Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the General
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party which may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this subsection 9.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such
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Aggregate Exposure Percentages immediately prior to such date), 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 Loans) be imposed on, incurred by or asserted against such Agent
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements which are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. The agreements in this
subsection 9.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent was not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit
issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Agents. The General Administrative Agent or the
Collateral Agent, as the case may be, may resign as such Agent upon 10 days'
notice to the Lenders and the Borrower. If the General Administrative Agent or
the Collateral Agent, as the case may be, shall resign as such Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor General Administrative Agent or Collateral
Agent, as the case may be, which successor agent shall (unless an Event of
Default under subsection 8(a) or subsection 8(f) with respect to the Borrower
shall have occurred and be continuing) be subject to approval by the Borrower
(which approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the General
Administrative Agent or the Collateral Agent, as the case may be, and the term
"General Administrative Agent" or "Collateral Agent", as the case may be, shall
mean such successor agent effective upon such appointment and approval, and the
former General Administrative Agent's or Collateral Agent's, as the case may be,
rights, powers and duties as General Administrative Agent or the Collateral
Agent, as the case may be, shall be terminated, without any other or further act
or deed on the part of such former General Administrative Agent or Collateral
Agent or any of the parties to this Agreement or any holders of the Loans;
provided, that the retiring Collateral Agent shall take such actions, at the
expense of the Borrower, as shall be required to transfer all Security Documents
and Collateral to the successor Collateral Agent. If no successor agent has
accepted appointment as General Administrative Agent by the date that is 10 days
following a retiring General Administrative Agent's notice of resignation, the
retiring General Administrative Agent's resignation shall nevertheless thereupon
become effective, and the Lenders shall assume and perform all of the duties of
the General Administrative Agent
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hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. The Syndication Agent may, at any time, by notice
to the Lenders and the General Administrative Agent, resign as Syndication Agent
hereunder, whereupon the duties, rights, obligations and responsibilities
hereunder shall automatically be assumed by, and inure to the benefit of, the
General Administrative Agent, without any further act by the Syndication Agent,
the General Administrative Agent or any Lender. After any retiring Agent's
resignation as Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
9.10 Authorization of Collateral Agent. The Collateral Agent is
hereby irrevocably authorized and directed by each of the Lenders to release,
and hereby agrees to release in accordance with the terms of the Guarantee and
Collateral Agreement, the obligations of any Subsidiary Guarantor or any Lien
covering any Property of the Borrower or any of its Subsidiaries, in either case
which is the subject of a Disposition which is permitted by this Agreement or
which has been consented to in accordance with subsection 10.1.
9.11 The Arranger, the Co-Administrative Agents and Documentation
Agent. The Arranger, the Co-Administrative Agents and the Documentation Agent,
in their respective capacities as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders, or the Agents, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Commitment
of any Lender, in each case without the consent of each Lender directly affected
thereby; (ii) amend, modify or waive any provision of this subsection 10.1 or
reduce any percentage specified in the definition of Required Lenders or
Required Prepayment Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the other
Loan
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Documents, release all or substantially all of the Collateral or release
all or substantially all of the Subsidiary Guarantors from their obligations
under the Guarantee and Collateral Agreement, in each case without the consent
of all Lenders; (iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in subsection
5.2 (including, without limitation, in connection with any waiver of an existing
Default or Event of Default) without the consent of the Majority Revolving
Credit Facility Lenders; (iv) amend, modify or waive any condition precedent to
any extension of credit under the Tranche A Term Loan Facility or the Tranche B
Term Loan Facility set forth in subsection 5.2 (including, without limitation,
in connection with any waiver of an existing Default or Event of Default)
without the consent of the Majority Tranche A Term Loan Facility Lenders or the
Majority Tranche B Term Loan Facility Lenders, as the case may be; (v) reduce
the percentage specified in the definition of Majority Facility Lenders with
respect to any Facility without the written consent of all Lenders under such
Facility; (vi) amend, modify or waive any provision of Section 9 without the
consent of the Agents; (vii) amend, modify or waive any provision of subsection
2.14 without the consent of each Lender directly affected thereby; or (viii)
amend, modify or waive any provision of Section 3 without the consent of each
Issuing Bank. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Agents and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Agents shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. Any
such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this subsection 10.1; provided, that delivery of an
executed signature page of any such instrument by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower and the Agents, as follows,
and (b) in the case of any Lender, as set forth on Schedule 1 to the Lender
Addendum delivered by such Lender, or, in the case of a Lender which becomes a
party to this Agreement pursuant to an Assignment and Acceptance, in such
Assignment and Acceptance, or (c) in the case of any party, to such other
address as such party may hereafter notify to the other parties hereto:
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The Borrower: Tesoro Petroleum Corporation
8700 Tesoro Drive
San Antonio, Texas 78217
Attention: Treasurer
Telecopy: (210) 283-2003
Telephone: (210) 283-2440
The Syndication Agent: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Michael O'Brien
Telecopy: (212) 528-0819
Telephone: (212) 526-0437
The General Administrative
Agent: The First National Bank of Chicago
One First National Plaza
Mail Suite 0634, 10th Floor
Chicago, Illinois 60670
Attention: Bill Laird
Telecopy: (312) 732-3055
Telephone: (312) 732-5635
With a copy to: The First National Bank of Chicago
1100 Louisiana Street, Suite 3200
Houston, Texas 77002
Attention: Dixon Schultz
Telecopy: (713) 654-7370
Telephone: (713) 654-7300
The Collateral Agent: Paribas
1200 Smith Street, Suite 3100
Houston, Texas 77002
Attention: Brian Malone
Telecopy: (713) 659-6915
Telephone: (713) 659-4811
provided that any notice, request or demand to or upon any Agent or any Lender
shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The
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rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the General Administrative Agent, the Collateral
Agent and the Issuing Banks, (b) to pay or reimburse each of the Lenders and
Agents for all its reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including, without limitation, the fees
and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Agents, (c) to pay,
indemnify, and hold each Lender and the Agents harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay caused by any Loan Party in paying, stamp, excise and
other taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and the Agents and their respective
officers, directors, employees, affiliates, agents and controlling persons
(each, an "Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any property at any time owned, leased or in any way used by the
Borrower or any of its Subsidiaries (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided, that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities (i) to the extent such Indemnified Liabilities are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee or (ii)
solely related to the transfer, assignment or other disposition by or on behalf
of any Indemnitee of any Note or any interest in its Commitments or rights to
payment under this Agreement. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
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Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them now or hereafter might have by
statute or otherwise against any Indemnitee. The agreements in this subsection
10.5 shall survive repayment of the Loans and all other amounts payable
hereunder.
10.6 Successors and Assigns; Participations and Assignments. a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Agents, all future holders of the Loans and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due but unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.17, 2.18 and 2.19 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 2.18, such
Participant shall have complied with the requirements of such subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
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(c) Any Lender (an "Assignor") may, in accordance with applicable
law, at any time and from time to time assign to (i) any Lender or any affiliate
thereof (provided that the consent of the Issuing Banks shall be obtained in
connection with any assignment of Revolving Credit Commitments to an affiliate
of a Lender), (ii) in the case of all or any part of its rights and obligations
in respect of funded Term Loans, to an additional bank, financial institution or
other entity, or (iii) with the consent of the Borrower and the Agents (and, in
the case of any assignment of Revolving Credit Commitments, the Issuing Banks),
which, in each case, shall not be unreasonably withheld or delayed (provided
that the consent of the Agents need not be obtained by LCPI with respect to any
assignments to LCPI or by LCPI, and the consent of the Issuing Banks need not be
obtained with respect to any assignment of Term Loans and Term Loan Commitments
to LCPI or by LCPI), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit E (an "Assignment and Acceptance"), executed by such Assignee and such
Assignor (and, where the consent of the Borrower, the Agents or the Issuing
Banks is required pursuant to the foregoing provisions, by the Borrower or the
Borrower and such other Persons, as the case may be) and delivered to the
General Administrative Agent for its acceptance and recording in the Register;
provided that no such assignment to an Assignee (other than any Lender or any
affiliate thereof) shall be in an aggregate principal amount of less than
$5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement), unless otherwise agreed by the Borrower, the
Syndication Agent and the General Administrative Agent. Any such assignment need
not be ratable as among the Facilities. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto). Notwithstanding any provision of this subsection
10.6(c), the consent of the Borrower shall not be required for any assignment
which occurs at any time when any Event of Default shall have occurred and be
continuing.
(d) The General Administrative Agent shall, on behalf of the
Borrower, maintain at its address referred to in subsection 10.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the General Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the Loans and
any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall
be effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed
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Assignment and Acceptance; thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the designated Assignee, and the old Notes
shall be returned by the General Administrative Agent to the Borrower marked
"cancelled". The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by subsection 10.6(c), by each such other Person) together with
payment by such Assignor and/or such Assignee (as agreed between them) to the
General Administrative Agent of a registration and processing fee of $2,500
(provided that no such payment shall be required with respect to assignments (y)
involving LCPI as assignor or assignee or (z) assignments to an Assignee which
is already a Lender; provided, further, that with respect to one or more
substantially concurrent assignments by a Lender to an affiliate or affiliates
thereof or to Persons under common management with such Lender, only one such
fee shall be payable), the General Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
On or prior to such effective date, the Borrower, at its own expense, upon
request, shall execute and deliver to the General Administrative Agent (in
exchange for the Revolving Credit Note and/or applicable Term Notes, as the case
may be, of the assigning Lender) a new Revolving Credit Note and/or applicable
Term Notes, as the case may be, to the order of such Assignee in an amount equal
to the Revolving Credit Commitment and/or applicable Term Loans, as the case may
be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if
the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as
the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as
the case may be, to the order of the Assignor in an amount equal to the
Revolving Credit Commitment and/or applicable Term Loans, as the case may be,
retained by it hereunder. Such new Note or Notes shall be dated the Closing Date
and shall otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 10.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law; provided, that all
related costs, fees and expenses assessed against or incurred by such Lender
solely in connection with any such assignment to any Federal Reserve Bank or any
related re-assignment to such Lender shall be for the sole account of such
Lender.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 8(f), or otherwise), in a greater proportion than any
such
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payment to or collateral received by any other Lender, if any, in respect of
such other Lender's Obligations, such Benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such
other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, at any time when an Event of Default is in existence, each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, upon
any amount becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower, as the case may be. Each Lender agrees promptly to
notify the Borrower and the General Administrative Agent after any such setoff
and application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the General Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating 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.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
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GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. (a) The Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or at
such other address of which the General Administrative Agent shall have
been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
(b) Each party hereto hereby waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection 10.12 any special, exemplary,
punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the General Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between General Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
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10.14 Confidentiality. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the General Administrative Agent,
any other Lender or any affiliate of any Lender, (b) to any Participant or
Assignee (each, a "Transferee") or prospective Transferee which agrees to comply
with the provisions of this subsection 10.14, (c) any of its employees,
directors, agents, attorneys, accountants and other professional advisors, (d)
upon the request or demand of any Governmental Authority having jurisdiction
over it, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law
(exclusive of any organizational or governance document of such Agent or
Lender), (f) if requested or required to do so in connection with any litigation
or similar proceeding, (g) which has been publicly disclosed other than in
breach of this subsection 10.14, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender or (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document. In the event that any Agent or Lender shall have received a demand or
request, or intends to respond to or otherwise satisfy a requirement, for the
delivery of any such confidential information pursuant to the foregoing clause
(f), such Agent or Lender promptly shall make reasonable efforts to notify the
Borrower thereof within any applicable time period permitted to contest
compliance with any such demand, request or requirement; provided, that in no
event shall any Lender or Agent be liable for any action taken pursuant to such
clause (f) or for any failure so to notify the Borrower in accordance with the
foregoing.
10.15 Enforceability; Usury. In no event shall any provision of this
Agreement, the Notes, or any other instrument evidencing or securing the
indebtedness of the Borrower hereunder ever obligate the Borrower to pay or
allow any Lender to collect interest on the Notes or any other indebtedness of
the Borrower hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest Lawful Rate"),
or obligate the Borrower to pay any taxes, assessments, charges, insurance
premiums or other amounts to the extent that such payments, when added to the
interest payable on the Notes, would be held to constitute the payment by the
Borrower of interest at a rate greater than the Highest Lawful Rate; and this
provision shall control over any provision to the contrary.
Without limiting the generality of the foregoing, in the event the
maturity of all or any part of the principal amount of the indebtedness of the
Borrower hereunder shall be accelerated for any reason, then such principal
amount so accelerated shall be credited with any interest theretofore paid
thereon in advance and remaining unearned at the time of such acceleration. If,
pursuant to the terms of this Agreement or the Notes, any funds are applied to
the payment of any part of the principal amount of the indebtedness of the
Borrower hereunder prior to the maturity thereof, then (a) any interest which
would otherwise thereafter accrue on the principal amount so paid by such
application shall be canceled, and (b) the indebtedness of the Borrower
hereunder remaining unpaid after such application shall be credited with the
amount of all interest, if any, theretofore collected on the principal amount
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so paid by such application and remaining unearned at the date of said
application; and if the funds so applied shall be sufficient to pay in full all
the indebtedness of the Borrower hereunder, then the Lenders shall refund to the
Borrower all interest theretofore paid thereon in advance and remaining unearned
at the time of such acceleration. All sums paid or agreed to be paid to the
General Administrative Agent or to any Lender for the use, forbearance or
detention of sums due hereunder shall, to the extent permitted by law applicable
to the General Administrative Agent or such Lender, be amortized, prorated,
allocated and spread throughout the full term of the Loans until paid in full,
so that the rate or amount of interest on account of any Loans or other amounts
hereunder does not exceed the maximum amount allowed by such applicable law.
Regardless of any other provision in this Agreement, or in any of the written
evidences of the indebtedness of the Borrower hereunder, the Borrower shall
never be required to pay any unearned interest on such indebtedness or any
portion thereof, and shall never be required to pay interest thereon at a rate
in excess of the Highest Lawful Rate construed by courts having competent
jurisdiction thereof.
10.16 Accounting Changes. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the General Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the General Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the Securities and Exchange Commission (or
successors thereto or agencies with similar functions).
10.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
10.18 Purchase of Loans Under Existing Credit Agreement;
Reallocation.
(a) Pursuant to the Existing Credit Agreement, (i) LCPI, as Tranche
C Term Loan Lender thereunder, purchased loans previously made to the Borrower
pursuant to the credit agreement that was amended and restated pursuant to the
Existing Credit Agreement, and such loans so purchased by LCPI were amended and
restated as Tranche C Term Loans under the Existing Credit Agreement, and (ii)
LCPI made Second Lien Term Loans and Revolving Credit Loans (each as defined in
the Existing Credit Agreement). Notwithstanding the express terms of subsections
2.1 and 2.4 and any other contrary provision contained in
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Section 2, each Lender (other than LCPI) shall fund its Loans on the Closing
Date through the purchase of Loans outstanding under the Existing Credit
Agreement, as follows:
(i) Each Tranche B Term Loan Lender (other than LCPI) shall purchase
its Tranche B Term Loan Percentage of all Tranche C Term Loans outstanding
under (and as defined in) the Existing Credit Agreement on the Closing
Date immediately prior to the effectiveness of this Agreement, and such
loans so purchased (as well as LCPI's Tranche B Term Loan Percentage of
all Tranche C Term Loans outstanding under the Existing Credit Agreement
on the Closing Date immediately prior to the effectiveness of this
Agreement) shall thereafter be deemed to be Tranche B Term Loans hereunder
and be subject to all terms and conditions thereof. The Borrower hereby
expressly confirms that such loans so purchased shall constitute Tranche B
Term Loans hereunder and that the representations and warranties set forth
in Section 4 apply to such Tranche B Term Loans.
(ii) Each Tranche A Term Loan Lender (other than LCPI) shall
purchase its Tranche A Term Loan Percentage of all Tranche C Term Loans
outstanding under the Existing Credit Agreement on the Closing Date
immediately prior to the effectiveness of this Agreement other than (A)
the amount of such Tranche C Term Loans purchased by the Tranche B Term
Loan Lenders pursuant to clause (i) above and (B) the amount of such
Tranche C Term Loans constituting LCPI's Tranche B Term Loan Percentage of
such Tranche C Term Loans, and such loans so purchased shall thereafter be
deemed to be Tranche A Term Loans hereunder and be subject to all terms
and conditions thereof. The Borrower hereby expressly confirms that such
loans so purchased shall constitute Tranche A Term Loans hereunder and
that the representations and warranties set forth in Section 4 apply to
such Tranche A Term Loans.
(iii) Each Revolving Credit Lender (other than LCPI) shall purchase
its Revolving Credit Percentage of all Revolving Credit Loans outstanding
under (and as defined in) the Existing Credit Agreement on the Closing
Date immediately prior to the effectiveness of this Agreement, and such
loans so purchased shall thereafter be deemed to be Revolving Credit Loans
hereunder and be subject to all terms and conditions thereof. The Borrower
hereby expressly confirms that such loans so purchased shall constitute
Revolving Credit Loans hereunder and that the representations and
warranties set forth in Section 4 apply to such Revolving Credit Loans.
(b) In the event that any prepayment is to be made hereunder in respect of
the portion of the Term Loans acquired by the Lenders through the purchase of
loans outstanding under the Existing Credit Agreement, then, notwithstanding the
other provisions of this Agreement, such prepayment shall be applied to the
Revolving Credit Loans and each Revolving Credit Lender shall simultaneously
purchase its Revolving Credit Percentage of such portion of the Term Loans which
would otherwise be prepaid, and such portion so purchased by the Revolving
Credit Lenders shall thereafter be deemed to constitute Revolving Credit Loans
and be subject to all terms and conditions thereof.
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(c) Each purchase and assignment of loans (the "Assigned Loans") made
pursuant to paragraphs (a) and (b) above shall be made by the relevant assignor
without recourse to such assignor. Each such assignor (i) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by any Loan Party in or in
connection with this Agreement or the Existing Credit Agreement or with respect
to the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, the Existing Credit Agreement, or any instrument or
document furnished pursuant hereto or thereto or in connection herewith or
therewith, other than that such assignor has not created any adverse claim upon
the interest being assigned by it hereunder and that on the date of such
assignment such interest is free and clear of any such adverse claim created by
or on behalf of such assignor; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower, any of its Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of its Subsidiaries or any other obligor of any
of their respective obligations under this Agreement or any other Loan Document
or any other instrument or document furnished pursuant hereto or thereto. Each
assignee of Assigned Loans represents and warrants that it is legally authorized
to agree to the provisions of this subsection and that this subsection
constitutes its legally valid and binding obligation.
10.19 Notice of Remedies Pursuant to Alaskan Law. Notice is hereby
served that each of the Borrower and the Subsidiary Guarantors is personally
obligated and (in the case of the Subsidiary Guarantors, subject to the terms
and provisions of the Guarantee and Collateral Agreement) fully liable for the
amount due under any Loan made or Note issued under this Agreement. The General
Administrative Agent or the Collateral Agent, as the case may be, for the
benefit of the Lenders, has the right to sue on any such Loan or Note and obtain
a personal judgment against the Borrower or any such Subsidiary Guarantor for
satisfaction of the amount due under any such Loan or Note either before or
after a judicial foreclosure on any Collateral.
10.20 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the General Administrative Agent, the
Syndication Agent and the Borrower a Lender Addendum duly executed by such
Lender, the Borrower and each Agent. Each Lender Addendum is deemed incorporated
herein by this reference.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
TESORO PETROLEUM CORPORATION
By: /s/ G.A. WRIGHT
------------------------------------
Name:
Title:
LEHMAN BROTHERS INC.,
as Arranger
By: /s/ CHRISTOPHER R. RYAN
------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent and as a Lender
By: /s/ CHRISTOPHER R. RYAN
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Administrative Agent, General
Administrative Agent and as a Lender
By: /s/ DIXON SCHULTZ
------------------------------------
Name:
Title:
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PARIBAS,
as Co-Administrative Agent, Collateral Agent
and as a Lender
By: /s/ MARIAN LIVINGSTON
-------------------------------------------
Name: Marian Livingston
Title: Vice President
By: /s/ BETSY R. JOCHER
-------------------------------------------
Name: Betsy R. Jocher
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
as Documentation Agent and as a Lender
By: /s/ F.C.H. ASHBY
-------------------------------------------
Name: F.C.H. Ashby
Title: Senior Manager, Loan Operations
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Annex A
PRICING GRID
FOR REVOLVING CREDIT LOANS AND TRANCHE A TERM LOANS:
========================================================================================
Consolidated Leverage Applicable Margin Applicable Margin
Ratio for Eurodollar Loans for Base Rate Loans
- ----------------------------------------------------------------------------------------
Greater than or equal to 4.0:1.0 2.125% 0.625%
- ----------------------------------------------------------------------------------------
Greater than or equal to 3.5:1.0 but
less than 4.0:1.0 1.875% 0.375%
- ----------------------------------------------------------------------------------------
Greater than or equal to 3.0:1.0 but
less than 3.5:1.0 1.625% 0.125%
- ----------------------------------------------------------------------------------------
Greater than or equal to 2.5:1.0 but
less than 3.0:1.0 1.375% 0.000%
- ----------------------------------------------------------------------------------------
Less than 2.5:1.0 1.125% 0.000%
========================================================================================
FOR TRANCHE B TERM LOANS:
========================================================================================
Consolidated Leverage Applicable Margin Applicable Margin
Ratio for Eurodollar Loans for Base Rate Loans
- ----------------------------------------------------------------------------------------
Greater than or equal to 3.0:1.0 2.125% 0.625%
- ----------------------------------------------------------------------------------------
Less than 3.0:1.0 2.000% 0.500%
========================================================================================
Changes in the Applicable Margin with respect to Revolving Credit Loans, Tranche
A Term Loans or Tranche B Term Loans resulting from changes in the Consolidated
Leverage Ratio shall become effective on the date (the "Adjustment Date") on
which financial statements are delivered to the Lenders pursuant to subsection
6.1 (but in any event not later than the 60th day after the end of each of the
first three quarterly periods of each fiscal year or the 105th day after the end
of each fiscal year, as the case may be) and shall remain in effect until the
next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified
above, then, until such financial statements are delivered, the Consolidated
Leverage Ratio as at the end of the fiscal period that would have been covered
thereby shall for the purposes of this definition be deemed to be greater than
(a) in the case of Revolving Credit Loans and Tranche A Term Loans, 4.0:1.0, and
(b) in the case of Tranche B Term Loans, 3.0:1.0. In addition, at all times
while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this definition be deemed
to be greater than (a) in the case of Revolving Credit Loans and Tranche A Term
Loans, 4.0:1.0, and (b) in the case of Tranche B Term Loans, 3.0:1.0. Each
determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal quarters of
the Borrower and its consolidated Subsidiaries ending at the end of the period
covered by the relevant consolidated financial statements. The Applicable Margin
in effect from the day which is three months after the Closing Date (the
"Pricing Grid Commencement Date") until the first Adjustment Date thereafter
shall be determined on the basis of the Borrower's financial statements for the
first full fiscal quarter ending after the Closing Date; provided, that if such
financial statements have not been delivered to the Lenders pursuant to
subsection 6.1 prior to the Pricing Grid Commencement Date, the Applicable
Margin shall not be adjusted pursuant to the Pricing Grid until the date of
delivery of such financial statements pursuant to subsection 6.1.