EXHIBIT 10.4
================================================================================
$1,275,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
TESORO PETROLEUM CORPORATION,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
LEHMAN BROTHERS INC.,
AS ARRANGER,
LEHMAN COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT,
ABN AMRO BANK N.V.,
CREDIT LYONNAIS NEW YORK BRANCH AND
THE BANK OF NOVA SCOTIA,
AS CO-DOCUMENTATION AGENTS
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
DATED AS OF MAY 17, 2002
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TABLE OF CONTENTS
<Table>
<Caption>
Page
SECTION 1. DEFINITIONS............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................28
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................28
2.1 Existing Term Loans; Additional Term Loan Commitments..........................................28
2.2 Procedure for Term Loan Borrowing..............................................................29
2.3 Repayment of Term Loans........................................................................30
2.4 Revolving Credit Commitments...................................................................32
2.5 Procedure for Revolving Credit Borrowing.......................................................32
2.6 Repayment of Loans; Evidence of Debt...........................................................32
2.7 Commitment Fees, etc...........................................................................33
2.8 Termination or Reduction of Revolving Credit Commitments.......................................34
2.9 Optional Prepayments...........................................................................34
2.10 Mandatory Prepayments..........................................................................34
2.11 Conversion and Continuation Options............................................................35
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches......................................36
2.13 Interest Rates and Payment Dates...............................................................36
2.14 Computation of Interest and Fees...............................................................37
2.15 Inability to Determine Interest Rate...........................................................37
2.16 Pro Rata Treatment and Payments................................................................38
2.17 Requirements of Law............................................................................41
2.18 Taxes..........................................................................................42
2.19 Indemnity......................................................................................43
2.20 Illegality.....................................................................................44
2.21 Change of Lending Office.......................................................................44
2.22 Revolving Credit Commitment Increases..........................................................44
2.23 Tranche B Term Loan Commitment Increases.......................................................45
SECTION 3. LETTERS OF CREDIT.....................................................................................46
3.1 L/C Commitment.................................................................................46
3.2 Procedure for Issuance of Letter of Credit.....................................................47
3.3 Fees and Other Charges.........................................................................47
3.4 L/C Participations.............................................................................47
3.5 Reimbursement Obligation of the Borrower.......................................................48
3.6 Obligations Absolute...........................................................................49
3.7 Letter of Credit Payments......................................................................49
3.8 Applications...................................................................................49
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................50
</Table>
i
<Table>
<Caption>
Page
4.1 Financial Condition............................................................................50
4.2 No Change......................................................................................50
4.3 Corporate Existence; Compliance with Law.......................................................51
4.4 Corporate Power; Authorization; Enforceable Obligations........................................51
4.5 No Legal Bar...................................................................................51
4.6 No Material Litigation.........................................................................51
4.7 No Default.....................................................................................52
4.8 Ownership of Property; Liens...................................................................52
4.9 Intellectual Property..........................................................................52
4.10 Taxes..........................................................................................52
4.11 Federal Regulations............................................................................52
4.12 Labor Matters..................................................................................52
4.13 ERISA..........................................................................................53
4.14 Investment Company Act; Other Regulations......................................................53
4.15 Subsidiaries...................................................................................53
4.16 Use of Proceeds................................................................................53
4.17 Environmental Matters..........................................................................53
4.18 Accuracy of Information, etc...................................................................55
4.19 Security Documents.............................................................................55
4.20 Solvency.......................................................................................56
4.21 Senior Indebtedness............................................................................56
4.22 Regulation H...................................................................................56
4.23 Excluded Subsidiaries..........................................................................56
SECTION 5. CONDITIONS PRECEDENT..................................................................................56
5.1 Conditions to Effectiveness....................................................................56
5.2 Conditions to Each Extension of Credit.........................................................61
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................61
6.1 Financial Statements...........................................................................61
6.2 Certificates; Other Information................................................................62
6.3 Payment of Obligations.........................................................................63
6.4 Conduct of Business and Maintenance of Existence, etc..........................................63
6.5 Maintenance of Property; Insurance.............................................................63
6.6 Inspection of Property; Books and Records; Discussions.........................................63
6.7 Notices........................................................................................64
6.8 Environmental Laws.............................................................................64
6.9 [Reserved.]....................................................................................65
6.10 Additional Collateral, etc.....................................................................65
6.11 Further Assurances.............................................................................67
6.12 Mandatory Debt Reduction; Cash Collateral Account..............................................67
SECTION 7. NEGATIVE COVENANTS....................................................................................68
7.1 Financial Condition Covenants..................................................................68
</Table>
ii
<Table>
<Caption>
Page
7.2 Limitation on Indebtedness.....................................................................69
7.3 Limitation on Liens............................................................................70
7.4 Limitation on Fundamental Changes..............................................................72
7.5 Limitation on Disposition of Property..........................................................73
7.6 Limitation on Restricted Payments..............................................................73
7.7 Limitation on Investments......................................................................74
7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.....................75
7.9 Limitation on Transactions with Affiliates.....................................................76
7.10 Limitation on Sales and Leasebacks.............................................................76
7.11 Limitation on Changes in Fiscal Periods........................................................76
7.12 Limitation on Negative Pledge Clauses..........................................................76
7.13 Limitation on Restrictions on Subsidiary Distributions.........................................76
7.14 Limitation on Lines of Business................................................................77
7.15 Limitation on Amendments to Acquisition Documentation..........................................77
7.16 Limitation on Activities of Qualifying Special Purpose Subsidiaries............................77
7.17 Limitation on Assets of Excluded Subsidiaries..................................................77
7.18 Limitation on Capital Expenditures.............................................................77
SECTION 8. EVENTS OF DEFAULT.....................................................................................78
SECTION 9. THE AGENTS............................................................................................81
9.1 Appointment; Nature of Relationship............................................................81
9.2 Powers.........................................................................................81
9.3 General Immunity...............................................................................81
9.4 No Responsibility for Loans, Recitals, etc.....................................................81
9.5 Action on Instructions of Lenders..............................................................82
9.6 Employment of Agents and Counsel...............................................................82
9.7 Reliance on Documents; Counsel.................................................................82
9.8 Administrative Agent's Reimbursement and Indemnification.......................................82
9.9 Notice of Default..............................................................................83
9.10 Rights as a Lender.............................................................................83
9.11 Lender Credit Decision.........................................................................83
9.12 Successor Administrative Agent.................................................................84
9.13 Authorization to Release Liens and Guarantees..................................................84
9.14 Delegation to Affiliates.......................................................................85
9.15 Appointment of Syndication Agent...............................................................85
9.16 Exculpatory Provisions for Syndication Agent...................................................85
9.17 Syndication Agent Indemnification..............................................................85
9.18 Arranger, Co-Documentation Agents, etc.........................................................86
SECTION 10. MISCELLANEOUS........................................................................................86
10.1 Amendments and Waivers.........................................................................86
10.2 Notices........................................................................................88
10.3 No Waiver; Cumulative Remedies.................................................................89
10.4 Survival of Representations and Warranties.....................................................89
</Table>
iii
<Table>
<Caption>
Page
10.5 Payment of Expenses............................................................................89
10.6 Successors and Assigns; Participations and Assignments.........................................90
10.7 Adjustments; Set-off...........................................................................93
10.8 Counterparts...................................................................................94
10.9 Severability...................................................................................94
10.10 Integration....................................................................................94
10.11 GOVERNING LAW..................................................................................94
10.12 Submission To Jurisdiction; Waivers............................................................95
10.13 Acknowledgments................................................................................95
10.14 Confidentiality................................................................................95
10.15 Release of Collateral and Guarantee Obligations................................................96
10.16 Enforceability; Usury..........................................................................97
10.17 Accounting Changes.............................................................................97
10.18 Delivery of Lender Addenda.....................................................................98
10.19 Notice of Remedies Pursuant to Alaskan Law.....................................................98
10.20 WAIVERS OF JURY TRIAL..........................................................................98
</Table>
iv
ANNEXES
A Pricing Grid
SCHEDULES
1.1A-1 Existing Mortgaged Properties
1.1A-2 New Mortgaged Properties
4.1 Guarantee Obligations, Contingent Liabilities, etc.
4.4 Consents, Authorizations, Filings and Notices
4.13 Certain ERISA Events
4.15-1 Subsidiaries
4.15-2 Excluded Subsidiaries
4.17 Environmental Liabilities
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
7.2(c) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS
A Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Fulbright & Jaworski L.L.P.
F-2 Form of Legal Opinion of Borrower's General Counsel
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
H Form of Prepayment Option Notice
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Borrowing Notice
L Form of Consent and Confirmation
M Form of Lien Perfection Certificate
N Form of New Revolving Credit Lender Supplement
O Form of Revolving Credit Commitment Increase Supplement
P Form of New Tranche B Term Loan Lender Supplement
v
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 17,
2002, among TESORO PETROLEUM CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), LEHMAN BROTHERS INC., as
advisor, lead arranger and book manager (in such capacity, the "Arranger"),
LEHMAN COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"Syndication Agent"), ABN AMRO BANK N.V., CREDIT LYONNAIS NEW YORK BRANCH and
THE BANK OF NOVA SCOTIA, as co-documentation agents (the "Co-Documentation
Agents") and BANK ONE, NA, as administrative agent (in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower is party to the Credit Agreement, dated
as of September 6, 2001, among the Borrower, the lenders parties thereto, Bank
One, NA, as administrative agent, Lehman Brothers Inc., as arranger, Lehman
Commercial Paper Inc., as syndication agent, and the co-documentation agents
parties thereto, as amended by the First Amendment, dated as of October 16, 2001
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Original Credit Agreement");
WHEREAS, pursuant to the Sale and Purchase Agreement for
Golden Eagle Refining and Marketing Assets (the "Acquisition Agreement"), dated
as of February 4, 2002, and as amended on February 20, 2002 and May 3, 2002,
between Ultramar, Inc. (the "Seller") and Tesoro Refining and Marketing Company
(the "Buyer"), a Wholly-Owned Subsidiary of the Borrower, the Buyer has agreed
to acquire from the Seller (the "Acquisition") the Seller's Golden Eagle
refinery located in Contra Costa County, California (the "Acquired Refinery")
and certain retail assets of the Seller located in northern California (the
"Acquired Retail Assets," and together with the Acquired Refinery, the "Acquired
Assets");
WHEREAS, in order to finance a portion of the purchase price
of the Acquisition and the payment of certain fees and expenses related to the
Acquisition, and to continue to provide for the ongoing working capital and
general corporate needs (including capital expenditures) of the Borrower and its
Subsidiaries, the Borrower has requested that the Lenders amend and restate the
Original Credit Agreement to make additional amounts available thereunder; in
addition, the Borrower has requested certain other amendments to the Original
Credit Agreement in connection therewith; and
WHEREAS, the Lenders are willing to amend and restate the
Original Credit Agreement in its entirety upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree that the
Original Credit Agreement is hereby amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
2
"Acquired Assets": as defined in the recitals hereto.
"Acquired Refinery": as defined in the recitals hereto.
"Acquired Retail Assets": as defined in the recitals hereto.
"Acquisition": as defined in the recitals hereto.
"Acquisition Agreement": as defined in the recitals hereto.
"Acquisition Documentation": collectively, the Acquisition
Agreements and all schedules, exhibits, annexes and amendments thereto and all
side letters and agreements affecting the terms thereof or entered into in
connection therewith, in each case, as amended, supplemented or otherwise
modified from time to time.
"Additional Amounts": the collective reference to the
Additional Term Loans and the Additional Revolving Credit Commitments.
"Additional Revolving Credit Commitments": the $50,000,000 of
additional Revolving Credit Commitments made available from and after the
Restatement Date that were not in effect under the Original Credit Agreement.
"Additional Term Loans": the collective reference to the
Additional Tranche A Term Loans and the Additional Tranche B Term Loans.
"Additional Tranche A Term Loan": as defined in Section
2.1(b).
"Additional Tranche A Term Loan Commitment": as to any Lender,
the obligation of such Lender, if any, to make Additional Tranche A Term Loans
to the Borrower hereunder in an aggregate principal amount not to exceed the
amount set forth under the heading "Additional Tranche A Term Loan Commitment"
opposite such Lender's name on Schedule 1 to the Lender Addendum delivered by
such Lender, or, as the case may be, in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The aggregate amount of the Additional
Tranche A Term Loan Commitments on the Restatement Date is $75,000,000.
"Additional Tranche A Term Loan Percentage": as to any Tranche
A Term Loan Lender at any time that has an Additional Tranche A Term Loan
Commitment, the percentage which such Lender's Additional Tranche A Term Loan
Commitment then constitutes of the aggregate Additional Tranche A Term Loan
Commitments (or, at any time after the Restatement Date, the percentage which
the aggregate principal amount of such Lender's Additional Tranche A Term Loans
then outstanding constitutes of the aggregate principal amount of the Additional
Tranche A Term Loans then outstanding).
"Additional Tranche B Term Loan": as defined in Section
2.1(b).
"Additional Tranche B Term Loan Commitment": as to any Lender,
the obligation of such Lender, if any, to make Tranche B Term Loans to the
Borrower hereunder in
3
an aggregate principal amount not to exceed the amount set forth under the
heading "Additional Tranche B Term Loan Commitment" opposite such Lender's name
on Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case
may be, in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the Additional Tranche B Term Loan
Commitments is $350,000,000.
"Additional Tranche B Term Loan Percentage": as to any Tranche
B Term Loan Lender at any time that has an Additional Tranche B Term Loan
Commitment, the percentage which such Lender's Additional Tranche B Term Loan
Commitment then constitutes of the aggregate Additional Tranche B Term Loan
Commitments (or, at any time after the Restatement Date, the percentage which
the aggregate principal amount of such Lender's Additional Tranche B Term Loans
then outstanding constitutes of the aggregate principal amount of the Additional
Tranche B Term Loans then outstanding).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the Co-Documentation Agents and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to the sum of (a) the aggregate undrawn amount of such Lender's
Commitments at such time and (b) the aggregate principal amount of such Lender's
Term Loans and Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the sum of the Aggregate Exposures of all Lenders at
such time.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Annualization Period": each of the four periods beginning on
the date of consummation of the Acquisition and ending on September 30, 2002,
December 31, 2002 or March 31, 2003.
"Annualized Acquired Assets EBITDA": for any period of four
consecutive fiscal quarters ending on September 30, 2002, December 31, 2002 or
March 31, 2003, Consolidated EBITDA attributable to the Acquired Assets for the
Annualization Period ending
4
on the last day of such period of four consecutive fiscal quarters, multiplied
by a fraction, the denominator of which is the number of days in such
Annualization Period and the numerator of which is 365.
"Annualized Fixed Charges": for any period of four consecutive
fiscal quarters ending on September 30, 2002, December 31, 2002 or March 31,
2003, Consolidated Fixed Charges for the Annualization Period ending on the last
day of such period of four consecutive fiscal quarters, multiplied by a
fraction, the denominator of which is the number of days in such Annualization
Period and the numerator of which is 365.
"Annualized Interest Expense": for any period of four
consecutive fiscal quarters ending on September 30, 2002, December 31, 2002 or
March 31, 2003, Consolidated Interest Expense for the Annualization Period
ending on the last day of such period of four consecutive fiscal quarters,
multiplied by a fraction, the denominator of which is the number of days in such
Annualization Period and the numerator of which is 365.
"Applicable Margin": for each Type of Loan under each
Facility, the rate per annum set forth opposite such Facility under the relevant
column heading below:
<Table>
<Caption>
Base Rate Eurodollar
Loans Loans
--------- ----------
Revolving Credit Loans 2.00% 3.00%
Tranche A Term Loans 2.00% 3.00%
Tranche B Term Loans 2.50% 3.50%
</Table>
provided, that on and after the date on which the Borrower delivers, in
accordance with Section 6.1(a), the unaudited financial statements of the
Borrower and its consolidated Subsidiaries for the fiscal quarter ended June 30,
2003, the Applicable Margins shall be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property, excluding (i) any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 7.5 and (ii) any such Disposition which yields
gross proceeds to the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) of less than $1,000,000 (provided that Dispositions may only
be excluded pursuant to this clause (ii) to the extent yielding, together with
all other such Dispositions occurring during the same fiscal year of the
Borrower which have been excluded pursuant to this clause (ii), gross proceeds
of no more than $5,000,000 in the aggregate).
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
5
"Available Revolving Credit Commitment": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding.
"Base Rate": for any day, a rate of interest per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum of the Federal
Funds Effective Rate for such day plus 1/2% per annum. For purposes hereof:
"Prime Rate" shall mean a rate per annum equal to the prime rate of interest
announced from time to time by Bank One, NA or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Base Rate Loans": Loans for which the applicable rate of
interest is based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Borrowing Notice": with respect to any request for borrowing
of Loans hereunder, a notice from the Borrower, substantially in the form of,
and containing the information prescribed by, Exhibit K, delivered to the
Administrative Agent.
"Buyer": as defined in the recitals hereto.
"Business Day": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City or Chicago, Illinois are authorized or
required by law to close and (b) with respect to all notices and determinations
in connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (a) and which is also a day
for trading by and between banks in Dollar deposits in the interbank eurodollar
market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP;
6
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Collateral Account": a segregated cash collateral
account of the Borrower in which the Administrative Agent for the benefit of the
Lenders has a perfected security interest pursuant to the Cash Collateral
Account Agreement.
"Cash Collateral Account Agreement": an agreement, in form and
substance reasonably satisfactory to the Administrative Agent, pursuant to which
the Administrative Agent has "control", within the meaning of Section 9-104 of
the applicable Uniform Commercial Code, of the Cash Collateral Account; the Cash
Collateral Control Agreement shall provide for the release of funds from the
Cash Collateral Account as provided in Section 6.12.
"Cash Collateral Release Date": the date on which financial
statements are delivered to the Lenders showing that the ratio of Consolidated
Total Debt to Consolidated Total Capitalization (without, in each case, giving
effect to any netting of amounts on deposit in the Cash Collateral Account on
such date) on the last day of the period covered by such financial statements
was less than 0.55 to 1.00.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or P-2
by Moody's Investors Service, Inc. ("Moody's"), or carrying an equivalent rating
by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; and (g) shares of money market mutual or similar
7
funds which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"Change of Control": the occurrence of any of the following
events: (i) there shall be consummated (A) any consolidation or merger of the
Borrower in which the Borrower is not the continuing or surviving corporation or
pursuant to which shares of the Borrower's common stock would be converted into
cash, securities or other property, other than a merger of the Borrower where a
majority of the Board of Directors of the surviving corporation are, and for a
two year period after the merger continue to be, persons who were directors of
the Borrower immediately prior to such merger or were elected as directors, or
nominated for election as directors, by a vote of at least two-thirds of the
directors then still in office who were directors of the Borrower immediately
prior to such merger, or (B) any sale, lease exchange or transfer (in one
transaction or a series of transactions) of all or substantially all of the
assets of the Borrower, unless, immediately following such sale, lease, exchange
or transfer, such assets are owned, directly or indirectly, by the Borrower or
one or more Subsidiaries of the Borrower; (ii) the shareholders of the Borrower
shall approve any plan or proposal for the liquidation or dissolution of the
Borrower; (iii) (A) any "person" as defined in the Exchange Act, other than the
Borrower or a Subsidiary or any employee benefit plan sponsored by the Borrower
or a Subsidiary, shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Borrower representing 50% or
more of the combined voting power of the Borrower's then outstanding securities
ordinarily (and apart from rights accruing in special circumstances) having the
right to vote in the election of directors, as a result of a tender or exchange
offer, open market purchases, privately negotiated purchases or otherwise, and
(B) at any time during a period of two consecutive years thereafter, individuals
who immediately prior to the beginning of such period constituted the Board of
Directors of the Borrower shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination by the Board of
Directors for election by the Borrower's shareholders of each new director
during such period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period; or (iv) a Specified Change of Control.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Documentation Agents": as defined in the preamble hereto.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": with respect to any Lender, each of the Tranche
A Term Loan Commitment, the Tranche B Term Loan Commitment and the Revolving
Credit Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
8
"Compliance Certificate": a certificate duly executed by a
Responsible Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated March 2002, as supplemented by the Information
Supplement to the Confidential Information Memorandum dated May 2002 (and
together with any other amendments or supplements thereto), in each case as
furnished to the initial Lenders in connection with the syndication of the
Additional Amounts and the amendment and restatement of the Original Credit
Agreement.
"Consent and Confirmation": the Consent and Confirmation to be
executed and delivered by each Loan Party other than the Borrower, substantially
in the form of Exhibit L, as the same may be amended, supplemented or otherwise
modified from time to time.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such period
plus, without duplication and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such period, the sum of (a) income
and franchise tax expense, (b) Consolidated Interest Expense of such Person and
its Subsidiaries, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation, depletion and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring expenses or losses (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of business)
and (f) any other non-cash charges, and minus, to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
interest income (except to the extent deducted in determining Consolidated
Interest Expense), (b) any extraordinary, unusual or non-recurring income or
gains (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (c) any other non-cash
income, all as determined on a consolidated basis; provided that for purposes of
calculating Consolidated EBITDA of the Borrower and its Subsidiaries for any
period (other than for purposes of Section 7.1(e)), (i) the Consolidated EBITDA
of any Person acquired by the Borrower or its Subsidiaries during such period
shall be included on a pro forma basis for such period (assuming the
consummation of such acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first day of such period)
if the consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated EBITDA
is to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent; and (ii) the Consolidated EBITDA of any
Person Disposed of by the Borrower or its Subsidiaries during such period shall
be excluded for such period (assuming the consummation of such Disposition and
the repayment of any Indebtedness in connection therewith occurred on the first
day of such period); provided further, that, for purposes of calculating the
Consolidated EBITDA
9
of the Borrower and its Subsidiaries for any period of four fiscal quarters of
the Borrower ending September 30, 2002, December 31, 2002 or March 31, 2003, the
Annualized Acquired Assets EBITDA for such period shall be included in such
Consolidated EBITDA.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries for
such period to (b) Consolidated Fixed Charges for such period; provided that,
for the purposes of this definition, Consolidated Fixed Charges for the periods
of four fiscal quarters of the Borrower ending September 30, 2002 December 31,
2002 and March 31, 2003 shall be deemed to equal the Annualized Fixed Charges
for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period, (b) provision for cash income and franchise taxes
made by the Borrower or any of its Subsidiaries on a consolidated basis in
respect of such period, (c) scheduled payments made during such period on
account of principal of Indebtedness of the Borrower or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans) and (d)
dividends paid by the Borrower in cash during such period in respect of Capital
Stock of the Borrower.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries for such
period to (b) Consolidated Interest Expense of the Borrower and its Subsidiaries
for such period; provided that, for the purposes of this definition,
Consolidated Interest Expense for the periods of four fiscal quarters of the
Borrower ending September 30, 2002 December 31, 2002 and March 31, 2003 shall be
deemed to equal the Annualized Interest Expense for such period.
"Consolidated Interest Expense": of any Person for any period,
total cash interest expense of such Person and its Subsidiaries for such period
with respect to all Indebtedness of such Person and its Subsidiaries (including,
without limitation, all commissions, discounts and other material fees and
charges owed by such Person with respect to letters of credit and bankers'
acceptance financing and net costs of such Person under Hedge Agreements (but
excluding hydrocarbon swaps or other similar agreements providing protection
against fluctuation of hydrocarbon prices) in respect of interest rates to the
extent such net costs are allocable to such period in accordance with GAAP).
Consolidated Interest Expense shall in any event include interest attributable
to Capital Lease Obligations of the Borrower and its Subsidiaries.
"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters of the Borrower, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA of the Borrower
and its Subsidiaries for such period.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the Borrower and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of the Borrower
or is merged into or consolidated with the Borrower or any of its Subsidiaries,
(b) the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the
10
Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Senior Debt": at any date, Consolidated Total
Debt on such date minus the aggregate principal amount of all Subordinated
Securities (other than, at any time when the aggregate principal amount of a
Seller Note is not included in the calculation of Consolidated Total Debt, such
Seller Note).
"Consolidated Senior Leverage Ratio": as at the last day of
any period of four consecutive fiscal quarters of the Borrower, the ratio of (a)
Consolidated Senior Debt on such day to (b) Consolidated EBITDA of the Borrower
and its Subsidiaries for such period.
"Consolidated Shareholders' Equity": as of any date of
determination, the consolidated total stockholders' equity of the Borrower and
its Consolidated Subsidiaries, determined in accordance with GAAP.
"Consolidated Total Capitalization": at any date, the sum of
(a) Consolidated Total Debt (including the aggregate stated face amount of the
Seller Notes on such date (including the amount of any capitalized interest
thereon), whether or not the Seller Note would be included in Consolidated Total
Debt pursuant to the terms of the definition of such term) and (b) Consolidated
Shareholders' Equity at such date.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis, net of any amounts on deposit in
the Cash Collateral Account on such day. Consolidated Total Debt shall in any
event exclude obligations of the Borrower and its Subsidiaries in respect of any
letters of credit issued in the ordinary course of business of the Borrower and
its Subsidiaries, other than any such letter of credit issued to support
Indebtedness or other obligations of any Person other than the Borrower or any
Subsidiary of the Borrower. For purposes of determining Consolidated Total Debt
on any date on which any Seller Note is outstanding, (i) the principal amount of
such Seller Note shall not be included in Consolidated Total Debt unless, on
such date, such Seller Note bears interest that is currently payable in cash and
(ii) on any date on which such Seller Note bears interest that is currently
payable in cash, the stated face amount of such Seller Note (including the
amount of any capitalized interest thereon) shall be included in Consolidated
Total Debt notwithstanding that a lesser amount might be included in accordance
with GAAP on the Borrower's consolidated balance sheet.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": as to any Person, any other
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such
11
Person and (b) is organized by such Person primarily for the purpose of making
equity or debt investments in one or more companies. For purposes of this
definition, "control" of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Delayed Draw Term Loan": each "Delayed Draw Term Loan" made
pursuant to Section 2.1(b) of the Original Credit Agreement.
"Derivatives Counterparty": as defined in Section 7.6.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States of
America.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirements (including, without limitation, common law) of any
international authority, foreign government, the United States, or any state,
local, municipal or other governmental authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of the
environment or of human health, or employee health and safety, as has been, is
now, or may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
approvals, registrations, notifications, exemptions and other authorizations
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day, the
aggregate (without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity
12
equal to such Interest Period, provided that, (i) if Reuters Screen FRBD is not
available to the Administrative Agent for any reason, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the applicable
British Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, and having a maturity equal to such Interest Period,
and (ii) if no such British Bankers' Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Eurodollar Base Rate for
the relevant Interest Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One, NA or one of its
Affiliate banks offers to place deposits in U.S. dollars with first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of Bank One, NA's relevant Eurodollar Loan (or if the amount of Bank One,
NA's relevant Eurodollar Loan is less than $10,000,000, in the amount of
$10,000,000) and having a maturity equal to such Interest Period.
"Eurodollar Loans": Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to a Eurodollar Loan for the
relevant Interest Period, the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the Eurocurrency
Reserve Requirement (expressed as a decimal) applicable to such Interest Period;
provided that, with respect to Tranche B Term Loans only, the "Eurodollar Rate"
for such Loans shall in no event be less than 3% for any Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) Consolidated EBITDA for such fiscal year minus (b) the
sum, without duplication, of (i) the aggregate amount of all regularly scheduled
principal payments and any optional prepayments of (x) Funded Debt (including,
without limitation, the Term Loans) and (y) other Indebtedness of the type
described in clause (b) of the definition thereof not to exceed $50,000,000 in
aggregate principal amount, in each case of the Borrower and its Subsidiaries
made during such fiscal year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), (ii) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such fiscal year on account of Capital
Expenditures (excluding (A) the principal amount of Indebtedness incurred in
connection with such expenditures, (B) any such expenditures financed with the
proceeds of any Reinvestment Deferred Amount and (C) any such expenditures
financed with the proceeds of any equity securities issued by the Borrower),
(iii) the aggregate amount actually paid by the Borrower and its Subsidiaries in
cash during such fiscal year on account of income and franchise taxes, (iv)
transaction costs, to the extent excluded from Consolidated EBITDA, related to
the Acquisition or the financing contemplated by this Agreement, (v) cash
interest expense during
13
such fiscal year, (vi) the aggregate amount of Restricted Payments actually paid
by the Borrower in cash during such fiscal year, as permitted by Section 7.6, in
respect of the Borrower's Capital Stock and (vii) the aggregate amount actually
paid by the Borrower and its Subsidiaries in cash during such period on account
of the costs and expenses associated with shutting down a refinery or a portion
thereof for maintenance and repair in the ordinary course of business, to the
extent that such costs and expenses (A) have been added to Consolidated Net
Income as a non-cash charge in determining Consolidated EBITDA for a prior
period or (B) will be amortized as non-cash charges in subsequent periods and
added to Consolidated Net Income in determining Consolidated EBITDA for such
subsequent periods.
"Excess Cash Flow Application Date": as defined in Section
2.10(c).
"Excess Cash Flow Percentage": with respect to any fiscal year
of the Borrower, 75%; provided, that, with respect to any fiscal year of the
Borrower ending on or after December 31, 2002, the Excess Cash Flow Percentage
shall be (a) 50% if the Consolidated Leverage Ratio as of the last day of such
fiscal year is not greater than 2.75 to 1.0 and (b) 25% if the Consolidated
Leverage Ratio as of the last day of such fiscal year is not greater than 2.25
to 1.0.
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in
respect of which either (a) the pledge of more than 66% of the Capital Stock of
such Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
"Excluded Subsidiary": any Subsidiary designated as such on
Schedule 4.15-2; provided that any such Subsidiary shall cease to be an
"Excluded Subsidiary" if (a) the aggregate book value of the assets of such
Subsidiary exceed 1% of the aggregate book value of the assets of the Borrower
and its Subsidiaries, taken as a whole, or (b) the Consolidated EBITDA of such
Subsidiary exceeds 1% of the Consolidated EBITDA of the Borrower and its
Subsidiaries taken as a whole.
"Existing Issuing Lender": Bank One, NA, as issuer of the
Existing Letters of Credit.
"Existing Letters of Credit": the letters of credit described
in Annex B.
"Existing Mortgaged Properties": the real properties listed on
Schedule 1.1A-1, as to which the Administrative Agent for the benefit of the
Lenders has been granted a Lien pursuant to one or more Existing Mortgages.
"Existing Mortgages": the mortgages or deeds of trust which
have been executed and delivered prior to the Restatement Date in accordance
with the Original Credit Agreement.
"Existing Revolving Credit Loans": the Revolving Credit Loans
made prior to the Restatement Date pursuant to the Original Credit Agreement.
"Existing Senior Subordinated Note Indentures": the collective
reference to the 1998 Senior Subordinated Note Indenture and the 2001 Senior
Subordinated Note Indenture.
14
"Existing Senior Subordinated Notes": the collective reference
to the 1998 Senior Subordinated Notes and the 2001 Senior Subordinated Notes.
"Existing Tranche A Term Loans": as defined in Section 2.1(a).
"Existing Tranche B Term Loans": as defined in Section 2.1(a).
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B Term Loans
made thereunder (the "Tranche B Term Loan Facility"), and (c) the Revolving
Credit Commitments and the extensions of credit made thereunder (the "Revolving
Credit Facility").
"Federal Funds Effective Rate": for any day, 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 on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by Bank One, NA from
three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Funded Debt": with respect to any Person, all Indebtedness of
such Person of the types described in clauses (a) through (e) of the definition
of "Indebtedness" in this Section.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement, dated as of September 6, 2001, executed and delivered by
the Borrower and each Subsidiary Guarantor in connection with the Original
Credit Agreement, a copy of which is attached as Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit), if to
induce the creation of such obligation of such other Person the guaranteeing
person has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any
15
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Hedge Agreements": all interest rate or currency swaps, caps
or collar agreements, foreign exchange agreements, commodity contracts,
hydrocarbon swaps or similar arrangements entered into by the Borrower or its
Subsidiaries providing for protection against fluctuations in interest rates,
currency exchange rates, or hydrocarbon prices or the exchange of nominal
interest obligations, either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), (e) all Capital Lease Obligations of
such Person, (f) all reimbursement obligations of such Person, contingent or
otherwise, as an account party under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i) for
the purposes of Sections 7.2 and 8(e) only, all obligations of the kind referred
to in clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on Property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, (j) for the purposes of Section 8(e) only,
all obligations of such Person in respect of Hedge Agreements, (k) the
liquidation value of any mandatorily redeemable preferred Capital Stock of such
Person or its Subsidiaries held by any Person other than such Person and its
Wholly Owned Subsidiaries and (l) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a
16
joint venturer, but only to the extent to which there is recourse to such Person
for the payment of such Indebtedness. Obligations of the Borrower and its
Subsidiaries to pay dues to Marine Spill Response Corporation in an aggregate
amount of up to $7,000,000 shall not be deemed to constitute Indebtedness.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents, patent
licenses, trademarks, trademark licenses, technology, know-how and processes,
and all rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the
first day of each April, July, October and January to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or shorter, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Credit Loan that is a
Base Rate Loan), the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
17
(ii) any Interest Period that would otherwise extend beyond
the Revolving Credit Termination Date or beyond the date final
payment is due on the Tranche A Term Loans or the Tranche B
Term Loans, as the case may be, shall end on the Revolving
Credit Termination Date or such due date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period.
"Investments": as defined in Section 7.7.
"Issuing Lender": the Existing Issuing Lender and any other
Revolving Credit Lender from time to time designated by the Borrower as an
Issuing Lender with the consent of such Revolving Credit Lender.
"L/C Commitment": $150,000,000.
"L/C Fee Payment Date": the first day of each April, July,
October and January and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such letter of Credit.
"Lehman Entity": any of Lehman Commercial Paper Inc. or any of
its affiliates (including Syndicated Loan Funding Trust).
"Lender Addendum": with respect to any Lender becoming party
to this Agreement on the Restatement Date (whether or not such Lender was also a
party to the Original Credit Agreement), a Lender Addendum, substantially in the
form of Exhibit J, to be executed and delivered by such Lender, the Borrower and
the Administrative Agent on the Restatement Date as provided in Section 10.18.
"Lender Consent": each Lender Consent pursuant to which
Lenders that are parties to the Original Credit Agreement consent in writing to
this Agreement.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference,
18
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Consent and Confirmation, the Applications and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower that is a party to a Loan Document.
"Majority Facility Lenders": at any time with respect to any
Facility, the holders of more than 50% of the sum of (a) the undrawn Commitments
under such Facility at such time, if any, and (b) the aggregate unpaid principal
amount of the Term Loans or the Total Revolving Extensions of Credit, as the
case may be, outstanding under such Facility.
"Marine Services Assets": the collective reference to the
assets of Tesoro Marine Services, LLC, the Capital Stock of Tesoro Marine
Services Holding Company and the membership interests of Tesoro Marine Services,
LLC.
"Material Adverse Effect": a material adverse effect on (a)
the Acquisition, (b) the business, assets, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
(c) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity, and any other substances or forces of any kind,
whether or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.
"Mortgaged Properties": the collective reference to the
Existing Mortgaged Properties and the New Mortgaged Properties.
"Mortgage Amendments": the collective reference to the
amendments amending each of the Existing Mortgages in form and substance
satisfactory to the Administrative Agent and its counsel.
"Mortgages": the Existing Mortgages (as modified by the
Mortgage Amendments), the New Mortgages and any other mortgages and deeds of
trust made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders, as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
19
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (b) in connection with any
issuance or sale of equity securities or debt securities or instruments or the
incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith and (c) in connection with any
Purchase Price Refund, the cash amount thereof, net of any expenses incurred in
the collection thereof.
"New Mortgaged Properties": the real properties listed on
Schedule 1.1A-2, as to which the Administrative Agent for the benefit of the
Lenders shall be granted a Lien pursuant to one or more New Mortgages.
"New Mortgages": each of (i) the mortgage to be executed and
delivered on the Restatement Date, substantially in the form of Exhibit D-1, and
(ii) any mortgages or deeds of trust executed and delivered after the
Restatement Date in accordance with Section 6.10(b), substantially in the form
of Exhibit D-2 (in either case, with such changes thereto as shall be advisable
under the law of the jurisdiction in which such mortgage or deed of trust is to
be recorded).
"New Senior Subordinated Note Indenture": the Indenture, dated
as of April 9, 2002 entered into by Tesoro Escrow Corp. and U.S. Bank, National
Association, as trustee, in connection with the issuance of the New Senior
Subordinated Notes, together with all instruments and other agreements entered
into by Tesoro Escrow Corp., the Borrower or its other Subsidiaries in
connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance herewith.
"New Senior Subordinated Notes": the $450,000,000 aggregate
principal amount of 9 5/8% Senior Subordinated Notes originally issued by Tesoro
Escrow Corp. and assumed by the Borrower due 2012 issued on April 9, 2002
pursuant to the New Senior Subordinated Note Indenture, and each exchange note
issued in exchange for, or replacement of, each of such originally issued notes.
"New Tranche B Term Loan": as defined in Section 2.23.
"New Tranche B Term Loan Borrowing Date": the date of
borrowing of New Tranche B Term Loans, which shall be notified by the Borrower
to the Administrative Agent in accordance with Section 2.3(b), and which date
shall be a Business Day on or within three
20
Business Days after the date on which New Tranche B Term Loan Commitments become
effective in accordance with Section 2.23.
"New Tranche B Term Loan Commitments": as defined in Section
2.23.
"New Tranche B Term Loan Percentage": as to any Tranche B Term
Loan Lender at any time that has a New Tranche B Term Loan Commitment, the
percentage which such Lender's New Tranche B Term Loan Commitment then
constitutes of the aggregate New Tranche B Term Loan Commitments (or, at any
time after the New Tranche B Term Loan Borrowing Date, the percentage which the
aggregate principal amount of such Lender's New Tranche B Term Loans then
outstanding constitutes of the aggregate principal amount of the New Tranche B
Term Loans then outstanding).
"1998 Senior Subordinated Note Indenture": the Indenture,
dated as of July 2, 1998, entered into by the Borrower, certain of its
Subsidiaries and U.S. Bank Corporate Trust Services, as trustee, in connection
with the issuance of the 1998 Senior Subordinated Notes, together with all
instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith, as the same may be amended, supplemented
or otherwise modified from time to time in accordance herewith.
"1998 Senior Subordinated Notes": the $300,000,000 aggregate
principal amount of 9% Senior Subordinated Notes of the Borrower due 2008 issued
on July 2, 1998 pursuant to the 1998 Senior Subordinated Note Indenture,
including, without duplication, the notes issued in exchange for, or as
replacements of such originally issued notes, and in each case permitted
refinancings pursuant to Section 7.2(c).
"Non-Excluded Taxes": as defined in Section 2.18(a).
"Non-U.S. Lender": as defined in Section 2.18(d).
"Note": any promissory note evidencing any Loan.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Loans and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any Subsidiary,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, the Reimbursement Obligations and all other
obligations and liabilities of the Borrower or any Subsidiary to the
Administrative Agent or to any Lender or any Qualified Counterparty, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any
Specified Hedge Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise; provided, that (i) obligations of the
Borrower or any Subsidiary under any Specified Hedge Agreement shall be secured
and guaranteed pursuant to the Security Documents only to the
21
extent that, and for so long as, the other Obligations are so secured and
guaranteed and (ii) any release of Collateral or Guarantors effected in the
manner permitted by this Agreement shall not require the consent of holders of
obligations under Specified Hedge Agreements.
"1Q", "2Q", "3Q", and "4Q": when used with a numerical year
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of the Borrower. (e.g., 2Q02 means the second
fiscal quarter of the Borrower's 2002 fiscal year, which ends June 30, 2002).
"Original Closing Date": the "Closing Date", as such term was
defined in the Original Credit Agreement.
"Original Credit Agreement": as defined in the recitals
hereto.
"Original Tranche A Term Loan Commitment": as to any Lender,
the collective reference to (i) the obligation of such Lender, if any, to make
Tranche A Term Loans to the Borrower pursuant to Section 2.1(a) of the Original
Credit Agreement and (ii) the obligation of such Lender, if any, to make Delayed
Draw Term Loans to the Borrower pursuant to Section 2.1(b) of the Original
Credit Agreement. The Original Tranche A Term Loan Commitments were fully drawn
on the Original Closing Date.
"Original Tranche B Term Loan Commitment": as to any Lender,
the obligation of such Lender, if any, to make Tranche B Term Loans to the
Borrower pursuant to Section 2.1(a) of the Original Credit Agreement. The
Original Tranche B Term Loan Commitments were fully drawn on the Original
Closing Date.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document, other than, in each case, any franchise tax or similar tax based
upon the income, capital, assets or other properties of any Lender.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by
the Administrative Agent as its payment office by notice to the Borrower and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature. For purposes of the definition of Consolidated EBITDA, "Person" shall
also include the "Acquired Assets" as such term is defined in the Original
Credit Agreement.
"Pipeline Assets": the "North Dakota Pipeline Assets" (as such
term is defined in the Original Credit Agreement) and the other crude oil or
refined product pipeline assets held by
22
Tesoro Alaska Pipeline Company, Tesoro High Plains Pipeline Company or any
Qualifying Special Purpose Subsidiary.
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prepayment Option Notice": as defined in Section 2.14(d).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Purchase Price Refund": any amount received by the Borrower
or any Subsidiary as a result of a purchase price adjustment or similar event
(for the avoidance of doubt, not including any adjustment in working capital) in
connection with any acquisition of Property by the Borrower or any Subsidiary.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
"Qualifying Special Purpose Subsidiary": any of Tesoro Alaska
Pipeline Company, Tesoro High Plains Pipeline Company or any other Subsidiary
(other than an Excluded Subsidiary or a Foreign Subsidiary) meeting the
requirements of Section 7.16.
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries.
"Register": as defined in Section 10.6(d).
"Regulation H": Regulation H of the Board as in effect from
time to time.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.
23
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or
Recovery Event in respect of which the Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Default or Event of Default has occurred and
is continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale, Purchase Price Refund or Recovery Event to
acquire (including through the purchase of all or substantially all of the
Capital Stock of another Person), construct, develop, improve or repair assets
useful in its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which the Borrower shall have determined
not to acquire (including through the purchase of all or substantially all of
the Capital Stock of another Person), construct, develop, improve or repair
assets useful in the Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender which is a fund
that invests in loans, any other fund that invests in loans that is managed by
the same investment advisor as such Lender or by an Affiliate of such Lender or
such investment advisor.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50%
of the sum of (a) the undrawn Commitments and (b) the aggregate unpaid principal
amount of the Term Loans and Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders
in respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
24
each case applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president,
chief operating officer, chief financial officer, general counsel, vice
president of finance, treasurer or controller of the Borrower, but in any event,
with respect to financial matters, the chief financial officer, vice president
of finance or treasurer of the Borrower.
"Restatement Date": date on which the conditions precedent set
forth in Section 5.1 shall have been satisfied, which date shall be not later
than May 31, 2002.
"Restricted Payments": as defined in Section 7.6.
"Retail Service Assets": any retail service station or related
convenience store or car wash facility together with associated real property
and equipment owned or leased by the Borrower or any Subsidiary.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The aggregate amount
of the Total Revolving Credit Commitments on the Restatement Date is
$225,000,000.
"Revolving Credit Commitment Period": the period from and
including the Original Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.6.
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments (or, at
any time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's Revolving
Extensions of Credit then outstanding constitutes of the amount of the Total
Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": September 6, 2006.
25
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding and
(b) such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, the Cash Collateral Account
Agreement and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"Seller": as defined in the recitals hereto.
"Seller Notes": the collective reference to the two Promissory
Notes, dated the Restatement Date, made by Tesoro in favor of the Seller in the
principal amounts of $100,000,000 and $50,000,000, respectively, and in the form
of Exhibits L and M, respectively, to the Acquisition Agreement.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Change of Control": a "Change of Control", or like
event, as defined in any Existing Senior Subordinated Note Indenture or the New
Senior Subordinated Note Indenture.
"Specified Equity Securities": common stock of the Borrower,
mandatorily convertible preferred stock of the Borrower which is convertible
within three years of issuance or any other high equity-content securities of
the Borrower approved by a majority of the Agents (which approval will not be
unreasonably withheld).
26
"Specified Hedge Agreement": any Hedge Agreement entered into
by (a) the Borrower or any of its Subsidiaries and (b) any Lender or any
affiliate thereof, as counterparty.
"Subordinated Securities": the Existing Senior Subordinated
Notes, the New Senior Subordinated Notes and the Seller Notes.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Excluded Subsidiary or Excluded Foreign Subsidiary.
"Supermajority Lenders": at any time, the holders of more than
66 2/3% of the sum of (a) the undrawn Commitments and (b) the aggregate unpaid
principal amount of the Term Loans and Revolving Extensions of Credit then
outstanding.
"Syndication Agent": as defined in the preamble hereto.
"Term Loan Facilities": the collective reference to the
Tranche A Term Loan Facility and the Tranche B Term Loan Facility.
"Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans and the Tranche B Term Loans.
"Term Note": as defined in Section 2.6.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Tranche A Term Loan Commitment": as to any Lender, the
collective reference to the Original Tranche A Term Loan Commitment of such
Lender, if any, and the Additional Tranche A Term Loan Commitment of such
Lender, if any.
"Tranche A Term Loan Facility": as defined in the definition
of "Facility" in this Section 1.1.
27
"Tranche A Term Loan Lender": each Lender that has an
Additional Tranche A Term Loan Commitment or is the holder of a Tranche A Term
Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term
Loan Lender at any time, the percentage which the aggregate principal amount of
such Lender's Tranche A Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche A Term Loans then outstanding.
"Tranche A Term Loans": the collective reference to the
Existing Tranche A Term Loans, the Delayed Draw Term Loans made under the
Original Credit Agreement continued as Tranche A Term Loans hereunder in
accordance with Section 2.1(a), and the Additional Tranche A Term Loans.
"Tranche B Term Loan Commitment": as to any Lender, the
collective reference to the Original Tranche B Term Loan Commitment of such
Lender, if any, the Additional Tranche B Term Loan Commitment of such Lender, if
any, and any New Tranche B Term Loan Commitment of such Lender.
"Tranche B Term Loan Facility": as defined in the definition
of "Facility" in this Section 1.1.
"Tranche B Term Loan Lender": each Lender that has an
Additional Tranche B Term Loan Commitment or a New Tranche B Term Loan
Commitment or is the holder of a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term
Loan Lender at any time, the percentage which the aggregate principal amount of
such Lender's Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding.
"Tranche B Term Loans": the collective reference to the
Existing Tranche B Term Loans, the Additional Tranche B Term Loans and any New
Tranche B Term Loans.
"Transferee": as defined in Section 10.15.
"2001 Senior Subordinated Note Indenture": the Indenture,
dated as of November 6, 2001, entered into by the Borrower, certain of its
Subsidiaries and U.S. Bank Trust National Association, as trustee, in connection
with the issuance of the 2001 Senior Subordinated Notes, together with all
instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith, as the same may be amended, supplemented
or otherwise modified from time to time in accordance herewith.
"2001 Senior Subordinated Notes": the $215,000,000 aggregate
principal amount of 9 5/8% Senior Subordinated Notes of the Borrower due 2008
issued on November 6, 2001 pursuant to the 2001 Senior Subordinated Note
Indenture, including, without duplication, the notes issued in exchange for, or
as replacement of, such originally issued notes, and in each case, permitted
refinancings pursuant to Section 7.2(c).
28
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section
7.1 and the calculation of the Consolidated Leverage Ratio for purposes of
determining the Applicable Margin shall be calculated to the same number of
decimal places as the relevant ratios are expressed in and shall be rounded
upward if the number in the decimal place immediately following the last
calculated decimal place is five or greater. For example, if the relevant ratio
is to be calculated to the hundredth decimal place and the calculation of the
ratio is 5.126, the ratio will be rounded up to 5.13.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Existing Term Loans; Additional Term Loan Commitments. (a)
All Tranche A Term Loans and Tranche B Term Loans outstanding under the Original
Credit Agreement (the "Existing Tranche A Term Loans" and "Existing Tranche B
Term Loans", respectively) shall remain outstanding hereunder on the terms set
forth herein. The Delayed Draw Term Loans outstanding under the Original Credit
Agreement shall remain outstanding hereunder as Tranche A Term Loans on the
terms set forth herein with respect to Tranche A Term Loans.
(b) Subject to the terms and conditions hereof, (i) the
Tranche A Term Loan Lenders severally agree to make term loans (each, an
"Additional Tranche A Term Loan") to the Borrower on the Restatement Date in an
aggregate amount for each Tranche A Term Loan Lender not to exceed the amount of
the Additional Tranche A Term Loan Commitment, if any,
29
of such Lender, and (ii) the Tranche B Term Loan Lenders severally agree to make
term loans (each, an "Additional Tranche B Term Loan") to the Borrower on the
Restatement Date in an aggregate amount for each Tranche B Term Loan Lender not
to exceed the amount of the Additional Tranche B Term Loan Commitment, if any,
of such Lender.
(c) The Term Loans may from time to time be Eurodollar Loans
or Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.11.
2.2 Procedure for Term Loan Borrowing. (a) Additional Term
Loans. The Borrower shall deliver to the Administrative Agent a Borrowing Notice
(which notice must be received by the Administrative Agent prior to 11:00 A.M.,
Chicago time, (x) three Business Days prior to the anticipated Restatement Date,
in the case of Eurodollar Loans, or (y) one business day prior to the
anticipated Restatement Date, in the case of Base Rate Loans) requesting that
the Tranche A Term Loan Lenders that have Additional Tranche A Term Loan
Commitments make Additional Tranche A Term Loans and the Tranche B Term Loan
Lenders that have Additional Tranche B Term Loan Commitments make Additional
Tranche B Term Loans, in each case on the Restatement Date. The Additional
Tranche B Term Loans made on the Restatement Date shall initially be Base Rate
Loans, and no Additional Tranche B Term Loan may be converted into a Eurodollar
Loan prior to the date which is 15 business days after the Restatement Date.
Upon receipt of such Borrowing Notice the Administrative Agent shall promptly
notify each relevant Tranche A Term Loan Lender and Tranche B Term Loan Lender
thereof. Not later than 1:00 P.M., Chicago time, on the Restatement Date (i)
each Tranche A Term Loan Lender that has an Additional Tranche A Term Loan
Commitment shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Additional Tranche
A Term Loan to be made by such Lender on the Restatement Date and (ii) each
Tranche B Term Loan Lender that has an Additional Tranche B Loan Commitment
shall make available to the Administrative Agent at the Funding Office an amount
in immediately available funds equal to the Additional Tranche B Term Loan to be
made by such Lender on the Restatement Date. The Administrative Agent shall make
available to the Borrower the aggregate of such amounts made available to the
Administrative Agent by the Tranche A Term Loan Lenders and the Tranche B Term
Loan Lenders in like funds as received by the Administrative Agent.
(b) New Tranche B Term Loans. If New Tranche B Term Loan
Commitments are made available pursuant to Section 2.23, the Borrower may borrow
under the New Tranche B Term Loan Commitments in accordance with Section 2.23,
provided that Borrower shall deliver to the Administrative Agent a Borrowing
Notice (which notice must be received by the Administrative Agent prior to 11:00
A.M., Chicago time, (x) three Business Days prior to the anticipated Tranche B
Term Loan Borrowing Date, in the case of Eurodollar Loans, or (y) one business
day prior to the anticipated Tranche B Term Loan Borrowing Date, in the case of
Base Rate Loans) requesting that each Tranche B Term Loan Lender with a New
Tranche B Term Loan Commitment make a New Tranche B Term Loan on the New Tranche
B Term Loan Borrowing Date. Upon receipt of such Borrowing Notice the
Administrative Agent shall promptly notify each relevant Tranche B Term Loan
Lender thereof. Not later than 1:00 P.M., Chicago time, on the New Tranche B
Term Loan Borrowing Date, each Tranche B Term Loan Lender that has a New Tranche
B Loan Commitment shall make available to the Administrative
30
Agent at the Funding Office an amount in immediately available funds equal to
the New Tranche B Term Loan to be made by such Lender on such date. The
Administrative Agent shall make available to the Borrower the aggregate of such
amounts made available to the Administrative Agent by the relevant Tranche B
Term Loan Lenders in like funds as received by the Administrative Agent.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of
each Tranche A Term Loan Lender shall mature in 19 remaining consecutive
quarterly installments, each of which shall be in an amount equal to such
Lender's Tranche A Term Loan Percentage multiplied by the percentage set forth
below opposite such installment of the aggregate principal amount of Tranche A
Term Loans outstanding on the Restatement Date (including the Additional Tranche
A Term Loans made on the Restatement Date and the Delayed Draw Term Loans
continued as Tranche A Term Loans hereunder) (provided, that the installment
payable on June 30, 2002 shall be increased by an amount (the "Make-Up Tranche A
Payment Amount"), equal to 3.75% of the aggregate principal amount of Tranche A
Term Loans made on the Restatement Date, and the aggregate amount of such
installment shall be allocated among the Tranche A Term Loan Lenders such that
each Tranche A Term Loan Lender shall receive an amount equal to the sum of (A)
the amount of the installment such Tranche A Lender would have received on such
date under the Original Credit Agreement in respect of the Existing Tranche A
Term Loans and Delayed Draw Term Loans plus (B) such Tranche A Term Loan
Lender's Additional Tranche A Term Loan Percentage of the Make-up Tranche A
Payment Amount):
<Table>
<Caption>
Installment Percentage
----------- ----------
June 30, 2002 3.75%
September 30, 2002 3.75
December 31, 2002 3.75
March 31, 2003 5.00
June 30, 2003 5.00
September 30, 2003 5.00
December 31, 2003 5.00
March 31, 2004 5.00
June 30, 2004 5.00
September 30, 2004 5.00
December 31, 2004 5.00
March 31, 2005 5.00
June 30, 2005 5.00
September 30, 2005 5.00
December 31, 2005 5.00
March 31, 2006 6.25
June 30, 2006 6.25
September 30, 2006 6.25
December 31, 2006 6.25
</Table>
(b) The Tranche B Term Loan of each Tranche B Term Loan Lender
shall mature in 23 remaining consecutive quarterly installments, each of which
shall be in an amount equal to such Lender's Tranche B Term Loan Percentage
multiplied by the percentage set forth below opposite such installment of the
sum of the aggregate principal amount of the Tranche B Term Loans outstanding on
the Restatement Date (including the Additional Tranche B Term Loans
31
made on the Restatement Date) plus the aggregate principal amount of any New
Tranche B Term Loans made since the Restatement Date (provided that (i) the
installment payable on June 30, 2002 shall be increased by an amount (the
"Additional Tranche B Payment Amount"), equal to 0.25% of the aggregate
principal amount of Tranche B Term Loans made on the Restatement Date, and the
aggregate amount of such installment shall be allocated among the Tranche B Term
Loan Lenders such that each Tranche B Term Loan Lender shall receive an amount
equal to the sum of (A) the amount of the installment such Tranche B Lender
would have received on such date under the Original Credit Agreement in respect
of the Existing Tranche B Term Loans plus (B) such Tranche B Term Loan Lender's
Additional Tranche B Term Loan Percentage of the Additional Tranche B Payment
Amount and (ii) the installment payable on the first quarterly date listed above
after any New Tranche B Term Loan Borrowing Date shall be increased by an amount
(the "New Tranche B Payment Amount"), equal to the product of (x) 0.25% of the
aggregate principal amount of New Tranche B Term Loans made on such New Tranche
B Term Loan Borrowing Date multiplied by (y) the number of previous installments
of principal of the Tranche B Term Loans paid since the Original Closing Date
pursuant to this Section 2.3 and Section 2.3 of the Original Credit Agreement,
and the aggregate amount of such installment shall be allocated among the
Tranche B Term Loan Lenders such that each Tranche B Term Loan Lender shall
receive an amount equal to the sum of (A) the amount of the installment such
Tranche B Lender would have received on such date if no New Tranche B Term Loans
had been made since the date of the last such installment plus (B) such Tranche
B Term Loan Lender's New Tranche B Term Loan Percentage of the New Tranche B
Payment Amount):
<Table>
<Caption>
Installment Percentage
----------- ----------
June 30, 2002 0.25%
September 30, 2002 0.25
December 31, 2002 0.25
March 31, 2003 0.25
June 30, 2003 0.25
September 30, 2003 0.25
December 31, 2003 0.25
March 31, 2004 0.25
June 30, 2004 0.25
September 30, 2004 0.25
December 31, 2004 0.25
March 31, 2005 0.25
June 30, 2005 0.25
September 30, 2005 0.25
December 31, 2005 0.25
March 31, 2006 0.25
June 30, 2006 0.25
September 30, 2006 0.25
December 31, 2006 0.25
March 31, 2007 23.75
June 30, 2007 23.75
September 30, 2007 23.75
December 31, 2007 23.75
</Table>
32
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, provided that the Borrower shall deliver to
the Administrative Agent a Borrowing Notice (which Borrowing Notice must be
received by the Administrative Agent prior to 11:00 A.M., Chicago time, (a)
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) on the requested Borrowing Date, in the case of Base
Rate Loans). Each borrowing of Revolving Credit Loans under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans,
$1,000,000 or a whole multiple thereof (or, if the then aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such Borrowing Notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Credit
Lender thereof. Each Revolving Credit Lender will make its Revolving Credit
Percentage of the amount of each borrowing of Revolving Credit Loans available
to the Administrative Agent for the account of the Borrower at the Funding
Office prior to 1:00 P.M., Chicago time (in the case of a Borrowing of Base Rate
Loans in respect of which notice of such borrowing is given on such Borrowing
Date) or 11:00 A.M., Chicago time (in the case of any other borrowing), on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent in like funds as received by the Administrative
Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Credit Lender or Term Loan Lender, as the
case may be, (i) the then unpaid principal amount of each Revolving Credit Loan
of such Revolving Credit Lender on the Revolving Credit Termination Date (or on
such earlier date on which the Loans become due and payable pursuant to Section
8) and (ii) the principal amount of each Term Loan of such Term Loan Lender in
installments according to the amortization schedule set forth in Section 2.3 (or
on such earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time
33
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence (in the absence of manifest error) of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will promptly execute and
deliver to such Lender a promissory note of the Borrower evidencing any Term
Loans or Revolving Credit Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit G-1 or G-2, respectively (a "Term Note" or
"Revolving Credit Note", respectively), with appropriate insertions as to date
and principal amount; provided, that delivery of Notes shall not be a condition
precedent to the occurrence of the Restatement Date or the making of the Loans
on the Restatement Date.
2.7 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Original Closing Date to
the last day of the Revolving Credit Commitment Period, computed at the rate of
0.50% per annum on the average daily amount of the Available Revolving Credit
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the first day of each April, July, October and January
and on the Revolving Credit Termination Date, commencing on the first of such
dates to occur after the date hereof. All accrued and unpaid commitment fees
under Section 2.7(a) of the Original Credit Agreement shall be payable on the
Restatement Date.
(b) The Borrower agrees to pay to the Syndication Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Syndication Agent.
34
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Borrower and the Administrative Agent.
(d) The Borrower agrees to pay to the Arranger the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the
Arranger.
2.8 Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate any of the Commitments or, from
time to time, to reduce the aggregate amount of any of the Commitments; provided
that no such termination or reduction of Revolving Credit Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Credit Commitments. Any
such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Credit Commitments then in
effect.
2.9 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of Base Rate Loans, which notice
shall specify the date and amount of such prepayment, whether such prepayment is
of Term Loans or Revolving Credit Loans, and whether such prepayment is of
Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.19.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein, together
with (except in the case of Revolving Credit Loans that are Base Rate Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of Term
Loans and Revolving Credit Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof.
2.10 Mandatory Prepayments. (a) Unless the Required Prepayment
Lenders shall otherwise agree, if any Capital Stock shall be issued (other than
(x) Capital Stock issued as consideration for the acquisition by the Borrower or
its Subsidiaries of assets (including Capital Stock of another Person), (y)
Capital Stock the proceeds of which are used within 60 days to finance the
acquisition by the Borrower or any of its Subsidiaries of assets (including
Capital Stock of another Person) or (z) Specified Equity Securities issued on or
prior to December 31, 2002, to the extent the proceeds thereof are used as
required by Section 6.12), or Indebtedness incurred, by the Borrower or any of
its Subsidiaries (excluding any Indebtedness incurred in accordance with Section
7.2(a)-(f) and (h)-(k) as in effect on the date of this Agreement), then on the
date of such issuance or incurrence, the Loans shall be prepaid by an amount
equal to the amount of the Net Cash Proceeds of such issuance or incurrence, as
set forth in Section 2.10(e). The provisions of this Section do not constitute a
consent to the issuance of any equity securities by any entity whose equity
securities are pledged pursuant to the Guarantee and Collateral Agreement, or a
consent to the incurrence of any Indebtedness by the Borrower or any of its
35
Subsidiaries not permitted by Section 7.2, or a consent to any Investment not
permitted by Section 7.7.
(b) The Loans shall be prepaid with the Net Cash Proceeds of
any Asset Sale or issuance of Specified Equity Securities consummated on or
prior to December 31, 2002, to the extent required by Section 6.12, such
prepayment to occur within one Business Day after the date of receipt by the
Borrower or any of its Subsidiaries of proceeds from such Asset Sale or
issuance, as set forth in Section 2.10(e).
(c) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale (other than any Asset Sale consummated on or
prior to December 31, 2002, to the extent the proceeds thereof are used as
required by Section 6.12), Purchase Price Refund or Recovery Event then, unless
a Reinvestment Notice shall be delivered in respect thereof promptly, but in no
event later than five days from the date of receipt by the Borrower of such Net
Cash Proceeds (provided that in the case of an Asset Sale which yields gross
proceeds less than $1,000,000, any Reinvestment Notice may be delivered at any
time within 90 days after the date of receipt by the Borrower of such Net Cash
Proceeds), the Loans shall be prepaid by an amount equal to the amount of such
Net Cash Proceeds, as set forth in Section 2.10(e); provided, on each
Reinvestment Prepayment Date the Loans shall be prepaid by an amount equal to
the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event, as set forth in Section 2.10(e). The provisions of this Section do not
constitute a consent to the consummation of any Disposition not permitted by
Section 7.5.
(d) Unless the Required Prepayment Lenders shall otherwise
agree, if, for any fiscal year of the Borrower commencing with the fiscal year
ending December 31, 2002, there shall be Excess Cash Flow, then, on the relevant
Excess Cash Flow Application Date, the Loans shall be prepaid by an amount equal
to the Excess Cash Flow Percentage of such Excess Cash Flow, as set forth in
Section 2.10(e). Each such prepayment shall be made on a date (an "Excess Cash
Flow Application Date") no later than five days after the earlier of (i) the
date on which the financial statements of the Borrower referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial
statements are actually delivered.
(e) Amounts to be applied in connection with prepayments made
pursuant to paragraphs (a), (c) and (d) of this Section shall be applied, first,
to the prepayment of the Term Loans and, second, to the prepayment of the
Revolving Credit Loans (such prepayment of Revolving Credit Loans not being
accompanied by an automatic reduction of the Revolving Credit Commitments).
Amounts to be applied in connection with prepayments made pursuant to paragraph
(b) of this Section shall be applied 50% to the prepayment of the Term Loans and
50% to the prepayment of the Revolving Credit Loans (such prepayment of
Revolving Credit Loans not being accompanied by an automatic reduction of
Revolving Credit Commitments), and any amounts remaining after repayment in full
of outstanding Revolving Credit Loans shall be applied as set forth in Section
6.12.
2.11 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving
the Administrative Agent
36
at least one Business Day prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may be made only on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period therefor),
provided that no Base Rate Loan under a particular Facility may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing or (ii) after the date that is one month prior to the final scheduled
termination or maturity date of such Facility. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as
such upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has, or the Majority Facility Lenders in respect of
such Facility have, determined in its or their sole discretion not to permit
such continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso, such Loans shall be converted automatically to Base Rate
Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.12 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans and all selections of Interest Periods shall be in such amounts and be
made pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any
one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Base Rate in effect for
such day plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum that is equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate
37
applicable to Base Rate Loans under the Revolving Credit Facility plus 2%, and
(ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
then applicable to Base Rate Loans under the relevant Facility plus 2% (or, in
the case of any such other amounts that do not relate to a particular Facility,
the rate then applicable to Base Rate Loans under the Revolving Credit Facility
plus 2%), in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (after as well as
before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
38
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee or Letter of Credit fee, and any reduction of the
Commitments of the Lenders, shall be made pro rata according to the respective
Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving
Credit Percentages, as the case may be, of the relevant Lenders; provided that
(i) the borrowing of the Additional Tranche A Term Loans and the Additional
Tranche B Term Loans shall be made by the Lenders with Additional Tranche A Term
Loan Commitments or Additional Tranche B Term Loan Commitments, as the case may
be, according to the respective Additional Tranche A Term Loan Percentages or
Additional Tranche B Term Loan Percentages, as the case may be, of such Lenders
and (ii) any borrowing of New Tranche B Term Loans shall be made by the Lenders
with New Tranche B Term Loan Commitments pro rata in accordance with the
respective New Tranche B Term Loan Percentages of such Lenders. Each payment
(other than prepayments) in respect of principal or interest in respect of the
Term Loans and each payment in respect of fees payable hereunder shall be
applied to the amounts of such obligations owing to the Lenders pro rata
according to the respective amounts then due and owing to the Lenders.
(b) Subject to Section 2.16(d), each mandatory prepayment
required by Section 2.10 to be applied to Term Loans shall be allocated among
the Term Loan Facilities pro rata according to the respective outstanding
principal amounts of Term Loans under such Facilities. Each optional prepayment
in respect of the Term Loans shall be allocated among the Term Loan Facilities
pro rata according to the respective outstanding principal amounts of Term Loans
under such Facilities. Each payment (including each prepayment) of the Term
Loans outstanding under any Term Loan Facility shall be allocated among the Term
Loan Lenders holding such Term Loans pro rata based on the principal amount of
such Term Loans held by such Term Loan Lenders, and shall be applied to the
installments of such Term Loans pro rata based on the remaining outstanding
principal amount of such installments. Amounts prepaid on account of the Term
Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in respect of any Letter of Credit shall
be made to the Issuing Lender that issued such Letters of Credit.
39
(d) Notwithstanding anything to the contrary in Sections 2.9,
2.10 or 2.16(b), so long as any Tranche A Term Loans are outstanding, each
Tranche B Term Loan Lender may, at its option, decline up to 100% of the portion
of any optional prepayment or mandatory payment applicable to the Tranche B Term
Loans of such Lender; accordingly, with respect to the amount of any optional
prepayment described in Section 2.9 or mandatory prepayment described in Section
2.10 that is allocated to Tranche B Term Loans (such amounts, respectively, the
"Optional Prepayment Amount" and the "Mandatory Prepayment Amount"), at any time
when Tranche A Term Loans remain outstanding, the Borrower will:
(i) in the case of any optional prepayment of the Tranche B
Term Loans which the Borrower wishes to make, not later than
10 Business Days prior to the date on which the Borrower
wishes to make such optional prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in
writing) requesting that the Administrative Agent prepare and
provide to each Tranche B Term Loan Lender a notice (each, a
"Prepayment Option Notice") as described below; and
(ii) in the case of any mandatory prepayment required to be
made pursuant to Section 2.10, on the date specified in
Section 2.10 for such prepayment, (A) give the Administrative
Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide
to each Tranche B Term Loan Lender a Prepayment Option Notice
as described below and (B) deposit with the Administrative
Agent the Mandatory Prepayment Amount.
As promptly as practicable after receiving such notice from
the Borrower, the Administrative Agent will send to each Tranche B Term Loan
Lender a Prepayment Option Notice, which shall be substantially in the form of
Exhibit H, and shall include an offer by the Borrower to prepay on the
Prepayment Date the Tranche B Term Loans of such Lender by an amount equal to
the portion of the Optional Prepayment Amount or Mandatory Prepayment Amount, as
the case may be, indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans. The "Prepayment Date" in
respect of any Prepayment Option Notice shall be the date which is (i) in the
case of a Prepayment Option Notice relating to an optional prepayment, the later
of (A) five Business Days after the date of such Prepayment Option Notice and
(B) the date on which the Borrower has advised the Administrative Agent that it
wishes to make such optional prepayment and (ii) in the case of a Prepayment
Option Notice relating to a mandatory prepayment, the date which is five
Business Days after the date of such Prepayment Option Notice.
On the Prepayment Date:
(i) in the case of any optional prepayment, the Borrower shall
pay to the Administrative Agent the Optional Prepayment
Amount, and the Administrative Agent shall (A) apply the
Optional Prepayment toward prepayment of the outstanding
Tranche B Term Loans in respect of which Lenders have accepted
optional prepayment as described above and (B) apply the
remaining portion of the Optional Prepayment Amount not
accepted by the Tranche B Term Loan Lenders toward prepayment
of the Tranche A Term Loans; and
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(ii) in the case of any mandatory prepayment, the
Administrative Agent shall (A) apply the Mandatory Prepayment
Amount toward prepayment of the outstanding Tranche B Term
Loans in respect of which Lenders have accepted mandatory
prepayment as described above and (B) apply the remaining
portion of the Mandatory Prepayment Amount not accepted by the
Tranche B Term Loan Lenders toward prepayment of the Tranche A
Term Loans.
(e) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
Rate Loans under such Facility and, second, to Eurodollar Loans under such
Facility. Each payment of the Loans (except in the case of Revolving Credit
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 1:00 P.M., Chicago time, on the due date thereof to the Administrative Agent,
for the account of the relevant Lenders, at the Payment Office, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(g) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
after such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment due to be made by
the Borrower hereunder that the
41
Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days after such due date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.17 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the
basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.18
and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of
credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking
42
into consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Borrower (with a copy to
the Administrative Agent) of a written request therefor, the Borrower shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such corporation for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or any Other
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph (a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as
43
a result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit I and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
2.19 Indemnity. The Borrower agrees to indemnify each Lender
for, and to hold each Lender harmless from, any loss or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment or conversion of
Eurodollar Loans on a day that is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period
44
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.17,
2.18(a) or 2.20 with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the rights of
any Lender pursuant to Section 2.17, 2.18(a) or 2.20.
2.22 Revolving Credit Commitment Increases. (a) In the event
that the Borrower wishes to increase the aggregate Revolving Credit Commitments
at any time that no Default or Event of Default has occurred and is continuing,
it shall notify the Administrative Agent and the Syndication Agent in writing of
the amount (the "Offered Increase Amount") of such proposed increase (such
notice, a "Revolving Credit Commitment Increase Notice"). The Borrower may, at
its election, (i) offer one or more of the Lenders the opportunity to
participate in all or a portion of the Offered Increase Amount pursuant to
paragraph (b) below and/or (ii) with the consent of each Issuing Lender (which
consents shall not be unreasonably withheld), offer one or more additional
banks, financial institutions or other entities the opportunity to participate
in all or a portion of the Offered Increase Amount pursuant to paragraph (b)
below. Each Revolving Credit Commitment Increase Notice shall specify which
Lenders and/or banks, financial institutions or other entities the Borrower
desires to participate in such commitment
45
increase. The Borrower or, if requested by the Borrower, the Syndication Agent
will notify such Lenders and/or banks, financial institutions or other entities
of such offer.
(b) Any additional bank, financial institution or other entity
which the Borrower selects to offer participation in the increased Revolving
Credit Commitments and which elects to become a party to this Agreement and
obtain a Revolving Credit Commitment in an amount so offered and accepted by it
pursuant to Section 2.22(a)(ii) shall execute a New Revolving Credit Lender
Supplement with the Borrower, the Administrative Agent and the Syndication
Agent, substantially in the form of Exhibit N, whereupon such bank, financial
institution or other entity (herein called a "New Revolving Credit Lender")
shall become a Lender for all purposes and to the same extent as if originally a
party hereto and shall be bound by and entitled to the benefits of this
Agreement, provided that the Revolving Credit Commitment of any such new Lender
shall be in an amount not less than $5,000,000. Any Lender which accepts an
offer to it by the Borrower to increase its Revolving Credit Commitment pursuant
to Section 2.22(a)(i) shall, in each case, execute a Revolving Credit Commitment
Increase Supplement with the Borrower, the Administrative Agent and the
Syndication Agent, substantially in the form of Exhibit O, whereupon such Lender
shall be bound by and entitled to the benefits of this Agreement with respect to
the full amount of its Revolving Credit Commitment as so increased. The
effectiveness of any new Revolving Credit Commitment agreed to pursuant to a New
Revolving Credit Lender Supplement or a Revolving Credit Commitment Increase
Supplement executed pursuant to this paragraph (b) shall be subject to the
condition that the Administrative Agent shall have received such legal opinions
and other documents from the Borrower and its counsel with respect to the
Revolving Credit Commitment increase as the Administrative Agent shall have
reasonably requested.
(c) If any bank, financial institution or other entity becomes
a New Revolving Credit Lender or any Lender's Revolving Credit Commitment is
increased pursuant to Section 2.22(b), additional Revolving Credit Loans made on
or after the effectiveness thereof (the "Re-Allocation Date") shall be made pro
rata based on the Revolving Credit Percentages in effect on and after such
Re-Allocation Date. In the event that on any such Re-Allocation Date there are
Revolving Credit Loans outstanding, the Borrower shall make prepayments thereof
and borrowings of Revolving Credit Loans so that, after giving effect thereto,
such outstanding Revolving Credit Loans are held pro rata based on such new
Revolving Credit Percentages.
(d) Notwithstanding anything to the contrary in this Section
2.22, (i) in no event shall any transaction effected pursuant to this Section
2.22 increase the aggregate amount of the Revolving Credit Commitments by more
than $50,000,000 in the aggregate, (ii) the Borrower may not increase the
Revolving Credit Commitments pursuant to this Section 2.22 if it has elected to
incur New Tranche B Term Loans in accordance with Section 2.23 and (iii) no
Lender shall have any obligation to increase its Revolving Credit Commitment
unless it agrees to do so in its sole discretion.
2.23 Tranche B Term Loan Commitment Increases. (a) The
Borrower at its option may incur additional Tranche B Term Loans in the
aggregate amount of $50,000,000 (the "New Tranche B Term Loans") at any time
that no Default or Event of Default has occurred and is continuing, if one or
more existing Lenders and/or any additional bank, financial institution or other
entity is willing to make such Tranche B Term Loans in accordance with the terms
of this
46
Section 2.23. In such case the Borrower shall notify the Administrative Agent
and the Syndication Agent in writing of the existing Lender(s) and/or additional
entity that will be committing to make such additional Tranche B Term Loans (any
such commitment, a "New Tranche B Term Loan Commitment").
(b) Any bank, financial institution or other entity which is
to have a New Tranche B Term Loan Commitment (including any existing Lender)
shall execute a New Tranche B Term Loan Lender Supplement with the Borrower, the
Administrative Agent and the Syndication Agent, substantially in the form of
Exhibit P, whereupon such bank, financial institution or other entity, if
already a Lender, shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its New Tranche B Term Loan
Commitment as so increased, or, if not already a Lender, shall become a Lender
for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement. The
effectiveness of any New Tranche B Term Loan Commitment agreed to pursuant to a
New Tranche B Term Loan Lender Supplement executed pursuant to this paragraph
(b) shall be subject to the condition that the Administrative Agent shall have
received such legal opinions and other documents from the Borrower and its
counsel with respect to the incurrence of the New Tranche B Term Loans as the
Administrative Agent shall have reasonably requested.
(c) Notwithstanding anything to the contrary in this Section
2.23, (i) the Borrower shall be permitted to incur New Tranche B Term Loans
pursuant to this Section 2.23 on only one occasion, (ii) the Borrower shall not
be permitted to incur New Tranche B Term Loans pursuant to this Section 2.23 if
it has exercised its option to increase the Revolving Credit Commitments
pursuant to Section 2.22 and (iii) no Lender shall have any obligation to make
any New Tranche B Term Loan unless it agrees to do so in its sole discretion.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Prior to the Original Closing Date,
the Existing Issuing Lender has issued the Existing Letters of Credit which,
from and after the Original Closing Date, shall constitute Letters of Credit
hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Revolving Credit Lenders set forth in
Section 3.4(a), agrees to issue letters of credit (the letters of credit issued
on and after the Original Closing Date pursuant to this Section 3, together with
the Existing Letters of Credit, collectively, the "Letters of Credit") for the
account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by such
Issuing Lender; provided, that no Issuing Lender shall have any obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Credit Commitments would be less than zero. Each Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Revolving Credit Termination Date
(unless in the case of this clause (y), the Borrower fully cash collateralizes
such Letter of Credit in a manner satisfactory to such Issuing Lender and the
Administrative Agent, in which case the expiration date of such Letter of Credit
shall be no later than 364 days after the Revolving Credit Termination Date);
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for
47
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, an Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such Issuing Lender and the Borrower
(but in no event shall any Issuing Lender be required to issue any Letter of
Credit earlier than one Business Day after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto). Promptly after issuance by an Issuing Lender of a
Letter of Credit, such Issuing Lender shall furnish a copy of such Letter of
Credit to the Borrower. Each Issuing Lender shall promptly give notice to the
Administrative Agent of the issuance of each Letter of Credit issued by such
Issuing Lender (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on
the aggregate drawable amount of all outstanding Letters of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility (less the percentage per
annum at which the Fronting Fee is paid in respect of such Letter of Credit),
shared ratably among the Revolving Credit Lenders in accordance with their
respective Revolving Credit Percentages in effect on each day in respect of
which such fee accrues and payable quarterly in arrears on each L/C Fee Payment
Date after the issuance date. In addition, the Borrower shall pay to the
relevant Issuing Lender for its own account a fronting fee (the "Fronting Fee")
on the aggregate drawable amount of all outstanding Letters of Credit issued by
it calculated at a rate per annum equal to 0.25%, payable quarterly in arrears
on each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse each Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
each Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in each Issuing Lender's obligations
and rights under
48
each Letter of Credit issued by such Issuing Lender hereunder and the amount of
each draft paid by such Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if a draft
is paid under any Letter of Credit issued by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand at such Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Revolving Credit Percentage of the amount
of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is
paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to such Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of such Issuing Lender submitted to any L/C Participant
with respect to any such amounts owing under this Section shall be conclusive in
the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse each Issuing Lender, on each date on which such Issuing
Lender notifies the Borrower of the date and amount of a draft presented under
any Letter of Credit and paid by such Issuing Lender, for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for notices specified herein in lawful money of
the United States of America and in immediately available funds. Interest shall
be payable on each Payment Amount from the date of the applicable drawing until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c).
49
Each drawing under any Letter of Credit shall (unless an event of the type
described in clause (i) or (ii) of Section 8(f) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified
in Section 3.4 for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing pursuant to Section
2.5 of Base Rate Loans in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of
Revolving Credit Loans could be made, pursuant to Section 2.5, if the
Administrative Agent had received a notice of such borrowing at the time the
Administrative Agent receives notice from the relevant Issuing Lender of such
drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against any Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with each Issuing Lender that such Issuing Lender shall not be responsible for,
and the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Lender. The Borrower agrees that any action taken or omitted by an
Issuing Lender under or in connection with any Letter of Credit issued by it or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards or care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of such Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of the relevant Issuing Lender to the Borrower in connection with any draft
presented for payment under any Letter of Credit, in addition to any payment
obligation expressly provided for in such Letter of Credit issued by such
Issuing Lender, shall be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
50
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to each Agent and each
Lender that:
4.1 Financial Condition. (a) The estimated consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at December
31, 2001 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies
of which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the consummation of
the Acquisition, (ii) the Loans to be made and the New Senior Subordinated Notes
to be issued on the Restatement Date and the use of proceeds thereof and (iii)
the payment of fees and expenses in connection with the foregoing. The Pro Forma
Balance Sheet has been prepared based on the best information available to the
Borrower as of the date of delivery thereof, and constitutes a reasonable
estimate on a pro forma basis of the financial position of Borrower and its
consolidated Subsidiaries as at December 31, 2001, assuming that the events
specified in the preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at December 31, 2001 and December 31, 2000,
and the related consolidated statements of income and of cash flows for the
fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from Deloitte & Touche LLP, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved.
Except as set forth on Schedule 4.1, the Borrower and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from December 31, 2001 to and including the date hereof there
has been no Disposition by the Borrower and its consolidated Subsidiaries of any
material part of its business or Property.
(c) To the best of the Borrower's knowledge, (i) the audited
balance sheets of the Acquired Assets as at December 31, 2001, and December 31,
2000, and the related consolidated statements of income and of cash flows for
the fiscal year ended on December 31, 2001 and the four months ended on December
31, 2000, present fairly the consolidated financial condition of the Acquired
Assets as at such dates, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then ended, and (ii)
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as disclosed therein).
4.2 No Change. Since December 31, 2001, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect (including the Borrower's financial results for the
fiscal quarter ended March 31, 2002).
51
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification, except where the failure to be so qualified and in
good standing could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder and to consummate the Acquisition.
Each Loan Party has taken all necessary corporate action to authorize the
execution, delivery and performance of the Loan Documents to which it is a party
and, in the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Acquisition, the borrowings
hereunder or the execution, delivery, performance, validity or enforceability of
this Agreement or any of the other Loan Documents, except (i) consents,
authorizations, filings and notices described in Schedule 4.4, which consents,
authorizations, filings and notices have been obtained or made and are in full
force and effect (except as set forth on Schedule 4.4) and (ii) the filings
referred to in Section 4.19. Each Loan Document has been duly executed and
delivered on behalf of each Loan Party that is a party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party that is a party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof and the
consummation of the Acquisition will not violate any Requirement of Law
applicable to, or any material Contractual Obligation of, the Borrower or any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
52
contemplated hereby or thereby, or (b) that could reasonably be expected to have
a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has indefeasible title to, or a valid leasehold interest in, all of
its material real property, and good title to, or a valid leasehold interest in,
all of its other material Property, and none of such Property is subject to any
Lien except as permitted by Section 7.3.
4.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person known by the Borrower to have a legal right
therein.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries
has filed or caused to be filed all Federal, state and other material tax
returns which are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
Property and all other taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority, and no material tax Lien has been filed,
and, to the knowledge of the Borrower, no claim which could reasonably be
expected to have a Material Adverse Effect is being asserted, with respect to
any such tax, fee or other charge (other than any such claim the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be).
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor
disputes against the Borrower or any of its Subsidiaries pending or, to the
knowledge the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its
53
Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the Borrower or the relevant Subsidiary.
4.13 ERISA. Except as set forth on Schedule 4.13, neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof. Schedule
4.15 sets forth as of the Restatement Date the name and jurisdiction of
incorporation of each Subsidiary and, as to each Subsidiary, the percentage of
each class of Capital Stock owned by each Loan Party.
(b) There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary.
4.16 Use of Proceeds. The proceeds of the Additional Term
Loans shall be used to finance the Acquisition and related working capital and
to pay related fees and expenses. The proceeds of the Revolving Credit Loans,
and the Letters of Credit, shall be used for general corporate purposes,
including, but not limited to, working capital and capital expenditures.
4.17 Environmental Matters. Other than exceptions to any of
the following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, the Borrower and each of its
Subsidiaries: (i) are, and within the period of all applicable
54
statutes of limitation have been, in compliance with all applicable
Environmental Laws; (ii) hold all Environmental Permits (each of which is in
full force and effect) required for any of their current operations or for any
property owned, leased, or otherwise operated by any of them; (iii) are, and
within the period of all applicable statutes of limitation have been, in
compliance with all of their Environmental Permits; and (iv) reasonably believe
that: each of their Environmental Permits will be timely renewed and complied
with, without material expense; any additional Environmental Permits that may be
required of any of them will be timely obtained and complied with, without
material expense; and compliance with any Environmental Law that is or is
expected to become applicable to any of them will be timely attained and
maintained.
(a) The presence of Materials of Environmental Concern at, on,
under, in, or about any real property now owned, leased or operated by the
Borrower or any of its Subsidiaries, or at any location to which Materials of
Environmental Concern have been sent by or on behalf of the Borrower for re-use
or recycling or for treatment, storage, or disposal, could not reasonably be
expected to have a Material Adverse Effect. The Borrower has not received any
notice from any Governmental Authority or any Person having a property interest
in the relevant property that would give the Borrower reason to believe that the
presence of Materials of Environmental Concern at, on, under, in, or about any
real property formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
(b) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: there is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating to
any Environmental Law to which the Borrower or any of its Subsidiaries is, or to
the knowledge of any of them will be, named as a party that is pending or, to
the knowledge of any of them, threatened.
(c) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has received
any request for information or been notified that it is a potentially
responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(d) Except as disclosed on Schedule 4.17 and other than
exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect: neither the
Borrower nor any of its Subsidiaries has entered into or agreed to any consent
decree, order, or settlement or other agreement, nor is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral,
or other forum, relating to compliance with or liability under any Environmental
Law.
(e) Except as disclosed on Schedule 4.17 and other than
exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect: neither the
Borrower nor any of its Subsidiaries has assumed or retained, by contract or
operation of law, any liabilities of any kind, fixed or contingent, known
55
or unknown, under any Environmental Law or with respect to any Materials of
Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. As of the date hereof,
the representations and warranties of the Buyer and the Borrower contained in
the Acquisition Documentation, and, to the best of the Borrower's knowledge, the
representations and warranties of the Seller and Valero Energy Corporation
contained in the Acquisition Documentation, are true and correct in all material
respects. There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents, in the Confidential Information Memorandum
or in any other documents, certificates and statements furnished to the Agents
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
4.19 Security Documents. (a) Except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws,
affecting the enforcement of credits' rights generally and by general equitable
principles, the Guarantee and Collateral Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the Collateral described therein and
proceeds thereof. The Guarantee and Collateral Agreement constitutes a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3).
(b) Except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws, affecting the
enforcement of credits' rights generally and by general equitable principles,
each of the Existing Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof; and each Existing Mortgage constitutes a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties described therein and the proceeds thereof, as security for
the Obligations (as defined in the relevant Existing Mortgage), in each case
prior and superior
56
in right to any other Person (other than Persons holding Liens or other
encumbrances or rights permitted by the relevant Existing Mortgage).
(c) Except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws, affecting the
enforcement of credits' rights generally and by general equitable principles,
each of the New Mortgages is effective to create in favor of the Administrative
Agent, for the benefit of the Lenders, a legal, valid and enforceable Lien on
the Mortgaged Properties described therein and proceeds thereof; and when the
New Mortgages are filed in the offices specified on Schedule 4.19(c) (in the
case of the New Mortgages to be executed and delivered on the Restatement Date)
or in the recording office designated by the Borrower (in the case of any New
Mortgage to be executed and delivered pursuant to Section 6.10(b)), each New
Mortgage shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Mortgaged Properties
described therein and the proceeds thereof, as security for the Obligations (as
defined in the relevant New Mortgage), in each case prior and superior in right
to any other Person (other than Persons holding Liens or other encumbrances or
rights permitted by the relevant New Mortgage).
4.20 Solvency. Each Loan Party is, and after giving effect to
the Acquisition and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to be,
Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior
Debt" of the Borrower under and as defined in the Existing Senior Subordinated
Note Indentures, the New Senior Subordinated Note Indenture and the Seller
Notes. The obligations of each Subsidiary Guarantor under the Guarantee and
Collateral Agreement constitute "Senior Debt" of such Subsidiary Guarantor under
and as defined in the Existing Senior Subordinated Note Indenture and the New
Senior Subordinated Note Indenture.
4.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968 (except any Mortgaged Properties as to which such flood insurance as
required by Regulation H has been obtained and is in full force and effect as
required by this Agreement).
4.23 Excluded Subsidiaries. The aggregate book value of the
assets of all Excluded Subsidiaries on the date hereof does not exceed
$2,500,000 in the aggregate.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The effectiveness of the
amendments to the Original Credit Agreement effected hereby and the agreement of
each Lender to make the extensions of credit requested to be made by it
hereunder on the Restatement Date are subject to the satisfaction, prior to or
concurrently with the making of such extension of credit on the Restatement
Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, (ii) the
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Consent and Confirmation executed and delivered by a duly authorized
officer of each Loan Party other than the Borrower, (iii) a New
Mortgage covering each of the New Mortgaged Properties and a Mortgage
Amendment covering each of the Existing Mortgaged Properties, in each
case executed and delivered by a duly authorized officer of each party
thereto and (iv) a Lender Consent executed and delivered by Lenders
constituting the "Required Prepayment Lenders" (as defined in the
Original Credit Agreement) and a Lender Addendum executed by each
Lender that is providing an Additional Tranche A Term Loan Commitment
or an Additional Tranche B Term Loan Commitment, in each case accepted
by the Borrower.
(b) Acquisition, etc. The following transactions shall have
been consummated:
(i) the Acquisition shall have been consummated in
accordance with the Acquisition Agreement, and the
Administrative Agent shall have received satisfactory evidence
thereof (including a certificate of the Borrower to such
effect);
(ii) the Borrower shall have applied the Net Cash
Proceeds of the Borrower's March 6 issuance of 23,000,000
shares of common stock to the purchase price of the
Acquisition; and
(iii) the Net Cash Proceeds of the issuance by Tesoro
Escrow Corp. of the New Senior Subordinated Notes shall have
been applied to the purchase price of the Acquisition, and
Tesoro Escrow Corp. shall have merged into the Borrower.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) audited
consolidated financial statements of the Borrower and its consolidated
Subsidiaries for the 2001 and 2000 fiscal years and (iii) audited
financial statements of the Acquired Assets for the 2001 fiscal year
and the four months ended on December 31, 2000.
(d) Approvals. All governmental and third party approvals
necessary in connection with the Acquisition, the continuing operations
of the Borrower and its Subsidiaries and the transactions contemplated
hereby shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action
being taken or then threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the
Acquisition or the financing contemplated hereby.
(e) Related Agreements. The Administrative Agent and the
Syndication Agent shall have received (in a form reasonably
satisfactory to the Administrative Agent and the Syndication Agent),
true and correct copies, certified as to authenticity by the Borrower,
of (i) the New Senior Subordinated Note Indenture, (ii) the Acquisition
Agreement, (iii) the Seller Notes and (iv) such other documents or
instruments as may be reasonably requested by the Administrative Agent
or the Syndication Agent, including, without
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limitation, a copy of any debt instrument, security agreement or other
material contract to which the Loan Parties may be a party.
(f) Existing Revolving Credit Loans. The Existing Revolving
Credit Loans shall have been repaid in full (which repayment may be
made with the proceeds of Revolving Credit Loans made on the
Restatement Date in accordance with Section 2.5).
(g) Fees. The Lenders, the Arranger, the Administrative Agent
and the Syndication Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented
(including reasonable fees, disbursements and other charges of counsel
to the Agents), on or before the Restatement Date. All such amounts
will be paid with proceeds of Loans made on the Restatement Date and
will be reflected in the funding instructions given by the Borrower to
the Administrative Agent on or before the Restatement Date.
(h) Business Plan. The Lenders shall have received a
satisfactory business plan for fiscal years 2002-2008 and a
satisfactory written analysis of the business and prospects of the
Borrower and its Subsidiaries (pro forma for the Acquisition, assuming
an May 17, 2002 closing date) for such period.
(i) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the
jurisdictions where the Loan Parties are located (within the meaning of
Section 9-301 of the Uniform Commercial Code) and each of the
jurisdictions where the Acquired Assets are located, and such search
shall reveal no liens on any of the assets of the Loan Parties or the
Acquired Assets, except for Liens permitted by Section 7.3, other than
those to be released in connection with the occurrence of the
Restatement Date.
(j) Environmental Matters. The Administrative Agent shall have
received, with a copy for each Lender, and the Syndication Agent shall
have received (i) a written environmental assessment in respect of the
Acquired Assets and (ii) written updates of the environmental
assessments provided in connection with the Original Credit Agreement,
prepared by The RETEC Group, Inc., in each case in form, scope, and
substance satisfactory to the Administrative Agent, together with a
letter from the environmental consultant permitting the Agents and the
Lenders to rely on the environmental assessment as if addressed to and
prepared for each of them.
(k) Closing Certificate; Lien Perfection Certificate. The
Administrative Agent and the Syndication Agent shall have received
certificates of each Loan Party, dated the Restatement Date,
substantially in the form of Exhibit C (Closing Certificate) and
Exhibit M (Lien Perfection Certificate), respectively, with appropriate
insertions and attachments.
(l) Legal Opinions. The Administrative Agent and the
Syndication Agent shall have received the following executed legal
opinions:
(i) the legal opinion of Fulbright & Jaworski L.L.P.
counsel to the Borrower and its Subsidiaries, substantially in
the form of Exhibit F-1;
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(ii) the legal opinion of the general counsel of the
Borrower and its Subsidiaries, substantially in the form of
Exhibit F-2; and
(iii) to the extent requested by the Administrative
Agent, the legal opinion of local counsel in each state in
which New Mortgaged Property is located and of such other
special and local counsel as may be required by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
or the Syndication Agent may reasonably require.
(m) Pledged Stock; Stock Powers; Acknowledgment and Consent;
Pledged Notes. The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof, and (ii) an Acknowledgment
and Consent, substantially in the form of Annex II to the Guarantee and
Collateral Agreement, duly executed by any issuer of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement that is not
itself a party to the Guarantee and Collateral Agreement.
(n) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien
on the Collateral described therein, prior and superior in right to any
other Person (other than with respect to Liens permitted by Section
7.3), shall have been filed, registered or recorded or shall have been
delivered to the Administrative Agent be in proper form for filing,
registration or recordation.
(o) Title Insurance; Flood Insurance. (i) If requested by the
Administrative Agent, the Administrative Agent shall have received, and
the title insurance company issuing the policy referred to in clause
(ii) below (the "Title Insurance Company") shall have received, maps or
plats of a boundary survey of the sites of the New Mortgaged Properties
certified to the Administrative Agent and the Title Insurance Company
in a manner satisfactory to them, dated a date satisfactory to the
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the Administrative
Agent, the Syndication Agent and the Title Insurance Company, which
maps or plats and the surveys on which they are based shall be made in
accordance with the Minimum Standard Detail Requirements for Boundary
Surveys for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying
and Mapping in 1992, but without any duty of the surveyor to set
monuments, and, without limiting the generality of the foregoing, there
shall be surveyed and shown on such maps, plats or surveys the
following: (A) the lines of streets abutting the sites and width
thereof; (B) all access and other easements appurtenant to the sites;
(C) all roadways, paths, driveways, easements, encroachments affecting
the site, whether recorded, apparent from a physical inspection
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of the sites or otherwise known to the surveyor; (D) any encroachments
on any adjoining property by the building structures and improvements
on the sites; (E) if the site is described as being on a filed map, a
legend relating the survey to said map; and (F) the flood zone
designations, if any, in which the New Mortgaged Properties are
located.
(ii) The Administrative Agent shall have received in
respect of each New Mortgaged Property being mortgaged to the
Administrative Agent on the Restatement Date a mortgagee's
title insurance policy (or policies) or marked up
unconditional binder for such insurance. Each such policy
shall (A) be in an amount reasonably agreed upon by the
Borrower and the Administrative Agent (B) insure that the
Mortgage insured thereby creates a valid first Lien on such
New Mortgaged Property free and clear of all defects and
encumbrances, except as disclosed therein; (C) name the
Administrative Agent for the benefit of the Lenders as the
insured thereunder; (D) be in the form of ALTA Loan Policy -
1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies);
(E) contain such endorsements and affirmative coverage as the
Administrative Agent may reasonably request and (F) be issued
by First American Title Insurance Company. The Administrative
Agent shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have
been paid.
(iii) If requested by the Administrative Agent, the
Administrative Agent shall have received (A) a policy of flood
insurance that (1) covers any parcel of improved real property
that is encumbered by any New Mortgage (2) is written in an
amount not less than the outstanding principal amount of the
indebtedness secured by such New Mortgage that is reasonably
allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of
property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not later than
the maturity of the indebtedness secured by such New Mortgage
and (B) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(iv) Counsel for the Arranger and Administrative
Agent shall have received a copy of all recorded documents
referred to, or listed as exceptions to title in, the title
policy or policies referred to in clause (ii) above and a copy
of all other material documents affecting the New Mortgaged
Properties.
(v) The Administrative Agent shall have received: (A)
endorsements to each of the mortgagee's title insurance
policies delivered pursuant to the Original Credit Agreement
in form and substance satisfactory to the Administrative Agent
and its counsel, which endorsements shall (1) re-date such
title policies to the date of the recording of the relevant
Mortgage Amendment, (2) insure the lien of each Mortgage as
amended by the relevant Mortgage Amendment as a valid first
Lien on the Existing Mortgaged Property encumbered thereby and
(3) show only such additional exceptions to the Administrative
Agent's title insurance coverage as may be permitted by
Section
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7.3 and as may be approved by the Administrative Agent and its
counsel, and the Borrower shall provide such affidavits and
other instruments to the Title Insurance Company as may be
reasonably required by the Title Insurance Company (but
excluding updates of the surveys delivered pursuant to the
Original Credit Agreement); (B) copies of all recorded
documents referred to or listed as exceptions in such
endorsements; and (C) evidence reasonably satisfactory to it
that all premiums in respect of each such endorsement and all
charges for mortgage recording tax in connection with the
Mortgage Amendments, if any, have been paid.
(p) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of
the Guarantee and Collateral Agreement.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it hereunder
on any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct on and as of such date as
if made on and as of such date; except for representations and
warranties stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct on and as
of such earlier date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Cash Collateral Account. In the case of any extension of
credit hereunder other than the issuance of Letters of Credit, there
shall not be any funds on deposit on such date in the Cash Collateral
Account (after giving effect to any withdrawals from the Cash
Collateral Account being made on such date).
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, the Borrower shall and
shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each
Lender:
(a) as soon as available, but in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated financial statements of the
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Borrower and its consolidated Subsidiaries for such year as filed on
Form 10-K with the SEC, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit or any other material qualification or
exception, by Deloitte & Touche LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated financial
statements of the Borrower and its consolidated Subsidiaries for such
quarter as filed on Form 10-Q with the SEC, certified by a Responsible
Officer as being fairly stated in all material respects (subject to
normal year-end adjustments).
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and
each Lender, or, in the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate (it being understood that such certificate shall be
limited to the items that independent certified public accountants are
permitted to cover in such certificates pursuant to their professional
standards and customs of the profession);
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1(a) or (b), (i) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of
this Agreement referred to therein as of the last day of the fiscal
quarter or fiscal year of the Borrower, as the case may be, (ii) to the
extent not previously disclosed to the Administrative Agent, a listing
of any Intellectual Property acquired by any Loan Party since the date
of the most recent list delivered pursuant to this clause (ii) (or, in
the case of the first such list so delivered, since the Original
Closing Date) and (iii) any UCC financing statements or other filings
specified in such Compliance Certificate as being required to be
delivered therewith;
(c) as soon as available, and in any event no later than 60
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the following fiscal year, and the
related consolidated statements of projected cash flow, projected
changes in financial position and projected income), and, as soon as
available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which
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Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on
reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) no later than 3 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to any
Subordinated Securities or any Acquisition Agreement;
(e) within ten days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports (excluding the related exhibits thereto unless
specifically requested by such Agent or Lender) that the Borrower may
make to, or file with, the SEC, which copies in each case may be made
available electronically;
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc.
Except with respect to Excluded Subsidiaries, (a) (i) preserve, renew and keep
in full force and effect its corporate existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 7.4 and except, in the case of clause (ii) above, to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law, except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property
and systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted (as determined by the Borrower in its
reasonable discretion) and (b) maintain with financially sound and reputable
insurance companies (or, to the extent reasonable, customary among companies
engaged in the same or a similar business and, in any event, consistent with the
past business practices of the Borrower, through self-insurance) insurance on
all its Property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its
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business and activities and (b) permit representatives of any Lender to visit
and inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers of the
Borrower and its Subsidiaries and with its independent certified public
accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries that, if not
cured, could reasonably be expected to have a Material Adverse Effect
or (ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, that could reasonably be expected to result in
a determination adverse to the Borrower or its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which material injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or the relevant Subsidiary proposes to take
with respect thereto.
6.8 Environmental Laws. (a) (i) Comply with all Environmental
Laws applicable to it, and obtain, comply with and maintain any and all
Environmental Permits necessary for its operations as conducted and as planned;
and (ii) take reasonable efforts to ensure that all of its tenants, subtenants,
contractors, subcontractors, and invitees comply with all Environmental Laws,
and obtain, comply with and maintain any and all Environmental Permits,
applicable to any of them insofar as any failure to so comply, obtain or
maintain, or take such efforts, reasonably could be expected to adversely affect
the Borrower. For purposes of the preceding sentence, the Borrower or any of its
Subsidiaries shall not be deemed to be in noncompliance or default with any
applicable Environmental Law or Environmental Permit if, upon learning of any
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actual or suspected noncompliance, the Borrower and/or Subsidiary, as the case
may be, shall promptly undertake reasonable efforts to achieve compliance;
provided, that, in any case, such noncompliance, and any other noncompliance
with Environmental Laws, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders
and directives as to which an appeal has been timely and properly taken in good
faith, provided, that the pendency of any and all such appeals could not
reasonably be expected to have a Material Adverse Effect.
(c) (i) Prior to acquiring any ownership or leasehold interest
in real property, or other interest in any real property that could give rise to
the Borrower being found to be an operator subject to potential liability under
any Environmental Law (or any entity with such interests in any real property)
(except, in the case of real property other than Retail Service Assets, if the
Borrower shall have determined in its reasonable judgment after due
investigation that there is no material risk of the Borrower or any of its
Subsidiaries incurring material liability under Environmental Law with respect
to such real property), obtain a written report by an environmental consulting
firm reasonably acceptable to the Administrative Agent (an "Environmental
Consultant") of the Environmental Consultant's assessment of the presence or
potential presence of significant levels of any Materials of Environmental
Concern on, under, in, or about the property, or of other conditions that could
give rise to potentially significant liability under or violations of
Environmental Law relating to such acquisition, and notify the Administrative
Agent of such acquisition no later than promptly following the closing thereof;
and (ii) if requested by the Administrative Agent, provide such report to the
Administrative Agent and afford the Administrative Agent a reasonable
opportunity, if requested by either of them, to discuss such report with the
Environmental Consultant who prepared it together with a knowledgeable
representative of the Borrower. The Administrative Agent shall have the right,
but shall not have any duty, to obtain, review, or discuss any such report.
6.9 [Reserved.]
6.10 Additional Collateral, etc. (a) With respect to any
personal Property (including any vessel as to which all or any portion of the
purchase price has been funded with the proceeds of Loans) acquired after the
Original Closing Date by the Borrower or any of its Subsidiaries (other than (x)
any Property described in paragraph (c) or (d) below, (y) any Property subject
to a Lien expressly permitted by Section 7.3(g), (z) vessels acquired with the
proceeds of transactions permitted by Section 7.2(b)) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected
Lien, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or reasonably advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in such Property, including, without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Administrative Agent.
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(b) With respect to any fee interest in any real property
having a value (together with improvements thereof) of at least $2,500,000
acquired after the Original Closing Date by the Borrower or any of its
Subsidiaries (other than (w) any such real property subject to a Lien expressly
permitted by Section 7.3(g), (x) Pipeline Assets (to the extent held in a
Qualifying Special Purpose Subsidiary), (y) Retail Service Assets and (z) Marine
Services Assets), promptly (A) execute and deliver a first priority Mortgage in
favor of the Administrative Agent, for the benefit of the Lenders, covering such
real property, (B) if requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price allocable to the value of the real
property in the acquisition (or such other amount as shall be reasonably
specified by the Administrative Agent) as well as a current ALTA survey thereof,
together with a surveyor's certificate and (y) any consents or estoppels
reasonably deemed necessary or advisable by the Administrative Agent in
connection with such Mortgage each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent, and (C) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary or an Excluded Subsidiary) created or acquired after the
Original Closing Date (which, for the purposes of this paragraph, shall include
any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), by
the Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the Borrower or such Subsidiary, as the case may be, (iii) cause such new
Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and
(B) to take such actions necessary or advisable to grant to the Administrative
Agent for the benefit of the Lenders a perfected first priority security
interest in the Collateral described in the Guarantee and Collateral Agreement
with respect to such new Subsidiary, including, without limitation, the filing
of Uniform Commercial Code financing statements in such jurisdictions as may be
required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Original Closing Date by the Borrower or any of
its Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement or such other documents as the Administrative Agent
deems necessary or advisable in order to grant to the Administrative Agent, for
the benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in
no event shall more than 65% of the
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total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be
required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Lien of the Administrative Agent thereon, and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
6.11 Further Assurances. From time to time execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates or documents, and take such actions, as the Administrative Agent or
the Syndication Agent may reasonably request for the purposes of implementing or
effectuating the provisions of this Agreement and the other Loan Documents, or
of more fully perfecting or renewing the rights of the Administrative Agent and
the Lenders with respect to the Collateral (or with respect to any additions
thereto or replacements or proceeds thereof or with respect to any other
property or assets hereafter acquired by the Borrower or any Subsidiary which
may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the
exercise by the Administrative Agent or any Lender of any power, right,
privilege or remedy pursuant to this Agreement or the other Loan Documents which
requires any consent, approval, recording, qualification or authorization of any
Governmental Authority, the Borrower will execute and deliver, or will cause the
execution and delivery of, all applications, certifications, instruments and
other documents and papers that the Administrative Agent or such Lender may be
required to obtain from the Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.
6.12 Mandatory Debt Reduction; Cash Collateral Account. (a) On
or prior to December 31, 2002, consummate one or more transactions resulting in
the receipt by the Borrower of Net Cash Proceeds of at least $125,000,000 in the
aggregate from Asset Sales and/or the issuance by the Borrower of Specified
Equity Securities, the first $125,000,000 of which Net Cash Proceeds are to be
applied within one Business Day after the date of receipt thereof as follows:
(i) 50% of such Net Cash Proceeds shall be applied to prepay
the Term Loans in accordance with Section 2.10(e); and
(ii) the remaining 50% of such Net Cash Proceeds shall be
applied, first, to prepay any outstanding Revolving Credit
Loans in accordance with Section 2.10(e) and, second, if any
of such Net Cash Proceeds remain after prepaying all
outstanding Revolving Credit Loans, such remaining amount
shall be deposited in the Cash Collateral Account.
(b) At all times prior to the Cash Collateral Release Date,
continue to maintain in the Cash Collateral Account any amounts deposited in
such account pursuant to paragraph (a) above, except that, so long as no Default
or Event of Default has occurred and is continuing at the time of such
withdrawal or would exist after giving effect to such withdrawal or the use of
proceeds thereof, as certified by the Borrower to the Administrative Agent in
the related
68
withdrawal request, the Borrower may withdraw amounts on deposit in the Cash
Collateral Account to be used for general corporate purposes, including, but not
limited to, working capital and capital expenditures. The Borrower may withdraw
any remaining amounts from the Cash Collateral Account on or after the Cash
Collateral Release Date.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, the Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to exceed the ratio set forth below opposite such fiscal quarter:
<Table>
<Caption>
Consolidated
Fiscal Quarter Senior Leverage Ratio
-------------- ---------------------
3Q02 2.75:1.00
4Q02 2.75:1.00
1Q03 2.75:1.00
2Q03 2.50:1.00
3Q03 2.50:1.00
Thereafter 2.00:1.00
</Table>
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth below
to be less than the ratio set forth below opposite such fiscal quarter:
<Table>
<Caption>
Consolidated
Fiscal Quarter Fixed Charge Ratio
-------------- ------------------
3Q02 1.60:1.00
4Q02 1.60:1.00
1Q03 1.60:1.00
2Q03 1.75:1.00
3Q03 1.75:1.00
4Q03 1.75:1.00
Thereafter 2.00:1.00
</Table>
(c) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to be
less than the ratio set forth below opposite such fiscal quarter:
69
<Table>
<Caption>
Consolidated
Fiscal Quarter Interest Coverage Ratio
-------------- -----------------------
3Q02 2.50:1.00
4Q02 2.50:1.00
1Q03 2.75:1.00
2Q03 3.00:1.00
3Q03 3.00:1.00
4Q03 3.25:1.00
1Q04 3.75:1.00
2Q04 3.75:1.00
3Q04 3.75:1.00
4Q04 3.75:1.00
Thereafter 4.00:1.00
</Table>
(d) Consolidated Total Debt. Permit the ratio of Consolidated
Total Debt to Consolidated Total Capitalization on any date during any fiscal
quarter set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
<Table>
<Caption>
Consolidated Total Debt/
Fiscal Quarter Total Capitalization Ratio
-------------- --------------------------
2Q02 0.69:1.00
3Q02 0.69:1.00
4Q02 0.65:1.00
1Q03 0.65:1.00
2Q03 0.65:1.00
3Q03 0.65:1.00
4Q03 0.60:1.00
1Q04 0.60:1.00
Thereafter 0.55:1.00
</Table>
(e) 2Q02 Consolidated EBITDA. Permit Consolidated EBITDA of
the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ending
June 30, 2002 to be less than $40,000,000.
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an
aggregate principal amount not to exceed $125,000,000 at any one time
outstanding;
(c) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(c) and any refinancings, refundings, renewals or
extensions thereof (without any increase in the principal amount
thereof or any shortening of the maturity of any principal amount
thereof);
70
(d) Guarantee Obligations made in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of
the Borrower or any Subsidiary Guarantor;
(e) (i) Indebtedness of the Borrower in respect of the New
Senior Subordinated Notes in an aggregate principal amount not to
exceed $450,000,000 and (ii) Guarantee Obligations of any Subsidiary
Guarantor in respect of such Indebtedness; provided that such Guarantee
Obligations are subordinated to the obligations of such Subsidiary
Guarantor under the Guarantee and Collateral Agreement to the same
extent as the obligations of the Borrower in respect of the New Senior
Subordinated Notes are subordinated to the Obligations;
(f) Indebtedness owing by (i) the Borrower to Subsidiaries
which are not Subsidiary Guarantors not to exceed $7,500,000 in the
aggregate, (ii) any Subsidiary of the Borrower to the Borrower, (iii)
the Borrower to any Subsidiary Guarantor, and (iv) any Subsidiary
Guarantor to any other Subsidiary Guarantor;
(g) Indebtedness of the Borrower consisting of preferred
Capital Stock;
(h) Guarantee Obligations of the Borrower and its Subsidiaries
in respect of the obligations incurred by branded dealers and
distributors in connection with retail gasoline station improvements;
provided that the aggregate amount of outstanding Guarantee Obligations
incurred pursuant to this Section 7.2(h), taken together with the
aggregate amount of Investments made pursuant to Section 7.7(k), shall
not exceed $75,000,000;
(i) Indebtedness assumed by the Borrower or any of its
Subsidiaries in connection with purchases of all or substantially all
of the Capital Stock of Persons organized under the laws of the United
States or any state thereof and engaged in lines of business similar to
the line of business of the Borrower on the date of this Agreement, but
in no event in contravention of Section 4.16; provided, that the
aggregate amount of Indebtedness so assumed pursuant to this Section
7.2(i), taken together with the aggregate amount of Investments made
pursuant to Section 7.7(i), shall in no event exceed $150,000,000;
(j) Indebtedness of the Borrower pursuant to the Seller Notes;
and
(k) Indebtedness of the Borrower or any of its Subsidiaries
not otherwise permitted by this Section 7.2 in an aggregate principal
amount (for the Borrower and all of its Subsidiaries) at any one time
outstanding not to exceed $75,000,000.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or other governmental charges
not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
71
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, do not materially interfere with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f) (or encumbering Mortgaged Properties and permitted by the
relevant Mortgage), in each case securing Indebtedness permitted by
Section 7.2(c) (provided that no such Lien is spread to cover any
additional Property after the Restatement Date and that the amount of
Indebtedness secured thereby is not increased);
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 7.2(b) (i) to finance the
acquisition of, or repairs, improvements or additions to, fixed or
capital assets (provided that (x) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or
capital assets, (y) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness and (z) the
amount of Indebtedness secured thereby is not increased), (ii) to
finance the purchase of inventory (provided that such Liens do not at
any time encumber any Property other than such inventory and are
granted to purchase money financiers of such inventory to secure the
purchase price thereof) or (iii) consisting of reimbursement
obligations with respect to letters of credit issued in connection with
the purchase of inventory (provided that such Liens do not at any time
encumber any Property other than such inventory);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any other Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(j) any Lien securing Indebtedness, neither assumed nor
guaranteed by the Borrower or any of its Subsidiaries nor on which it
customarily pays interest, existing upon real estate or rights in or
relating to real estate acquired by the Borrower for substation,
metering station, pump station, storage, gathering line, transmission
line, transportation line, distribution line or for right-of-way
purposes, any Liens reserved in leases for rent and for compliance with
the terms of the leases in the case of leasehold estates, to the extent
that any such Lien referred to in this clause (j) does not materially
72
impair the use of the Property covered by such Lien for the purposes of
which such Property is held by the Borrower or any of its Subsidiaries;
(k) inchoate Liens arising under ERISA;
(l) any obligations or duties affecting any of the Property of
the Borrower or its Subsidiaries to any municipality or public
authority with respect to any franchise, grant, license or permit which
do not materially impair the use of such Property for the purposes for
which it is held;
(m) defects, irregularities and deficiencies in title of any
rights of way or other Property of the Borrower or any Subsidiary which
in the aggregate do not materially impair the use of such rights of way
or other Property for the purposes for which such rights of way and
other Property are held by the Borrower or any Subsidiary, and defects,
irregularities and deficiencies in title to any Property of the
Borrower or its Subsidiaries, which defects, irregularities or
deficiencies have been cured by possession under applicable statutes of
limitation;
(n) Liens in favor of collecting or payor banks having a right
of setoff, revocation, refund or chargeback with respect to money or
instruments of the Borrower or any of its Subsidiaries on deposit with
or in possession of such bank;
(o) Liens on the Marine Services Assets and Retail Service
Assets;
(p) Liens securing Indebtedness permitted pursuant to Section
7.2(i); provided, however, that (i) such Liens are existing as of the
date of the consummation of the acquisition of the assets encumbered by
such Liens, (ii) are not created in contemplation of such Acquisition
and (iii) do not spread to other assets of the Borrower or its
Subsidiaries following the consummation of such acquisition; and
(q) Liens on cash or cash equivalents to secure obligations of
the Borrower and its Subsidiaries in respect of Hedge Agreements
entered into in the ordinary course of business and not for speculative
purposes, and Liens with respect to hedging accounts maintained with
dealers of NYMEX or similar contracts which require the maintenance of
cash margin account balances.
7.4 Limitation on Fundamental Changes. Except for Excluded
Subsidiaries, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its Property or
business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(provided that (i) the Subsidiary Guarantor shall be the continuing or surviving
corporation or (ii) simultaneously with such transaction, the continuing or
surviving corporation shall become a Subsidiary Guarantor and the Borrower shall
comply with Section 6.10 in connection therewith);
73
(b) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon dividend, distribution, voluntary liquidation or otherwise)
to the Borrower or any Subsidiary Guarantor;
(c) so long as permitted by Section 7.7 and so long as no
Default or Event of Default shall have occurred and be continuing after giving
effect to such merger or consolidation, any Person may be merged or consolidated
with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor
shall be the continuing or surviving corporation); and
(d) The Borrower or its Subsidiaries may dispose of Marine
Services Assets, Pipeline Assets or Retail Service Assets, provided that the
requirements of Section 2.10 and, if applicable, 6.12 are complied with in
connection therewith.
7.5 Limitation on Disposition of Property. Except for Excluded
Subsidiaries, dispose of any of its Property (including, without limitation,
receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory, hydrocarbon production, other
mineral products and products refined therefrom in the ordinary course
of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Subsidiary Guarantor;
(e) any Recovery Event, provided, that the requirements of
Section 2.10(c) are complied with in connection therewith;
(f) Dispositions pursuant to sale and leaseback transactions,
in an aggregate principal amount not to exceed $75,000,000, provided
that the requirements of Section 2.10(c) are complied with in
connection therewith;
(g) other Dispositions outside the ordinary course of business
occurring during the term of this Agreement which yield gross proceeds
to the Borrower or any of its Subsidiaries (valued at fair market value
in the case of non-cash proceeds) in an aggregate amount not in excess
of $75,000,000, provided that the requirements of Section 2.10(c) are
complied with in connection therewith; and
(h) any Disposition of Marine Services Assets, Pipeline Assets
or Retail Service Assets, provided that the requirements of Section
2.10 and, if applicable, 6.12 are complied with in connection
therewith.
7.6 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any
74
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any Capital Stock of the Borrower or any Subsidiary, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, or enter into any derivatives or other transaction with any
financial institution, commodities or stock exchange or clearinghouse (a
"Derivatives Counterparty") obligating the Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of any such Capital Stock (collectively, "Restricted Payments"), except
that (a) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor, (b) so long as no Default or Event or Default shall be in
existence, the Borrower may declare and pay dividends on its common stock, or
repurchase shares of its common stock, in an aggregate amount not to exceed
$15,000,000 in any fiscal year of the Borrower and (c) so long as no Default or
Event of Default shall be in existence, the Borrower may declare and pay
dividends on any preferred stock at the stated rate.
7.7 Limitation on Investments. Make any advance, loan,
extension of credit (by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting an ongoing business from, or make any
other investment in, any other Person (all of the foregoing, "Investments"),
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(d) and (f);
(d) loans and advances to employees of the Borrower or any
Subsidiaries of the Borrower in the ordinary course of business
(including, without limitation, for travel, entertainment and
relocation expenses, housing loans, loans to purchase the capital stock
of the Borrower) in an aggregate amount for the Borrower and
Subsidiaries of the Borrower not to exceed $20,000,000 at any one time
outstanding;
(e) the Acquisition;
(f) Investments in assets useful in the Borrower's business
made by the Borrower or any of its Subsidiaries with the proceeds of
any Reinvestment Deferred Amount;
(g) the Borrower's 50% limited partnership interest in Tesoro
Building Project, Ltd., a Delaware limited partnership;
(h) (i) the purchase of stock issued by the Borrower from
participants in the incentive stock plans of the Borrower made for the
purpose of satisfying federal withholding tax obligations of such
participants as provided for under the terms of such incentive stock
plans or stock incentive grants thereunder or (ii) the purchase of
existing options issued to such participants pursuant to such incentive
stock plans in order to make stock available for issuance to current
employees, provided that the aggregate amount of
75
Investments permitted pursuant to the foregoing clause (ii) during the
term of this Agreement shall in no event exceed $15,000,000;
(i) purchases of all or substantially all of the Capital Stock
of Persons engaged in lines of business similar to the line of business
of the Borrower on the date of this Agreement, but in no event in
contravention of Section 4.16; provided that the aggregate amount of
Investments made pursuant to this Section 7.7(i), taken together with
the aggregate amount of Indebtedness assumed by the Borrower and its
Subsidiaries pursuant to Section 7.2(i), shall in no event exceed
$150,000,000;
(j) Investments by the Borrower or any of its Subsidiaries in
(i) the Borrower or any Person that, prior to such investment, is a
Subsidiary Guarantor or (ii) any Person which is not a Subsidiary
Guarantor in an aggregate amount not to exceed $7,500,000;
(k) Investments, in an aggregate amount not exceeding
$75,000,000, by the Borrower or any of its Subsidiaries in the
businesses of branded dealers and distributors in connection with
retail gasoline station improvements;
(l) Investments by the Borrower or any of its Subsidiaries
consisting of the receipt by the Borrower or such Subsidiary of Capital
Stock or other securities, obligations or production payments in
settlement of debts created in the ordinary course of business and
owing to, or in satisfaction of judgments in favor of, the Borrower or
any of its Subsidiaries; provided that the aggregate amount of debts so
settled and judgments so satisfied during the term of this Agreement
shall not exceed $20,000,000; and
(m) entering into a joint venture or partnership in connection
with the sale to such joint venture or partnership of all or a portion
of the Marine Services Assets; provided, that the fair market value of
the investment by the Borrower and its Subsidiaries in such joint
venture or partnership (including the value of the Marine Services
Assets transferred to such joint venture or partnership) shall in no
event exceed $150,000,000 and the terms of such joint venture or
partnership shall be reasonably satisfactory to the Administrative
Agent in all material respects and the interests of the Borrower and
any of its Subsidiaries in such joint venture or partnership shall be
pledged to the Administrative Agent, for the benefit of the Lenders, in
the manner provided in clauses (i) and (ii) of Section 6.10(a).
7.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Subordinated Securities, or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance, or enter into any derivative
or other transaction with any Derivatives Counterparty obligating the Borrower
or any Subsidiary to make payments to such Derivatives Counterparty as a result
of any change in market value of any Subordinated Securities, (b) amend, modify
or otherwise change, or consent or agree to any amendment, modification, waiver
or other change to, any of the terms of any Subordinated Securities (other than
any such amendment, modification, waiver or other change which (i) would extend
the maturity or reduce the amount of any payment of principal thereof, reduce
the rate or extend the date for payment of interest thereon or relax any
covenant or other restriction applicable to the Borrower or any of its
Subsidiaries and (ii) does
76
not involve the payment of a consent fee), (c) designate any Indebtedness (other
than the Obligations) as "Designated Senior Debt" (or any equivalent
designation) for the purposes of any Subordinated Securities (except that the
Existing Senior Subordinated Notes and the New Senior Subordinated Notes may be
"Designated Senior Debt" for purposes of the Seller Notes to the extent provided
in the Seller Notes) or (d) amend its certificate of incorporation in any manner
determined by the Administrative Agent to be adverse to the Lenders.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise
permitted under this Agreement, (b) in the ordinary course of business of the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person that is not an Affiliate.
7.10 Limitation on Sales and Leasebacks. Except as permitted
by Section 7.5(f), enter into any arrangement with any Person providing for the
leasing by the Borrower or any Subsidiary of real or personal property which has
been or is to be sold or transferred by the Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or such Subsidiary.
7.11 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of the Borrower to end on a day other than December 31 or change the
Borrower's method of determining fiscal quarters.
7.12 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues, whether now owned
or hereafter acquired, to secure the Obligations or, in the case of any
guarantor, its obligations under the Guarantee and Collateral Agreement, other
than (a) this Agreement and the other Loan Documents and (b) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby).
7.13 Limitation on Restrictions on Subsidiary Distributions.
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, the New Senior Subordinated Note Indenture or any of the Existing
Senior Subordinated Note Indentures, (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock
or assets of such Subsidiary and (iii) solely in the case of the foregoing
clause (c), customary non-
77
assignment provisions in leases entered into in the ordinary course of business
and consistent with the past practices of the Borrower and its Subsidiaries.
7.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
that are reasonably related thereto.
7.15 Limitation on Amendments to Acquisition Documentation.
(a) Amend, supplement or otherwise modify (pursuant to a waiver or otherwise)
the terms and conditions of the indemnities and licenses furnished to the
Borrower or any of its Subsidiaries pursuant to the Acquisition Documentation
such that after giving effect thereto such indemnities or licenses shall be
materially less favorable to the interests of the Loan Parties or the Lenders
with respect thereto or (b) otherwise amend, supplement or otherwise modify the
terms and conditions of the Acquisition Documentation except to the extent that
any such amendment, supplement or modification could not reasonably be expected
to have a Material Adverse Effect.
7.16 Limitation on Activities of Qualifying Special Purpose
Subsidiaries. Permit any Qualifying Special Purpose Subsidiary to own any
material assets other than Pipeline Assets, or to engage in any business other
than the owning and operating of Pipeline Assets owned by it.
7.17 Limitation on Assets of Excluded Subsidiaries. Permit the
aggregate book value of the assets of all Excluded Subsidiaries to exceed
$2,500,000 in the aggregate.
7.18 Limitation on Capital Expenditures. Make or commit to
make, without duplication, any Capital Expenditure, except Capital Expenditures
of the Borrower and its Subsidiaries during any period of four consecutive
fiscal quarters of the Borrower ending on June 30 or December 31 of any year
(beginning with the period of four consecutive fiscal quarters ending December
31, 2002) not exceeding the amount set forth below for such period:
<Table>
<Caption>
Period ending Capital Expenditures
------------- --------------------
December 31, 2002 $275,000,000
June 30, 2003 $288,750,000
December 31, 2003 and Thereafter $302,500,000
</Table>
Notwithstanding the foregoing, the foregoing requirements of this Section 7.18
shall not be effective on or after the date on which financial statements are
delivered to the Lenders showing that the ratio of Consolidated Total Debt to
Consolidated Total Capitalization (without, in each case, giving effect to any
netting of amounts on deposit in the Cash Collateral Account on such day) on the
last day of the period covered by such financial statements was less than 0.58
to 1.00.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
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(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five days after any such interest
or other amount becomes due in accordance with the terms hereof or
thereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made or furnished; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7
of this Agreement, or in Section 5 of the Guarantee and Collateral
Agreement or (ii) an "Event of Default" under and as defined in any
Mortgage shall have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including,
without limitation, any Guarantee Obligation, but excluding the Loans
and Reimbursement Obligations) on the scheduled or original due date
with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or beneficiary of such Indebtedness (or a trustee
or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice if required, such Indebtedness to become due prior to
its stated maturity or to become subject to a mandatory offer to
purchase by the obligor thereunder or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i),
(ii) or (iii) of this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which is at least
$15,000,000; or
(f) Any Loan Party shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
79
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to
it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or any Loan Party shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Loan Party any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Loan
Party any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Loan Party shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Loan Party shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan, or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders shall be likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving for the Borrower and
its Subsidiaries taken as a whole a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $15,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than by reason of the express release thereof pursuant to
Section 10.15), to be in full force and effect, or any Loan Party or
any Affiliate of any Loan Party shall so assert, or any Lien
80
created by any of the Security Documents shall cease to be enforceable
and of the same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason
of the express release thereof pursuant to Section 10.15), to be in
full force and effect or any Loan Party or any Affiliate of any Loan
Party shall so assert; or
(k) Any Change of Control shall occur; or
(l) Any Subordinated Securities or the guarantees thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and Collateral Agreement, as the case may be, as provided in
the relevant Indenture, or any Loan Party, any Affiliate of any Loan
Party, the trustee in respect of any such Subordinated Securities or
the holders of at least 25% in aggregate principal amount of any such
Subordinated Securities shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. In the case of all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any,
81
in such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment; Nature of Relationship. Bank One, NA is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Administrative Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Section 9.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
9.2 Powers. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
9.3 General Immunity. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be liable to the Lenders
or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
9.4 No Responsibility for Loans, Recitals, etc.. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Section 5,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any
82
Default or Event of Default; (e) the validity, enforceability, effectiveness,
sufficiency or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Borrower or any guarantor of any of the Obligations
or of any of the Borrower's or any such guarantor's respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by the Borrower to the Administrative Agent
at such time, but is voluntarily furnished by the Borrower to the Administrative
Agent (either in its capacity as Administrative Agent or in its individual
capacity).
9.5 Action on Instructions of Lenders. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all Lenders, in the case of
actions which, pursuant to Section 10.1, require the consent of all Lenders),
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders (or all Lenders, in the case of actions which, pursuant to
Section 10.1, require the consent of all Lenders). The Administrative Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
9.6 Employment of Agents and Counsel. The Administrative Agent
may execute any of its duties as Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
9.7 Reliance on Documents; Counsel. The Administrative Agent
shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Administrative Agent, which counsel may be employees of the
Administrative Agent.
9.8 Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Aggregate Exposure Percentages (or, if
reimbursement or indemnification is sought after the date upon which the
Commitments have been terminated and the Loans shall have been paid in full, in
proportion to their Aggregate Exposure Percentages immediately prior to such
date) (i) for any amounts not reimbursed by the Borrower for which the
Administrative Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other
83
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such amounts
incurred by or asserted against the Administrative Agent in connection with any
dispute between the Administrative Agent and any Lender or between two or more
of the Lenders), or the enforcement of any of the terms of the Loan Documents or
of any such other documents, provided that (i) no Lender shall be liable for any
of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent and
(ii) any indemnification required pursuant to Section 2.19 shall,
notwithstanding the provisions of this Section 9.8, be paid by the relevant
Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 9.8 shall survive payment of the Obligations and termination
of this Agreement.
9.9 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
9.10 Rights as a Lender. In the event the Administrative Agent
is a Lender, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document with respect to its Revolving
Commitment and its Loans as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
9.11 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements prepared by the Borrower and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
84
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
9.12 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of the
Borrower or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents and the resigning or removed
Administrative Agent shall pay to the successor Administrative Agent any
unamortized portion of Administrative Agent's fees previously paid to such
resigning or removed Administrative Agent. After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
Section 9 shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 9.12, then the term "Prime Rate" as used in this Agreement shall
mean the prime rate, base rate or other analogous rate of the new Administrative
Agent. Any successor Administrative Agent appointed pursuant to this Section
9.12 shall (unless an Event of Default under Section 8(a) or Section 8(f) shall
have occurred and be continuing) be subject to the approval of the Borrower
(which approval shall not be unreasonably withheld or delayed).
9.13 Authorization to Release Liens and Guarantees. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
effect any release of Liens or guarantee obligations contemplated by Section
10.15.
85
9.14 Delegation to Affiliates. The Borrower and the Lenders
agree that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Sections 9 and 10.
9.15 Appointment of Syndication Agent. Each Lender hereby
irrevocably designates and appoints the Syndication Agent as the agent of such
Lender under this Agreement and the other Loan Documents, and each Lender
irrevocably authorizes the Syndication Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to such Agent by the terms of this Agreement and the other Loan
Documents. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Syndication Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Syndication Agent.
9.16 Exculpatory Provisions for Syndication Agent. Neither the
Syndication Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Syndication Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan Party to
perform its obligations hereunder or thereunder. The Syndication Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
9.17 Syndication Agent Indemnification. The Lenders agree to
indemnify the Syndication Agent in its capacity as such (to the extent not
reimbursed the Borrower and without limiting the obligation of the Borrower to
do so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save the Syndication Agent harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any way relating to
or arising out of, the
86
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.18 Arranger, Co-Documentation Agents, etc. None of the
Arranger or the Co-Documentation Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such (if such Person is a Lender). Without limiting
the foregoing, none of such Persons shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Persons and with respect to the Syndication Agent as it
makes with respect to the Administrative Agent in Section 9.11.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as may be specified in the instrument of waiver, any of the
requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan or Reimbursement Obligation,
extend the scheduled date of any amortization payment in
respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date
of any payment thereof, or increase the amount or extend the
expiration date of any Commitment of any Lender, in each case
without the consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required
Lenders or Required Prepayment Lenders, consent to the
assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the Collateral
or release all or
87
substantially all of the Subsidiary Guarantors from their
guarantee obligations under the Guarantee and Collateral
Agreement, in each case without the consent of all Lenders;
(iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set
forth in Section 5.2 (including, without limitation, the
waiver of an existing Default or Event of Default required to
be waived in order for such extension of credit to be made)
without the consent of any Majority Facility Lenders for the
Revolving Credit Facility;
(iv) reduce the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without
the written consent of all Lenders under such Facility;
(v) amend, modify or waive any provision of Section 2.16
without the consent of each Lender directly affected thereby;
(vi) amend, modify or waive any provision herein which affects
an Agent's duties or obligations hereunder (including, but not
limited to, Section 9) without the written consent of any
Agent directly affected thereby;
(vii) amend, modify or waive any provision of Section 3
without the consent of each Issuing Lender;
(viii) increase the amount of the Total Revolving Credit
Commitments through the addition of new Revolving Credit
Lenders without the consent of each Issuing Lender; or
(ix) amend Section 2.10(a), 2.10(c) or 2.10(d) without the
consent of the Required Prepayment Lenders.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section; provided, that delivery of an executed signature page of any such
instrument by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
For the avoidance of doubt, this Agreement and any other Loan
Document may be amended (or amended and restated) with the written consent of
the Supermajority Lenders, the Administrative Agent and each Loan Party to each
relevant Loan Document (x) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
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(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders, Required Prepayment
Lenders, Supermajority Lenders and Majority Facility Lenders; provided, however,
that no such amendment shall permit the Additional Extensions of Credit to share
ratably with or with preference to the Loans in the application of mandatory
prepayments without the consent of the Required Prepayment Lenders.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower and the Agents, as follows
and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or on Schedule I to the
Lender Addendum to which such Lender is a party or, in the case of a Lender
which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
The Borrower: Tesoro Petroleum Corporation
300 Concord Plaza Drive
San Antonio, Texas 78216-6999
Attention: Vice President and Treasurer
Telecopy: (210) 283-2080
Telephone: (210) 283-2905
The Syndication Agent: Lehman Commercial Paper Inc.
745 Seventh Avenue
New York, New York 10019
Attention: Michelle Swanson
Telecopy: (212) 526-0242
Telephone: (212) 526-0330
The Administrative Agent: Bank One, NA
1 Bank One Plaza
Mail Suite IL1 0624
Chicago, Illinois 60670-0624
Attention: Ron Cromey
Telecopy: (312) 732-7494
Telephone: (312) 732-5635
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with a copy to: Bank One, NA
910 Travis Street
6th Floor
Mail Code TX2-4335
Houston, Texas 77252-2629
Attention: Helen Carr
Telecopy: (713) 751-3760
Telephone: (713) 751-3731
Issuing Lender: As notified by such Issuing Lender to the
Administrative Agent and the Borrower
provided that any notice, request or demand to or upon any Agent, the Issuing
Lender or any Lender shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made herein, in the other Loan Documents and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Facilities (other than fees
payable to syndicate members) and the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement and the other
Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements and other charges of counsel to the Arranger and the
charges of Intralinks, (b) to pay or reimburse each Lender and the Agents for
all their reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any other documents prepared in connection herewith or therewith,
including, without limitation, the fees and disbursements of counsel (including
the allocated fees and disbursements and other charges of in-house counsel) to
each Lender and of counsel to the Agents, (c) to pay, indemnify, or reimburse
each Lender and the Agents for, and hold each Lender and the Agents harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or
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any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, each Agent, their
respective affiliates, and their respective officers, directors, trustees,
employees, advisors, agents and controlling persons (each, an "Indemnitee") for,
and hold each Indemnitee harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties and the fees and disbursements and other
charges of legal counsel in connection with claims, actions or proceedings by
any Indemnitee against the Borrower hereunder (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the Borrower
shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries so to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by unauthorized Persons of
information or other materials sent through electronic, telecommunications or
other information transmission systems that are intercepted by such Persons. All
amounts due under this Section shall be payable not later than 30 days after
written demand therefor. Statements payable by the Borrower pursuant to this
Section shall be submitted to Vice President and Treasurer (Telephone No.: (210)
283-2905) (Fax No.: (210) 283-2080), at the address of the Borrower set forth in
Section 10.2, or to such other Person or address as may be hereafter designated
by the Borrower in a notice to the Administrative Agent. The agreements in this
Section shall survive repayment of the Loans and all other amounts payable
hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the
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other Loan Documents, and the Borrower and the Agents shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would require the consent of all Lenders pursuant to Section
10.1. The Borrower agrees that if amounts outstanding under this Agreement and
the Loans are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the
Loans outstanding from time to time as if such Participant were a Lender;
provided that, in the case of Section 2.18, such Participant shall have complied
with the requirements of said Section, and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law and upon written notice to the Administrative Agent, at any time
and from time to time assign to any Lender or any Affiliate or Control
Investment Affiliate or Related Fund thereof or, with the consent of the
Borrower and the Administrative Agent and, in the case of any assignment of
Revolving Credit Commitments, the written consent of the Issuing Lender (which,
in each case, shall not be unreasonably withheld or delayed) (provided that (x)
the consent of the Borrower and the Administrative Agent need not be obtained
with respect to any assignment by any Lehman Entity and (y) the consent of the
Borrower need not be obtained with respect to any assignment of funded Tranche B
Term Loans), to an additional bank, financial institution or other entity (an
"Assignee") all or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
E, executed by such Assignee and such Assignor (and, where the consent of the
Borrower, the Agents or the Issuing Lender is required pursuant to the foregoing
provisions, by the Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided
that no such assignment to an Assignee (other than any Lender or any Affiliate
or Related Fund thereof) shall be in an aggregate principal amount of less than
$1,000,000, in the case of assignments of Loans and/or Commitments under the
Tranche B Term Loan Facility, or $5,000,000, in the case of assignments of Loans
and/or Commitments under any other Facility (in each case (x) other than in the
case of an assignment of all of a Lender's interests under this Agreement and
(y) which amount shall be in the aggregate in the case of simultaneous
assignments by a Lender to Control Investment Affiliates or Related Funds of
another Person), unless otherwise agreed by the Borrower and the Administrative
Agent. Any such assignment need not be ratable as among the Facilities. Upon
such execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such
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Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with Commitments and/or Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an Assignor's
rights and obligations under this Agreement, such Assignor shall cease to be a
party hereto, except as to Section 2.17, 2.18 and 10.5 in respect of the period
prior to such effective date). Notwithstanding any provision of this Section,
the consent of the Borrower shall not be required for any assignment that occurs
at any time when any Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Notes evidencing
such Loans recorded therein for all purposes of this Agreement. Any assignment
of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrower marked "canceled". The Register shall be available for
inspection by the Borrower or any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 10.6(c), by each such other Person) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 (except that no such registration and processing fee shall be payable in
connection with an assignment by or to a Lehman Entity), the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Borrower. On or prior to such effective date, the Borrower, at its own
expense, upon request, shall execute and deliver to the Administrative Agent (in
exchange for the Revolving Credit Note and/or applicable Term Notes, as the case
may be, of the assigning Lender) a new Revolving Credit Note and/or applicable
Term Notes, as the case may be, to the order of such Assignee in an amount equal
to the Revolving Credit Commitment and/or applicable Term Loans, as the case may
be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if
the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as
the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as
the case may be, to the order of the Assignor in an amount equal to the
Revolving Credit Commitment and/or applicable Term Loans, as the case may be,
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retained by it hereunder. Such new Note or Notes shall be dated the Original
Closing Date and shall otherwise be in the form of the Note or Notes replaced
thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests in Loans and Notes, including,
without limitation, any pledge or assignment by a Lender of any Loan or Note to
any Federal Reserve Bank in accordance with applicable law; provided that all
related costs, fees and expenses assessed against or incurred by such Lender
solely in connection with any such assignment to any Federal Reserve Bank or any
related re-assignment to such Lender shall be for the sole account of such
Lender.
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other indebtedness of any SPC, it will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any state thereof. In
addition, notwithstanding anything to the contrary in this Section 10.6(g), any
SPC may (A) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender, or with the prior written consent of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld) to any financial
institutions providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Loans, and (B) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC; provided that non-public
information with respect to the Borrower may be disclosed only with the
Borrower's consent which will not be unreasonably withheld. This paragraph (g)
may not be amended without the written consent of any SPC with Loans outstanding
at the time of such proposed amendment.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether
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voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 8(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Obligations, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Obligations, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement or of a Lender Addendum by facsimile transmission shall be effective
as delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Agents, the Arranger and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Arranger, any Agent
or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED
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BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Arranger, the Agents and the Lenders or among the Borrower and the
Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Arranger,
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any Agent, any other Lender or any affiliate of any thereof, (b) to any
Participant or Assignee (each, a "Transferee") or prospective Transferee that
agrees to comply with the provisions of this Section, (c) to any of its
employees, directors, agents, attorneys, accountants and other professional
advisors, (d) to any financial institution that is a direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section), (e) upon the request or demand of any Governmental Authority
having jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law (exclusive of any organizational or governance document of
such Agent or Lender), (g) that has been publicly disclosed other than in breach
of this Section, (h) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document. In
the event that any Agent or Lender shall have received a demand or request, or
intends to respond to or otherwise satisfy a requirement, for the delivery of
any such confidential information pursuant to the foregoing clause (f), such
Agent or Lender promptly shall make reasonable efforts to notify the Borrower
thereof within any applicable time period permitted to contest compliance with
any such demand, request or requirement; provided, that in no event shall any
Lender or Agent be liable for any action taken pursuant to such clause (f) or
for any failure so to notify the Borrower in accordance with the foregoing.
10.15 Release of Collateral and Guarantee Obligations. (a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Disposition of
Property permitted by the Loan Documents, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any
Lender that is a party to any Specified Hedge Agreement) take such actions as
shall be required to release its security interest in any Collateral being
Disposed of in such Disposition, and to release any guarantee obligations under
any Loan Document of any Person being Disposed of in such Disposition, to the
extent necessary to permit consummation of such Disposition in accordance with
the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of Credit shall be
outstanding, upon request of the Borrower, the Administrative Agent shall
(without notice to, or vote or consent of, any Lender, or any affiliate of any
Lender that is a party to any Specified Hedge Agreement) take such actions as
shall be required to release its security interest in all Collateral, and to
release all guarantee obligations under any Loan Document, whether or not on the
date of such release there may be outstanding Obligations in respect of
Specified Hedge Agreements. Any such release of guarantee obligations shall be
deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of the
Obligations guaranteed thereby shall be rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Subsidiary Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the
97
Borrower or any Subsidiary Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.
10.16 Enforceability; Usury. In no event shall any provision
of this Agreement, the Notes, or any other instrument evidencing or securing the
indebtedness of the Borrower hereunder ever obligate the Borrower to pay or
allow any Lender to collect interest on the Loans or any other indebtedness of
the Borrower hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest Lawful Rate"),
or obligate the Borrower to pay any taxes, assessments, charges, insurance
premiums or other amounts to the extent that such payments, when added to the
interest payable on the Loans, would be held to constitute the payment by the
Borrower of interest at a rate greater than the Highest Lawful Rate; and this
provision shall control over any provision to the contrary.
Without limiting the generality of the foregoing, in the event
the maturity of all or any part of the principal amount of the indebtedness of
the Borrower hereunder shall be accelerated for any reason, then such principal
amount so accelerated shall be credited with any interest theretofore paid
thereon in advance and remaining unearned at the time of such acceleration. If,
pursuant to the terms of this Agreement or the Notes, any funds are applied to
the payment of any part of the principal amount of the indebtedness of the
Borrower hereunder prior to the maturity thereof, then (a) any interest which
would otherwise thereafter accrue on the principal amount so paid by such
application shall be canceled, and (b) the indebtedness of the Borrower
hereunder remaining unpaid after such application shall be credited with the
amount of all interest, if any, theretofore collected on the principal amount so
paid by such application and remaining unearned at the date of said application;
and if the funds so applied shall be sufficient to pay in full all the
indebtedness of the Borrower hereunder, then the Lenders shall refund to the
Borrower all interest theretofore paid thereon in advance and remaining unearned
at the time of such acceleration. All sums paid or agreed to be paid to the
Administrative Agent or to any Lender for the use, forbearance or detention of
sums due hereunder shall, to the extent permitted by law applicable to the
Administrative Agent or such Lender, be amortized, prorated, allocated and
spread throughout the full term of the Loans until paid in full, so that the
rate or amount of interest on account of any Loans or other amounts hereunder
does not exceed the maximum amount allowed by such applicable law. Regardless of
any other provision in this Agreement, or in any of the written evidences of the
indebtedness of the Borrower hereunder, the Borrower shall never be required to
pay any unearned interest on such indebtedness or any portion thereof, and shall
never be required to pay interest thereon at a rate in excess of the Highest
Lawful Rate construed by courts having competent jurisdiction thereof.
10.17 Accounting Changes. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Change with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Change as if such Accounting Change had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Change had not occurred.
98
"Accounting Change" refers to any change in accounting principles required or
permitted by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
10.18 Delivery of Lender Addenda. Each Lender becoming a party
to this Agreement on the Restatement Date by delivering to the Administrative
Agent a Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
10.19 Notice of Remedies Pursuant to Alaskan Law. Notice is
hereby served that each of the Borrower and the Subsidiary Guarantors is
personally obligated and (in the case of the Subsidiary Guarantors, subject to
the terms and provisions of the Guarantee and Collateral Agreement) fully liable
for the amount due under any Loan made or Note issued under this Agreement. The
Administrative Agent, for the benefit of the Lenders, has the right to sue on
any such Loan or Note and obtain a personal judgment against the Borrower or any
such Subsidiary Guarantor for satisfaction of the amount due under any such Loan
or Note either before or after a judicial foreclosure on any Collateral.
10.20 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
[Rest of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
TESORO PETROLEUM CORPORATION
By: /s/ GREGORY A. WRIGHT
------------------------------------
Name: Gregory A. Wright
Title: Senior Vice President and
Chief Financial Officer
LEHMAN BROTHERS INC., as Arranger
By: /s/ FRANK P. TURNER
------------------------------------
Name: Frank P. Turner
Title: Authorized Signatory
LEHMAN COMMERCIAL PAPER INC., as
Syndication Agent
By: /s/ FRANK P. TURNER
------------------------------------
Name: Frank P. Turner
Title: Authorized Signatory
BANK ONE, NA, as Administrative Agent
By: /s/ THOMAS E. BOTH
------------------------------------
Name: Thomas E. Both
Title: Director, Capital Markets
100
ABN AMRO BANK N.V., as Documentation
Agent
By: /s/ JAMIE A. CONN
------------------------------------
Name: Jamie A. Conn
Title: Group Vice President
By: /s/ STUART MURRAY
------------------------------------
Name: Stuart Murray
Title: Group Vice President
CREDIT LYONNAIS NEW YORK BRANCH, as
Documentation Agent
By: /s/ BERNARD WEYMULLER
------------------------------------
Name: Bernard Weymuller
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, as
Documentation Agent
By: /s/ P. HAWES
------------------------------------
Name: P. Hawes
Title: Comptroller
Annex A
PRICING GRID
Non-Investment Grade Pricing Grid
<Table>
<Caption>
Revolving Credit Loans,
Tranche A Term Loans Tranche B Term Loans
------------------------------------- -------------------------------------
Applicable Margin Applicable Margin Applicable Margin Applicable Margin
Consolidated Leverage for Eurodollar for Base Rate for Eurodollar for Base Rate
Ratio Loans Loans Loans Loans
--------------------- ----------------- ----------------- ----------------- -----------------
> or = to 4.00:1:00 3.000% 2.000% 3.500% 2.500%
> or = to 3.75:1:00 but < 4.00:1.00 2.750% 1.750% 3.250% 2.250%
> or = to 3.50:1.00 but < 3.75:1.00 2.250% 1.250% 3.000% 2.000%
> or = to 3.00:1.00 but < 3.50:1.00 2.000% 1.000% 3.000% 2.000%
> or = to 2.50:1.00 but < 3.00:1.00 1.750% 0.750% 3.000% 2.000%
< 2.50:100 1.500% 0.500% 2.750% 1.750%
</Table>
Investment Grade Pricing Grid
<Table>
<Caption>
Revolving Credit Loans,
Tranche A Term Loans Tranche B Term Loans
------------------------------------- -------------------------------------
Applicable Margin Applicable Margin Applicable Margin Applicable Margin
Consolidated Leverage for Eurodollar for Base Rate for Eurodollar for Base Rate
Ratio Loans Loans Loans Loans
--------------------- ----------------- ----------------- ----------------- -----------------
> or = to 3.75:1:00 2.375% 1.375% 2.875% 1.875%
> or = to 3.50:1.00 but < 3.75:1.00 2.125% 1.125% 2.875% 1.875%
> or = to 3.00:1.00 but < 3.50:1.00 1.875% 0.875% 2.875% 1.875%
> or = to 2.50:1.00 but < 3.00:1.00 1.625% 0.625% 2.875% 1.875%
< 2.50:100 1.375% 0.375% 2.750% 1.750%
</Table>
This Pricing Grid shall be effective on and after the date on which the Borrower
delivers, in accordance with Section 6.1(a), the audited financial statements of
the Borrower and its consolidated Subsidiaries for the fiscal quarter ended June
30, 2003. The Investment Grade Pricing Grid shall apply as of any date on which
the Facilities are rated at least BBB- by Standard & Poor's Rating Services and
Baa3 by Moody's Investors Service, Inc.; the Non-Investment Grade Pricing Grid
shall apply at all other times.
Changes in the Applicable Margin with respect to any Loans resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
(the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 (but in any event not later than the 60th day
after the end of each of the first three quarterly periods of each fiscal year
or the 105th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 4.00 to 1.00. Each determination of the
Consolidated Leverage Ratio pursuant to this definition shall be made with
respect to the period of four consecutive fiscal quarters of the Borrower and
its consolidated Subsidiaries ending at the end of the period covered by the
relevant consolidated financial statements.