EXHIBIT 10.15
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 10, 1998
AMONG
CLARK REFINING & MARKETING, INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Arranger,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Syndication Agent,
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.,
as Paying Agent
AND
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Administrative Agent
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CO-MANAGERS:
BT ALEX BROWN INCORPORATED
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
LEHMAN BROTHERS INC.
J.P. MORGAN & CO.
SALOMON SMITH BARNEY
WASSERSTEIN PERELLA SECURITIES, INC.
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CLARK REFINING & MARKETING, INC.
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
TABLE OF CONTENTS
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Page
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SECTION 1.
DEFINITIONS............................................................ 1
1.1 Certain Defined Terms.................................................. 1
1.2 Accounting Terms.......................................................28
1.3 Other Definitional Provisions and Rules of Construction................28
1.4 Compliance Certificates and Opinions...................................28
1.5 Form of Documents Delivered to Agents..................................29
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.............................29
2.1 Commitments; Making of Loans; the Register; Notes......................29
2.2 Interest on the Loans..................................................32
2.3 Fees...................................................................34
2.4 Repayments and Prepayments; General Provisions Regarding Payments......34
2.5 Use of Proceeds........................................................39
2.6 Special Provisions Governing Eurodollar Rate Loans.....................39
2.7 Increased Costs; Taxes; Capital Adequacy...............................41
2.8 Obligation of Lenders to Mitigate......................................45
2.9 Removal or Replacement of a Lender.....................................46
SECTION 3.
CONDITIONS TO EFFECTIVENESS............................................47
3.1 Company Documents......................................................47
3.2 Issuance of 1998 Senior Notes..........................................48
3.3 Indentures.............................................................48
3.4 Legal Opinions.........................................................48
3.5 Fees...................................................................49
3.6 Notice of Borrowing....................................................49
3.7 Officers' Certificate Regarding Certain Conditions.....................49
SECTION 4.
COMPANY'S REPRESENTATIONS AND WARRANTIES...............................49
4.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries...........................................................50
4.2 Authorization of Borrowing, etc........................................50
(i)
Page
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4.3 Valid Issuance of 1998 Senior Notes....................................51
4.4 No Material Adverse Change.............................................51
4.5 Title to Properties; Liens.............................................52
4.6 Litigation.............................................................52
4.7 Insurance of Properties................................................52
4.8 Performance of Agreements..............................................52
4.9 Securities Activities..................................................53
4.10 Accountants............................................................54
4.11 Environmental Protection...............................................54
4.12 Employee Matters.......................................................54
4.13 Disclosure.............................................................54
SECTION 5.
COMPANY'S AFFIRMATIVE COVENANTS........................................55
5.1 Financial Statements and Other Reports.................................55
5.2 Corporate Existence, etc...............................................56
5.3 Payment of Taxes and Claims; Tax Consolidation.........................56
5.4 Maintenance of Properties..............................................57
5.5 Compliance with Laws, etc..............................................57
SECTION 6.
COMPANY'S NEGATIVE COVENANTS...........................................57
6.1 Indebtedness...........................................................57
6.2 Prohibition on Liens and Related Matters...............................58
6.3 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries of Company...........................58
6.4 Restrictions on Guaranties.............................................59
6.5 Limitations on Restricted Payments.....................................59
6.6 Limitation on Merger, Consolidation, Sales of Assets...................61
6.7 Limitation on Certain Asset Dispositions...............................62
6.8 Transactions with Shareholders and Affiliates..........................64
6.9 Restrictions on Secured Indebtedness...................................65
6.10 Restrictions on Sales and Leasebacks...................................66
6.11 Other Agreements.......................................................67
6.12 Effect of Investment Grade Rating......................................67
SECTION 7.
EVENTS OF DEFAULT......................................................67
7.1 Failure to Make Payments When Due......................................67
7.2 Default in Other Agreements............................................67
7.3 Breach of Certain Covenants............................................68
7.4 Other Defaults Under Loan Documents....................................68
7.5 Involuntary Bankruptcy; Appointment of Receiver, etc...................68
(ii)
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7.6 Voluntary Bankruptcy; Appointment of Receiver, etc.................... 68
7.7 Judgments and Attachments............................................. 69
7.8 Breach of Warranty.................................................... 69
SECTION 8.
AGENTS................................................................ 70
8.1 Appointment........................................................... 70
8.2 Powers and Duties; General Immunity................................... 71
8.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness...................................................... 73
8.4 Right to Indemnity.................................................... 73
8.5 Successor Administrative Agent........................................ 73
8.6 Successor Paying Agent................................................ 74
SECTION 9.
MISCELLANEOUS......................................................... 74
9.1 Assignments and Participations in Loans............................... 74
9.2 Expenses.............................................................. 77
9.3 Indemnity............................................................. 77
9.4 Ratable Sharing....................................................... 78
9.5 Amendments and Waivers................................................ 79
9.6 Notices............................................................... 80
9.7 Survival of Representations, Warranties and Agreements................ 80
9.8 Failure or Indulgence Not Waiver; Remedies Cumulative................. 80
9.9 Marshalling; Payments Set Aside....................................... 80
9.10 Severability.......................................................... 81
9.11 Obligations Several; Independent Nature of Lenders' Rights............ 81
9.12 Headings.............................................................. 81
9.13 Applicable Law........................................................ 81
9.14 Successors and Assigns................................................ 81
9.15 Consent to Jurisdiction and Service of Process........................ 82
9.16 Waiver of Jury Trial.................................................. 82
9.17 Confidentiality....................................................... 83
9.18 Counterparts; Effectiveness........................................... 83
Signature pages.......................................................S-1
(iii)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTE
III [INTENTIONALLY DELETED]
IV FORM OF OPINION OF O'MELVENY & MYERS LLP
V FORM OF ASSIGNMENT AGREEMENT
VI FORM OF CERTIFICATE RE NON-BANK STATUS
SCHEDULES
2.1A EXISTING LENDERS' PRO RATA SHARES
2.1B RESTATEMENT LENDERS' PRO RATA SHARE OF COMMITMENTS
(iv)
CLARK REFINING & MARKETING, INC.
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT is dated as of August
10, 1998, and entered into by and among CLARK REFINING & MARKETING, INC., a
Delaware corporation ("Company"), GOLDMAN SACHS CREDIT PARTNERS L.P., as
arranger (in such capacity, "Arranger"), GOLDMAN SACHS CREDIT PARTNERS L.P.
("GSCP"), as syndication agent (in such capacity, "Syndication Agent"),
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A. ("State Street"), as
payment agent (the "Paying Agent"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and
collectively as "Lenders"), and GOLDMAN SACHS CREDIT PARTNERS ("GSCP"), as
administrative agent for Lenders (in such capacity, "Administrative Agent").
R E C I T A L S
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WHEREAS, Company, Existing Lenders and Agents have entered into that
certain Credit Agreement dated as of November 21, 1997 (the "1997 Credit
Agreement") pursuant to which Existing Lenders made Loans to Company in the
aggregate principal amount of $125,000,000 on and subject to the terms and
conditions set forth in the 1997 Credit Agreement; and
WHEREAS, Company desires to amend and restate the 1997 Credit
Agreement in order to, among other things, provide for a new Commitment of up to
$115,000,000 and make certain other amendments as provided herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agents agree to
amend and restate the 1997 Credit Agreement in its entirety as follows:
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following
meanings:
1
"Acquired Debt" means with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or
in contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a
Lien encumbering any asset acquired by such specified Person.
"Adjusted Eurodollar Rate" means, for each Interest Period during
which any Eurodollar Loan is outstanding subsequent to the initial Interest
Period, the rate determined by Company (notice of such rate to be sent to
the Paying Agent by Company on the date of determination thereof) equal to
the average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of
the offered rates for deposits in U.S. dollars with maturities comparable
to such Interest Period, as set forth on the Reuters Screen LIBO Page as of
11:00 a.m., London time, on the Interest Rate Determination Date for such
Interest Period; provided, however, that if only one such offered rate
appears on the Reuters Screen LIBO Page, the Adjusted Eurodollar Rate for
such Interest Period shall mean such offered rate. If such rate is not
available at 11:00 a.m., London time, on the Interest Rate Determination
Date for such Interest Period, then the Adjusted Eurodollar Rate for such
Interest Period shall mean the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the interest rates per annum at
which deposits in amounts equal to US $1,000,000 are offered by the
Reference Banks to leading banks in the London Interbank Market for a
period comparable to such Interest Period as of 11:00 a.m., London time, on
the Interest Rate Determination Date for such Interest Period. If on any
Interest Rate Determination Date, at least two of the Reference Banks
provide such offered quotations, then the Adjusted Eurodollar Rate for such
Interest Period shall be determined in accordance with the preceding
sentence on the basis of the offered quotation of those Reference Banks
providing such quotations.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 8.5.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6B.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
2
"Agent" means, individually, each of Arranger, Syndication Agent,
Paying Agent and Administrative Agent and "Agents" means Arranger,
Syndication Agent, Paying Agent and Administrative Agent, collectively.
"Agreement" means this First Amended and Restated Credit Agreement
dated as of August 10, 1998, as it may be amended, supplemented or
otherwise modified from time to time.
"AOC Payment" means all payments made to AOC Limited Partnership, a
limited partnership organized under the laws of the State of Missouri,
constituting "Additional Redemption Consideration" required to be paid by
Holdings pursuant to Section 2.4 of the Stock Purchase and Redemption
Agreement.
"Arranger" has the meaning assigned to that term in the introduction
to this Agreement.
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Restricted
Subsidiaries (including a consolidation or merger or other sale of any such
Restricted Subsidiaries with, into or to another Person in a transaction in
which such Restricted Subsidiary ceases to be a Restricted Subsidiary, but
excluding a disposition by a Restricted Subsidiary of such Person to such
Person or a Restricted Subsidiary of such Person or by such Person to a
Restricted Subsidiary of such Person) of (i) shares of Capital Stock (other
than directors' qualifying shares) or other ownership interests of a
Restricted Subsidiary of such Person, (ii) substantially all of the assets
of such Person or any of its Restricted Subsidiaries representing a
division or line of business or (iii) other assets or rights of such Person
or any of its Restricted Subsidiaries outside of the ordinary course of
business, which in the case of either clause (i), (ii) or (iii), whether in
a single transaction or a series of related transactions, result in Net
Available Proceeds in excess of $10,000,000; provided that (x) any
transfer, conveyance, sale, lease or other disposition of assets securing
the Existing Credit Agreement in connection with the enforcement of the
security interests therein and (y) any sale of crude oil, vacuum tower
bottoms, refined products or other inventory shall not be deemed an Asset
Disposition hereunder.
"Asset Disposition Trigger Date" has the meaning assigned to that
term in subsection 6.7.
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit V annexed hereto.
"Attributable Indebtedness" means the total net amount of rent
required to be paid during the remaining primary term of any particular
lease under which any Person is at the time liable, discounted at the rate
per annum equal to the weighted average interest rate borne by the Loans.
3
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means the per annum rate, at any time, equal to the sum
of (i) the higher of (x) the Prime Rate or (y) the rate which is 1/2 of 1%
in excess of the Federal Funds Effective Rate plus (ii) 1.75%.
"Base Rate Loans" means Loans bearing interest at rates determined
by reference to the Base Rate.
"Blackstone" means Blackstone Capital Partners III Merchant Banking
Fund L.P. and its Affiliates.
"Blackstone Transaction" means the acquisition of 13,500,000 shares
of common stock of Holdings previously held by Trizec Hahn Corporation and
certain of its Subsidiaries.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of Company to have been duly adopted by
the board of Directors and to be in full force and effect on the date of
such certification, as set forth in an Officers' Certificate delivered to
the Administrative Agent.
"Borrowing Base" means, as of any date, an amount equal to the sum
of (i) 95% of the accounts receivable owned by Company and its Restricted
Subsidiaries (excluding any accounts receivable from Restricted
Subsidiaries and any accounts receivable that are more than 90 days past
due) as of such date, plus (ii) 90% of the market value of inventory owned
by Company and its Restricted Subsidiaries as of such date, plus (iii) 100%
of the cash and Cash Equivalents owned by Company and its Restricted
Subsidiaries as of such date that are, as of such date, held in one or more
separate accounts under the direct control of the agent bank under the
Existing Credit Agreement and that are as of such date pledged to secure
working capital borrowings under the Existing Credit Agreement.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the State of New York or the state in
which the Funding and Payment Office is located or is a day on which
banking institutions located in such states are authorized or required by
law or other governmental action to close, and (ii) with respect to all
notices, determinations, fundings and payments in connection with the
Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any day that is a
Business Day described in clause (i) above and that is also a day for
trading by and between banks in Dollar deposits in the London interbank
market.
"Capital Lease" means, at the time any determination thereof is to
be made, any lease of property, real or personal or mixed, in respect of
which the present value
4
of the minimum rental commitment would be capitalized on a balance sheet of
the lessee in accordance with GAAP.
"Capitalized Lease Obligation" of any Person means any lease of any
property (whether real, personal or mixed) by such Person as lessee which,
in conformity with GAAP, is required to be accounted for as a Capital Lease
on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of any association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock and (iii) in the case of a partnership,
partnership interests (whether general or limited).
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof, (iii) certificates of
deposit and eurodollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any
domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii)
entered into with any financial institution meeting the qualifications
specified in clause (iii) above and (v) commercial paper having the highest
rating obtainable from Moody's or S&P and, in each case, maturing within
six months after the date of acquisition.
"Certificate re Non-Bank Status" means a certificate substantially
in the form of Exhibit VI annexed hereto delivered by a Lender to Paying
Agent pursuant to subsection 2.7B(iii).
"Change of Control" means any transaction the result of which is
that any Person (an "Acquiring Person") other than Blackstone, or a
Person a majority of whose voting equity is owned by Blackstone, becomes
the "Beneficial Owner" (as determined in accordance with Rule 13d-3 of
the Exchange Act), directly or indirectly, of shares of stock of Company or
Holdings entitling such Acquiring Person to exercise 50% or more of the
total voting power of all classes of stock of Company or Holdings, as the
case may be, entitled to vote in elections of directors.
"Change of Control Triggering Event" means the occurrence of a
Change of Control resulting in a Rating Decline.
"Chevron Payment" means that certain contingent payment obligation
of Holdings to Chevron U.S.A. Inc. based on industry refining margins and
the volume of refined oil products produced at the Port Arthur Refinery
over a five-year period,
5
pursuant to Section 3.1(d) of the Asset Purchase Agreement, dated as of
August 18, 1994, between Holdings and Chevron U.S.A. Inc., as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Agreement such commission is not existing
and performing the duties now assigned to it under the Trust indenture Act,
the body performing such duties at such time.
"Commitment" means the commitment of a Restatement Lender to make a
Restatement Loan to Company on the Restatement Closing Date pursuant to
subsection 2.1A, and "Commitments" means such commitments of all
Restatement Lenders in the aggregate.
"Company" has the meaning assigned to that term in the introduction
to this Agreement until a successor Person shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Company"
shall mean such successor Person.
"Consolidated Adjusted Net Worth" of any Person means the total
amount of consolidated stockholder's equity (par value plus additional
paid-in capital (including all Capital Stock except as excluded below) plus
retained earnings or minus accumulated deficit) of such Person as reflected
on the consolidated balance sheet of such Person and its Restricted
Subsidiaries for the most recent Fiscal Quarter prior to the event
requiring such determination to be made, after excluding (to the extent
otherwise included therein and without duplication) the following (the
amount of such stockholder's equity and deductions therefrom to be
computed, except as noted below, in accordance with GAAP consistently
applied): (i) any amount receivable but not paid from sales of Capital
Stock of such Person or its Restricted Subsidiaries determined on a
consolidated basis; (ii) any revaluation or other write-up in book value of
assets subsequent to the date hereof (other than write-ups of oil inventory
previously written down and other than reevaluations or write-ups upon the
acquisition of assets acquired in a transaction to be accounted for by
purchase accounting under GAAP); (iii) treasury stock; (iv) an amount equal
to the excess, if any, of the amount reflected on the books and records of
such Person or its Restricted Subsidiaries for the securities of any Person
which is not a Restricted Subsidiary of such Person over the lesser of cost
or market value (as determined in good faith by the board of directors of
such Person or such Restricted Subsidiary); (v) Disqualified Capital Stock;
(vi) equity securities of such Person or its Restricted Subsidiaries which
are not Disqualified Capital Stock but which are exchangeable for or
convertible into debt securities of such Person or such Restricted
Subsidiary, as the case may be, other than at the option of such Person or
such Restricted Subsidiary except to the extent that the exchange or
conversion rights in such other equity securities cannot, under any
circumstances, be exercised prior to
6
November 15, 2004; and (vii) the cumulative foreign currency translation
adjustment, if any; and (viii) write-offs of non-cash items in an amount
not to exceed $80,000,000.
"Consolidated Net Operating Income" means, when used with reference
to any Person, for any period, the aggregate of the Net Income of such
Person and its Restricted Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP, provided that (i) the Net Income
of any Person which is not a Subsidiary of such Person or is accounted for
by the equity method of accounting shall be included only to the extent of
the amount of dividends or distributions paid to such Person or its
Restricted Subsidiaries, (ii) the Net Income of any Unrestricted Subsidiary
shall be excluded (except to the extent distributed to Company or one of
its Subsidiaries), (iii) the Net Income of any Person acquired in a pooling
of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iv) extraordinary gains and losses and
gains and losses from the sale of assets outside the ordinary course of
such Person's business shall be excluded, (v) the cumulative effect of
changes in accounting principles in the year of adoption of such changes
shall be excluded and (vi) the tax effect of any of the items described in
clauses (i) through (v) above shall be excluded.
"Consolidated Net Tangible Assets" of a Person means the
consolidated total assets of such Person and its Restricted Subsidiaries
determined in accordance with GAAP, less the sum of (i) all current
liabilities and current liability items, and (ii) all goodwill, trade
names, trademarks, patents, organization expense, unamortized debt discount
and expense and other similar intangibles properly classified as
intangibles in accordance with GAAP.
"Consolidated Operating Cash Flow" means with respect to any Person,
Consolidated Net Operating Income of such Person and its Restricted
Subsidiaries without giving effect to gains and losses on securities
transactions (net of related taxes) for the period described below,
increased by the sum of (i) consolidated Fixed Charges of such Person and
its Restricted Subsidiaries which reduced Consolidated Net Operating Income
for such period, (ii) consolidated income tax expense (net of taxes
relating to gains and losses on securities transactions) of such Person and
its Restricted Subsidiaries which reduced Consolidated Net Operating Income
for such period, (iii) consolidated depreciation and amortization expense
(including amortization of purchase accounting adjustments) of such Person
and its Restricted Subsidiaries and other noncash items to the extent any
of which reduced Consolidated Net Operating Income for such period, (iv)
expenses incurred in connection with the Blackstone Transaction in an
amount not to exceed $9,000,000, and (v) any annual management monitoring,
consulting and advisory fees and related expenses paid to Blackstone and
its Affiliates in an amount not to exceed $2,000,000, less noncash items
which increased Consolidated Net Operating Income for such period, all as
determined for such Person and its consolidated Restricted Subsidiaries in
accordance with GAAP for the four full Fiscal Quarters for which financial
information in respect thereof is available immediately prior to the
Transaction Date.
7
"Consolidated Operating Cash Flow Ratio" means, with respect to any
Person, the ratio of (i) Consolidated Operating Cash Flow of such Person and its
Restricted Subsidiaries for the four Fiscal Quarters for which financial
information in respect thereof is available immediately prior to the Transaction
Date to (ii) the aggregate Fixed Charges of such Person and its Restricted
Subsidiaries for such four Fiscal Quarters, such Fixed Charges to be calculated
on the basis of the amount of the Indebtedness and Capitalized Lease Obligations
of such Person and its Restricted Subsidiaries outstanding on the Transaction
Date and assuming the continuation of market interest rate levels prevailing on
the Transaction Date in any calculation of interest rates in respect of floating
interest rate obligations; provided, however, that if such Person or any
Restricted Subsidiary of such Person shall have acquired, sold or otherwise
disposed of any Material Asset or engaged in an Equity Offering during the four
full Fiscal Quarters for which financial information in respect thereof is
available immediately prior to the Transaction Date or during the period from
the end of such fourth full Fiscal Quarter to and including the Transaction
Date, the calculation required in clause (i) above will be made giving effect to
such acquisition, sale or disposition or the other investment of the Net
Available Proceeds of such Equity Offering on a pro forma basis as if such
acquisition, sale, disposition or investment had occurred at the beginning of
such four full Fiscal Quarter period without giving effect to clause (iii) of
the definition of "Consolidated Net Operating Income" (that is, including in
such calculation the Net Income for the relevant prior period of any Person
acquired in a pooling of interests transaction, notwithstanding the provisions
of said clause (iii)); provided, further, that Fixed Charges of such Person
during the applicable period shall not include the amount of consolidated
interest expense which is directly attributable to Indebtedness to the extent
such Indebtedness is reduced by the proceeds of the incurrence of such
Indebtedness which gave rise to the need to calculate the Consolidated Operating
Cash Flow Ratio. Any such pro forma calculation may include adjustments
appropriate, in the reasonable determination of Company as set forth in an
Officer's Certificate, to (i) reflect operating expense reductions reasonably
expected to result from the acquisition by Company of such Material Asset or
(ii) eliminate the effect of any extraordinary accounting event with respect to
any acquired Person on Consolidated Net Operating Income.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Capital Stock" means any Capital Stock of Company that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable, is, or upon the happening of any event or passage of time would
be, required to be redeemed or purchased (other than pursuant to an offer to
repurchase such Capital Stock following a Change of Control, which offer may not
be completed until 45 days after Company prepays the Loans, if required by
Lenders, pursuant to
8
subsection 2.4B(ii)(b)), including at the option of the holder, in whole or
in part, or has, or upon the happening of an event or passage of time would
have, a redemption, sinking fund or similar payment due, on or prior to
November 15, 2004.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Eligible Assignee" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of
any other country or a political subdivision thereof; provided that (x)
such bank is acting through a branch or agency located in the United States
or (y) such bank is organized under the laws of a country that is a member
of the Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses including
insurance companies, mutual funds and lease financing companies; and (B)
any Lender, any Affiliate of any Lender and, with respect to any Lender
that is an investment fund that invests in commercial loans, any other
investment fund that invests in commercial loans and that is managed or
advised by the same investment advisor as such Lender or by an Affiliate of
such investment advisor; provided that no Affiliate of Holdings shall be an
Eligible Assignee.
"Equity Offering" means any public or private sale of Capital Stock
(including options, warrants or rights with respect thereto) of Company or
of Holdings.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"Event of Default" means each of the events set forth in Section 7.
"Excess Proceeds" has the meaning assigned to that term in subjection
6.7.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Exchange Debentures" means the 11-1/2% Subordinated Exchange
Debentures due 2009 which may be exchanged for the Exchangeable Preferred
Stock of Holdings at the option of Holdings.
"Exchangeable Preferred Stock" means the 11-1/2% Senior Cumulative
Exchangeable Preferred Stock of Holdings.
9
"Excluded Contribution" means the net cash proceeds received by
Company after the Restatement Closing Date from (a) contributions to its
common equity capital and (b) the sale (other than to a Subsidiary or to
any Company or Subsidiary management equity plan or stock option plan or
any other management or employee benefit plan or agreement) of Capital
Stock of Company (other than Disqualified Capital Stock), in each case,
designated as Excluded Contributions pursuant to an Officers' Certificate.
"Existing Credit Agreement" means that certain Credit Agreement,
dated as of September 25, 1997, by and among Company and the financial
institutions party thereto, including any related notes, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title guarantees, collateral documents, instruments and agreements
executed in connection therewith), and in each case as amended by that
certain Amendment No. 1 dated as of October 29, 1997, that certain
Amendment No. 2 dated as of November 7, 1997 and that certain Amendment No.
3 dated as of July 24, 1997, and as further amended, modified, extended,
renewed, refunded, replaced or refinanced from time to time.
"Existing Indebtedness" means any Indebtedness of Company and its
Subsidiaries incurred or outstanding as of the Restatement Closing Date and
in any event Indebtedness evidenced by the Existing Credit Agreement
whether or not outstanding on the Restatement Closing Date.
"Existing Lenders" means those Lenders party to this Agreement as of
the Restatement Closing Date who were party to the 1997 Credit Agreement.
"Existing Loans" has the meaning assigned to that term in 2.1A.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"Fixed Charges" of any Person means, for any period, the sum of (i)
consolidated Interest Expense of such Person and its Restricted
Subsidiaries, plus
10
(ii) all but the principal component of rentals in respect of consolidated
Capitalized Lease Obligations of such Person and its Restricted
Subsidiaries paid, accrued or scheduled to be paid or accrued by such
Person and its Restricted Subsidiaries during such period, and determined
in accordance with GAAP plus (iii) all cash dividend payments (excluding
items eliminated in consolidation) on any series of preferred stock of such
Person. For purposes of this definition, (a) interest on Indebtedness
which accrues on a fluctuating basis for periods succeeding the date of
determination shall be deemed to accrue at a rate equal to the average
daily rate of interest in effect during such immediately preceding Fiscal
Quarter, and (b) interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined in good faith by the
chief financial officer, treasurer or controller of such Person to be the
rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP (including Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board).
"Fixed Rate Senior Notes" means the senior notes due November 15,
2007 issued by Company pursuant to the Fixed Rate Senior Note Indenture.
"Fixed Rate Senior Note Indenture" means the Indenture dated as of
November 21, 1997 between Company and Bankers Trust Company, as trustee,
pursuant to which the Fixed Rate Senior Notes are issued, as such Indenture
may hereafter be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Funding Date" means the date of the funding of a Loan.
"Funding and Payment Office" means (i) the office of Paying Agent or
(ii) such other office of Paying Agent as may hereafter be designated from
time to time in a written notice delivered by Paying Agent to Company and
each Lender.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as have been approved by a significant
segment of the accounting profession, which were in effect on the 1997
Closing Date.
"GSCP" has the meaning assigned to that term in the introduction to
this Agreement.
"Guaranty" means a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) direct or
indirect, in any manner (including, without limitation, letters of credit
and reimbursement agreements in respect thereto), of all or any part of any
Indebtedness.
11
"Gulf" means Gulf Resources Corporation, a Panamanian corporation.
"Gulf Merger Agreement" means the Agreement and Plan of Merger,
dated as of November 3, 1995, among Company, Gulf and GFR, Inc.
"Gulf Oil Purchase Contract" means the Crude Oil Purchase Contract
between GFR, Inc. and Gulf.
"Gulf Payments" means all payments (other than the initial purchase
price of $26,900,000 under the Gulf Oil Purchase Contract) to Gulf and/or
any of its Affiliates, in each case, pursuant to the Gulf Merger Agreement,
the Gulf Oil Purchase Contract, the Gulf Stockholders' Agreement and the
Gulf Pledge Agreement, as each is in effect on the date hereof.
"Gulf Pledge Agreement" means the Pledge Agreement among Company,
Gulf and Gulf Resources Holdings, Inc.
"Gulf Stockholder's Agreement" means the Stockholders' Agreement
among Company, Gulf and Gulf Resources Holdings, Inc.
"Hazardous Material" means (i) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (ii) any ``hazardous waste'' as defined
by the Resource Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any polychlorinated biphenyl, and (v)
any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of any
other law relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any such chemical
material, waste or substance.
"Holdings" means Clark USA, Inc., a Delaware corporation and the
direct parent of Company.
"Holdings Note Indenture" means that certain Indenture, dated as of
December 1, 1995 between Holdings and Chase Manhattan Bank, N.A., as
trustee relating to the 10-7/8% Notes, due December 1, 2005, as the same
may hereafter be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Holdings 10-7/8% Notes" means the 10-7/8% Notes due December 1,
2005 of Holdings issued pursuant to the Holdings Note Indenture dated as of
December 1, 1995.
"Indebtedness" with respect to any Person, means any indebtedness,
including, in the case of Company, the Loans, the indebtedness evidenced by
the Existing
12
Credit Agreement, the 9-1/2% Senior Notes, and the New Notes, in each case,
whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or representing the balance
deferred and unpaid of the purchase price of any property (including
pursuant to Capital Leases) (except any such balance that constitutes a
trade payable in the ordinary course of business that is not overdue by
more than 90 days from the invoice date or being contested in good faith),
if and to the extent any of the foregoing indebtedness would appear as a
liability upon a balance sheet of such Person prepared on a consolidated
basis in accordance with GAAP, and shall also include, to the extent not
otherwise included, the Guaranty of Indebtedness of other Persons not
included in the financial statements of Company, the maximum fixed
redemption or repurchase of Disqualified Capital Stock (or if not
redeemable or subject to repurchase, the issue price) and the maximum fixed
redemption or repurchase price (or if not redeemable or subject to
repurchase, the issue price) of Preferred Stock issued by any Restricted
Subsidiary of Company to any Person other than Company or a Restricted
Subsidiary.
"Indemnitee" has the meaning assigned to that term in subsection 9.3.
"Interest Expense" of any Person means, for any period, the
aggregate amount of interest expense in respect of Indebtedness (excluding
(a) the Chevron Payment, (b) the AOC Payment, (c) the Gulf Payments and (d)
the amortization of debt issuance expense relating to the Loans and the New
Notes, but including without limitation or duplication (i) amortization of
debt issuance expense with respect to other Indebtedness, (ii) amortization
of original issue discount on any Indebtedness and (iii) the interest
portion of any deferred payment obligation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financings and the net cost associated with Interest Swap
Obligations) paid, accrued or scheduled to be paid or accrued by such
Person during such period, determined in accordance with GAAP.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, each February 15, May 15, August 15 and November 15 of each year, and
(ii) with respect to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan.
"Interest Period" means with respect to any Eurodollar Rate Loan,
the period from and including a scheduled Interest Payment Date through the
day next preceding the following scheduled Interest Payment Date.
"Interest Rate Determination Date" means, with respect to any
Interest Period, the second Business Day prior to the first day of such
Interest Period.
13
"Interest Swap Obligations" means, when used with reference to any
Person, the obligations of such person under (i) interest rate swap
agreements, interest rate exchange agreements, interest rate cap
agreements, and interest rate collar agreements, (ii) currency swap
agreements and currency exchange agreements and (iii) other similar
agreements or arrangements, which are, in each such case, designed solely
to protect such Person against fluctuations in interest rates or currency
exchange rates.
"Investment" means, when used with reference to any Person, any
direct or indirect advances, loans or other extensions of credit or capital
contributions by such Person to (by means of transfers of property to
others or payments for property or services for the account or use of
others, or otherwise), or purchases or acquisitions by such Person of
Capital Stock, bonds, notes, debentures or other securities issued by, any
other Person or any Guaranty or assumption of any liability (contingent or
otherwise) by such Person of any Indebtedness or any principal (and
premium, if any), interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the
documentation governing any Indebtedness, of any other Person and all other
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Investment Grade Rating" means (i) a Moody's Rating of Baa3 or
higher and an S&P Rating of at least BB+ or (ii) an S&P Rating of BBB- or
higher and a Moody's Rating of at least Ba1 or, in each case, if Moody's or
S&P shall change their rating system, equivalent ratings.
"Investment Grade Rating Event" means the first day on which the
Fixed Rate Senior Notes and the 1998 Senior Notes or the Loans are assigned
an Investment Grade Rating.
"Lender" and "Lenders" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 9.1.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind (except for taxes not
yet owing) in respect of such asset, whether or not filed, retention
agreement, any lease in the nature thereof, any option or other agreement
to sell and, with respect to which, any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.
"Lima Acquisition" has the meaning assigned to that term in
subsection 2.5A.
"Loan Documents" means this Agreement and the Notes.
14
"Loan Exposure" means, with respect to any Lender as of any date of
determination (i) prior to the funding of Loans by such Lender, that
Lender's Commitment and (ii) after the funding of Loans by such Lender, the
outstanding principal amount of the Loan of that Lender.
"Loans" means the Loans (including the Existing Loans and the
Restatement Loans) made by Lenders to Company pursuant to subsection 2.1A.
"Margin Stock" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from
time to time.
"Material Adverse Effect" means a material adverse effect upon (i)
the business, operations, properties, assets, in each case taken as a
whole, or financial condition of Company and its Subsidiaries taken as a
whole or (ii) the ability of Company and its Subsidiaries taken as a whole
to perform, or of Agents or Lenders to enforce, the Obligations.
"Material Asset" means, with respect to Company or any Restricted
Subsidiary of Company, any asset, related group of assets, business or
division of Company or any Restricted Subsidiary of Company (including any
capital stock of any Restricted Subsidiary of Company) which (i) for the
most recent fiscal year of Company, accounted or would have accounted for
more than 3% of the consolidated revenues of Company or (ii) as at the end
of such fiscal year, represented or would have represented more than 3% of
the consolidated assets of Company or had a fair market value in excess of
$10,000,000 all as shown (x) with respect to any sale or disposition, on
the consolidated financial statements of Company for such fiscal year or
such shorter periods as such assets, business or division were owned by
Company or any Restricted Subsidiary of Company and (y) with respect to any
acquisition, on consolidated pro forma financial statements of Company for
the four full Fiscal Quarters for which financial information in respect
thereof is available immediately prior to such acquisition, giving effect
thereto on a pro forma basis as if such acquisition had occurred at the
beginning of such four full Fiscal Quarters.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Available Proceeds" means cash or readily marketable cash
equivalents received (including by way of sale or discounting of a note,
installment receivable or other receivable, but excluding any other
consideration received in the form of assumption by the acquiree of
Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form) net of (i) all legal and accounting
expenses, commissions and other fees and expenses incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such issuance, and (ii) all payments made by
such Person or its Subsidiaries on any Indebtedness which must, in order to
obtain a necessary consent
15
to such issuance or by applicable law, be repaid out of the proceeds from
such issuance.
"Net Income" of any Person for any period means the net income
(loss) from continuing operations of such Person for such period,
determined in accordance with GAAP.
"New Notes" means (i) the Fixed Rate Senior Notes and the
Subordinated Notes and (ii) the 1998 Senior Notes, collectively.
"9-1/2% Senior Notes" means the senior notes due September 15, 2004
issued by Company pursuant to the 9-1/2% Senior Note Indenture.
"9-1/2% Senior Note Indenture" means the Indenture dated as of
September 15, 1992 between Company and Bank of New York, N.A., as trustee,
pursuant to which the 9-1/2% Senior Notes were issued, as such Indenture
may hereafter be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"1998 Offering Circular" means the offering circular dated August 4,
1998 and prepared by Company in connection with the issuance of the 1998
Senior Notes.
"1998 Purchase Agreement" means the Purchase Agreement dated August
4, 1998 between the 1998 Purchasers and Company relating to the issuance
and purchase of the 1998 Senior Notes.
"1998 Purchasers" means Goldman, Sachs & Co., J.P. Morgan
Securities, Inc., Salomon Brothers Inc. and Wasserstein Perella Securities,
Inc.
"1998 Senior Notes" means the senior notes due August 15, 2008
issued by Company pursuant to the 1998 Senior Notes Indenture.
"1998 Senior Notes Indenture" means the Indenture dated as of August
10, 1998 between the Company and Bankers Trust Company, as trustee,
pursuant to which the 1998 Senior Notes are issued, as such Indenture may
hereafter be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"1997 Closing Date" means November 21, 1997, the date on which the
initial Loans were made under the 1997 Credit Agreement.
"1997 Credit Agreement" has the meaning assigned to that term in the
Recitals to this Agreement.
16
"Non-Recourse Debt" means Indebtedness as to which neither Company
nor any of its Restricted Subsidiaries (a) provides credit support of any
kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a
guarantor or otherwise), or (c) constitutes the lender.
"Notes" means (i) the promissory notes of Company issued pursuant to
subsection 2.1E on the Restatement Closing Date, in the case of Existing
Lenders amending and restating the "Notes" issued to Existing Lenders
under the 1997 Credit Agreement, and (ii) any promissory notes issued by
Company pursuant to the last sentence of subsection 9.1B(i) in connection
with assignments of the Commitments or Loans of any Lenders, in each case
substantially in the form of Exhibit II annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto delivered by Company to Paying Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"Obligations" means all obligations of every nature of Company from
time to time owed to Agents, Lenders or any of them under the Loan
Documents, whether for principal, interest, fees (including prepayment fees
under subsec tions 2.4B(i)(b) and 2.4B(ii)(b)), expenses, indemnification
or otherwise.
"Offering Circular" means the offering circular dated November 17,
1997 and prepared by Company in connection with the issuance of the Fixed
Rate Senior Notes and the Subordinated Notes.
"Officers' Certificate" means a certificate signed by at least two
officers of Company, one signature being that of the Chairman of the Board,
a Vice Chairman of the Board, the President or a Vice President, and the
other signature being that of the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of Company, and delivered to the
Administrative Agent. One of the officers signing an Officers' Certificate
given pursuant to subsection 5.1B shall be the principal executive,
financial or accounting officer of Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for Company, and whose opinion is reasonably satisfactory to Paying
Agent.
"Paying Agent" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Paying Agent appointed pursuant to subsection 8.6.
"Permitted Indebtedness" means Indebtedness incurred by Company or
its Restricted Subsidiaries (i) to renew, extend, refinance or refund
Indebtedness that
17
is permitted to be incurred pursuant to the Consolidated Operating Cash
Flow Ratio test set forth in subsection 6.1 or clauses (ii) through (iv)
and (xi) below; provided, however, that such Indebtedness does not exceed
the principal amount of the Indebtedness so renewed, extended, refinanced
or refunded plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Indebtedness
refinanced or the amount of any premium reasonably determined by Company or
such Restricted Subsidiary as necessary to accomplish such refinancing by
means of a tender offer or privately negotiated repurchase, plus the
expenses of Company or such Restricted Subsidiary incurred in connection
with such refinancing; and provided, however, that Indebtedness the
proceeds of which are used to refinance or refund such Indebtedness shall
only be permitted if (A) in the case of any refinancing or refunding of
Indebtedness that is pari passu with the Obligations, the refinancing or
refunding Indebtedness is made pari passu with the Obligations or
subordinated to the Obligations, (B) in the case of any refinancing or
refunding of Indebtedness that is subordinated to the Obligations, the
refinancing or refunding Indebtedness is made subordinated to the
Obligations at least to the same extent as such Indebtedness being
refinanced or refunded was subordinated to the Obligations and (C) in the
case of the refinancing or refunding of Indebtedness that is subordinated
to the Obligations, the refinancing or refunding Indebtedness by its terms,
or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, (x) does not provide for payments of principal of
such Indebtedness at the stated maturity thereof or by way of a sinking
fund applicable thereto or by way of any mandatory redemption, defeasance,
retirement or repurchase thereof by Company or such Restricted Subsidiary
(including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by
virtue of acceleration of such Indebtedness upon an event of default
thereunder), in each case prior to the final stated maturity of the
Indebtedness being refinanced or refunded and (y) does not permit
redemption or other retirement (including pursuant to an offer to purchase
made by Company or such Restricted Subsidiary) of such Indebtedness at the
option of the holder thereof prior to the final stated maturity of the
Indebtedness being refinanced or refunded (other than a redemption or other
retirement at the option of the holder of such Indebtedness (including
pursuant to an offer to purchase made by Company or such Restricted
Subsidiary), which is conditioned upon the change of control of Company or
such Restricted Subsidiary); (ii) arising from time to time under the
Existing Credit Agreement in an aggregate principal amount which, together
with any obligations under clause (xi) below, do not exceed the greater of
(a) $700,000,000 at any one time outstanding less the aggregate amount of
all proceeds of all Asset Dispositions that have been applied since the
Restatement Closing Date to permanently reduce the outstanding amount of
such Indebtedness and (b) the amount of the Borrowing Base as of such date
(calculated on a pro forma basis after giving effect to such borrowing and
the application of the proceeds therefrom); (iii) outstanding or incurred
on the Restatement Closing Date; (iv) evidenced by trade letters of credit
incurred in the ordinary course of business not to exceed $20,000,000 in
the aggregate at any time; (v) between or among
18
Company and/or its Restricted Subsidiaries other than Restricted
Subsidiaries owned in any part by the Principal Shareholders; (vi) which is
Subordinated Indebtedness; (vii) arising out of Sale and Leaseback
Transactions or Capitalized Lease Obligations relating to computers and
other office equipment and elements, catalysts or other chemicals used in
connection with the refining of petroleum or petroleum by-products; (viii)
the proceeds of which are used to make the Chevron Payment, the AOC Payment
and the Gulf Payments; (ix) arising out of Interest Swap Obligations; (x)
in connection with capital projects qualifying under Section 142(a) (or any
successor provision) of the Internal Revenue Code of 1986, as amended, in
an amount not to exceed $75,000,000 in the aggregate at any time; (xi)
obligations of Company or any Restricted Subsidiary in connection with any
Qualified Securitization Transaction in an amount which, together with any
amount under clause (ii) above, does not exceed the greater of (a)
$700,000,000 at any one time outstanding less the aggregate amount of all
proceeds of all Asset Dispositions that have been applied since the
Restatement Closing Date to permanently reduce the outstanding amount of
such Indebtedness and (b) the amount of the Borrowing Base as of such date
(calculated on a pro forma basis after giving effect to such borrowing and
the application of the proceeds therefrom); (xii) any guarantee by Company
of Indebtedness of any of its Restricted Subsidiaries so long as the
incurrence of such Indebtedness is permitted to be incurred under
subsection 6.1; (xiii) Indebtedness or preferred stock of Persons that are
acquired by Company or any of its Restricted Subsidiaries or merged into
Company or a Restricted Subsidiary in accordance with subsection 6.6;
provided that such Indebtedness or preferred stock is not incurred in
contemplation of such acquisition or merger; and provided further that
after giving effect to such acquisition or merger either (A) Company would
be permitted to incur at least $1.00 of additional Indebtedness under the
Consolidated Operating Cash Flow Ratio test set forth in subsection 6.1 or
(B) Company's Consolidated Operating Cash Flow Ratio is equal to or greater
than such ratio immediately prior to such acquisition or merger; (xiv) in
an amount not greater than twice the aggregate amount of cash contributions
made to the capital of Company; (xv) in exchange for, or the proceeds of
which are used to refund or refinance the 10-7/8% Notes; provided, however,
that after giving effect to such exchange, refunding or refinancing, the
Consolidated Operating Cash Flow Ratio exceeds 1.75 to 1.0 and such
Indebtedness shall be subordinated to the Obligations to at least the same
extent as the Subordinated Notes are subordinated to the Obligations, and
(xvi) in addition to Indebtedness permitted by clauses (i) through (xv)
above, Indebtedness not to exceed on a consolidated basis for Company and
its Restricted Subsidiaries at any time $75,000,000.
"Permitted Liens" means (i) Liens in favor of Company; (ii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with Company, provided that such Liens were in existence prior
to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with
Company; (iii) Liens on property existing at the time of acquisition
thereof by Company, provided that such Liens were
19
in existence prior to the contemplation of such acquisition; (iv) Liens to
secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the
ordinary course of business; (v) Liens existing on the Restatement Closing
Date; (vi) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor; (vii) Liens
imposed by law, such as mechanics', carriers', warehousemen's,
materialmen's, and vendors' Liens, incurred in good faith in the ordinary
course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have
been made therefor; (viii) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real property or minor
irregularities of title incident thereto that do not, in the aggregate,
materially detract from the value of the property or the assets of Company
or impair the use of such property in the operation of Company's business;
(ix) judgment Liens to the extent that such judgments do not cause or
constitute a Potential Event of Default or an Event of Default; (x) Liens
to secure the payment of all or a part of the purchase price of property or
assets acquired or the construction costs of property or assets constructed
in the ordinary course of business on or after the Restatement Closing
Date, provided that (a) such property or assets are used in the Principal
Business of Company, (b) at the time of incurrence of any such Lien, the
aggregate principal amount of the obligations secured by such Lien shall
not exceed the lesser of the cost or fair market value of the assets or
property (or portions thereof) so acquired or constructed, (c) each such
Lien shall encumber only the assets or property (or portions thereof) so
acquired or constructed and shall attach to such assets or property within
180 days of the purchase or construction thereof and (d) any Indebtedness
secured by such Lien shall have been permitted to be incurred pursuant to
subsection 6.1; (xi) Liens incurred in the ordinary course of business of
Company with respect to obligations that do not exceed 5% of Consolidated
Net Tangible Assets at any one time outstanding; (xii) Liens incurred in
connection with Interest Swap Obligations; (xiii) Liens on any
Securitization Program Assets in connection with any Qualified
Securitization Transaction and; (xiv) Liens to secure obligations owing
from time to time under the Existing Credit Agreement and Guaranties
thereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, estate, limited liability
company, unincorporated organization or government or any agency or
political subdivision thereof.
"Port Arthur Refinery" means the refinery in Port Arthur, Texas, and
certain other assets acquired from Chevron U.S.A., Inc.
20
"Potential Event of Default" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"Preferred Stock" means any share of Capital Stock of any Person in
respect of which the holder thereof is entitled to receive payment before
any other payment is made with respect to any other Capital Stock of such
Person.
"Preliminary 1998 Offering Circular" means the preliminary offering
circular dated July 23, 1998 and prepared by Company in connection with the
issuance of the 1998 Senior Notes.
"Prime Rate" means the rate that Administrative Agent announces from
time to time as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. Administrative Agent
or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Principal Business" means, with respect to Company and its
Restricted Subsidiaries, (i) the business of the acquisition, processing,
marketing, refining, storage and/or transportation of hydrocarbons and/or
royalty or other interests in crude oil or associated products related
thereto, (ii) the acquisition, operation, improvement, leasing and other
use of convenience stores, retail service stations, truck stops and other
public accommodations in connection therewith, (iii) any business currently
engaged in by Company or its Restricted Subsidiaries on the Restatement
Closing Date, and (iv) any activity or business that is a reasonable
extension, development or expansion of, or reasonably related to, any of
the foregoing.
"Principal Property" means (i) any refinery and related pipelines,
terminalling and processing equipment or (ii) any other real property or
marketing assets or related group of such assets of Company having a fair
market value in excess of $20,000,000.
"Principal Shareholders" means (i) Blackstone, (ii) Occidental
Petroleum Corporation and (iii) Affiliates of the Persons described in the
foregoing clauses (i) and (ii), other than Company and its Subsidiaries.
"Pro Rata Share" means (i) with respect to a Restatement Lender's
Commitment, the Pro Rata Share set forth on Schedule 2.1B and (ii) with
respect to each Lender for all other purposes, the percentage obtained by
dividing (x) the Loan Exposure of that Lender by (y) the aggregate Loan
Exposure of all Lenders, as such percentage may be adjusted by assignments
permitted pursuant to subsection 9.1. The initial Pro Rata Share of each
Lender after giving effect to the making of the
21
Restatement Loans is set forth opposite the name of the Lender in Schedule
2.1A annexed hereto.
"Purchase Agreement" means the Purchase Agreement dated November 14,
1997 between the Purchasers and Company relating to the issuance and
purchase of the Fixed Rate Senior Notes and the Subordinated Notes.
"Purchasers" means BT Alex Brown Incorporated, Bear, Stearns & Co.
Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Lehman
Brothers Inc., and Goldman, Sachs & Co.
"Qualified Securitization Transaction" means any transaction or
series of transactions that may be entered into by Company or any of its
Subsidiaries pursuant to which Company or any of its Subsidiaries may sell,
convey, grant a security interest in or otherwise transfer to a
Securitization Special Purpose Entity, and such Securitization Special
Purpose Entity may sell, convey, grant a security interest in, or otherwise
transfer to any other Person, any Securitization Program Assets (whether
now existing or arising in the future).
"Rating Agencies" means (i) S&P and Moody's or (ii) if S&P or
Moody's or both of them are not making ratings of the New Notes and the
Loans publicly available, a nationally recognized U.S. rating agency or
agencies, as the case may be, selected by Company, which will be
substituted for S&P or Moody's or both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the
following categories (any of which may include a "+" or "-"): AAA, AA,
A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Moody's, any of the following categories (any of which may
include a "1," "2" or "3"): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D
(or equivalent successor categories), and (iii) the equivalent of any such
categories of S&P or Moody's used by another Rating Agency, if applicable.
"Rating Decline" means that at any time within 90 days (which period
shall be extended so long as the rating of the Loans or any of the Fixed
Rate Senior Notes or the 1998 Senior Notes, as the case may be, is under
publicly announced consideration for possible down grade by any Rating
Agency) after the date of public notice of a Change of Control, or of the
intention of Company or of any Person to effect a Change of Control, the
rating of (i) the Loans, if at such time the Loans are rated by the Rating
Agencies, or (ii) any of the Fixed Rate Senior Notes or the 1998 Senior
Notes, if at such time the Loans are not rated by the Rating Agencies, is
decreased by both Rating Agencies by one or more categories and the ratings
on the Loans or any of the Fixed Rate Senior Notes or the 1998 Senior
Notes, as the case may be, following such downgrade is below Investment
Grade.
22
"Receivables" means all rights of Company or any Subsidiary of
Company to payments (whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise, and including the right to
payment of any interest or finance charges), which rights are identified in
the accounting records of Company or such Subsidiary as accounts
receivable.
"Reference Banks" means each of Barclays Bank PLC, London Branch,
the Bank of Tokyo, Ltd., London Branch, Bankers Trust Company, London
Branch, and National Westminster Bank PLC, London Branch, and any such
replacement bank thereof as listed on the Reuters Screen LIBO Page and
their respective successors, and if any such banks are not at the
applicable time providing interest rates as contemplated within the
definition of the "Adjusted Eurodollar Rate," Reference Banks shall mean
the remaining bank or banks so providing such rates. In the event that
less than two of such banks are providing such rates, Company shall use
reasonable efforts to appoint additional Reference Banks so that there are
at least two such banks providing such rates; provided, however, that such
banks appointed by Company shall be London offices of leading banks engaged
in the Eurodollar Market.
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Requisite Lenders" means Lenders having or holding more than 50% of
the aggregate Loan Exposure of all Lenders.
"Restatement Closing Date" means the date on or before August 10,
1998, on which the conditions to the effectiveness of this Agreement set
forth in Section 3 are satisfied.
"Restatement Lender" has the meaning assigned to that term in
subsection 2.1A.
"Restatement Loan" has the meaning assigned to that term in
subsection 2.1A.
"Restricted Debt Prepayment" means any purchase, redemption,
defeasance (including, but not limited to, in-substance or legal
defeasance) or other acquisition or retirement for value (collectively a
"prepayment") (other than in connection with a concurrent issuance of
pari passu or Subordinated Indebtedness) directly or indirectly, by Company
or a Restricted Subsidiary of Company, prior to the scheduled maturity on
or prior to any scheduled repayment of principal (and premium, if any) or
sinking fund payment, in respect of Indebtedness of Company (other than the
Obligations) which is subordinate in right of payment to the Obligations.
23
"Restricted Investment" means any direct or indirect Investment by
Company or any Restricted Subsidiary of Company in (i) any Affiliate of
Company which is not a Restricted Subsidiary of Company and (ii) any
Unrestricted Subsidiary of Company, other than direct or indirect
investments in (a) Polymer Asphalt L.L.C., a Missouri limited liability
company, (b) Bagel Street Holdings, Inc. and (c) any pipeline company in
which Company or any of its Restricted Subsidiaries now owns or hereafter
acquires any interest; provided that the aggregate amount of Investments
made by Company or any of its Restricted Subsidiaries pursuant to clauses
(a), (b) and (c) above shall not exceed $25,000,000 in the aggregate at any
one time outstanding provided, that no Investment in a Securitization
Special Purpose Entity in connection with a Qualified Securitization
Transaction shall be a Restricted Investment.
"Restricted Payment" means (i) any Stock Payment, (ii) any
Restricted Investment, or (iii) any Restricted Debt Prepayment.
Notwithstanding the foregoing, Restricted Payments shall not include (a)
payments by Company to any Restricted Subsidiary of Company, (b) payments
by any Restricted Subsidiary of Company to Company or any other Restricted
Subsidiary of Company, (c) the Chevron Payment, (d) the AOC Payment and (e)
the Gulf Payments.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not (i) an Unrestricted Subsidiary or (ii) a direct
or indirect Subsidiary of an Unrestricted Subsidiary.
"Reuters Screen LIBO Page" means the display designated as page
"LIBO" on the Reuter Monitor Money Rates Service (or such other page as
may replace the LIBO page on that service for the purpose of displaying
London Interbank Offered Rates of leading banks).
"S&P" means Standard & Poor's Rating Services and its successors.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person more
than 365 days after the acquisition thereof or the completion of
construction or commencement of operation thereof to such lender or
investor or to any Person to whom funds have been or are to be advanced by
such lender or investor on the security of such property or asset. The
stated maturity of such arrangement shall be the date of the last payment
of rent or any other amount due under such arrangement prior to the first
date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
24
"Securitization Program Assets" means (a) all Receivables and
inventory which are described as being transferred by Company or any
Subsidiary of Company pursuant to documents relating to any Qualified
Securitization Transaction, (b) all Securitization Related Assets, and (c)
all collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
"Securitization Related Assets" means (i) any rights arising under
the documentation governing or relating to Receivables (including rights in
respect of Liens securing such Receivables and other credit support in
respect of such Receivables) or to inventory, (ii) any proceeds of such
Receivables or inventory and any lockboxes or accounts in which such
proceeds are deposited, (iii) spread accounts and other similar accounts
(and any amounts on deposit therein) established in connection with a
Qualified Securitization Transaction, (iv) any warranty, indemnity,
dilution and other intercompany claim arising out of the documents relating
to such Qualified Securitization Transaction and (v) other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable or inventory.
"Securitization Special Purpose Entity" means a Person (including,
without limitation, a Subsidiary of Company) created in connection with the
transactions contemplated by a Qualified Securitization Transaction, which
Person engages in no activities other than those incidental to such
Qualified Securitization Transaction.
"Shareholder/Affiliate Transaction" has the meaning assigned to that
term in subsection 6.8.
"Significant Subsidiary" of a Person means any Restricted Subsidiary
of the referent Person that would be a "significant subsidiary" as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such Regulation is in effect on the Restatement Closing
Date.
"State Street" has the meaning assigned to that term in the
Introduction to this Agreement.
"Stock Payment" means, with respect to Company, any dividend, either
in cash or in property (except dividends payable in Capital Stock of
Company which is not convertible into Indebtedness), on, or the making by
Company of any other distribution in respect of, its Capital Stock, now or
hereafter outstanding, or the redemption, repurchase, retirement,
defeasance or any acquisition for value by Company, directly or indirectly,
of its Capital Stock or any warrants, rights or options to purchase or
acquire shares of any class of its Capital Stock, now or hereafter
outstanding (other than in exchange for Company's Capital Stock (other than
Disqualified Capital Stock) or options, warrants or other rights to
purchase Company's Capital Stock (other than Disqualified Capital Stock)).
25
"Stock Purchase and Redemption Agreement" means that certain Stock
Purchase and Redemption Agreement dated as of December 30, 1992, by and
among AOC Limited Partnership, P. Anthony Novelly, Samuel R. Goldstein, G&N
Investments, Inc., The Horsham Corporation, Company and Holdings.
"Subordinated Indebtedness" means (i) the Indebtedness of Company
evidenced by the Subordinated Notes and (ii) any other Indebtedness of
Company which is subordinated in right of payment to the Obligations and
with respect to which no payments of principal (by way of sinking fund,
mandatory redemption, maturity or otherwise, including, without limitation,
at the option of the holder thereof (other than pursuant to an offer to
repurchase such Subordinated Indebtedness following a change of control,
which offer may not be completed until 45 days after Company prepays the
Loans, if required by Lenders, pursuant to subsection 2.4B(ii)(b)) are
required to be made by Company at any time prior to November 15, 2004.
"Subordinated Notes" means the senior subordinated notes due
November 15, 2007 issued by Company pursuant to the Subordinated Note
Indenture.
"Subordinated Note Indenture" means the Indenture dated as of
November 21, 1997 between Company and Marine Midland Bank, as trustee,
pursuant to which the Subordinated Notes are issued, as such Indenture may
hereafter be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms hereof and thereof.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the total voting power of all classes of the outstanding voting stock of
which is owned, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a corporation) in
which such Person, or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries thereof, directly or indirectly,
has at least a majority ownership and the power to direct the policies,
management and affairs thereof.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided that "Tax on the overall net
income" of a Person shall be construed as a reference
26
to a tax imposed by the jurisdiction in which that Person is organized or
in which that Person's principal office (and/or, in the case of a Lender,
its lending office) is located or in which that Person (and/or, in the case
of a Lender, its lending office) is deemed to be doing business on all or
part of the net income, profits or gains (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or to
relate to a particular jurisdiction, or otherwise) of that Person (and/or,
in the case of a Lender, its lending office).
"10-1/2% Senior Notes" means the senior notes due December 1, 2001
issued by Company pursuant to the 10-1/2% Senior Note Indenture.
"Transaction Date" means the date on which the Indebtedness giving
rise to the need to calculate the Consolidated Operating Cash Flow Ratio
was incurred or the date on which, pursuant to the terms of this Agreement,
the transaction giving rise to the need to calculate the Consolidated
Operating Cash Flow Ratio occurred.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the Restatement Closing Date; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the board of directors of Company as an Unrestricted Subsidiary pursuant to
a duly adopted board resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; and (b)
is a Person with respect to which neither Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Capital Stock (including options, warrants or other rights to
acquire Capital Stock) or (y) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels
of operating results. The board of directors of Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation (i) shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall
only be permitted if (1) such Indebtedness is permitted under subsection
6.1, and (2) no Potential Event of Default or Event of Default would be in
existence following such designation, and (ii) such designation shall
otherwise be permitted pursuant to that last paragraph of subsection 6.5.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock
or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person or by such Person and one or
more Wholly Owned Restricted Subsidiaries of such Person.
27
"Wholly Owned U.S. Restricted Subsidiary" of any Person means a Wholly
Owned Restricted Subsidiary of such Person which is organized under the
laws of any state in the United States or of the District of Columbia.
1.2 Accounting Terms.
----------------
All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP.
1.3 Other Definitional Provisions and Rules of Construction.
-------------------------------------------------------
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
fall within the broadest possible scope of such general statement, term or
matter.
1.4 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by Company to the Administrative Agent or
Paying Agent to take any action under any provision of this Agreement or the
other Loan Documents, Company shall furnish to the Administrative Agent or
Paying Agent, as applicable, such certificates and opinions as may be required
to be delivered under equivalent circumstances to the trustee under the 1998
Senior Notes Indenture pursuant to the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Agreement.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
28
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
1.5 Form of Documents Delivered to Agents.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which such
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
Company stating that the information with respect to such factual matters is in
the possession of Company unless such counsel knows that the certificate or
opinion or representation with respect to such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
A. Commitments. Immediately prior to the Restatement Closing Date, under
the 1997 Credit Agreement the aggregate principal amount of the outstanding
Loans made by Existing Lenders thereunder was $125,000,000 (collectively, the
"Existing Loans"), the proceeds of which were to be used by Company for the
purposes identified in the 1997 Credit Agreement. The amount of each Existing
Lender's Pro Rata Share on the
29
Restatement Closing Date of the Existing Loans is set forth opposite its name on
Schedule 2.1A annexed hereto. On the Restatement Closing Date, the aggregate
outstanding principal amount of the Existing Loans shall be automatically deemed
to be part of the Loans made by Lenders and outstanding hereunder for all
purposes of this Agreement, the Notes and the other Loan Documents. Subject to
the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, each Lender listed
on Schedule 2.1B annexed hereto (each, a "Restatement Lender") hereby
severally agrees to lend to Company on the Restatement Closing Date an amount
not exceeding its Pro Rata Share of the aggregate amount of the Commitments to
be used for the purposes identified in subsection 2.5A (collectively, the
"Restatement Loans"). The amount of each Restatement Lender's Commitment is set
forth opposite its name on Schedule 2.1B annexed hereto and the aggregate amount
of the Commitments is $115,000,000. Each Restatement Lender's Commitment shall
expire immediately and without further action on August 12, 1998 if the
Restatement Loans are not made on or before that date. Company may make only one
borrowing under the Commitments. Amounts repaid or prepaid on the Loans may not
be reborrowed.
B. Borrowing Mechanics. Company shall deliver to Administrative Agent a
Notice of Borrowing no later than 10:00 A.M. (New York City time) at least one
Business Days in advance of the proposed Restatement Closing Date. The Notice of
Borrowing shall specify (i) the proposed Restatement Closing Date (which shall
be a Business Day) and (ii) the amount of Loans requested. Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.6. In lieu of delivering the above-described
Notice of Borrowing, Company may give Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsec tion 2.1B;
provided that such notice shall be promptly confirmed in writing by delivery of
a Notice of Borrowing to Paying Agent on or before the Restatement Closing Date.
Neither Administrative Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that
Administrative Agent reasonably believes to have been given by a duly authorized
officer or other person authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsec tion 2.1B, and upon funding of
Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Except as otherwise provided in subsection 2.6, a Notice of Borrowing for a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and Company shall be
bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. Promptly after receipt by Administrative Agent
of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice in
lieu thereof), Administrative Agent shall notify each Restatement Lender of the
proposed borrowing. Each Restatement Lender shall make the amount of its
Restatement Loan available to Administrative Agent, in same day funds in
Dollars, at the office of Administrative Agent,
30
not later than 12:00 Noon (New York City time) on the Restatement Closing Date.
Upon satisfaction or waiver of the conditions precedent specified in Section 3,
Administrative Agent shall make the proceeds of such Restatement Loans available
to Company on the Restatement Closing Date by causing an amount of same day
funds in Dollars equal to the proceeds of all such Restatement Loans received by
Administrative Agent from Restatement Lenders to be credited to the account of
Company as specified in the Notice of Borrowing.
Unless Administrative Agent shall have been notified by any Restatement
Lender prior to the Restatement Closing Date that such Restatement Lender does
not intend to make available to Administrative Agent the amount of such
Restatement Lender's Restatement Loan requested on the Restatement Closing Date,
Administrative Agent may assume that such Restatement Lender has made such
amount available to Paying Agent on the Restatement Closing Date and Paying
Agent may, in its sole discretion, but shall not be obligated to, make available
to Company a corresponding amount on the Restatement Closing Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Restatement Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Restatement Lender together with
interest thereon, for each day from the Restatement Closing Date until the date
such amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. Nothing in this subsection 2.1C shall be
deemed to relieve any Restatement Lender from its obligation to fulfill its
Commitment hereunder or to prejudice any rights that Company may have against
any Restatement Lender as a result of any default by such Restatement Lender
hereunder.
D. The Register.
(i) Paying Agent shall maintain, at its address referred to in
subsection 9.6, a register for the recordation of the names and addresses
of Lenders and the Commitment and Loan of each Lender from time to time
(the "Register"). The Register shall be available for inspection by Company
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(ii) Paying Agent shall record in the Register the Commitment and
the Loan from time to time of each Lender and each repayment or prepayment
in respect of the principal amount of the Loan of each Lender. Any such
recordation shall be conclusive and binding on Company and each Lender,
absent manifest error; provided that failure to make any such recordation,
or any error in such recordation, shall not affect any Lender's Commitment
or Company's Obligations in respect of any applicable Loan.
(iii) Each Lender shall record on its internal records (including the
Note held by such Lender) the amount of the Loan made by it and each
payment in respect thereof; provided that in the event of any inconsistency
between the Register and any Lender's records, the recordations in the
Register shall govern.
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(iv) Company, Administrative Agent, Paying Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the holders
and owners of the corresponding Commitments and Loans listed therein for
all purposes hereof, and no assignment or transfer of any such Commitment
or Loan shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Paying Agent and recorded in the Register and a copy thereof
delivered to Company as provided in subsection 9.1B(ii). Prior to such
recordation, all amounts owed with respect to the applicable Commitment or
Loan shall be owed to the Lender listed in the Register as the owner
thereof, and any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Commitment
or Loan.
(v) Company hereby designates Paying Agent to serve as Company's
agent solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Company hereby agrees that, to the extent Paying Agent
serves in such capacity, Paying Agent and its officers, directors,
employees, agents and affiliates shall constitute Indemnitees for all
purposes under subsection 9.3.
E. Notes. Company shall execute and deliver to each Lender (or to
Administra tive Agent for that Lender) on the Restatement Closing Date a Note
substantially in the form of Exhibit II annexed hereto to evidence that Lender's
Loan, in the principal amount of that Lender's Loan and with other appropriate
insertions, and in the case of Existing Lenders such Notes are issued in
substitution for and shall amend and restate the Notes issued under the 1997
Credit Agreement, it being understood and agreed that such Notes are not issued
in payment, satisfaction or cancellation of outstanding Indebtedness under the
Existing Credit Agreement.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and
2.7, each Loan shall bear interest on the unpaid principal amount thereof from
the date made through payment of such Loan (whether by acceleration or
otherwise) at the sum of the Adjusted Eurodollar Rate plus 2.75% per annum. The
basis for determining the interest rate with respect to any Loan may be changed
from time to time pursuant to subsection 2.6.
B. Interest Periods. The Interest Period applicable to each Eurodollar
Rate Loan shall be a three month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on (a) the day on which the
next preceding Interest Period applicable thereto expires or (b) only in
the circumstances provided in subsection 2.6D(ii) (where all Eurodollar
Rate Loans have theretofore
32
been converted into Base Rate Loans), on the business Day specified in
subsec tion 2.6D(ii);
(ii) the initial Interest Period applicable to any Eurodollar Rate
Loan made on the Restatement Closing Date shall expire on the same date on
which the Interest Period applicable to the Existing Loans on the
Restatement Closing Date expires;
(iii) each successive Interest Period shall commence on the day on
which the next preceding Interest Period expires;
(iv) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) 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,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(vi) no Interest Period with respect to any portion of the Loans
shall extend beyond November 15, 2004;
(vii) no Interest Period with respect to any portion of the Loans
shall extend beyond a date on which Company is required to make a scheduled
payment of principal of the Loans unless the sum of (a) the aggregate
principal amount of Loans that are Base Rate Loans plus (b) the aggregate
principal amount of Loans that are Eurodollar Rate Loans with Interest
Periods expiring on or before such date equals or exceeds the principal
amount required to be paid on the Loans on such date; and
(viii) except in the case of the initial Interest Period for the
Restatement Loans, there shall be no more than one Interest Period
outstanding at any time.
C. Interest Payments. Interest on each Loan shall be payable in arrears
on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount being prepaid) and
at maturity (including final maturity).
D. Computation of Interest. Interest on the Loans shall be computed (i)
in the case of Base Rate Loans, on the basis of a 365-day year or 366-day year,
as the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis
of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being
33
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar
Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the
date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted to
a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a
Loan is repaid on the same day on which it is made, one day's interest shall be
paid on that Loan.
E. Defaulted Interest. If Company defaults in a payment of interest on
the Loans, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on demand on the defaulted interest, to the
Lenders at the rate otherwise payable hereunder with respect to the applicable
Loans. Payment or acceptance of the increased rates of interest provided for in
this subsection 2.2E is not a permitted alternative to timely payment and shall
not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of Agents or any Lender.
2.3 Fees.
Company agrees to pay to Paying Agent and Administrative Agent such fees in
the amounts and at the times separately agreed upon between Company and Paying
Agent and Administrative Agent.
2.4 Repayments and Prepayments; General Provisions Regarding Payments.
A. Scheduled Payments of Loans. Company shall make principal payments on
the Loans in installments on the dates and in the amounts set forth below:
=========================================
Scheduled
Date Repayment of Loans
=========================================
November 15, 2003 $ 31,250,000
-----------------------------------------
November 15, 2004 $208,750,000
-----------------------------------------
TOTAL: $240,000,000
=========================================
; provided that notwithstanding anything in this Agreement to the contrary,
principal payments made by Company on the scheduled installments of
principal of the Loans due on November 15, 2003 shall be applied 100% to
the repayment of the Existing Loans; provided, further that the scheduled
installments of principal of the Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepay ments of the Loans in
accordance with subsection 2.4B(iii); and provided, further that the Loans
and all other amounts owed hereunder with respect to the Loans shall be
paid in full no later than November 15, 2004, and the final installment
payable by Company in respect of the Loans on such date shall be in an
amount, if such amount
34
is different from that specified above, sufficient to repay all amounts
owing by Company under this Agreement with respect to the Loans. For
purposes of giving effect to the first proviso of this subsection 2.4A,
Paying Agent shall designate on its books and records the holders of the
Existing Loans from time to time.
B. Prepayments.
(i) Voluntary Prepayments.
(a) Company may, upon not less than one Business Day's prior
written or telephonic notice, in the case of Base Rate Loans, and
three Business Days' prior written or telephonic notice, in the case
of Eurodollar Rate Loans, in each case given to Paying Agent by 12:00
Noon (New York City time) on the date required and, if given by
telephone, promptly confirmed in writing to Paying Agent (which
original written or telephonic notice Paying Agent will promptly
transmit by telefacsimile or telephone to each Lender), at any time
and from time to time prepay any Loans on any Business Day in whole
or in part in an aggregate minimum amount of $1,000,000 and integral
multiples of $100,000 in excess of that amount. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans
specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment
shall be applied as specified in subsection 2.4B(iii).
(b) Prepayment Fees. If any portion of the Loan is prepaid
pursuant to clause (a) of subsection 2.4B(i) on or prior to the second
anniversary of the 1997 Closing Date (other than pursuant to subsec
tion 2.9B(i)), Company shall pay to Paying Agent, for distribution to
Lenders in accordance with their Pro Rata Shares, a fee equal to (x)
2.50% of the principal amount of Loans so prepaid during the period
commencing on the 1997 Closing Date and ending on the day prior to the
first anniversary of the 1997 Closing Date and (y) 1.25% of the
principal amount of Loans so prepaid during the period commencing on
the first anniversary of the 1997 Closing Date and ending on the
second anniversary of the 1997 Closing Date.
(ii) Mandatory Prepayments. The Loans shall be prepaid in the
amounts and under the circumstances set forth below, all such prepayments
to be applied as set forth below or as more specifically provided in
subsection 2.4B(iii):
(a) Prepayments From Net Asset Sale Proceeds. Upon any Asset
Disposition Trigger Date, Company shall offer to prepay the Loans in
accordance with the procedures set forth in subsection 2.4B(iii)(d)
and, upon completion of such offer, shall prepay the Loans to the
extent required pursuant to such subsection.
35
(b) Prepayments Upon Change of Control. No later than 30 days
following the date on which a Change of Control Triggering Event
occurs, Company shall offer to prepay the principal amount of the
Loans and all other amounts outstanding hereunder (including interest,
fees and expenses) pursuant to the provisions of subsection
2.4B(iii)(d) and, upon completion of such offer, shall prepay the
Loans and such other amounts to the extent required pursuant to such
subsection.
(c) Prepayment Fees. If any portion of the Loan is prepaid
pursuant to clause (b) of subsection 2.4B(ii), Company shall pay to
Paying Agent, for distribution to Lenders in accordance with their Pro
Rata Shares, a fee equal to 1.00% of the principal amount of Loans so
prepaid.
(iii) Application of Prepayments.
(a) Application of Voluntary Prepayments. Any voluntary prepay
ments of the Loans pursuant to subsection 2.4B(i) shall be applied to
reduce the scheduled installments of principal of the Loans in the
order specified in the applicable notice of prepayment (or if no such
order is specified, on a pro rata basis in accordance with the
respective outstanding principal amounts of each such installment).
(b) Application of Mandatory Prepayments. Any mandatory
prepayments of the Loans pursuant to subsection 2.4B(ii) shall be
applied to reduce the scheduled installments of principal of the Loans
in the order specified in the applicable notice of prepayment (or if
no such order is specified, on a pro rata basis in accordance with the
respective outstanding principal amounts of each such installment).
(c) Application of Prepayments to Base Rate Loans and Eurodollar
Rate Loans. Any prepayment of the Loans shall be applied first to
Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Company pursuant to
subsection 2.6C.
(d) Mandatory Offer to Prepay Loans. Within 30 days following a
Change of Control resulting in a Rating Decline, and on any Asset
Disposition Trigger Date, (1) Company shall send written notice to
Paying Agent and each Lender stating (A) that an offer is being made
to prepay the Loans pursuant to this subsection 2.4B(iii)(d) (an
"Optional Prepayment"), (B) the payment date in respect of such
Optional Prepayment (the "Optional Prepayment Date"), which Optional
Prepayment Date shall be no earlier than 30 days nor later than 70
days from the date such notice is sent, (C) in the case of a
prepayment pursuant to subsection 2.4B(ii)(a), (1) the aggregate
amount of Excess Proceeds available (as determined pursuant to subsec-
36
tion 6.7) to prepay the Loans and, to the extent required pursuant to
the applicable indenture, to redeem the New Notes, the 9-1/2% Senior
Notes, and the Holdings 10-7/8% Notes and any other Indebtedness of
Holdings or Company entitled to receive such offer of redemption or
repayment (collectively, the "Offer Notes"), and (2) the aggregate
outstanding principal amount under each series of Offer Notes as of
the date of such notice, (D) in the case of a Change of Control, the
circumstances and material facts regarding such Change of Control, to
the extent known to Company (including information with respect to pro
forma and historical financial information after giving effect to such
Change of Control, and information regarding the Person or Persons
acquiring control), and (E) such other information required by this
Agreement and applicable laws and regulations and (F) that each Lender
has the option to accept all or a portion of such Optional Prepayment.
Each Lender may exercise such option by giving written notice to
Company and Paying Agent of its election to do so on or before the
third Business Day (the "Cutoff Date") prior to the Optional
Prepayment Date (it being understood that any Lender which does not
notify Company and Paying Agent of its election to exercise such
option on or before the Cutoff Date shall be deemed to have elected,
as of the Cutoff Date, not to accept such Optional Prepayment). In the
case of an Optional Prepayment under subsection 2.4B(ii)(a), (x) on
the Business Day next succeeding the related Cutoff Date, Company
shall notify the Paying Agent of the aggregate principal amount of
Offer Notes (plus accrued interest and premium, if any, through the
Optional Prepayment Date) tendered for purchase pursuant to the offer
procedures in respect of Excess Proceeds under each applicable
indenture and (y) on the Business Day next preceding the related
Optional Prepayment Date, Paying Agent shall notify Company and each
Lender that has exercised its option to receive a prepayment in
respect thereof (each, a "Receiving Lender"), of the amount of such
Optional Prepayment to be paid to such Receiving Lender, which amount
shall be equal to (A) a fraction the numerator of which is the
aggregate amount of the Loans (plus accrued interest through the
Optional Prepayment Date) tendered by such Receiving Lender for
prepayment and the denominator of which is the aggregate principal
amount of all Loans (plus accrued interest through the Optional
Prepayment Date) tendered for prepayment plus the aggregate principal
amount of all Offer Notes (plus accrued interest and premium, if any,
through the Optional Prepayment Date) tendered for redemption pursuant
to the offer procedures in respect of Excess Proceeds under each
applicable indenture multiplied by (B) the aggregate amount of Excess
Proceeds available for prepayment under subsection 6.7. On the
Optional Prepayment Date, Company shall pay to Paying Agent the amount
of the Optional Prepayment, which amount shall be applied to prepay
the Loans (plus accrued interest through the Optional Prepayment Date)
of the Receiving Lenders (which prepayment shall be applied to the
scheduled installments of principal of the Loans in accordance with
subsection 2.4B(iii)(b) and which prepayment shall
37
result in a corresponding adjustment to the Pro Rata Share of each
Lender pursuant to the operation of the definition thereof).
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Paying Agent not later than 1:00 p.m. (New York City time) on the date due
at the Funding and Payment Office for the account of Lenders; funds
received by Paying Agent after that time on such due date shall be deemed
to have been paid by Company on the next succeeding Business Day. Company
hereby authorizes Paying Agent to (but Paying Agent shall have no
obligation to) charge its accounts with Paying Agent in order to cause
timely payment to be made to Paying Agent of all principal, interest, fees
and expenses due hereunder (subject to sufficient funds being available in
its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments (and, in any event, any payment in respect
of any Loan on a date when interest is due and payable with respect to such
Loan) shall be applied to the payment of interest before application to
principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to Lenders' respective Pro
Rata Shares. Paying Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Lender may request, its Pro Rata
Share of all such payments received by Paying Agent. Notwithstanding the
foregoing provisions of this subsection 2.4C(iii), if, pursuant to the
provisions of subsection 2.6B, any Affected Lender makes Base Rate Loans in
lieu of its Pro Rata Share of any Eurodollar Rate Loans, Paying Agent shall
give effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing
of the Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of the
Loan evidenced by that Note and
38
all principal payments previously made thereon and of the date to which
interest thereon has been paid; provided that the failure to make (or any
error in the making of) a notation of the Loan made under such Note shall
not limit or otherwise affect the obligations of Company hereunder or under
such Note with respect to such Loan or any payments of principal or
interest on such Note.
2.5 Use of Proceeds.
---------------
A. Loans. The proceeds of the Loans (other than the Restatement Loans),
together with the proceeds of the New Notes (other than the 1998 Senior Notes),
shall have been applied by Company (i) to redeem or repay the 10-1/2% Senior
Notes, (ii) to replenish Company's cash reserves or (iii) for other general
corporate purposes. The proceeds of the Restatement Loans shall be used by
Company, together with the proceeds of the 1998 Senior Notes, to fund a portion
of the purchase price of an oil refinery to be acquired by Company in Lima, Ohio
and related assets (the "Lima Acquisition") and to pay certain fees and expenses
related to the Lima Acquisition.
B. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Inability to Determine Applicable Interest Rate. In the event that
Paying Agent shall have determined (which determination shall be final and
conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Paying Agent
shall on such date give notice (by telefacsimile or by telephone confirmed in
writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Paying Agent notifies Company and Lenders that the circumstances giving rise to
such notice no longer exist and (ii) on the last day of the then current
Interest Period, all Eurodollar Rate Loans shall be automatically converted to
Base Rate Loans, until such time as the Paying Agent notifies Company and
Lenders that the circumstances giving rise to such notice by the Paying Agent no
longer exist, in which event, subsection 2.6E shall apply.
39
B. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have reasonably determined (which
determination shall be made only after consultation with Company and Paying
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith
with any law, treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule, regulation, guideline or
order not having the force of law even though the failure to comply therewith
would not be unlawful) or (ii) has become impracticable, or would cause such
Lender material hardship, as a result of contingencies occurring after the date
of this Agreement which materially and adversely affect the London interbank
market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an "Affected Lender" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
Paying Agent of such determination (which notice Paying Agent shall promptly
transmit to each other Lender). Thereafter (a) the obligation of the Affected
Lender to convert Loans to Eurodollar Rate Loans pursuant to subsection 2.6D
shall be suspended until such notice shall be withdrawn by the Affected Lender,
(b) the Affected Lender's obligation to maintain its outstanding Eurodollar Rate
Loans (the "Affected Loans") shall be terminated at the earlier to occur of
the expiration of the Interest Period then in effect with respect to the
Affected Loans or when required by law, and (c) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination until
such time as the circumstances described in this subsection 2.6B shall no longer
be applicable in which event, subsection 2.6D shall apply.
C. Compensation For Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender or such
Lender's becoming an Affected Lender) a borrowing of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on the date specified therefor pursuant to
this Agreement, (ii) if any prepayment (including any prepayment pursuant to
subsection 2.4B(i)(a) or other principal payment or any conversion of any of its
Eurodollar Rate Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan, (iii) if any prepayment of any of its Eurodollar
Rate Loans is not made on any date specified in a notice of prepayment given by
Company, or (iv) as a consequence of any other default by Company in the
repayment of its Eurodollar Rate Loans when required by the terms of this
Agreement.
D. Conversion of Base Rate Loans. In the event that any Base Rate Loan
is outstanding at any time when the relevant circumstances described in
subsections 2.6A or 2.6B,as the case may be, cease to be applicable, the
respective Lender or Lenders or Paying Agent (as applicable) shall give prompt
notice thereof to Company and Paying Agent (as
40
applicable) and, subject to the provisions of subsection 2.6G, (i) if any
Eurodollar Rate Loans are outstanding at that time from Lenders who were not
affected by such circumstances or as a result of the application of the
following clause (ii)), then on the last day of the Interest Period then
applicable thereto, the Base Rate Loans of the respective affected Lender or
Lenders to which the circumstances described above have ceased to be applicable
shall be converted into (and thereafter shall form a part of) the Eurodollar
Rate Loans (until such time, if any, as subsection 2.6A or 2.6B shall thereafter
become applicable) and (ii) if no Eurodollar Rate Loans remain outstanding at
such time, then on the third Business Day thereafter the Base Rate Loans of the
respective Lender or Lenders to which the circumstances described above shall
cease to be applicable shall be converted into Eurodollar Rate Loans (with an
Interest Period of three months beginning on said third Business Day).
E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to the definition of Adjusted
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this subsection 2.6 and under
subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and
during the continuation of an Event of Default and upon the written direction of
Requisite Lenders delivered to Paying Agent and Company, all Eurodollar Rate
Loans shall be converted to Base Rate Loans after the expiration of any Interest
Period then in effect for each respective Loan.
2.7 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. Compensation for Increased Costs and Taxes. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall reasonably determine that
any law, treaty or governmental rule, regulation or order, or any change therein
or in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or
41
other governmental or quasi-governmental authority (whether or not having the
force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loan hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending office)
with respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Paying Agent) a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under
this Agreement and the other Loan Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to which
a payment is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such jurisdiction
is a member at the time of payment.
42
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Company to Paying Agent or any Lender
under any of the Loan Documents:
(a) Company shall notify Paying Agent of any such requirement or
any change in any such requirement as soon as Company becomes aware of
it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on Paying Agent or such Lender, as the case may be) on
behalf of and in the name of Paying Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Paying Agent or such Lender, as the
case may be, receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment been
required or made; and
(d) within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Paying Agent evidence
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after
the date hereof (in the case of each Lender listed on the signature pages
hereof) or after the date of the Assignment Agreement pursuant to which
such Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to
such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
-----------------------------------------------
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Paying Agent for
transmission to Company, on or prior to the Restatement
43
Closing Date (in the case of each Lender listed on the signature pages
hereof) or on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the
determination of Company or Paying Agent (each in the reasonable
exercise of its discretion), (1) two original copies of Internal
Revenue Service Form 1001 or 4224 (or any successor forms), properly
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal
Revenue Code or the regulations issued thereunder to establish that
such Lender is not subject to deduction or withholding of United
States federal income tax with respect to any payments to such Lender
of principal, interest, fees or other amounts payable under any of the
Loan Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to
such Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Paying Agent for transmission to
Company two new original copies of Internal Revenue Service Form 1001
or 4224, or a Certificate re Non-Bank Status and two original copies
of Internal Revenue Service Form W-8, as the case may be, properly
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required in order to confirm or
establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to payments to such
Lender under the Loan Documents or (2) notify Paying Agent and Company
of its inability to deliver any such forms, certificates or other
evidence.
(c) Company shall not be required to pay any additional amount to
any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a) or
(b)(1) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on
the Restatement Closing Date (in
44
the case of each Lender listed on the signature pages hereof) or on
the date of the Assignment Agreement pursuant to which it became a
Lender (in the case of each other Lender), nothing in this subsection
2.7B(iii)(c) shall relieve Company of its obligation to pay any
additional amounts pursuant to clause (c) of subsection 2.7B(ii) in
the event that, as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender
is not subject to withholding as described in subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loan or Commitment or other obligations hereunder to a level below
that which such Lender or such controlling corporation could have achieved but
for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling
corporation with regard to capital adequacy), then from time to time, within
five Business Days after receipt by Company from such Lender of the statement
referred to in the next sentence, Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such Lender shall deliver
to Company (with a copy to Paying Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such additional amounts, which
statement shall be conclusive and binding upon all parties hereto absent
manifest error.
2.8 Obligation of Lenders to Mitigate.
---------------------------------
Each Lender agrees that, as promptly as practicable after the officer of
such Lender responsible for administering the Loan of such Lender becomes aware
of the occurrence of an event or the existence of a condition that would cause
such Lender to become an Affected Lender or that would entitle such Lender to
receive payments under subsection 2.7, it will, to the extent not inconsistent
with the internal policies of such Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, fund or maintain the
Commitment of such Lender or the Loan of such Lender through another lending
office of such Lender, or (ii) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise
45
be required to be paid to such Lender pursuant to subsection 2.7 would be
materially reduced and if, as determined by such Lender in its sole discretion,
the making, funding or maintaining of such Commitment or Loan through such other
lending office or in accordance with such other measures, as the case may be,
would not otherwise materially adversely affect such Commitment or Loan or the
interests of such Lender.
2.9 Removal or Replacement of a Lender.
----------------------------------
A. Anything contained in this Agreement to the contrary notwithstanding,
in the event that:
(i) (a) any Lender (an "Increased-Cost Lender") shall give notice to
Company that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under subsection 2.7, (b) the circumstances
which have caused such Lender to be an Affected Lender or which entitle
such Lender to receive such payments shall remain in effect, and (c) such
Lender shall fail to withdraw such notice within five Business Days after
Company's request for such withdrawal; or
(ii) (a) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions of
this Agreement as contemplated by clauses (i) through (iv) of the first
proviso to subsection 9.5A, the consent of Requisite Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a
"Non-Consenting Lender") whose consent is required shall not have been
obtained, and (b) the failure to obtain Non-Consenting Lenders' consents
does not result solely from the exercise of Non-Consenting Lenders' rights
(and the withholding of any required consents by Non-Consenting Lenders)
pursuant to the second proviso to subsection 9.5A;
then, and in each such case, Company shall have the right, at its option, to
remove or replace the applicable Increased-Cost Lender or Non-Consenting Lender
(the "Terminated Lender") to the extent permitted by subsection 2.9B.
B. Company may, by giving written notice to Paying Agent and any
Terminated Lender of its election to do so:
(i) elect to prepay on the date of delivery of such notice by the
Terminated Lender any outstanding Loans made by such Terminated Lender,
together with accrued and unpaid interest thereon and any other amounts
payable to such Terminated Lender hereunder pursuant to subsection 2.6 or
subsection 2.7 or otherwise; provided that Company shall not be required
to pay any prepayment fee pursuant to subsection 2.4B(i)(b) in connection
with any such prepayment; or
(ii) elect to cause such Terminated Lender (and such Terminated Lender
hereby irrevocably agrees) to assign its outstanding Loans in full to one
or more Eligible Assignees (each a "Replacement Lender") in accordance
with the provisions
46
of subsection 9.1B; provided that (a) on the date of such assignment,
Company shall pay any amounts payable to such Terminated Lender pursuant to
subsection 2.6 or subsection 2.7 or otherwise as if it were a prepayment
and (b) in the event such Terminated Lender is a Non-Consenting Lender,
each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting
Lender.
C. Upon the prepayment of all amounts owing to any Terminated Lender
pursuant to clause (i) of subsection 2.9B, such Terminated Lender shall no
longer constitute a "Lender" for purposes of this Agreement; provided that any
rights of such Terminated Lender to indemnification under this Agreement
(including under subsections 2.6C, 2.7, 9.2 and 9.3) shall survive as to such
Terminated Lender.
SECTION 3.
CONDITIONS TO EFFECTIVENESS
The effectiveness of this Agreement and the obligations of the Restatement
Lenders to make the Restatement Loans are subject to the prior or concurrent
satisfaction of the following conditions:
3.1 Company Documents.
-----------------
On or before the Restatement Closing Date, Company shall deliver or cause
to be delivered to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Restatement
Closing Date:
(i) Certified copies of its Certificate of Incorporation, together
with a good standing certificate from the Secretary of State of the State
of Delaware and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of such state, each
dated a recent date prior to the Restatement Closing Date;
(ii) Copies of its Bylaws, certified as of the Restatement Closing
Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and authorizing
the execution, delivery and performance of this Agreement and the other
Loan Documents, certified as of the Restatement Closing Date by its
corporate secretary or an assistant secretary as being in full force and
effect without modification or amendment;
47
(iv) Signature and incumbency certificates of its officers executing
this Agreement and the other Loan Documents; and
(v) Executed originals of this Agreement, the Notes (duly executed in
accordance with subsection 2.1E, drawn to the order of each Lender and with
appropriate insertions) and the other Loan Documents.
3.2 Issuance of 1998 Senior Notes.
-----------------------------
On or prior to the Restatement Closing Date, Company shall have issued and
sold the 1998 Senior Notes in an aggregate face amount of not less than
$110,000,000. The 1998 Senior Notes shall be unsecured and shall have terms,
including without limitation, maturity, interest rates and covenants
substantially as set forth in the 1998 Senior Notes Indenture with such changes
thereto, if any, that have been approved by Arranger and Administrative Agent.
Company shall deliver to Administrative Agent true and complete copies of all
documentation relating to the 1998 Senior Notes, all of which shall be in form
and substance satisfactory to Arranger and Administrative Agent.
3.3 Indentures.
----------
On or before the Restatement Closing Date, (i) Administrative Agent and
Arranger shall have received executed or conformed copies of the 1998 Senior
Notes Indenture and any amendments thereto on or before the Restatement Closing
Date, the terms and conditions of which shall be in all respects substantially
as described in the 1998 Offering Circular, (ii) such indenture shall be in full
force and effect and no term or condition thereof shall have been amended,
modified or waived after the execution thereof, except as provided in a written
amendment thereto delivered to and approved by Administrative Agent, (iii)
neither Company nor any of its Subsidiaries shall have failed in any material
respect to perform any material obligation or covenant required by such
indenture to be performed with or complied with by it on or before the
Restatement Closing Date and (iv) Administrative Agent shall have received an
Officers' Certificate from Company in form and substance satisfactory to
Administrative Agent to the effects set forth in clauses (i), (ii) and (iii)
above.
3.4 Legal Opinions.
--------------
A. Opinions of Company's Counsel. Lenders shall have received originally
executed copies of one or more favorable written opinions of Simpson Thacher &
Bartlett, special counsel for Company, and John Bernbom, General Counsel of the
Company, each in form and substance reasonably satisfactory to Administrative
Agent and its counsel dated the Restatement Closing Date.
B. Opinions of Arranger's Counsel. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Myers LLP,
48
counsel to Administrative Agent, dated as of the Restatement Closing Date,
substantially in the form of Exhibit IV annexed hereto and as to such other
matters as Arranger acting on behalf of Lenders may reasonably request.
3.5 Fees.
Company shall have paid to Administrative Agent, for distribution (as
appropriate) to Administrative Agent and Paying Agent the fees payable on the
Restatement Closing Date referred to in subsection 2.3.
3.6 Notice of Borrowing.
Paying Agent shall have received before the Restatement Closing Date, in
accordance with the provisions of subsection 2.1B, an originally executed Notice
of Borrowing signed by the chief executive officer, the chief financial officer
or the treasurer of Company.
3.7 Officers' Certificate Regarding Certain Conditions.
The following conditions shall be satisfied and Company shall have
delivered to Administrative Agent an Officers' Certificate, in form and
substance satisfactory to Administrative Agent, to that effect:
A. Representations and Warranties. The representations and warranties of
Company contained herein and in the other Loan Documents shall be true and
correct in all material respects on and as of the Restatement Closing Date to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date.
B. No Event of Default. No event shall have occurred and be continuing
as of the Restatement Closing Date, or would result from the consummation of the
borrowing of the Loans thereon, that would constitute an Event of Default or a
Potential Event of Default.
C. Performance of Agreements. Company shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before the
Restatement Closing Date.
49
SECTION 4.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans hereunder, Company represents and warrants to each Lender, on the date of
this Agreement and on the Restatement Closing Date, that the following
statements are true and correct:
4.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Company and each of its Subsidiaries has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its organization, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the 1998 Offering Circular, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where the
failure to be so qualified in any such jurisdiction would not reasonably be
expected to have a Material Adverse Effect.
B. Capitalization. Company has an authorized capitalization as set forth
in the 1998 Offering Circular, and all of the issued shares of Capital Stock of
Company have been duly and validly authorized and issued and are fully paid and
non-assessable and are owned beneficially and of record by Holdings; and all of
the issued shares of Capital Stock of each Subsidiary of Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by Company, free and clear of all liens,
encumbrances, equities or claims.
4.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance
of the Loan Documents have been duly authorized by all necessary corporate
action on the part of Company. Company has full power and authority to execute
and deliver, perform its obligations under, and consummate the transactions
contemplated by, this Agreement, the 1998 Senior Notes Indenture, and the 1998
Senior Notes, including, without limitation, the corporate power and authority
to issue, sell and deliver the Notes and the 1998 Senior Notes.
B. No Conflicts. The execution, delivery and performance of the Loan
Documents, the issuance of the Notes, the issue and sale of the 1998 Senior
Notes and the compliance by Company with all of the provisions of the Loan
Documents, the 1998 Senior Notes, the 1998 Senior Notes Indenture and the 1998
Purchase Agreement and the consummation of the transactions herein and therein
contemplated (i) have been duly authorized by all necessary corporate action
(including any requisite shareholder approval) and (ii) will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
50
sale/leaseback agreement, loan agreement or other similar financing agreement or
instrument or other agreement or instrument to which Company or any of its
Subsidiaries is a party or by which Company or any of its Subsidiaries is bound
or to which any of the property or assets of Company or any of its Subsidiaries
is subject (other than conflicts, breaches, violations or defaults which in the
aggregate would not reasonably be expected to have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of Company or any of its Subsidiaries or
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over Company or any of its Subsidiaries or any of
their properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is
required for the execution, delivery and performance of the Loan Documents, the
issuance of the Notes, the issue and sale of the 1998 Senior Notes and the
compliance by Company with all of the provisions of the Loan Documents, the 1998
Senior Notes, the 1998 Senior Notes Indenture and the 1998 Purchase Agreement
and the consummation of the transactions herein and therein contemplated except
(1) such as have been obtained under the Trust Indenture Act, (2) such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the 1998 Senior Notes by the 1998 Purchasers, (3) such
approvals, registrations and qualifications as may be required under the
Securities Act, the Trust Indenture Act, and state securities or Blue Sky laws
connection with the Exchange Offers contemplated by the 1998 Offering Circular
or in connection with the Exchange and Registration Rights Agreement (as defined
in the 1998 Purchase Agreement), and (4) such consents, approvals,
authorizations, registrations or qualifications as have been obtained or made.
C. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by Company and is the legally valid and binding obligation of
Company, enforce able against Company in accordance with its respective terms,
subject to the effect of bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and to
general principles of equity (whether considered in a proceeding in equity or at
law);
4.3 Valid Issuance of 1998 Senior Notes.
1998 Senior Notes. The 1998 Senior Notes have been duly authorized and,
when issued and delivered pursuant to the 1998 Purchase Agreement and duly
authenticated by the trustee under the 1998 Senior Notes Indenture, under which
they are to be issued, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of Company
entitled to the benefits provided by the 1998 Senior Notes Indenture; the 1998
Senior Notes Indenture has been duly authorized and will be in a form which
would meet the requirements for qualification under the Trust Indenture Act and,
when executed and delivered by Company and the trustee thereunder (assuming the
due authorization, execution and delivery by such trustee), the 1998 Senior
Notes Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization and other laws of
51
general applicability relating to or affecting creditors' rights and to general
principles of equity (whether considered in a proceeding in equity or at law);
and the 1998 Senior Notes and the 1998 Senior Notes Indenture will conform to
the descriptions thereof in the 1998 Offering Circular.
4.4 No Material Adverse Change.
Company and its Subsidiaries taken as a whole have not sustained since the
date of the latest audited financial statements included in the 1998 Offering
Circular any material loss or interference with its business from fire,
explosion, flood or other calamity, covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which in any case
would reasonably be expected to have a Material Adverse Effect, otherwise than
as set forth or contemplated in the 1998 Offering Circular; and, since the
respective dates as of which information is given in the 1998 Offering Circular,
there has not been any change in the Capital Stock or any increase in the long-
term debt of Company and its Subsidiaries on a consolidated basis, or any
adverse change in or affecting the financial position, stockholders' equity or
results of operations of Company and its Subsidiaries on a consolidated basis
which in any case could reasonably be expected to have a Material Adverse
Effect, otherwise than as set forth or contemplated in the 1998 Offering
Circular.
4.5 Title to Properties; Liens.
Company and each of its Subsidiaries has good and valid title in fee simple
to all real property and good and valid title to all personal property owned by
it, in each case free and clear of all liens, encumbrances and defects except
such as are described in the 1998 Offering Circular or such as would not
reasonably be expected to have a Material Adverse Effect; and any real property
and buildings held under lease by Company or any Subsidiary are held under
valid, subsisting and enforceable leases with such exceptions as would not
reasonably be expected to have a Material Adverse Effect.
4.6 Litigation.
Other than as set forth or contemplated in the 1998 Offering Circular,
there are no legal or governmental proceedings pending to which Company or any
of its Subsidiaries is a party or of which any property of Company or any of its
Subsidiaries is the subject which would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; and, to the best
knowledge of Company's responsible officers or as otherwise disclosed in the
1998 Offering Circular, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
4.7 Insurance of Properties.
Company and its Subsidiaries maintain (and there is outstanding and duly in
force on the date hereof, and will be outstanding and duly in force at the
Restatement Closing Date) insurance covering their properties. operations,
personnel and business which insures
52
against such losses and risks as are adequate in Company's business judgment to
protect Company and its Subsidiaries and their businesses.
4.8 Performance of Agreements.
None of Company or any of its Subsidiaries is in violation of its
Certificate of Incorporation or By-laws, or in default in the performance or
observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other instrument to which it
is a party or by which it or any of its properties is bound, other than defaults
that, singly or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
4.9 Securities Activities.
A. Company is subject to Section 13 or 15(d) of the Exchange Act.
B. None of the transactions contemplated by this Agreement, the 1998
Purchase Agreement, or the 1998 Senior Notes Indenture (including, without
limitation, the use of the proceeds from the sale of the Notes and the 1998
Senior Notes) will violate or result in a violation of Section 7 of the Exchange
Act, or any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve System.
C. Prior to the date hereof, neither Company nor any of its Affiliates
has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of
the price of any security of Company in connection with the offerings of the
1998 Senior Notes.
D. Within the preceding six months, neither Company nor any other Person
acting on behalf of Company has offered or sold to any Person any 1998 Senior
Notes, or any securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the 1998 Senior Notes, other than 1998
Senior Notes to be resold by the 1998 Purchasers under the 1998 Purchase
Agreement.
E. (i) Company has not issued any securities of the same class (within
the meaning of Rule 144A(d)(3) under the Securities Act) as any of the 1998
Senior Notes which are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system; (ii) Company is not an "investment company" within the
meaning of, or is registered or otherwise required to be registered under, the
United States Investment Company Act of 1940, as amended; (iii) none of Company
or any of its Subsidiaries or Affiliates or any Person acting on their behalf
has sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of any security (as defined in the Securities Act) which is or will be
integrated with the sale of any of the 1998 Senior Notes in a manner at would
require the registration, under the Securities Act of any of the 1998 Senior
Notes and none of Company or any of
53
its Subsidiaries or Affiliate or any Person acting on their behalf (other than
the 1998 Purchasers, as to whom Company makes no representation, warranty or
agreement) has offered or sold or will offer or sell any 1998 Senior Notes by
means of any general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act; and (iv) none of Company or any of its
Subsidiaries or affiliates or any Person acting on its or their behalf (other
than the 1998 Purchasers, as to whom Company makes no representation, warranty
or agreement), has engaged or will engage in any directed selling efforts within
the meaning of Regulation S with respect to the 1998 Senior Notes, and Company
and its Subsidiaries and affiliates and all Persons acting on its or their
behalf (other than the 1998 Purchasers, as to whom Company makes no
representation, warranty or agreement) have complied with and will comply with
the "offering restriction" within the meaning of Rule 902.
F. There is no "substantial U.S. market interest" as defined in Rule
902(n) of Regulation S for the 1998 Senior Notes or any security of the same
class as the 1998 Senior Notes.
4.10 Accountants.
PricewaterhouseCoopers L.L.P., who certified the consolidated financial
statements of Company for Fiscal Year 1996, and Deloitte & Touche L.L.P., who
certified the consolidated financial statements of Company for Fiscal Year 1997
and are currently serving as Company's independent public accountants, are each
independent public accountants within the meaning of Rule 101 of the AICPA's
Code of Professional Conduct, and its interpretations and rulings.
4.11 Environmental Protection.
Except as set forth in the 1998 Offering Circular, Company and its
Subsidiaries are in compliance with all applicable existing federal, state and
local laws and regulations relating to protection of human health or the
environment or imposing liability or standards of conduct concerning any
Hazardous Material, except for such instances of noncompliance which, either
singly or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
4.12 Employee Matters.
Except as described in the 1998 Offering Circular, no labor dispute with
the employees of Company or any of its Subsidiaries exists or, to the knowledge
of Company is imminent that would reasonably be expected to have a Material
Adverse Effect.
4.13 Disclosure.
The Preliminary 1998 Offering Circular and the 1998 Offering Circular and
any amendments or supplements thereto did not and will not, as of their
respective dates,
54
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in the Preliminary 1998 Offering Circular or the 1998 Offering Circular in
reliance upon and in conformity with information furnished in writing to Company
by or on behalf of a 1998 Purchaser expressly for use therein.
SECTION 5.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as the Commitments hereunder
shall remain in effect and until payment in full of all of the Loans and other
Obligations, unless Requisite Lenders shall otherwise give prior written
consent:
5.1 Financial Statements and Other Reports.
A. Provision of Financial Information. So long as any Loans are
outstanding, whether or not Company is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, Company shall
file with the Commission the annual reports, quarterly reports and other
documents (including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report thereon by Company's certified independent
accountants) which Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
Company were so required, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which Company
would have been required so to file such documents if Company were so required.
Company shall also in any event (i) within 15 days of each Required Filing Date
(a) transmit by mail to all Lenders without cost to such Lenders, and (b) file
with the Paying Agent, in each case, copies of the annual reports, quarterly
reports and other documents which Company would have been required to file with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto if Company were required to be subject to such
Sections and (ii) if filing such documents by Company with the Commission is not
permitted under the Exchange Act, promptly upon written request supply copies of
such documents to any prospective Lender.
B. Statement by Officers as to Default.
(i) Company shall deliver to the Paying Agent for distribution to
Lenders, within 120 days after the end of each Fiscal Year, an Officers'
Certificate stating that a review of the activities of Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether
Company has kept, observed, performed and fulfilled its obligations under
this Agreement, and further stating, as to each such officer signing
55
such certificate, that to the best of such officer's knowledge Company has
kept, observed, performed and fulfilled each and every covenant contained
in this Agreement and is not in default in the performance or observance of
any of the terms, provisions and conditions hereof (or, if a Potential
Event of Default or Event of Default shall have occurred, describing all
such Potential Events of Default or Events of Default of which such officer
may have knowledge and what action Company is taking or proposes to take
with respect thereto) and that to the best of such officers' knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of (and premium, if any) or interest, if any, on
the Loans are prohibited or if such event has occurred, a description of
the event and what action Company is taking or proposes to take with
respect thereto.
(ii) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the financial
statements delivered pursuant to subsection 5.1A shall be accompanied by a
written statement of Company's independent public accountants (who shall be
a firm of established national reputation reasonably satisfactory to Paying
Agent) that in making the examination necessary for certification of such
financial statements nothing has come to their attention which would lead
them to believe that Company has violated any provisions of subsection 2.4B
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(iii) Company shall, so long as any of the Obligations are
outstanding, deliver to the Paying Agent for distribution to Lenders,
forthwith upon any officer becoming aware of (a) any Potential Event of
Default or Event of Default or (b) any event of default under any other
mortgage, indenture or instrument as described in subsection 7.2, an
Officers' Certificate specifying such Potential Event of Default, Event of
Default or event of default and what action Company is taking or proposes
to take with respect thereto.
C. Other Information. Company shall deliver to Paying Agent and Lenders
the information required to be delivered to the trustee and holders under
Section 6.04 of the 1998 Senior Notes Indenture as in effect on the Restatement
Closing Date, in the manner and on the terms specified therein.
5.2 Corporate Existence, etc.
Except as permitted under subsection 6.6, Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that Company shall not be required to preserve any such right or franchise if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company.
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5.3 Payment of Taxes and Claims; Tax Consolidation.
Company shall, or shall cause its Restricted Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon Company or any Restricted Subsidiary of Company or upon the income,
profits or property of Company or any Restricted Subsidiary of Company, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of Company or any Restricted Subsidiary of
Company; provided, however, that Company and its Restricted Subsidiaries shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
5.4 Maintenance of Properties.
Company shall cause all properties used or useful in the conduct of its
business or the business of any Restricted Subsidiary of Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of Company, desirable in the conduct of its
business or the business of any Restricted Subsidiary of Company.
5.5 Compliance with Laws, etc.
Company shall comply, and shall cause each of its Restricted Subsidiaries
to comply, with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which would reasonably
be expected to cause, individually or in the aggregate, a material impairment of
the ability of Company and its Restricted Subsidiaries, taken as a whole, to (a)
make payments of principal and interest on the Obligations as and when due, or
(b) continue doing business as a going concern.
SECTION 6.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as the Commitments hereunder
shall remain in effect and until payment in full of all of the Loans and other
Obligations, unless Requisite Lenders shall otherwise give prior written
consent:
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6.1 Indebtedness.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, incur any Indebtedness (including Acquired Debt), other
than:
(i) the Obligations;
(ii) the 1998 Senior Notes and Permitted Indebtedness; and
(iii) other Indebtedness; provided that after giving effect to the
incurrence of any such Indebtedness and the receipt and application of the
proceeds therefrom, Company's Consolidated Operating Cash Flow Ratio is
greater than 2 to 1.
Notwithstanding anything in this subsection 6.1 to the contrary, Company's
Unrestricted Subsidiaries may incur Non-Recourse Debt; provided, however, that
if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted
Subsidiary, such event shall be deemed to constitute an incurrence of
Indebtedness by a Restricted Subsidiary of Company and shall be subject to the
other restrictions of this subsection 6.1.
6.2 Prohibition on Liens and Related Matters.
Company shall not directly or indirectly, create, incur, assume or suffer
to exist any Lien (other than Permitted Liens) on any asset now owned or
hereafter acquired, or on any income or profits therefrom, or assign or convey
any right to receive income therefrom to secure any Indebtedness which is pari
passu with or subordinate in right of payment to the Obligations, unless the
Obligations are secured equally and ratably simultaneously with or prior to the
creation, incurrence or assumption of such Lien for so long as such Lien exists;
provided, that in any case involving a Lien securing Indebtedness which is
subordinated in right of payment to the Obligations, such Lien is subordinated
to the Lien securing the Obligations to the same extent that such subordinated
debt is subordinated to the Obligations.
6.3 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries of Company.
Company shall not, and shall not permit any Restricted Subsidiary of
Company (other than a Securitization Special Purpose Entity) to, create or
otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction which, by its terms, restricts the ability of any
Restricted Subsidiary of Company (other than a Securitization Special Purpose
Entity) to (i) pay dividends or make any other distributions on any such
Restricted Subsidiary's Capital Stock or pay any Indebtedness owed to Company or
any Restricted Subsidiary of Company, (ii) make any loans or advances to Company
or any Restricted Subsidiary of Company, or (iii) transfer any of its property
or assets to Company or any Restricted Subsidiary of Company, except for, in the
case of clauses (i), (ii) and (iii) above, any restrictions (a) existing
hereunder and any restrictions existing or created on the
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Restatement Closing Date pursuant to the 1998 Senior Note Indenture and any
agreement relating to Existing Indebtedness of Company or any Restricted
Subsidiary, (b) pursuant to an agreement relating to Indebtedness incurred by
such Restricted Subsidiary prior to the date on which such Restricted Subsidiary
was acquired by Company and outstanding on such date and not incurred in
anticipation of becoming a Restricted Subsidiary, (c) imposed by virtue of
applicable corporate law or regulation and relating solely to the payment of
dividends or distributions to stockholders, (d) with respect to restrictions of
the nature described in clause (iii) above, included in a contract entered into
in the ordinary course of business and consistent with past practices that
contains provisions restricting the assignment of such contract, (e) pursuant to
an agreement effecting a renewal, extension, refinancing, refunding or
replacement of Indebtedness referred to in (a) or (b) above; provided, however,
that the provisions contained in such renewal, extension, refinancing, refunding
or replacement agreement relating to such encumbrance or restriction, taken as a
whole, are not materially more restrictive than the provisions contained in the
agreement the subject thereof, as determined in good faith by the board of
directors of Company, or (f) which shall not in the aggregate cause Company not
to have the funds necessary to pay the principal of, premium, if any, or
interest, on the Obligations as they mature.
6.4 Restrictions on Guaranties.
Company shall not permit any Restricted Subsidiary, directly or indirectly,
to guarantee or secure the payment of any Indebtedness of Company unless such
Restricted Subsidiary simultaneously executes and delivers to Administrative
Agent and Lenders such guarantees, security agreements and other documents or
instruments providing for the guarantee or security of the payment of the
Obligations by such Restricted Subsidiary (other than the grant of security
interests in cash and cash equivalents, receivables and product inventories to
secure obligations under the Existing Credit Agreement). If the Indebtedness to
be guaranteed is subordinated to the Obligations, then the guarantee or security
of such Indebtedness shall be subordinated to the guarantee or security of the
Obligations to the same extent as the Indebtedness to be guaranteed is
subordinated to the Obligations under this Agreement. Notwithstanding the
foregoing, any such guarantee or security by a Restricted Subsidiary of the
Obligations shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon either (i) the release or discharge
of such guarantee or security of payment of such other Indebtedness, except a
discharge by or as a result of payment under such guarantee or security, or (ii)
any sale, exchange or transfer, to any Person not an Affiliate of Company, of
all of Company's Capital Stock in, or all or substantially all the assets of,
such Restricted Subsidiary, which sale, exchange or transfer is made in
compliance with the provisions of this Agreement.
6.5 Limitations on Restricted Payments.
Company shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, make any Restricted Payment, unless (i) at the time
of and immediately after giving effect to the proposed Restricted Payment, no
Potential Event of Default or Event of Default shall have occurred and be
continuing, or would occur as a consequence thereof,
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(ii) either Company would (a) at the time of such Restricted Payment and after
giving pro forma effect thereto, have a Consolidated Adjusted Net Worth
exceeding $200,000,000 or (b) be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Operating Cash Flow Ratio test set
forth in subsection 6.1(iii), and (iii) at the time of and immediately after
giving effect to the proposed Restricted Payment (the value of any such payment
if other than cash, as determined in good faith by the board of directors of
Company and evidenced by a Board Resolution), the aggregate amount of all
Restricted Payments (including Restricted Payments permitted by clauses (b),
(j), (l) and (m) of the next succeeding paragraph and excluding the other
Restricted Payments permitted by such paragraph) declared or made subsequent to
the Restatement Closing Date shall not exceed the sum of (a) 50% of the
aggregate Consolidated Net Operating Income (or, if such aggregate Consolidated
Net Operating Income is a deficit, minus 100% of such deficit) of Company for
the period (taken as one accounting period) from April 1, 1998 to the end of
Company's most recently ended Fiscal Quarter for which internal financial
statements are available at the time of such Restricted Payment plus (b) 100% of
the aggregate net proceeds, including cash and the fair market value of property
other than cash (as determined in good faith by the board of directors of
Company and evidenced by a Board Resolution), received by Company since April 1,
1998, from any Person other than a Subsidiary of Company as a result of the
issuance of Capital Stock (other than any Disqualified Capital Stock) of Company
including such Capital Stock issued upon conversion of Indebtedness or upon
exercise of warrants and any contributions to the capital of Company (other than
Excluded Contributions) received by Company from any such Person plus (c) to the
extent that any Restricted Investment that was made after April 1, 1998 is sold
for cash or otherwise liquidated or repaid for cash, the cash return of capital
with respect to such Restricted Investment (less the cost of disposition, if
any). For purposes of any calculation pursuant to the preceding sentence which
is required to be made within 60 days after the declaration of a dividend by
Company, such dividend shall be deemed to be paid at the date of declaration.
The foregoing provisions of this subsection 6.5 shall not be violated by
reason of (a) the payment of any dividends or distributions payable solely in
shares of Company's Capital Stock (other than Disqualified Capital Stock) or in
options, warrants or other rights to acquire Company's Capital Stock (other than
Disqualified Capital Stock), (b) the payment of any dividend within 60 days
after the date of declaration thereof if, at such date of declaration, such
payment complied with the provisions described above, (c) the payment of cash
dividends or the making of loans or advances to Holdings after October 1, 2002,
in an amount sufficient to enable Holdings to make cash payments of interest or
dividends required to be made in respect of the Exchangeable Preferred Stock or
the Exchange Debentures in accordance with the payment terms thereof in effect
on the Restatement Closing Date (d) the payment of cash dividends or the making
of loans or advances in an amount sufficient to enable Holdings to make payments
required to be made in respect of the 10-7/8% Notes in accordance with the
payment terms thereof in effect on the Restatement Closing Date, (e) the
retirement of any shares of Company's Capital Stock in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a Subsidiary
of Company) of, other shares of its Capital Stock (other than Disqualified
Capital
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Stock) or options, warrants or other rights to purchase Company Capital Stock
(other than Disqualified Capital Stock) and the declaration and payment of
dividends on such new Capital Stock in an aggregate amount no greater than the
amount of dividends declarable and payable on such retired Capital Stock
immediately prior to such retirement, (f) the Chevron Payment, (g) the AOC
Payment, (h) the Gulf Payments, (i) other Restricted Payments in an aggregate
amount not to exceed $50,000,000, (j) the making of any payment in redemption of
Capital Stock of Company or Holdings or options to purchase such Capital Stock
granted to officers or employees of Company or Holdings pursuant to any stock
option, stock purchase or other stock plan approved by the board of directors of
Company or Holdings in connection with the severance or termination of officers
or employees not to exceed $8,000,000 per annum or the payment of cash dividends
or the making of loans or advances to Holdings to permit it to make such
payments, (k) the declaration and payment of dividends to holders of any class
or series of preferred stock of Company and its Restricted Subsidiaries issued
in accordance with the provisions of subsection 6.1, (l) the payment of
dividends on Company's common stock, following the first public offering of
Company's common stock or Holdings's common stock after the Restatement Closing
Date, of up to 6% per annum of the net proceeds received by Company in such
public offering or the payment of funds to Holdings in amounts necessary to
permit Holdings to make such payments to the extent the proceeds of such
offering were contributed to the equity capital of Company, (m) so long as no
Potential Event of Default or Event of Default shall have occurred and be
continuing (or would result therefrom), the payment to Holdings (in the form of
dividends, loans, advances or otherwise) of 100% of the proceeds of Indebtedness
incurred pursuant to clause (xv) of the definition of "Permitted Indebtedness"
to redeem, repurchase, defease or otherwise acquire or retire for value the
10-7/8% Notes; provided, however, that at the time of such redemption,
repurchase, defeasance or other acquisition or retirement for value, the
Consolidated Operating Cash Flow Ratio of Company, after giving effect to the
incurrence of Indebtedness in connection therewith, would be greater than 1.75
to 1.0, (n) the payment of dividends or the making of loans or advances by
Company to Holdings in an amount not to exceed $2,000,000 in any Fiscal Year for
costs and expenses incurred by Holdings in its capacity as a holding company or
for services rendered to Company; (o) Restricted Investments not to exceed at
any one time an aggregate of $75,000,000, and (p) Restricted Investments made
with Excluded Contributions.
The board of directors of Company may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if such designation would not cause a Potential
Event of Default or Event of Default. For purposes of making such determination,
all outstanding Investments by Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated shall be deemed to
be Restricted Payments at the time of such designation and shall reduce the
amount available for Restricted Payments under the first paragraph of this
subsection 6.5. All such outstanding Investments shall be deemed to constitute
Investments in an amount equal to the greatest of (x) the net book value of such
Investments at the time of such designation, (y) the fair market value of such
Investments at the time of such designation, and (z) the original fair market
value of such Investments at the time they were made. Such designation shall
only be permitted if such Restricted
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Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
6.6 Limitation on Merger, Consolidation, Sales of Assets.
A. Company may Consolidate only on Certain Terms. Company shall not
consolidate or merge with or into (whether or not Company is the Surviving
Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to another Person unless (i) the Surviving Person is a corporation
organized and existing under the laws of the United States, any state thereof or
the District of Columbia, (ii) the Surviving Person (if other than Company)
assumes all of the obligations of Company under the this Agreement, the Notes
and the other Loan Documents pursuant to documentation in form reasonably
satisfactory to Administrative Agent, (iii) at the time of and immediately after
such transaction, no Potential Event of Default or Event of Default shall have
occurred and be continuing, (iv) except with respect to a merger of Company with
or into Holdings that does not result in a Rating Decline, after giving pro
forma effect to the transaction, either (a) the Surviving Person would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Consolidated Operating Cash Flow Ratio test set forth in subsection 6.1(iii) or
(b) the Consolidated Operating Cash Flow Ratio of the Surviving Person would be
no less than such ratio for Company immediately prior to such transaction and
(v) Company has delivered to Agents and Lenders an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease, and, if an amendment or waiver hereto is required in
connection with such transaction, such amendment or waiver complies with this
subsection 6.6 and that all conditions precedent herein provided for relating to
such transaction have been complied with.
B. Successor Substituted. Upon any consolidation of Company with, or
merger of Company into, any other Person or any conveyance, transfer, lease or
other disposition of the properties and assets of Company substantially as an
entirety in accordance with subsection 6.6, the successor Person formed by such
consolidation or into which Company is merged or to which such conveyance,
transfer, lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, Company under this
Agreement and the other Loan Documents with the same effect as if such successor
Person had been named as Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Agreement and the other Loan Documents; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay principal
of and interest on the Loans, except in the case of a transfer, conveyance, sale
or other disposition (excluding by lease) of all of Company's assets that meets
the requirements of subsection 6.6A.
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6.7 Limitation on Certain Asset Dispositions.
Company shall not, and shall not permit any Restricted Subsidiary of
Company to, make any Asset Disposition unless (i) Company or such Restricted
Subsidiary receives consideration at the time of such disposition (or in the
case of a lease, over the term of such lease) at least equal to the fair market
value of the shares or assets disposed of (which shall be as determined in good
faith by Company), and (ii) at least 75% of the consideration for such
disposition consists of cash or Cash Equivalents; provided that the following
shall be deemed to be cash for purposes of this covenant: (1 ) the amount of any
liabilities (as shown on Company's or such Restricted Subsidiary's most recent
balance sheet or in the notes thereto) of Company or such Restricted Subsidiary
(other than liabilities that are by their terms subordinated to the Loans) that
are assumed by the transferee of any such assets, and (2) any notes or other
obligations received by Company or such Restricted Subsidiary from a transferee
that are converted by Company or such Restricted Subsidiary into cash within 180
days after such Asset Disposition; provided, further, that the 75% limitation
referred to above in clause (ii) shall not apply to (x) any disposition of
assets in which the cash portion of such consideration received therefor on an
after-tax basis, determined in accordance with the foregoing proviso, is equal
to or greater than what the after-tax net proceeds would have been had such
transaction complied with the aforementioned 75% limitation, (y) any disposition
of assets (other than the Port Arthur Refinery) in exchange for assets of
comparable fair market value related to the Principal Business of Company,
provided that in any such exchange of assets of Company or a Restricted
Subsidiary with a fair market value in excess of $20,000,000 occurring when
Blackstone fails to hold, directly or indirectly, 30% or more of the total
voting power of all classes of Capital Stock of Company, Company shall obtain an
opinion or report from a nationally recognized investment banking firm,
valuation expert or accounting firm confirming that the assets received by
Company and such Restricted Subsidiary in such exchange have a fair market value
at least equal to the assets so exchanged or (z) any disposition of
Securitization Program Assets to any Securitization Special Purpose Entity in
exchange for Indebtedness of, procurement of letters of credit and similar
instruments by, or equity or other interests in, such Securitization Special
Purpose Entity.
Within 360 days of the later of (a) the receipt of the Net Available
Proceeds and (b) the date of such applicable Asset Disposition, Company may
elect to (i) apply the Net Available Proceeds from such Asset Disposition to
permanently redeem or repay Indebtedness of Company or any Restricted
Subsidiary, other than Indebtedness of Company which is subordinated to the
Obligations, or (ii) apply the Net Available Proceeds from such Asset
Disposition to invest in assets related to the Principal Business of Company or
Capital Stock of any Person primarily engaged in the Principal Business if, as a
result of such acquisition, such Person becomes a Restricted Subsidiary. Pending
the final application of any such Net Available Proceeds, Company may
temporarily invest such Net Available Proceeds in any manner permitted by this
Agreement. Any Net Available Proceeds from an Asset Disposition not applied or
invested as provided in the first sentence of this paragraph shall be deemed to
constitute "Excess Proceeds".
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As soon as practical, but in no event later than ten Business Days after
any date (an "Asset Disposition Trigger Date") that the aggregate amount of
Excess Proceeds exceeds $25,000,000, Company shall offer to prepay the Loans
pursuant to subsection 2.4B(ii)(a) by commencing an offer pursuant to subsection
2.4B(iii)(d) to prepay the maximum amount of Loans and to purchase the maximum
amount of other Indebtedness of Company or Holdings having similar rights to be
so prepaid or purchased out of Excess Proceeds, in each case at an offer price
in cash in an amount equal to 100% of the principal amount thereof, plus accrued
and unpaid interest to the date of prepayment or purchase, as applicable. To the
extent that any Excess Proceeds remain after completion of such offer, Company
may use the remaining amount for general corporate purposes. Upon any completion
of any such offer pursuant to subsection 2.4B(iii)(d), the amount of Excess
Proceeds shall be reset to zero.
6.8 Transactions with Shareholders and Affiliates.
Company shall not, and shall not permit any Restricted Subsidiary of
Company to, directly or indirectly, conduct any business or enter into any
transaction or series of similar transactions (including, without limitation,
the purchase, sale, transfer, lease or exchange of any property or the rendering
of any service) with (i) any direct or indirect holder of more than 5% of any
class of Capital Stock of Company or of any Restricted Subsidiary of Company
(other than transactions between or among Company and/or its Restricted
Subsidiaries except for Restricted Subsidiaries owned in any part by the
Principal Shareholders), or (ii) any Affiliate of Company (other than
transactions between or among Company and/or its Restricted Subsidiaries except
for Restricted Subsidiaries owned in any part by the Principal Shareholders)
(each of the foregoing, a "Shareholder/Affiliate Transaction") unless the terms
of such business, transaction or series of transactions are as favorable to
Company or such Restricted Subsidiary in all material respects as terms that
would be obtainable at the time for a comparable transaction or series of
similar transactions in arm's-length dealings with a Person which is not such a
stockholder or Affiliate and, if such transaction or series of transactions
involves payment for services of such a stockholder or Affiliate, (x) for
amounts greater than $10,000,000 and less than $25,000,000 per annum, Company
shall deliver an Officers' Certificate to the Administrative Agent certifying
that such Shareholder/Affiliate Transaction complies with clause (b) above or
(y) for amounts equal to or greater than $25,000,000 per annum, then (A) a
majority of the disinterested members of the board of directors shall in good
faith determine that such payments are fair consideration for the services
performed or to be performed (evidenced by a Board Resolution) or (B) Company
must receive a favorable opinion from a nationally recognized investment banking
firm chosen by Company or, if no such investment banking firm is in a position
to provide such opinion, a similar firm chosen by Company (having expertise in
the specific area which is the subject of the opinion), that such payments are
fair consideration for the services performed or to be performed (a copy of
which shall be delivered to the Administrative Agent); provided that the
foregoing requirements of this subsection 6.8 shall not apply to:
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(i) Shareholder/Affiliate Transactions involving the purchase or
sale of crude oil, vacuum tower bottoms, refined products or other
inventory, so long as (y) in the case of such transactions involving crude
oil, such transactions are priced in line with the market price of a crude
benchmark, and (z) the pricing of each of such transactions is equivalent
to the pricing of comparable transactions with unrelated third parties; and
provided further that the Gulf Payments shall not be deemed a
Shareholder/Affiliate Transaction,
(ii) Restricted Payments permitted by the provisions of subsection
6.5;
(iii) payments made in connection with the Blackstone Transaction,
including fees to Blackstone;
(iv) payment of annual management, consulting, monitoring and
advisory fees and related expenses to Blackstone and its Affiliates;
(v) payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, officers, directors, employees or
consultants of Company or any Restricted Subsidiary;
(vi) payments by Company or any of its Restricted Subsidiaries to
Blackstone and its Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment
banking activities, including, without limitation, in connection with
acquisitions or divestitures which payments are approved by a majority of
the board of directors of Company in good faith;
(vii) payments or loans to employees or consultants which are
approved by a majority of the board of directors of Company in good faith;
(viii) any agreement in effect on the Restatement Closing Date and
any amendment thereto (so long as any such amendment is not disadvantageous
to the Lenders in any material respect) or any transaction contemplated
thereby; or
(ix) any stockholder agreement or registration rights agreement to
which Company is a party on the Restatement Closing Date and any similar
agreements which it may enter into thereafter; provided that the
performance by Company or any of its Restricted Subsidiaries of obligations
under any future amendment or under such a similar agreement entered into
after the Restatement Closing Date shall only be permitted by this clause
(ix) to the extent that the terms of any such amendment or new agreement
are not disadvantageous to the Lenders in any material respect.
6.9 Restrictions on Secured Indebtedness.
From and after the occurrence of an Investment Grade Rating Event, if
Company shall incur, issue, assume or guarantee any Indebtedness secured by a
Lien on any Principal
65
Property of Company or on any share of stock or Indebtedness of any Restricted
Subsidiary (other than a Securitization Special Purpose Entity), Company shall
secure the Obligations equally and ratably with (or, at Company's option, prior
to) such secured Indebtedness so long as such Indebtedness shall be so secured,
unless the aggregate amount of all such secured Indebtedness, together with all
Attributable Indebtedness of Company with respect to any Sale and Leaseback
Transactions involving Principal Properties (with the exception of such
transactions which are excluded as described in clauses (i) through (v) under
subsec tion 6.10), would not exceed 10% of Consolidated Net Tangible Assets. The
above restriction does not apply to, and there will be excluded from secured
Indebtedness in any computation under such restriction, Indebtedness secured by:
(i) Liens on property of, or on any share of stock or Indebtedness of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary and Liens on any property acquired from a corporation which is merged
with or into Company or a Subsidiary, (ii) Liens in favor of Company; (iii)
Liens in favor of governmental bodies to secure progress, advance or other
payments; (iv) Liens upon any property acquired after the date of this
Agreement, securing the purchase price thereof or created or incurred
simultaneously with (or within 270 days after) such acquisition to finance the
acquisition of such property or existing on such property at the time of such
acquisition, or Liens on improvements after such date, in each case subject to
certain conditions and provided that the principal amount of the obligation or
Indebtedness secured by such Lien shall not exceed 100% of the cost or fair
value (as determined in good faith by Company), whichever shall be lower, of the
property at the time of the acquisition, construction or improvement thereof;
(v) Liens securing industrial revenue or pollution control bonds, (vi) Liens
arising out of any final judgment for the payment of money aggregating not in
excess of $25,000,000 which remains unstayed, in effect and unpaid for a period
of 60 consecutive days or Liens arising out of any judgments which are being
contested in good faith, (vii) Permitted Liens in existence on the date of the
Investment Grade Rating Event, (viii) Liens to secure obligations arising from
time to time under the Existing Credit Agreement including Guaranties thereof,
or (ix) any extension, renewal, or replacement of any Lien referred to in the
foregoing clauses (i) through (viii) inclusive.
6.10 Restrictions on Sales and Leasebacks.
From and after the occurrence of an Investment Grade Rating Event, Company
shall not enter into any Sale and Leaseback Transaction involving any Principal
Property, unless the aggregate amount of all Attributable Indebtedness of
Company with respect to such transaction plus all secured Indebtedness (with the
exception of secured Indebtedness which is excluded as described in clauses (i)
through (ix) under subsection 6.9) would not exceed 10% of Consolidated Net
Tangible Assets. This restriction does not apply to, and there shall be excluded
from Attributable Indebtedness in any computation under such restriction, any
Sale and Leaseback Transaction if: (i) the lease is for a period, including
renewal rights, not in excess of three years; (ii) the sale of the Principal
Property is made within 270 days after its acquisition, construction or
improvements; (iii) the lease secures or relates to industrial revenue or
pollution control bonds; (iv) the transaction is between Company and a
Restricted Subsidiary; or (v) Company, within 270 days after the sale is
completed, applies
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to the retirement of Indebtedness of Company or a Restricted Subsidiary, or to
the purchase of other property which will constitute a Principal Property, an
amount not less than the greater of (1) the net proceeds of the sale of the
Principal Property leased or (2) the fair market value (as determined by Company
in good faith) of the Principal Property leased. The amount to be applied to the
retirement of Indebtedness shall be reduced by (x) the principal amount of any
debentures or notes (including the New Notes) of Company or a Restricted
Subsidiary surrendered within 270 days after such sale to the applicable trustee
for retirement and cancellation, (y) the principal amount of Indebtedness, other
than the items referred to in the preceding clause (x), voluntarily retired by
Company or a Restricted Subsidiary within 270 days after such sale and (z)
associated transaction expenses.
6.11 Other Agreements.
Company shall not, and shall not permit any Restricted Subsidiary of
Company to, enter into or become a party (including as an assignee or successor)
to any agreement (including a refinancing or refunding of the Existing Credit
Agreement) that would conflict with this Agreement or the other Loan Documents.
6.12 Effect of Investment Grade Rating.
Notwithstanding the foregoing, upon the occurrence of any Investment Grade
Rating Event, subsections 6.1, 6.2, 6.3, 6.5, 6.6A(iv), 6.6A(v), 6.7 and 6.8
shall be of no further force or effect and shall cease to apply to Company and,
in lieu thereof, subsections 6.9 and 6.10 shall take effect.
SECTION 7.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall
occur:
7.1 Failure to Make Payments When Due.
Failure by Company to pay any installment of principal of any Loan or any
prepayment fee under subsection 2.4B(i)(b) or 2.4B(ii)(c) when due, whether at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; or failure by Company to pay any interest on
any Loan within 30 days after the date due; or
7.2 Default in Other Agreements.
A default occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by Company or any Restricted Subsidiary of
Company (or the payment of which is guaranteed by Company or a Restricted
Subsidiary of Company), whether such
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Indebtedness or guarantee now exists or shall be created hereafter, if (a)
either (i) such default results from the failure to pay principal (and premium,
if any) upon the expressed maturity of such Indebtedness (after the expiration
of any applicable grace period) or (ii) as a result of such default the maturity
of such Indebtedness has been accelerated prior to its expressed maturity and
(b) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness with respect to which the principal amount
unpaid upon its expressed maturity (after the expiration of any applicable grace
period), or the maturity of which has been so accelerated, exceeds $25,000,000;
or
7.3 Breach of Certain Covenants.
Failure of Company to observe or perform any covenant or condition on the
part of Company to be performed or observed pursuant to Section 6.6 hereof; or
7.4 Other Defaults Under Loan Documents.
Company shall default in the performance, or breach, of any covenant of
Company in this Agreement or any other Loan Document (other than a covenant a
default in whose performance or whose breach is elsewhere in this Section 7
specifically dealt with), and continuance of such default or breach for a period
of 30 days after there has been given, by registered or certified mail, to
Company by Paying Agent or to Company and Paying Agent by Lenders having or
holding at least 25% of the aggregate Loan Exposure of all Lenders a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
7.5 Involuntary Bankruptcy; Appointment of Receiver, etc.
The entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of Company or any Significant Subsidiary of Company
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging Company or any Significant Subsidiary of Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of Company or any
Significant Subsidiary of Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of Company or any Significant Subsidiary of Company or of
any substantial part of the property of Company or any Significant Subsidiary of
Company, or ordering the winding up or liquidation of the affairs of Company or
any Significant Subsidiary of Company, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
7.6 Voluntary Bankruptcy; Appointment of Receiver, etc.
The commencement by Company or any Significant Subsidiary of Company of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency,
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reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by Company or any
Significant Subsidiary of Company to the entry of a decree or order for relief
in respect of Company or any Significant Subsidiary of Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against Company or any Significant Subsidiary of
Company, or the filing by Company or any Significant Subsidiary of Company of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by Company or any Significant
Subsidiary of Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of Company or any Significant Subsidiary
of Company or of any substantial part of their respective property, or the
making by Company or any Significant Subsidiary of Company of an assignment for
the benefit of creditors, or the admission by either Company or any Significant
Subsidiary of Company in writing of an inability to pay debts generally as they
become due, or the taking of corporate action by Company or any Significant
Subsidiary of Company in furtherance of any such action; or
7.7 Judgments and Attachments.
A final judgment or final judgments (not subject to appeal) for the payment
of money are entered by a court or courts of competent jurisdiction against
Company or any Restricted Subsidiary of Company and such judgment or judgments
remain unstayed, in effect and unpaid for a period of 60 consecutive days;
provided that the aggregate of all such judgments (to the extent not paid or to
be paid by insurance) exceeds $50,000,000; or
7.8 Breach of Warranty.
Any representation, warranty, certification or other statement made by
Company or any of its Restricted Subsidiaries in any Loan Document or in any
statement or certificate given by Company or any of its Restricted Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made;
THEN (i) upon the occurrence of any Event of Default described in subsection 7.5
or 7.6, each of (a) the unpaid principal amount of and accrued interest on the
Loans and (b) all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by Company, and the obligation of
each Lender to make any Loan shall thereupon terminate, and (ii) upon the
occurrence and during the continuation of any other Event of Default, Paying
Agent shall, upon the written request or with the written consent of Lenders
having or holding not less than 25% of the aggregate Loan Exposure of all
Lenders, by written notice to Company, declare all or any portion of the amounts
described in clauses (a) and (b) above to be, and the same shall forthwith
become, immediately due
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and payable, and the obligation of each Lender to make any Loan shall thereupon
terminate.
In the event of a declaration of acceleration because an Event of Default
specified in subsection 7.2 has occurred and is continuing, such declaration of
acceleration shall be automatically annulled if the holders of the Indebtedness
which is the subject of such Event of Default have rescinded their declaration
of acceleration in respect of such Indebtedness within 90 days thereof and the
Paying Agent has received written notice of such cure, waiver or rescission and
no other Event of Default has occurred during such 90 day period which has not
been cured or waived.
At any time after a declaration of acceleration with respect to the
Obligations has been made and before a judgment or decree for payment of the
money due has been obtained by Paying Agent and Lenders, Requisite Lenders, by
written notice to Company and Paying Agent, may rescind and annul such
declaration and its consequences if:
(1) Company has paid,
(A) all overdue interest on the Loans,
(B) the principal of (and premium, if any, on) any Loans which
have become due otherwise than by such declaration of acceleration
(including any Loans required to have been prepaid on the Optional Purchase
Date pursuant to an offer by Company to prepay Loans pursuant to subsection
2.4B(iii)(d)) and any interest thereon at the rate or rates prescribed
hereunder in respect of such Loans,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest, and principal (and premium, if any) at the
rate otherwise payable hereunder with respect to the applicable Loans;
(D) all sums paid or advanced by the Lenders hereunder and the
reasonable compensation, expenses, disbursements and advances of Agents and
their counsel; and
(2) all Events of Default other than the non-payment of the principal
of Loans which have become due solely by such declaration of acceleration,
have been cured or waived.
The provisions of this paragraph are intended merely to bind Lenders to a
decision which may be made at the election of Requisite Lenders and are not
intended, directly or indirectly, to benefit Company, and such provisions shall
not at any time be construed so as to grant Company the right to require Lenders
to rescind or annul any acceleration hereunder or to preclude any Agent or
Lenders from exercising any of the rights or remedies available to them under
any of the Loan Documents, even if the conditions set forth in this paragraph
are met.
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SECTION 8.
AGENTS
8.1 Appointment.
GSCP is hereby appointed Arranger and Syndication Agent hereunder, and each
Lender hereby authorizes Arranger and Syndication Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents. GSCP
is hereby appointed Administrative Agent hereunder and under the other Loan
Documents and each Lender hereby authorizes Administrative Agent to act as its
agent in accordance with the terms of this Agreement and the other Loan
Documents. State Street is hereby appointed Paying Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes Paying Agent to act as
its agent in accordance with the terms of this Agreement and the other Loan
Documents. Each Agent hereby agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as applicable. Except as
expressly provided in subsections 8.5 and 8.6, the provisions of this Section 8
are solely for the benefit of Agents and Lenders and Company shall have no
rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Company or any of its Subsidiaries. Each of Arranger and Syndication Agent,
without consent of or notice to any party hereto, may assign any and all of its
rights or obligations hereunder to any of its Affiliates. As of the Restatement
Closing Date, all obligations of Arranger and Syndication Agent hereunder shall
terminate.
8.2 Powers and Duties; General Immunity.
A. Powers; Duties Specified. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers,
rights and remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to such Agent by the terms hereof and thereof,
together with such powers, rights and remedies as are reasonably incidental
thereto. Each Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement and the other Loan Documents. Each Agent
may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations,
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warranties, recitals or statements made herein or therein or made in any written
or oral statements or in any financial or other statements, instruments, reports
or certificates or any other documents furnished or made by any of Agent to
Lenders or by or on behalf of Company to any Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other Person liable
for the payment of any Obligations, nor shall any Agent be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or as to the existence or possible
existence of any Event of Default or Potential Event of Default. Anything
contained in this Agreement to the contrary notwithstanding, neither Paying
Agent nor Administrative Agent shall have any liability arising from
confirmations of the amount of outstanding Loans.
C. Exculpatory Provisions. None of Agents nor any of their respective
officers, partners, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. Each Agent shall be entitled to refrain from any act or
the taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 9.5) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall
be entitled to act or (where so instructed) refrain from acting, or to exercise
such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender shall
have any right of action whatsoever against any Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 9.5). Without limiting the generality of the foregoing and the
applicability thereof to the Paying Agent, the Paying Agent shall not be charged
with notice or knowledge of any matter unless actually known to an officer
working in its corporate trust group or unless written notice thereof has been
received by it in accordance with the provisions of this Agreement. Unless
otherwise expressly provided, the Paying Agent shall not have any responsibility
with respect to reports, notices, certificates or other documents filed with it
hereunder except to make them available for inspection at reasonable times by
the Lenders.
D. Agent Entitled to Act as Lender. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon,
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any Agent in its individual capacity as a Lender hereunder. With respect to its
participation in the Loans, each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include each Agent (other than the Paying Agent) in its
individual capacity. Any Agent and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust, financial advisory
or other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Company for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
8.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness of
Company and its Subsidiaries. No Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
8.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, 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
Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as such
Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
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8.5 Successor Administrative Agent.
Administrative Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company, and Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Company and Administrative Agent and signed
by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon ten Business Days' notice to
Company, to appoint a successor Administrative Agent reasonably acceptable to
Company; provided that such acceptance of Company shall not be required so long
as any Potential Event of Default or Event of Default has occurred continuing.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent and the retiring or
removed Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
8.6 Successor Paying Agent.
Paying Agent may resign at any time by giving 30 days' prior written notice
thereof to Lenders and Company, and Paying Agent may be removed at any time with
or without cause upon 30 days' prior written notice by Administrative Agent in
an instrument in writing delivered to Company and Paying Agent. Upon any such
notice of resignation or any such removal, Administrative Agent shall have the
right, upon ten Business Days' notice to Company, to appoint a successor Paying
Agent reasonably acceptable to Company; provided that such acceptance of Company
shall not be required, so long as any Potential Event of Default or Event of
Default has occurred and is continuing. Upon the acceptance of any appointment
as Paying Agent hereunder by a successor Paying Agent, that successor Paying
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Paying Agent and the retiring
or removed Paying Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Paying Agent's resignation
or removal hereunder as Paying Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Paying Agent under this Agreement.
SECTION 9.
MISCELLANEOUS
9.1 Assignments and Participations in Loans.
A. General. Subject to subsection 9.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any
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Person in, all or any part of its Commitment or the Loan made by it or any other
interest herein or in any other Obligations owed to it; provided that no such
sale, assignment, transfer or participation shall, without the consent of
Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; and provided, further that
no such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been delivered to Paying Agent and Company and
recorded in the Register as provided in subsection 9.1B(ii). Except as otherwise
expressly provided in this subsection 9.1, no Lender shall, as between Company
and such Lender, be relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of participations in, all
or any part of its Commitment or the Loan or other Obligations owed to such
Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan or
other Obligation may (a) be assigned in any amount to another Lender, or to
an Affiliate of the assigning Lender or another Lender, with the giving of
notice to Company and Paying Agent or (b) be assigned in an aggregate
amount of not less than $1,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitment, Loan and other
Obligations of the assigning Lender) to any other Eligible Assignee
(treating any two or more investment funds that invest in commercial loans
and that are managed or advised by the same investment advisor or by an
Affiliate of such investment advisor as a single Eligible Assignee). To the
extent of any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations with
respect to its Commitment, Loan or other Obligations or the portion thereof
so assigned. The parties to each such assignment shall execute and deliver
to Paying Agent, for its acceptance and recording in the Register and
delivery of a copy thereof to Company, an Assignment Agreement and such
forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Paying Agent pursuant to
subsection 2.7B(iii)(a). Upon such execution, delivery, acceptance and
recordation, from and after the effective date specified in such Assignment
Agreement, (y) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination of this Agreement
under subsection 9.7B) and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto). The
Commitments hereunder shall be modified to
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reflect the Commitment of such assignee and any remaining Commitment of
such assigning Lender and, if any such assignment occurs after the issuance
of the Notes hereunder, the assigning Lender shall, upon the effectiveness
of such assignment or as promptly thereafter as practicable, surrender its
Note to Paying Agent for cancellation, and thereupon new Notes shall be
issued to the assignee and to the assigning Lender, substantially in the
form of Exhibit II annexed hereto with appropriate insertions, to reflect
the outstanding Loans of the assignee and/or the assigning Lender.
(ii) Acceptance by Paying Agent; Recordation in Register. Upon its
receipt of an Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Paying Agent pursuant to subsection 2.7B(iii)(a), Paying Agent
shall (a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein, (b) record the information contained therein
in the Register, and (c) give prompt notice thereof to Company. Paying
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 9.1B(ii).
(iii) Representation of Lenders. Each Lender initially party to
this Agreement hereby represents, and each Person that becomes a Lender
pursuant to an assignment permitted by this subsection 9.1B upon its
becoming a Lender under this Agreement shall be deemed to represent, that
it is a commercial lender, other financial institution or other
"accredited investor" (as defined in Regulation D under the Securities Act)
which makes or acquires loans in the ordinary course of its business and is
acquiring the Loans without a view to distribution of the Loans within the
meaning of the federal securities laws, and that it will make or acquire
Loans for its own account in the ordinary course of such business; provided
that, subject to the provisions of this subsection 9.1, the disposition of
any promissory notes or other evidences of or interests in Indebtedness
held by such Lender shall at all times be within its exclusive control.
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan allocated to such participation, and all amounts
payable by Company hereunder (including amounts payable to such Lender pursuant
to subsections 2.6C and 2.7) shall be determined as if such Lender had not sold
such participation. Company and each Lender hereby acknowledge and agree that,
solely for purposes of subsection 9.4, (a) any participation will give rise to a
direct obligation of Company to the participant and (b) the participant shall be
considered to be a "Lender".
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D. Assignments to Federal Reserve Banks. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
9.1, any Lender may assign and pledge all or any portion of its Loan, the other
Obligations owed to such Lender, and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank, and with the consent of Company and Administrative Agent any Lender which
is an investment fund may pledge all or any portion of its Notes or Loans to its
trustee in support of its obligations to such trustee; provided that (i) no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any such assignment and pledge and (ii) in
no event shall such Federal Reserve Bank or trustee be considered to be a
"Lender" or be entitled to require the assigning Lender to take or omit to take
any action hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 9.17.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loan for its own account in the ordinary course of its business and
without a view to distribution of such Loan within the meaning of the Securities
Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this subsection 9.1, the disposition of such
Loan or any interests therein shall at all times remain within its exclusive
control). Each Lender that becomes a party hereto pursuant to an Assignment
Agreement shall be deemed to agree that the representations and warranties of
such Lender contained in Section 2(c) of such Assignment Agreement are
incorporated herein by this reference. Each Lender hereby acknowledges that the
Notes, Loans and other obligations hereunder as are commercial loans and not
securities.
9.2 Expenses.
Company agrees to pay promptly (i) the reasonable fees and reasonable
out-of-pocket expenses and disbursements of counsel to Arranger and counsel to
Paying Agent (in each case including allocated costs of internal counsel) in
connection with any consents, amendments, waivers or other modifications thereto
and any other documents or matters requested by Company; (ii) all other actual
and reasonable costs and expenses incurred by Arranger or Paying Agent in
connection with the negotiation, preparation and execution of any consents,
amendments, waivers or other modifications to the Loan Documents and the
transactions contemplated thereby; and (iii) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel), incurred by Agents and Lenders in
enforcing any Obligations of or in collecting any payments due from Company
hereunder or under the other Loan Documents by reason of such Event of Default
or in connection with any refinancing or restructuring of the credit
77
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
9.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 9.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (by counsel selected by Company and reasonably
acceptable to Agent), indemnify, pay and hold harmless Agents and Lenders, and
the officers, partners, directors, employees, agents and affiliates of Agents
and Lenders (collectively called the "Indemnitees"), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided that Company
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise
primarily from the gross negligence or willful misconduct of that Indemnitee.
As used herein, "Indemnified Liabilities" means, collectively, any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees (subject to any restrictions in the preceding paragraph) in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any reasonable fees
or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations, on common law or equitable cause
or on contract or otherwise, that may be imposed on, incurred by, or asserted
against any such Indemnitee, in any manner relating to or arising out of (i)
this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby (including Lenders' agreement to make the Loans hereunder or
the use or intended use of the proceeds thereof, or any enforcement of any of
the Loan Documents) or (ii) any commitment letter delivered by Arranger to
Company in connection with the credit facilities established hereunder.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 9.3 are applicable by their terms but may
be unenforceable in whole or in part because they are violative of any law or
public policy, Company shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.
9.4 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, by counterclaim or cross action or by the enforcement of any right
under the Loan Documents or otherwise,
78
or as adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code, receive payment or reduction of a proportion of the aggregate
amount of principal, interest, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the
"Aggregate Amounts Due" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment
shall (i) notify Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a portion of such payment to purchase participations
(which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them; provided that if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such partici pations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
9.5 Amendments and Waivers.
A. No amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that no such amendment, modification, termination,
waiver or consent shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)): (i) extend the
scheduled final maturity of any Loan or Note, or waive, reduce or postpone any
scheduled repayment set forth in subsection 2.4A, or reduce the rate of interest
on any Loan or extend the time for payment of any such interest, or reduce the
principal amount of any Loan or the amount of any prepayment fees payable
hereunder, (ii) amend, modify, terminate or waive any provision of this
subsection 9.5, or (iii) reduce the percentage specified in the definition of
"Requisite Lenders" or the percentage of Lenders required in respect of any
action under Section 7, or (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any Obligations; provided,
further that no such amendment, modification, termination or waiver shall (1)
increase the Commitments of any Lender over the amount thereof then in effect
without the consent of such Lender (it being understood that no amendment,
modification or waiver of any condition precedent, covenant, Potential Event of
Default or Event of Default shall constitute an increase in the Commitment of
any Lender, and that no increase in the available portion of any Commitment of
any Lender shall constitute an increase in such Commitment of such Lender); or
(2) amend, modify, terminate or waive any provision of Section 8 or subsection
2.3 as the same applies to each Agent, or any other provision of this Agreement
as the
79
same applies to the rights or obligations of any Agent, in each case without the
consent of such Agent.
B. Paying Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 9.5 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by Company, on Company.
9.6 Notices.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile, or three Business
Days after depositing it in the United States mail with postage prepaid and
properly addressed; provided that notices to any Agent shall not be effective
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and any Agent, such other address as shall be designated by such
Person in a written notice delivered to the other parties hereto and (ii) as to
each other party, such other address as shall be designated by such party in a
written notice delivered to Paying Agent and Company.
9.7 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
hereunder.
B. Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Company set forth in subsections 2.3, 2.6C, 2.7,
9.2 and 9.3 and the agreements of Lenders set forth in subsections 8.2C, 8.4 and
9.4 shall survive the payment of the Loans and the termination of this
Agreement.
9.8 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of Agents or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies
80
existing under this Agreement and the other Loan Documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
9.9 Marshalling; Payments Set Aside.
No Agent nor any Lender shall be under any obligation to marshal any
assets in favor of Company or any other party or against or in payment of any or
all of the Obligations. To the extent that Company makes a payment or payments
to any Agent or Lenders (or to any Agent for the benefit of Lenders), and such
payment or payments or the proceeds of such enforcement or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
9.10 Severability.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
9.11 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
9.12 Headings.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
9.13 Applicable Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
81
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
9.14 Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 9.1). Neither Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
9.15 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY
OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 9.6;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 9.15 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND EN-
82
FORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL
OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
9.16 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 9.16 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
9.17 Confidentiality.
Each Lender shall hold as confidential all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with
prudent lending or investing practices, it being understood and agreed by
Company that in any event a Lender may make disclosures to (a) Affiliates of
such Lender or disclosures reasonably required by any bona fide assignee,
transferee or participant in connection with the contemplated assignment or
transfer by such Lender of its Loan or any participations therein, (b) to such
of its respective officers, directors, employees, agents, affiliates and
representatives as need to know such information, (c) to the extent requested by
any regulatory authority, (d) to the extent otherwise required by applicable
laws and regulations or by any subpoena or similar legal process or disclosures
required by the National Association of Insurance Commissioners, (e) in
connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder or under the other Loan Documents or (f) to the extent such
information (i) is publicly available
83
other than as a result of a breach of this subsection 9.17 or (ii) becomes
available to any Agent or any Lender on a nonconfidential basis from a source
other than Company.
9.18 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon (i) the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent and Paying Agent of written or telephonic notification of
such execution and authorization of delivery thereof and (ii) satisfaction of
the conditions precedent set forth in Section 3.
[Remainder of page intentionally left blank]
84
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
COMPANY:
CLARK REFINING & MARKETING, INC.
By: /s/ Maura J. Clark
------------------------------
Name: Maura J. Clark
Title: Executive Vice President and CFO
Notice Address:
Clark Refining & Marketing, Inc.
8182 Maryland Avenue
St. Louis, Missouri 63105
Attention: President
Telephone: (314) 854-9696
Facsimile: (314) 854-1570
S-1
AGENTS AND LENDERS: GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually, and as Arranger, Syndication Agent and
Administrative Agent
By: /s/ A. Kearns
------------------------
Authorized Signatory
Notice Address:
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: John Makrinos
Telephone: (212) 902-5977
Facsimile: (212) 357-4597
S-2
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.,
as Paying Agent
By: /s/ Robert A. Clasquin
-----------------------------
Robert A. Clasquin
Assistant Vice President
Notice Address:
State Street Bank and Trust Company of Missouri, N.A.
1 Metropolitan Square, 39th Floor
211 North Broadway
St. Louis, Missouri 63107
Attention: Robert A. Clasquin
Telephone: (314) 206-3016
Facsimile: (314) 206-3055
S-3
EXHIBIT I
---------
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain First Amended and Restated Credit Agreement dated
as of August 10, 1998, as amended, supplemented or otherwise modified to the
date hereof (said Credit Agreement, as so amended, supplemented or otherwise
modified, being the "Credit Agreement", the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Clark Refining & Marketing, Inc., a Delaware corporation ("Company"), the
financial institutions listed therein as Lenders ("Lenders"), State Street
Bank and Trust Company of Missouri, N.A., as paying agent (the "Paying
Agent"), and Goldman Sachs Credit Partners L.P., as Arranger, Syndication Agent
and Administrative Agent, this represents Company's request to borrow from
Lenders, in accordance with their applicable Pro Rata Shares, as follows:
1. Date of borrowing: ___________________, _________
-----------------
2. Amount of borrowing: $___________________
-------------------
3. Interest rate: Eurodollar Rate Loans with an initial Interest Period
------------- determined in accordance with the Credit Agreement
4. The borrowing shall be deposited into the account of Company as
follows:
The proceeds of such Loans are to be deposited in Company's account at
Paying Agent.
The undersigned officer, to the best of his or her knowledge, and Company
certify that:
(i) The representations and warranties of Company contained in the
Credit Agreement and the other Loan Documents are true and correct in all
material respects on and as of the date hereof to the same extent as though
made on and as of the date hereof, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties were true and correct in all
material respects on and as of such earlier date;
(ii) No event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would constitute an
Event of Default or a Potential Event of Default; and
I-1
(iii) Company has performed in all material respects all agreements
and satisfied all conditions which the Credit Agreement provides shall be
performed or satisfied by it on or before the date hereof.
DATED: ____________________ CLARK REFINING & MARKETING, INC.
By:__________________________________________
Name:
Title:
I-2
EXHIBIT II
[FORM OF NOTE]
CLARK REFINING & MARKETING, INC.
PROMISSORY NOTE DUE NOVEMBER 15, 2004
$[1] New York, New York
November 21, 1997
FOR VALUE RECEIVED, CLARK REFINING & MARKETING, INC., a Delaware
corporation ("Company"), promises to pay to [2] ("Payee") or its registered
assigns the principal amount of [3] ($[1]) in the installments referred to
below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
First Amended and Restated Credit Agreement dated as of August 10, 1998 by and
among Company, the financial institutions listed therein as Lenders, State
Street Bank and Trust Company of Missouri, N.A., as Paying Agent, and Goldman
Sachs Credit Partners L.P., as Arranger, Syndication Agent and Administrative
Agent, (said Credit Agreement, as it may be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
Company shall make principal payments on this Note in the installments as
set forth in the Credit Agreement, commencing on November 15, 2003 and ending on
November 15, 2004. Each such installment shall be due on the date specified in
the Credit Agreement and in an amount determined in accordance with the
provisions thereof; provided that the last such installment shall be in an
amount sufficient to repay the entire unpaid principal balance of this Note,
together with all accrued and unpaid interest thereon.
This Note is one of Company's "Notes" in the aggregate principal amount
of $[4] and is issued pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more complete statement of
the terms and conditions under
- ---------------------------
[1] Insert amount of Lender's Loan in numbers.
[2] Insert Lender's name in capital letters.
[3] Insert amount of Lender's Loan in words.
[4] Insert aggregate amount of all Loans in numbers.
II-1
which the Loan evidenced hereby was made and is to be repaid. [Insert for
Existing Lenders only: This Note is an amendment and restatement of the Note (as
defined in the 1997 Credit Agreement) which was issued by Company to Payee in
accordance with the terms of the 1997 Credit Agreement.]
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Paying Agent, recorded in the Register and
a copy thereof delivered to the Company as provided in subsection 9.1B(ii) of
the Credit Agreement, Company and Paying Agent shall be entitled to deem and
treat Payee as the owner and holder of this Note and the Loan evidenced hereby.
Payee hereby agrees, by its acceptance hereof, that before disposing of this
Note or any part hereof it will make a notation hereon of all principal payments
previously made hereunder and of the date to which interest hereon has been
paid; provided, however, that the failure to make a notation of any payment made
on this Note shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4B(ii) of the Credit Agreement and to prepayment at the option of Company as
provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Credit Agreement.
II-2
This Note is subject to restrictions on transfer or assignment as provided
in subsections 9.1 and 9.14 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Company, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 9.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
CLARK REFINING & MARKETING, INC.
By: ____________________________
Name:
Title:
II-3
EXHIBIT III
[FORM OF OPINION OF MAYER, BROWN & PLATT]
November 21, 1997
Goldman Sachs Credit Partners L.P.,
as Arranger, Syndication Agent
and Administrative Agent
85 Broad Street
New York, New York 10004
State Street Bank and Trust
Company of Missouri, N.A.
as Paying Agent,
1 Metropolitan Square, 39th Floor
211 North Broadway
St. Louis Missouri 63102
and
The Lenders party from time
to time to the Credit Agreement
referred to below
Re: Credit Agreement dated as of November 21, 1997 among Clark Refining &
Marketing, Inc., the financial institutions listed therein as Lenders,
State Street Bank and Trust Company of Missouri, N.A., as paying
agent, and Goldman Sachs Credit Partners L.P., as Arranger,
Syndication Agent and Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to Clark Refining & Marketing, Inc., a Delaware
corporation ("Company"), in connection with that certain Credit Agreement
dated as of November 21, 1997 (the "Credit Agreement") among Company, the
financial institutions listed therein as Lenders ("Lenders"), and State Street
Bank and Trust Company of Missouri, N.A., as paying agent, and Goldman Sachs
Credit Partners L.P., as Arranger, Syndication Agent and Administrative Agent
("Agent"). This opinion is rendered to you in compliance with subsection 3.6A
of the Credit Agreement. Capitalized terms used herein without definition have
the same meanings as in the Credit Agreement.
In our capacity as such counsel, we have examined originals, or copies
identified to our satisfaction as being true copies, of such records, documents
or other instruments as in
III-1
our judgment are necessary or appropriate to enable us to render the opinions
expressed below. These records, documents and instruments included the
following:
(a) The Credit Agreement;
(b) The Notes delivered today (the "Notes");
(c) The Certificate of Incorporation of Company, as amended to date;
(d) The Bylaws of Company, as amended to date;
(e) All records of proceedings and actions of the Board of Directors
of Company relating to the Credit Agreement and the transactions
contemplated thereby;
(f) The Certificate of Incorporation of Clark Pipeline Company, as
amended to date;
(g) The Bylaws of Clark Pipeline Company, as amended to date;
(h) The Fixed Rate Senior Note Indenture;
(i) The Subordinated Note Indenture (and, together with the Fixed Rate
Senior Note Indenture, the "Indentures");
(j) The Preliminary Offering Circular dated November 6, 1997 prepared
by Company in connection with the issuance of the New Notes;
(k) The Offering Circular dated November __, 1997 prepared by Company
in connection with the issuance of the New Notes;
(l) The New Notes;
(m) The Registration Rights Agreement; and
(n) The Purchase Agreement.
Our opinion is limited to the laws of the State of New York the State
of Illinois, the General Corporation Law of the State of Delaware and the
federal law of the United States of America. In rendering our opinion, we are
relying, as to certain matters, on information contained in certificates of
officers of Company. We believe that we, Agents and Lenders are justified in
relying upon such certificates and on certificates and reports of public
officials. A copy of each such certificate is attached hereto as Annex A.
III-2
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth below, we are of the
opinion that:
(i) Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular;
(ii) Company has an authorized equity capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of
Company have been duly and validly authorized and issued and are fully paid
and non-assessable, and all of the issued shares of Company are owned
beneficially and of record by Clark USA, Inc.;
(iii) Company has been duly qualified as a foreign corporation for
the transition of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction;
(iv) Clark Pipe Line Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with power and authority (corporate and
other) to own in properties and conduct its business as described in the
Offering Circular; and all of the issued shares of capital stock of such
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable, and are owed directly or indirectly by Clark USA, Inc.,
free and clear of all liens, encumbrances, equities or claims;
(v) To the best of our knowledge and other than as set forth in the
Offering Circular, there are no legal or governmental proceedings pending
or threatened to which Company or any of its Subsidiaries is a party or of
which any property of Company or any of its Subsidiaries is the subject
which, if determined adversely to Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of Company and its Subsidiaries;
(vi) Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Purchase Agreement,
the Indentures, the Credit Agreement and the Notes, including the corporate
power and authority to issue, sell and deliver the New Notes and to issue
the Notes;
(vii) The Purchase Agreement has been duly authorized, executed and
delivered by Company;
III-3
(viii) All of the New Notes have been duly authorized, executed,
issued and delivered and (assuming the due authentication thereof by the
trustee in accordance with the terms of the applicable Indenture)
constitute valid and legally binding obligations of Company entitled to the
benefits provided by the applicable Indenture; and the New Notes and the
Indentures conform in all material respect to the descriptions thereof in
the Offering Circular;
(ix) The Indentures have been duly authorized, executed and delivered
Company and (assuming the due authorization, execution and delivery thereof
by the trustee party thereto) constitute valid and legally binding
obligations of Company enforceable in accordance with their terms, subject
to the effect of bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights, and to
general principles of equity (whether considered in a proceeding in equity
or at law);
(x) The Credit Agreement has been duly authorized, executed and
delivered Company and (assuming the due authorization, execution and
delivery thereof by the Agents and Lenders) constitutes valid and legally
binding obligations of Company enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights,
and to general principles of equity (whether considered in a proceeding in
equity or at law);
(xi) All of the Notes have been duly authorized, executed, issued and
delivered and constitute valid and legally binding obligations of Company
enforceable in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights, and to general
principles of equity (whether considered in a proceeding in equity or at
law);
(xii) Each of the Indentures is in a form which would meet the
requirements for qualification under the Trust Indenture Act;
(xiii) The issuance and sale of the New Notes, the issuance of the
Notes and the compliance by Company with all of the provisions of the New
Notes, the New Notes, the Credit Agreement, the Purchase Agreement and the
Registration Rights Agreement and the consummation of the transactions
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, sale/leaseback agreement,
loan agreement or other financing agreement or any other agreement or
instrument known to such counsel to which Company or any of its
Subsidiaries is a party or by which Company or any of its Subsidiaries is
bound or to which any of the property or assets of Company or any of its
Subsidiaries is subject, nor will such actions result in any violation of
the provisions of the Certificate of Incorporation or By-laws of Company or
any statute, order, rule or regulation known to such counsel
III-4
of any court or governmental agency or body having jurisdiction over
Company or any of its Subsidiaries or any of their properties;
(xiv) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issuance and sale of the New Notes, the issuance of the
Notes or the consummation by Company of the transactions contemplated by
the Credit Agreement, the Purchase Agreement or the Indentures (assigning
the offer and sale of the New Notes by Company to the Purchasers and
reorder and resale of the New Notes by the Purchasers in the manner
contemplated in the Purchase Agreement and the Offering Circular), except
(1) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and resale of the New Notes by the
Purchasers, (2) such consents, approvals, authorizations, registrations or
qualifications as may be required under the Act, the Trust Indenture Act or
state securities or Blue sky laws in connection with the Exchange Offers
contemplated by the Offering Circular or in connection with the
Registration Rights Agreement, and (3) such consents, approvals,
authorizations, registrations or qualifications as have been obtained or
made;
(xv) Neither the registration of the Senior Notes under the Act, nor
the qualification of an indenture under the Trust Indenture Act of 1939
with respect thereto, is required for the offer and sale of the New Notes
by Company to the Purchasers or the reorder and resale of the New Notes by
the Purchasers in the manner contemplated in the Purchase Agreement and the
Offering Circular, other than any registration or qualification that may be
required in connection with the Exchange Offer contemplated by the Offering
Circular or in connection with the Registration Rights Agreement;
(xvi) Neither the registration of the Subordinated Notes under the
Act, nor the qualification of an indenture under the Trust Indenture Act of
1939 with respect thereto, is required for the offer and sale of the
Subordinated Notes by Company to the Purchasers or the reoffer and resale
of the Subordinated Notes by the Purchasers in the manner contemplated in
the Purchase Agreement and the Offering Circular, other than any
registration or qualification that may be required in connection with the
Exchange Offer contemplated by the Offering Circular or in connection with
the Registration Rights Agreement;
(xvii) Company is not an "investment company" within the meaning
of, or is registered or otherwise required to be registered under, the
Investment Company Act;
(xviii) The statements in the Offering Circular under the captions
"Description of Certain Debt Instruments," "Description of the Notes,"
"Registration Covenant; Exchange Offer," "Certain U.S. Federal Income
Tax Considerations" and "Underwriting," insofar as such statements
constitute summaries of the provisions of
III-5
Company's existing debt, the New Notes, the Purchase Agreement and
Registration Rights Agreement, or insofar as such statements purport to
summarize federal laws of the United States referred to thereunder, as the
case may be, fairly summarize the matters referred to therein;
(xix) The making of the Loans and the application of the proceeds
thereof as provided in the Credit Agreement do not violate Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System;
(xx) It is not necessary in connection with the execution and delivery
of the Notes to Lenders to register the Notes or the Loans under the
Securities Act of 1933, as amended, or to qualify any indenture in respect
thereof under the Trust Indenture Act of 1939, as amended; and
(xxi) All Obligations under the Credit Agreement are within the
definition of "Senior Debt" contained in the subordination provisions of
the Senior Subordinat ed Notes.
This opinion is rendered only to Agents and Lenders and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon by Agents or Lenders for any other purpose, or quoted to or relied
upon by any other person, firm or corporation for any purpose without our prior
written consent.
Very truly yours,
III-6
EXHIBIT IV
[FORM OF OPINION OF O'MELVENY & MYERS LLP]
[O'M&M Letterhead]
August
1998
317,790-145
[doc ID]
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
State Street Bank and Trust
Company of Missouri, N.A.
as Paying Agent,
1 Metropolitan Square, 39th Floor
211 North Broadway
St. Louis Missouri 63102
and
The Lenders Party to the Credit
Agreement Referenced Below
Re: Loans to Clark Refining & Marketing, Inc.
-----------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Goldman Sachs Credit Partners L.P., as Arranger
and Syndication Agent, and Bankers Trust Company, as Administrative Agent (in
such capacity, "Agent"), in connection with the preparation and delivery of a
First Amended and Restated Credit Agreement dated as of August 10, 1998 (the
"Credit Agreement") among Clark Refining & Marketing, Inc., a Delaware
corporation ("Company"), the financial institutions listed therein as lenders,
State Street Bank and Trust Company of Missouri, N.A., as paying agent, and
Goldman Sachs Credit Partners L.P., as Arranger, Syndication Agent and
Administrative Agent ("Agent") and in connection with the preparation and
delivery of certain related documents.
IV-1
Page 2 -- Goldman Sachs Credit Partners L.P. -- August , 1998
We have participated in various conferences with representatives of Company
and Agent and conferences and telephone calls with Simpson Thacher & Bartlett,
counsel to Company, and with your representatives, during which the Credit
Agreement and related matters have been discussed, and we have also participated
in the meeting held on the date hereof (the ``Closing'') incident to the funding
of the initial loans made under the Credit Agreement. We have reviewed the
forms of the Credit Agreement and the exhibits thereto, including the forms of
the promissory notes annexed thereto (the ``Notes''), and the opinions of
Simpson Thacher & Bartlett (the ``Opinion'') and the officers' certificates and
other documents delivered at the Closing. We have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
or copies and the due authority of all persons executing the same, and we have
relied as to factual matters on the documents that we have reviewed.
Although we have not independently considered all of the matters covered by
the Opinion to the extent necessary to enable us to express the conclusions
therein stated, we believe that the Credit Agreement and the exhibits thereto
are in substantially acceptable legal form and that the Opinion and the
officers' certificates and other documents delivered in connection with the
execution and delivery of, and as conditions to the making of the initial loans
under, the Credit Agreement and the Notes are substantially responsive to the
requirements of the Credit Agreement.
Respectfully submitted,
IV-2
EXHIBIT V
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "Agreement") is entered into by and
between the parties designated as Assignor ("Assignor") and Assignee
("Assignee") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "Schedule of
Terms") and relates to that certain Credit Agreement described in the Schedule
of Terms (said Credit Agreement, as amended, supplemented or otherwise modified
to the date hereof and as it may hereafter be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Assignment and Assumption.
(a) Effective upon the Settlement Date specified in Item 4 of the Schedule
of Terms (the "Settlement Date"), Assignor hereby sells and assigns to
Assignee, without recourse, representation or warranty (except as expressly set
forth herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Credit Agreement and the other Loan Documents with respect to
Assignor's Commitment and outstanding Loan, if any, which represents, as of the
Settlement Date, the percentage interest specified in Item 3 of the Schedule of
Terms of all rights and obligations of Lenders arising under the Credit
Agreement and the other Loan Documents with respect to the Commitments and any
outstanding Loans (the "Assigned Share").
(b) In consideration of the assignment described above, Assignee hereby
agrees to pay to Assignor, on the Settlement Date, the principal amount of any
outstanding Loan included within the Assigned Share, such payment to be made by
wire transfer of immediately available funds in accordance with the applicable
payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the Schedule of
Terms correctly sets forth the amount of the Commitment, the outstanding Loan
and the Pro Rata Share corresponding to the Assigned Share.
V-1
(d) Assignor and Assignee hereby agree that, upon giving effect to the
assignment and assumption described above, (i) Assignee shall be a party to the
Credit Agreement and shall have all of the rights and obligations under the Loan
Documents, and shall be deemed to have made all of the covenants and agreements
contained in the Loan Documents, arising out of or otherwise related to the
Assigned Share, and (ii) Assignor shall be absolutely released from any of such
obligations, covenants and agreements assumed or made by Assignee in respect of
the Assigned Share. Assignee hereby acknowledges and agrees that the agreement
set forth in this Section 1(d) is expressly made for the benefit of Company,
Agent, Assignor and the other Lenders and their respective successors and
permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitment, the outstanding Loan
and the Pro Rata Share corresponding to the Assigned Share as set forth in Item
3 of the Schedule of Terms, and (iii) from and after the Settlement Date, Paying
Agent shall make all payments under the Credit Agreement in respect of the
Assigned Share (including all payments of principal and accrued but unpaid
interest with respect thereto) (A) in the case of any such interest that shall
have accrued prior to the Settlement Date, to Assignor, and (B) in all other
cases, to Assignee; provided that Assignor and Assignee shall make payments
directly to each other to the extent necessary to effect any appropriate
adjustments in any amounts distributed to Assignor and/or Assignee by Agent
under the Loan Documents in respect of the Assigned Share in the event that, for
any reason whatsoever, the payment of consideration contemplated by Section 1(b)
occurs on a date other than the Settlement Date.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and beneficial
owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Loan Documents or for any representations, warranties,
recitals or statements made therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Assignor to Assignee or by or on behalf
of Company or any of its Subsidiaries to Assignor or Assignee in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other Person liable
for the payment of any Obligations, nor shall Assignor be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the
V-2
Loans or as to the existence or possible existence of any Event of Default or
Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible Assignee; that
it has experience and expertise in the making of loans such as the Loans; that
it has acquired the Assigned Share for its own account in the ordinary course of
its business and without a view to distribution of the Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of subsection 9.1 of the Credit
Agreement, the disposition of the Assigned Share or any interests therein shall
at all times remain within its exclusive control); and that it has received,
reviewed and approved a copy of the Credit Agreement (including all Exhibits and
Schedules thereto).
(d) Assignee represents and warrants that it has received from Assignor
such financial information regarding Company and its Subsidiaries as is
available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the assignment evidenced by this Agreement,
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty
or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the initial Loans or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the other party
hereto that it has full power and authority to enter into this Agreement and to
perform its obligations hereunder in accordance with the provisions hereof, that
this Agreement has been duly authorized, executed and delivered by such party
and that this Agreement constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each of Assignor and Assignee hereby agrees from time to time, upon
request of the other such party hereto, to take such additional actions and to
execute and deliver such additional documents and instruments as such other
party may reasonably request to effect the transactions contemplated by, and to
carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
(including,
V-3
if applicable, any party required to evidence its consent to or acceptance of
this Agreement) against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) Unless otherwise specifically provided herein, any notice or other
communica tion herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed. For the purposes hereof, the notice address of each of
Assignor and Assignee shall be as set forth on the Schedule of Terms or, as to
either such party, such other address as shall be designated by such party in a
written notice delivered to the other such party. In addition, the notice
address of Assignee set forth on the Schedule of Terms shall serve as the
initial notice address of Assignee for purposes of subsection 9.6 of the Credit
Agreement.
(d) In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the "Effective
Date") upon which all of the following conditions are satisfied: (i) the
execution of a counterpart hereof by each of Assignor and Assignee, (ii) in the
event Assignee is a Non-US Lender (as defined in subsection 2.7B(iii)(a) of the
Credit Agreement), the delivery by Assignee to Paying Agent of such forms,
certificates or other evidence with respect to United States federal income tax
withholding matters as Assignee may be required to deliver to Paying Agent
pursuant to said subsection 2.7B(iii)(a), (iii) the execution of a counterpart
hereof by Paying Agent as evidence of its acceptance hereof in accordance with
subsection 9.1B(ii) of
V-4
the Credit Agreement, (iv) the receipt by Paying Agent of originals or
telefacsimiles of the counterparts described above and authorization of delivery
thereof, (v) the delivery of a copy hereof to Company, and (vi) the recordation
by Paying Agent in the Register of the pertinent information regarding the
assignment effected hereby in accordance with subsection 9.1B(ii) of the Credit
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized, such execution being made as of the Effective Date in the applicable
spaces provided on the Schedule of Terms.
[Remainder of page intentionally left blank]
V-5
SCHEDULE OF TERMS
1. Borrower: Clark Refining & Marketing, Inc.
2. Name and Date of Credit Agreement: First Amended and Restated Credit
Agreement dated as of August 10, 1998 by and among Clark Refining &
Marketing, Inc., the financial institutions listed therein as Lenders,
State Street Bank and Trust Company of Missouri, N.A., as paying agent,
and Goldman Sachs Credit Partners L.P., as Arranger, Syndication Agent
and Administrative Agent.
3. Amounts:
(a) Aggregate Commitments of all Lenders: $
--------
(b) Assigned Share/Pro Rata Share: %
--------
(c) Amount of Assigned Share of Commitments: $
--------
(d) Amount of Assigned Share of Loans: $
--------
4. Settlement Date: ,
------------ ----
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
Attention: Attention:
------------------- -------------------
Reference: Reference:
------------------- -------------------
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
7. Signatures:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
-------------------------- --------------------------
Title: Title:
----------------------- -----------------------
V-6
Accepted in accordance with subsection 9.1B(ii) of the Credit Agreement
STATE STREET BANK AND TRUST COMPANY OF
MISSOURI, N.A., as Paying Agent
By:
----------------------------------
Title:
-------------------------------
V-7
EXHIBIT VI
[FORM OF CERTIFICATE RE NON-BANK STATUS]
CERTIFICATE RE NON-BANK STATUS
Reference is hereby made to that certain First Amended and Restated Credit
Agreement dated as of August 10, 1998 (said Credit Agreement, as amended,
supplemented or otherwise modified to the date hereof, being the "Credit
Agreement") by and among Clark Refining & Marketing, Inc., a Delaware
corporation, the financial institutions listed therein as Lenders, State Street
Bank and Trust Company of Missouri, N.A., as paying agent, and Goldman Sachs
Credit Partners L.P., as Arranger, Syndication Agent and Administrative Agent.
Pursuant to subsection 2.7B(iii) of the Credit Agreement, the undersigned hereby
certifies that it is not a "bank" or other Person described in Section 881(c)(3)
of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By:
-----------------------------------
Name:
Title:
VI-1
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Lender Commitment Pro Rata Share
====================================================================
Goldman Sachs Credit Partners L.P. $125,000,000 100%
--------------------------------------------------------------------
TOTAL $100%
====================================================================
Schedule 2.1-1