EXHIBIT 10.64
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT
AND TERM LOAN AGREEMENT
dated as of July 23, 1999
among
PETRO STOPPING CENTERS, L.P.,
BANKBOSTON, N.A.
(formerly known as
The First National Bank of Boston)
and the other lending institutions
listed on Schedule 1 hereto
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and
BANKBOSTON, N.A.
(formerly known as
The First National Bank of Boston),
as Agent
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agent
FIRST UNION NATIONAL BANK,
as Documentation Agent
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.,
As Arranger
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION............................ 1
1.1. Definitions................................................. 1
1.2. Rules of Interpretation..................................... 28
2. THE REVOLVING CREDIT FACILITY...................................... 29
2.1. Commitment to Lend.......................................... 29
2.2. Commitment Fee.............................................. 29
2.3. Reduction of Total Commitment............................... 29
2.4. Loan Account................................................ 30
2.5. Interest on Revolving Credit Loans.......................... 30
2.6. Requests for Revolving Credit Loans......................... 30
2.7. Conversion Options.......................................... 31
2.7.1. Conversion to Different Type of Revolving
Credit Loan...... 31
2.7.2. Continuation of Type of Revolving Credit Loan....... 31
2.7.3. Eurodollar Rate Loans............................... 32
2.8. Funds for Revolving Credit Loans............................ 32
2.8.1. Funding Procedures.................................. 32
2.8.2. Advances by Agent................................... 32
3. REPAYMENT OF THE REVOLVING CREDIT LOANS............................ 33
3.1. Maturity.................................................... 33
3.2. Mandatory Repayments of Revolving Credit Loans.............. 33
3.3. Optional Repayments of Revolving Credit Loans............... 33
4. THE TERM LOANS..................................................... 35
4.1. Term Loan A................................................. 35
4.1.1. Conversion of Revolving Credit Loans; the Term Loan. 35
4.1.2. Loan Account........................................ 35
4.1.3. Scheduled Installment Payments of Principal of Term
Loan A. 35
4.1.4. Interest on Term Loan A............................. 36
4.2. Term Loan B............................................ 37
4.2.1. Commitment to Lend.................................. 37
4.2.2. Loan Account........................................ 37
4.2.3. Scheduled Installment Payments of Principal of Term
Loan B. 37
4.2.4. Interest on Term Loan B............................. 38
4.3. Optional Prepayment of the Term Loans.................. 38
4.3.1. Term Loan A......................................... 39
4.3.2. Term Loan B......................................... 39
4.4. Mandatory Prepayment of the Term Loans................. 39
4.4.1. Proceeds............................................ 39
4.4.2. Excess Cash Flow Recapture.......................... 41
4.4.3. Application......................................... 41
5. LETTERS OF CREDIT.................................................. 42
5.1. Letter of Credit Commitments................................ 42
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5.1.1. Commitment to Issue Letters of Credit............... 42
5.1.2. Letter of Credit Applications....................... 42
5.1.3. Terms of Letters of Credit.......................... 42
5.1.4. Reimbursement Obligations of Banks.................. 42
5.1.5. Participations of Banks............................. 43
5.2. Reimbursement Obligation of the Borrower.................... 43
5.3. Letter of Credit Payments................................... 44
5.4. Obligations Absolute........................................ 44
5.5. Reliance by Issuer.......................................... 45
5.6. Letter of Credit Fee........................................ 45
6. CERTAIN GENERAL PROVISIONS......................................... 45
6.1. Fees Payable to Agent....................................... 45
6.1.1. Closing Fee........................................ 45
6.1.2. Agent's Fee........................................ 46
6.2. Payments to Agent.......................................... 46
6.3. Taxes...................................................... 46
6.4. Computations............................................... 47
6.5. Inability to Determine Eurodollar Rate..................... 47
6.6. Illegality................................................. 48
6.7. Additional Costs, etc...................................... 48
6.8. Capital Adequacy........................................... 49
6.9. Certificate................................................ 50
6.10. Indemnity.................................................. 50
6.11. Interest After Default..................................... 50
6.11.1. Overdue Amounts.................................... 50
6.11.2. Amounts Not Overdue................................ 50
6.12. Interest Limitation........................................ 50
6.13. Replacement of Bank........................................ 51
7. COLLATERAL SECURITY AND GUARANTIES................................ 52
7.1. Security of Borrower....................................... 52
7.2. Guaranties and Security of Domestic Subsidiaries........... 52
7.3. Guaranties of Holdings and Petro, Inc...................... 53
8. REPRESENTATIONS AND WARRANTIES.................................... 53
8.1. Partnership and Corporate Authority........................ 53
8.1.1. Existence; Good Standing........................... 53
8.1.2. Authorization...................................... 53
8.1.3. Enforceability..................................... 54
8.2. Governmental Approvals..................................... 54
8.3. Title to Properties; Leases................................ 54
8.4. Financial Statements and Projections....................... 54
8.4.1. Financial Statements............................... 55
8.4.2. Projections........................................ 55
8.4.3. Solvency........................................... 55
8.5. No Material Changes, etc................................... 56
8.6. Franchises, Patents, Copyrights, etc....................... 56
8.7. Litigation................................................. 56
8.8. No Materially Adverse Contracts, etc....................... 56
8.9. Compliance with Other Instruments, Laws, etc............... 57
8.10. Tax Status................................................. 57
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8.11. No Event of Default....................................... 57
8.12. Holding Company and Investment Company Acts............... 57
8.13. Absence of Financing Statements, etc...................... 57
8.14. Perfection of Security Interest........................... 58
8.15. Certain Transactions...................................... 58
8.16. Employee Benefit Plans.................................... 58
8.16.1. In General........................................ 58
8.16.2. Terminability of Welfare Plans.................... 58
8.16.3. Guaranteed Pension Plans.......................... 59
8.16.4. Multiemployer Plans............................... 59
8.17. Regulations U and X....................................... 59
8.18. Environmental Compliance.................................. 59
8.19. Subsidiaries, etc......................................... 61
8.20. Reasonably Equivalent Value............................... 61
8.21. Chief Executive Offices................................... 62
8.22. Fiscal Year............................................... 62
8.23. No Amendments to Certain Documents........................ 62
8.24. Representations Under Recapitalization Documents.......... 62
8.25. Insurance................................................. 62
8.26. Bank Accounts............................................. 62
8.27. Year 2000 Problem......................................... 62
8.28. Representations Regarding each Project.................... 63
8.28.1. Condition of Property............................. 63
8.28.2. Relevant Contracts................................ 63
8.29. Disclosure................................................ 63
9. AFFIRMATIVE COVENANTS OF THE BORROWER............................. 64
9.1. Punctual Payment.......................................... 64
9.2. Maintenance of Office..................................... 64
9.3. Records and Accounts...................................... 64
9.4. Financial Statements, Certificates and Information........ 64
9.5. Notices................................................... 67
9.5.1. Defaults.......................................... 67
9.5.2. Environmental Events.............................. 67
9.5.3. Notification of Claim against Collateral.......... 67
9.5.4. Notice of Litigation and Judgments................ 67
9.6. Existence; Maintenance of Properties....................... 68
9.7. Insurance.................................................. 68
9.8. Taxes...................................................... 69
9.9. Inspection of Properties and Books, etc.................... 69
9.9.1. General........................................... 69
9.9.2. Commercial Finance Examinations................... 69
9.9.3. Appraisals........................................ 70
9.9.4. Environmental Assessments......................... 70
9.10. Compliance with Laws, Contracts, Licenses, and Permits..... 70
9.11. Employee Benefit Plans..................................... 71
9.12. Use of Proceeds............................................ 71
9.13. Additional Mortgaged Property.............................. 71
9.14. Title Insurance............................................ 72
9.15. Landlord Consents.......................................... 72
9.16. Survey and Taxes........................................... 72
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9.17. Local Counsel Opinions..................................... 72
9.18. Cash Management............................................ 73
9.19. Interest Rate Protection Arrangements...................... 73
9.20. Cost Overruns.............................................. 73
9.21. Contingency Reserve........................................ 73
9.22. Deposit of Funds Advanced.................................. 73
9.23. Advances to Contractor..................................... 73
9.24. Construction Inspector..................................... 74
9.25. Completion of Project...................................... 74
9.26. Further Assurances......................................... 75
9.27. Compliance with Environmental Laws......................... 75
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER....................... 75
10.1. Restrictions on Indebtedness............................... 75
10.2. Restrictions on Liens...................................... 78
10.3. Restrictions on Investments................................ 80
10.4. Distributions.............................................. 82
10.5. Merger, Consolidation and Disposition of Assets............ 83
10.5.1. Mergers and Acquisitions........................... 83
10.5.2. Disposition of Assets.............................. 84
10.6. Sale and Leaseback......................................... 85
10.7. Employee Benefit Plans..................................... 86
10.8. Transactions with Affiliates............................... 86
10.9. No Changes to Old Notes, Senior Notes or Discount Notes.... 86
10.10. Fiscal Year................................................ 86
10.11. No Negative Pledges........................................ 87
10.12. Upstream Limitations....................................... 87
10.13. Inconsistent Agreements.................................... 87
10.14. Undeveloped Land........................................... 87
11. FINANCIAL COVENANTS OF THE BORROWER.............................. 87
11.1. Maximum Consolidated Leverage Ratio........................ 87
11.2. Minimum Net Worth.......................................... 88
11.3. Consolidated Cash Flow Ratio............................... 88
11.4. Consolidated EBITDA/Interest............................... 88
11.5. Operating Leases........................................... 89
12. CLOSING CONDITIONS............................................... 89
12.1. Loan Documents, etc........................................ 89
12.1.1. Loan Documents..................................... 89
12.1.2. Recapitalization Documents......................... 89
12.1.3. Discount Notes..................................... 89
12.2. Certified Copies of Charter Documents...................... 89
12.3. Action..................................................... 90
12.4. Incumbency Certificate..................................... 90
12.5. Validity of Liens.......................................... 90
12.6. Perfection Certificates and UCC Search Results............. 90
12.7. Certificates of Insurance.................................. 90
12.8. FEMA Certification......................................... 90
12.9. Opinions of Counsel........................................ 90
12.10. Payment of Fees............................................ 91
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12.11. Solvency Certificate....................................... 91
12.12. Consent Under Senior Indenture............................. 91
12.13. Discount Notes............................................. 91
12.14. Satisfaction of Conditions of Recapitalization Documents... 91
12.15. Completion of Recapitalization............................. 91
12.16. No Material Adverse Change................................. 91
12.17. Capitalization............................................. 91
12.18. Transaction Costs.......................................... 91
12.19. Consents and Approvals..................................... 92
12.20. Pro Forma Balance Sheet.................................... 92
12.21. Pro Forma Compliance Certificate........................... 92
13. CONDITIONS TO ALL BORROWINGS...................................... 92
13.1. Representations True; No Event of Default.................. 92
13.2. No Legal Impediment........................................ 92
13.3. Governmental Regulation.................................... 92
13.4. Proceedings and Documents.................................. 92
13.5. Indenture Compliance....................................... 93
13.6. Conditions to Revolving Credit Loans for Permitted
Acquisitions. .................................................... 93
13.6.1. Acquisition Documents.............................. 93
13.6.2. Use of Proceeds.................................... 93
13.7. Conditions to Revolving Credit Loans for Permitted
Acquisitions of Real Estate....................................... 93
13.7.1. Environmental Matters.............................. 93
13.7.2. Survey and Title................................... 93
13.7.3. Mortgage........................................... 94
13.7.4. Local Counsel Opinion.............................. 94
13.7.5. Insurance.......................................... 94
13.7.6. Use of Proceeds.................................... 94
13.8. Conditions to Revolving Credit Loans for Construction...... 94
13.8.1. Borrower's Requisition............................. 94
13.8.2. Construction Documents............................. 94
13.8.3. Other Contracts.................................... 95
13.8.4. Construction Budget................................ 95
13.8.5. Construction Schedule.............................. 95
13.8.6. Plans and Specifications........................... 95
13.8.7. Mortgage........................................... 95
13.8.8. Title Policy....................................... 95
13.8.9. Other Insurance.................................... 95
▇▇.▇.▇▇.▇▇▇ Forma Compliance............................... 95
13.8.11.Environmental Report............................... 96
▇▇.▇.▇▇.▇▇▇▇▇ Opinions..................................... 96
13.8.13 Lien Search........................................ 96
13.8.14 Notices............................................ 96
13.8.15 Appraisal.......................................... 96
13.9. Conditions to Revolving Credit Loans for Improvements
Subsequent to an Initial Project Loan............................. 96
13.9.1. Borrower's Requisition............................. 96
13.9.2. No Damage.......................................... 96
13.9.3. Certificate........................................ ▇▇
-▇▇-
▇▇. EVENTS OF DEFAULT; ACCELERATION; ETC............................. 97
14.1. Events of Default and Acceleration......................... 97
14.2. Termination of Commitments................................. 100
14.3. Remedies................................................... 101
14.4. Distribution of Collateral Proceeds........................ 101
15. SETOFF........................................................... 102
16. THE AGENT........................................................ 102
16.1. Authorization.............................................. 102
16.2. Employees and Agents....................................... 103
16.3. No Liability............................................... 103
16.4. No Representations......................................... 103
16.4.1. General............................................ 103
16.4.2. Closing Documentation, etc......................... 104
16.5. Payments................................................... 104
16.5.1. Payments to Agent.................................. 104
16.5.2. Distribution by Agent.............................. 104
16.5.3. Deliquent Banks.................................... 104
16.6. Holders.................................................... 105
16.7. Indemnity.................................................. 105
16.8. Agent as Bank.............................................. 105
16.9. Resignation................................................ 105
16.10. Notification of Defaults and Events of Default............. 106
16.11. Duties in the Case of Enforcement.......................... 106
17. EXPENSES.......................................................... 106
18. INDEMNIFICATION................................................... 107
19. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..................... 108
19.1. Sharing of Information with Section 20 Subsidiary.......... 108
19.2. Confidentiality............................................ 108
19.3. Prior Notification......................................... 109
19.4. Other...................................................... 109
20. SURVIVAL OF COVENANTS, ETC........................................ 109
21. ASSIGNMENT AND PARTICIPATION...................................... 110
21.1. Conditions to Assignment by Banks.......................... 110
21.2. Certain Representations and Warranties; Limitations;
Covenants......................................................... 111
21.3. Register................................................... 112
21.4. New Notes.................................................. 112
21.5. Participations............................................. 112
21.6. Disclosure................................................. 113
21.7. Assignee or Participant Affiliated with the Borrower....... 113
21.8. Miscellaneous Assignment Provisions........................ 113
21.9. Assignment by Borrower..................................... 114
21.10. Syndication................................................ 114
22. NOTICES, ETC...................................................... 114
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23. GOVERNING LAW..................................................... 115
24. HEADINGS.......................................................... 115
25. COUNTERPARTS...................................................... 115
26. ENTIRE AGREEMENT, ETC............................................. 115
27. WAIVER OF JURY TRIAL.............................................. 115
28. CONSENTS, AMENDMENTS, WAIVERS, ETC................................ 116
29. SEVERABILITY...................................................... 117
30. NO RECOURSE AGAINST OTHERS........................................ 117
31. TRANSITIONAL ARRANGEMENTS......................................... 117
31.1. Original Credit Agreement Superseded....................... 117
31.2. Return and Cancellation of Notes........................... 117
31.3. Interest and Fees Under Superseded Agreement............... 117
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Schedules
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Schedule 1 - Banks; Commitments; Commitment Percentages
Schedule 8.3 - Titles to Properties; Leases
Schedule 8.7 - Litigation
Schedule 8.15 - Certain Officer, Director and Employee Transactions
Schedule 8.16 - ERISA Matters
Schedule 8.18 - Environmental Matters
Schedule 8.19 - Joint Ventures and Partnerships
Schedule 8.25 - Insurance
Schedule 8.26 - Bank Accounts
Schedule 10.1 - Indebtedness
Schedule 10.2 - Liens
Schedule 10.3 - Investments
Schedule 10.8 - Transactions with Affiliates
Exhibits
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Exhibit A-1 - Form of Amended and Restated Revolving Credit Note
Exhibit A-2 - Form of Amended and Restated Term A Note
Exhibit A-3 - Form of Amended and Restated Term B Note
Exhibit B - Form of Loan Request
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Mortgage
Exhibit F - Form of Partnership Pledge Agreement
Exhibit G-1 - Form of Security Agreement (Borrower)
Exhibit G-2 - Form of Security Agreement (Subsidiaries)
Exhibit H - Form of Stock Pledge Agreement
Exhibit I - Form of Subordination Agreement
Exhibit J-1 - Form of Guaranty
Exhibit J-2 - Form of Holdings Guaranty
Exhibit J-3 - Form of General Partner Guaranty
Exhibit K - Form of Trademark Assignment
Exhibit L-1 - Mortgaged Property delivered prior to Closing Date
Exhibit L-2 - Mortgaged Property delivered after the Closing Date
Exhibit M - Assignment of Contracts
Exhibit N - Intentionally omitted.
Exhibit O - Borrower's Requisition
Exhibit P - Construction Inspectors Certificate
Exhibit Q - Surveyor's Certificate
SECOND AMENDED AND RESTATED
---------------------------
REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
This SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
is made as of July 23, 1999, by and among PETRO STOPPING CENTERS, L.P. (the
"Borrower"), a Delaware limited partnership having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, BANKBOSTON, N.A. (formerly
known as The First National Bank of Boston), a national banking association, and
the other lending institutions listed on Schedule 1, BANKBOSTON, N.A. (formerly
-------- -
known as The First National Bank of Boston), as agent for itself and such other
lending institutions, UNION BANK OF CALIFORNIA, N.A., as Co-Agent, and FIRST
UNION NATIONAL BANK, as Documentation Agent.
WHEREAS, pursuant to the Amended and Restated Revolving Credit and Term
Loan Agreement, dated as of January 30, 1997 (as amended and in effect from time
to time, the "Original Credit Agreement"), by and among the Borrower, certain of
the Banks (as hereinafter defined) and the Agent (as hereinafter defined), the
Banks party thereto made loans and other extensions of credit to the Borrower to
refinance existing indebtedness of the Borrower and for working capital and
partnership purposes and for financing new site expansions; and
WHEREAS, the Borrower has requested, among other things, to amend and
restate the Original Credit Agreement and to provide additional financing to
finance Capital Expenditures, including the acquisition, construction and
upgrades of operating facilities, to pay fees and expenses relating to the
Recapitalization and for general corporate and working capital purposes, and the
Banks are willing to amend and restate the original Credit Agreement and provide
such additional financing on the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Banks and the Agent agree that on the
Closing Date the Original Credit Agreement is hereby amended and restated in its
entirety as set forth herein and shall remain in full force and effect only as
set forth herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1.1 Definitions. The following terms shall have the meanings set forth in
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this (S)1 or elsewhere in the provisions of this Credit Agreement referred
to below:
Accounts Receivable. All rights of the Borrower or any of its Subsidiaries
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to payment for goods sold, leased or otherwise marketed in the ordinary course
of business and all rights of the Borrower or any of its Subsidiaries to payment
for services rendered in the ordinary course of business and all sums of money
or other proceeds due thereon.
Adjustment Date. The first Business Day which is five (5) days after the
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earlier to occur of (a) the Borrower delivers to the Agent or (b) the Borrower
is required to deliver to the Agent the Compliance Certificate required by
(S)9.4(c) hereof for the Borrower's fiscal quarter most recently ended.
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Affiliate. Any Person that would be considered to be an affiliate of the
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Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agent's Head Office. The Agent's head office located at 100 Federal
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▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time.
Agent. BankBoston, N.A. (f/k/a The First National Bank of Boston), acting
-----
as agent for the Banks.
Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other counsel as may be
-----------------------
approved by the Agent.
Applicable Margin. For each period commencing on an Adjustment Date
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through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Borrower's Leverage Ratio, as determined for the
fiscal quarter ended immediately preceding the applicable Rate Adjustment
Period.
Leverage Base Eurodollar Base Eurodollar Letter of
-------- ---- ---------- ---- ---------- ---------
Level Ratio Rate Rate A Rate Rate B Credit
---- ----- ---- ------ ---- ------ ------
A Loans Loans B Loans Loans Fee
------- ----- ------- ----- ---
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I Greater than or 1.25% 2.75% 1.50% 3.00% 2.75%
equal to
4.50:1.00
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II Less than 1.00% 2.50% 1.50% 3.00% 2.50%
4.50:1.00 but
greater than or
equal to
4.00:1.00
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III Less than 0.75% 2.25% 1.50% 3.00% 2.25%
4.00:1.00
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Notwithstanding the foregoing, (a) for Loans outstanding and the Letter of
Credit Fees payable during the period commencing on the Closing Date through the
date immediately preceding the first Adjustment Date to occur after December 31,
1999, the Applicable Margin shall not be less than the Applicable Margin set
forth above as Level II, and (b) if the Borrower fails to deliver any Compliance
Certificate when required by (S)9.4(c) hereof then, for the period commencing on
the next Adjustment Date to occur subsequent to such failure through the date
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the highest Applicable Margin set
forth above.
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Architect's Contract. As to each applicable Project, the contract dated
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after the Closing Date between the Borrower and each of the Borrower's
Architects.
Arranger. BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
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Asset Swap. Any exchange of property or assets of the Borrower or any of
----------
its Subsidiaries for property or assets of an unaffiliated third party which
consist of property or assets, including without limitation Stopping Centers,
New Profit Centers and Petro:Lubes, owned or used by the Borrower or such
Subsidiary in the ordinary course of business.
Assignment and Acceptance. See (S)21.1.
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Assignment of Contracts. Collectively, the collateral assignments of
-----------------------
Construction Contracts, Architect's Contracts (if any) and other applicable
material contracts executed and delivered by the Borrower to the Agent in
connection with each Project and substantially in the form of Exhibit M hereto.
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Attributable Debt. With respect to any sale and leaseback transaction, as
--------------------
at the date of determination, the greater of (a) the fair value of the property
subject to such arrangement (as determined in good faith by the Board of
Directors) and (b) the present value (discounted at the rate of interest
implicit in such transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such sale and
leaseback transaction (including any period for which such lease has been
extended).
Balance Sheet Date. December 31, 1998.
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Banks. BKB and the other lending institutions listed on Schedule 1 hereto
----- -------- -
and any other Person who becomes an assignee of any rights and obligations of a
Bank pursuant to (S)21.
Base Rate. The higher of (a) the annual rate of interest announced from
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time to time by BKB (or the Agent) at its head office in Boston, Massachusetts,
as its "base rate" and (b) one-half of one percent (1/2%) above the Federal
Funds Effective Rate. For the purposes of this definition, "Federal Funds
Effective Rate" shall mean for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three funds brokers of
recognized standing selected by the Agent.
Base Rate A Loans. Revolving Credit Loans and all or any portion of the
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Term Loan A bearing interest calculated by reference to the Base Rate.
Base Rate B Loans. All or any portion of the Term Loan B bearing interest
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calculated by reference to the Base Rate.
Base Rate Loans. The Base Rate A Loans and Base Rate B Loans.
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BKB. BankBoston, N.A. (f/k/a The First National Bank of Boston), a
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national banking association, in its individual capacity.
Borrower. As defined in the preamble hereto.
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Borrower's Architect. For each Project for which, in the Borrower's
--------------------
reasonable determination, an architect is required, an architect selected by the
Borrower.
Borrower's Requisition. As defined in (S)13.8.1.
----------------------
Board of Directors. (a) With respect to the Borrower, for so long as it is
------------------
organized as a limited partnership, its Board of Directors or any duly
authorized committee thereof; (b) with respect to a corporation, the board of
directors of such corporation or any duly authorized committee thereof; and (c)
with respect to any other partnership or other entity, the board of directors or
similar body of such partnership or other entity or of the general partner or
general partners of such partnership or other entity, as the case may be, or any
duly authorized committee thereof.
Business Day. Any day on which banking institutions in Boston,
------------
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
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fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and goodwill) and including any capital stock or other
equity interests in another Person; provided that Capital Assets shall not
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include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or indebtedness incurred by a Person or
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any of its Subsidiaries in connection with the purchase or lease by such Person
or any of its Subsidiaries of Capital Assets that would be required or permitted
to be capitalized and shown on the balance sheet of such Person in accordance
with generally accepted accounting principles (and in the case of amounts
permitted to be capitalized, actually so capitalized), including, without
limitation, amounts paid or indebtedness incurred in connection with the
acquisition, development or construction of Stopping Centers, Petro:Lubes or New
Profit Centers to be acquired or opened after the Closing Date; provided, that
--------
Capital Expenditures shall not include amounts paid or Indebtedness incurred by
such Person in connection with (a) the defense of trademarks, service marks or
copyrights, (b) franchise development expenditures to the extent that such
expenditures are reimbursed or recouped through royalties or otherwise within
twelve (12) months from the date paid or incurred, as the case may be or (c) any
portion of an Asset Swap which is a substantially equivalent exchange of
property or assets (other than cash) of the Borrower or any of its Subsidiaries
for property or assets (other than cash) of an unaffiliated third party.
Capital Interests. With respect to any Person, any and all shares,
-----------------
interests, participations or other equivalents in the equity interest (however
designated) in such Person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire an equity
interest in such Person.
-5-
Capitalized Leases. Leases under which any Person is the lessee or
------------------
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with generally accepted accounting principles.
▇▇▇▇▇▇▇▇ Group. ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and their
--------------
respective spouses, lineal descendants, estates and Affiliates, including Petro,
Inc. (a corporation wholly owned by ▇.▇. ▇▇▇▇▇▇▇▇, ▇▇.), and JAJCO II, Inc. (a
corporation wholly owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.).
CERCLA. See (S)8.18.
------
Change of Control. The occurrence of any of the following events:
-----------------
(a) the Borrower sells, conveys, transfers or leases (either in
one transaction or a series of related transactions) all or
substantially all of its assets to a Person other than a Wholly-Owned
Subsidiary of the Borrower (other than a sale, conveyance, or transfer
by the Borrower solely for the purpose of converting the Borrower into
a corporation);
(b) Volvo, Mobil and the ▇▇▇▇▇▇▇▇ Group shall at any time,
legally or beneficially own less than 51% in the aggregate of the
partnership interests of Holdings; provided, however, that each of
-------- -------
Volvo, Mobil and the ▇▇▇▇▇▇▇▇ Group shall continue to own partnership
interests of Holdings at all times;
(c) Holdings shall at any time, legally or beneficially,
directly or indirectly own less than 99% of the partnership interests
of the Borrower; or
(d) either (i) a "Change of Control" (as such term is defined in
the Senior Notes Indenture as in effect on the Closing Date) or (ii) a
"Change of Control" as defined in any amendment to the Senior Notes
Indenture.
Chartwell. Chartwell Investments, Inc., a Delaware corporation.
---------
Chartwell Purchase Agreement. The Partnership Interest Subscription and
----------------------------
Purchase Agreement, dated as of July 23 1999, among the Borrower, Petro, Inc.,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, Mobil, Volvo, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇.
and JAJCO II, Inc., and in the form delivered to the Agent on or prior to the
Closing Date.
Closing Date. The first date on which the conditions set forth in (S)12
------------
have been satisfied and any Revolving Credit Loans and the Term Loan B are to be
made or any Letter of Credit is to be issued hereunder, which date is July 23,
1999.
Code. The Internal Revenue Code of 1986.
----
Collateral. All of the property, rights and interests of the Borrower and
----------
its Subsidiaries (other than Immaterial Subsidiaries) and the pledge by Holdings
of all of
-6-
the partnership interests in the Borrower, that are or are intended to be
subject to the security interests and mortgages created by the Security
Documents.
Comdata. Comdata Network, Inc. d/b/a Comdata Corporation, a Maryland
-------
corporation.
Comdata Agreement. The Agreement dated as of March 3, 1999, between
-----------------
Comdata and the Borrower, providing for, among other things, the transfer by the
Borrower to Comdata of certain collection rights with respect to the Subject
Receivables as the same may be amended or modified, provided that any amendment
--------
or modification which would result in an increase in the credit exposure or
obligations of the Borrower or any material adverse change (when considered as a
whole) in the economic terms of the transaction or any material change in the
nature of the transactions contemplated thereby shall be in form and substance
satisfactory to the Agent.
Comdata Subordination Agreement. The Subordination Agreement, dated as of
-------------------------------
July 23, 1999, pursuant to which the Agent, on behalf of itself and the Banks,
subordinates its lien in the Subject Receivables to Comdata, and in form and
substance satisfactory to the Agent.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
---------- -------- -
hereto as the amount of such Bank's commitment to make Revolving Credit Loans
to, and to participate in the issuance, extension and renewal of Letters of
Credit for the account of, the Borrower, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions hereof,
zero. Following the Conversion Date, the Commitment of each Bank shall be
adjusted to reflect the conversion of that portion of the Total Commitment which
exceeds $25,000,000 to the Term Loan A.
Commitment Percentage. With respect to each Bank, the percentage set forth
---------------------
on Schedule 1 hereto as such Bank's percentage of each of the aggregate
-------- -
Commitments of all the Banks, and with respect to the Term Loan A and the Term
Loan B, the percentage amount set forth on Schedule 1 of such Bank's commitment
-------- -
to make the Term Loan A and the Term Loan B.
Common Interests. With respect to any Person, the Capital Interests in
------ ---------
such Person that do not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to Capital Interests of any other
class in such Person.
Completion Date. As to each Project, the last to occur of (a) the
---------- ----
Borrower's Architect's issuance of a final certificate for payment, (b) the
Borrower's final payment of amounts outstanding under each such Construction
Contract and (c) the issuance of a complete, unconditional certificate or
certificates of occupancy for use of the Improvements.
Compliance Certificate. See (S)9.4(c).
----------------------
Consent Documents. Collectively, the Solicitation of Consents to Indenture
-----------------
Amendments, dated June 15, 1999, and the Consent to Indenture Amendments with
-7-
respect to 10 1/2% Senior Notes Due 2007, in the form delivered to the Agent on
or prior to the Closing Date.
Consolidated or consolidated. With reference to any term defined herein,
----------------------------
shall mean that term as applied to the accounts of a Person and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated Cash Flow. For any period, the sum of (a) the Consolidated
----------------------
EBITDA of the Borrower and its Subsidiaries for such period, minus (b)
-----
Consolidated Tax Distributions made during such period, and, to the extent
applicable, income taxes paid by the Borrower and its Subsidiaries during such
period, minus (c) the aggregate amount of Maintenance Capital Expenditures
-----
during such period, minus (d) without duplication, the aggregate amount of all
-----
cash Distributions made in such period.
Consolidated Cash Interest Expense. For any period, Consolidated Total
-----------------------------------
Interest Expense, minus, (a) to the extent included in Consolidated Total
-----
Interest Expense for such period, the accretion of original issue discount in
respect of instruments of indebtedness and any other noncash interest expense,
minus (b) to the extent included in Consolidated Total Interest Expense for such
-----
period any deferred financing costs associated with transactions permitted by
the terms of this Credit Agreement, including the closing fee referred to in
(S)6.1.
Consolidated EBITDA. For any period, the sum of (in each case without
-------------------
duplication) (a) the Consolidated Net Income of the Borrower and its
Subsidiaries for such period (to the extent applicable, before any income tax
expensed by the Borrower or its Subsidiaries to the extent deducted in
calculating Consolidated Net Income), plus (b) to the extent deducted in the
----
calculation of Consolidated Net Income, the aggregate amount of noncash earnings
attributable to minority interest in the Borrower's Subsidiaries (calculated in
accordance with generally accepted accounting principles) for such period, plus
----
(c) to the extent deducted in the calculation of Consolidated Net Income, the
Consolidated Total Interest Expense of the Borrower and its Subsidiaries for
such period, plus (d) to the extent deducted in the calculation of Consolidated
----
Net Income, consolidated depreciation and amortization charges made (and not
previously added in this definition) in calculating Consolidated Net Income of
the Borrower and its Subsidiaries for such period, plus (e) to the extent
----
deducted in the calculation of Consolidated Net Income, other consolidated non-
cash charges made (and not previously added in this definition) in calculating
Consolidated Net Income of the Borrower and its Subsidiaries for such period,
plus (f) the aggregate amount of transaction costs incurred in connection with
----
the Recapitalization and expensed in such period to the extent (i) such costs
were deducted in the calculation of Consolidated Net Income and (ii) the
aggregate amount of such costs were approved by the Agent, plus (g) to the
----
extent deducted in calculating Consolidated Net Income for such period,
expenditures paid or incurred to become "Year 2000 Ready" during the year ended
December 31, 1999 in an aggregate amount not to exceed $800,000 plus (h) to the
----
extent deducted in calculating Consolidated Net Income for such period, a
portion determined as provided herein of the start up expenses for Projects
incurred during the twelve (12) month period following the Closing Date in an
aggregate amount not to exceed $1,800,000; the portion added on any fiscal
quarter end shall be seventy-five percent (75%) of the amount deducted in the
fiscal quarter then ended,
-8-
fifty percent (50%) of the amount deducted in the preceding fiscal quarter and
twenty-five percent (25%) of the amount deducted in the second preceding fiscal
quarter.
Consolidated Excess Cash Flow. For any period, the amount by which
-----------------------------
Consolidated EBITDA of the Borrower and its Subsidiaries, exceeds the sum of (a)
Consolidated Cash Interest Expense (whether expensed or capitalized) of the
Borrower and its Subsidiaries for such period, plus (b) principal payments made
----
on the Indebtedness of the Borrower and its Subsidiaries in such period
(excluding repayments of Revolving Credit Loans not made as a result of or in
connection with a reduction in the Total Commitment, plus (c) Tax Distributions
----
made in such period, and, to the extent applicable, cash income taxes paid by
the Borrower and its Subsidiaries during such period, plus (d) Capital
----
Expenditures permitted under this Credit Agreement made in such period other
than New Site Capital Expenditures to the extent financed with a Revolving
Credit Loan, plus (e) voluntary prepayments on the Term Loans made in such
----
period (other than any prepayment required to be made pursuant to (S)(S)4.4.1
and 4.4.2 hereof), plus (f) start up expenses added to Consolidated EBITDA for
----
such period under clause (h) of the definition thereof, plus (g) expenditures to
----
become "Year 2000 Ready" added to Consolidated EBITDA for such period under
clause (g) of the definition thereof.
Consolidated Financial Obligations. For any period, and without
----------------------------------
duplication, the sum of (a) all scheduled payments of principal on Indebtedness
of the Borrower and its Subsidiaries, including payments of principal in respect
of Capital Leases, which came due during such period, plus (b) Consolidated Cash
----
Interest Expense for such period.
Consolidated Funded Indebtedness. At any time, the sum of (without
--------------------------------
duplication) (a) the aggregate amount of Indebtedness of the Borrower and its
Subsidiaries, on a consolidated basis, relating to the borrowing of money
(including indebtedness evidenced by notes or bonds) or the obtaining of credit
or in respect of Capitalized Leases (other than Indebtedness as described in
clause (l) of the definition of Indebtedness, contingent liabilities of the
Borrower to Comdata arising under the Comdata Agreement and Indebtedness
permitted by (S)10.1(b) hereof), plus (without duplication) (b) the sum of (i)
----- --
the aggregate Maximum Drawing Amount of all Letters of Credit outstanding and
(ii) all Indebtedness to third parties (other than Indebtedness described in
(S)10.1(e)) guaranteed by the Borrower or any of its Subsidiaries in excess of
$7,500,000.
Consolidated Net Income (or Deficit). The consolidated net income (or
------------------------------------
deficit) of the Borrower and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all extraordinary,
unusual and nonrecurring noncash items of income or expense and all
extraordinary, unusual and nonrecurring cash items of expense associated with
the repurchase of Indebtedness after the Closing Date.
Consolidated Net Worth. As of any date, the aggregate of capital, surplus
----------------------
and retained earnings of the Borrower and its Subsidiaries as would be shown on
a consolidated balance sheet of the Borrower and its Subsidiaries prepared as of
such date in accordance with generally accepted accounting principles, plus,
----
without
-9-
duplication, the aggregate Capital Interests of the Borrower, less all amounts,
----
if any, attributable to Redeemable Capital Interests in such Person.
Consolidated Total Interest Expense. For any period, the aggregate amount
-----------------------------------
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, other than Indebtedness of
the Borrower to Comdata arising under the Comdata Agreement, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of Capitalized
Leases and including commitment fees, agency fees, facility fees, balance
deficiency fees and similar fees or expenses in connection with the borrowing of
money.
Construction Budget. As to each Project, the budget for total estimated
-------------------
Property Costs for such Project, submitted by the Borrower to the Agent, in
connection with an Initial Project Loan which includes: (a) a line item cost
breakdown for construction of the Improvements (the "Direct Cost Breakdown");
(b) a line item cost breakdown for Indirect Costs (the "Indirect Cost
Breakdown"); and (c) a schedule of the sources of funds to pay such Property
Costs (the "Source of Funds Schedule"), or, if applicable, any revised
Construction Budget thereafter delivered by the Borrower to the Agent in
accordance with the Credit Agreement.
Construction Contract. As to each Project, the contract between the
------------ --------
Borrower and the Contractor party thereto.
Construction Inspector. At the Agent's option, either an officer or
----------------------
employee of the Agent or consulting architects, engineers or inspectors
appointed by the Agent.
Construction Schedule. For each Project, the schedule of the estimated
------------ --------
dates of commencement and completion of the Improvements, submitted by the
Borrower to the Agent in connection with an Initial Project Loan.
Contingency Reserve. As to any Project, the amount(s) allocated as
----------- -------
contingency reserve(s) in the Construction Budget for such Project.
Contractor. As to any Project, the general contractor selected by the
----------
Borrower from time to time.
Conversion Date. July 23, 2002.
---------------
Conversion Request. A notice given by the Borrower to the Agent of the
------------------
Borrower's election to convert or continue a Loan in accordance with (S)2.7 ,
(S)4.1.4 or (S)4.2.4.
Credit Agreement. This Second Amended and Restated Revolving Credit and
----------------
Term Loan Agreement, including the Schedules and Exhibits hereto.
Default. See (S)14.1.
-------
Disbursement Schedule. For each Project, the schedule of the amounts of
---------------------
Revolving Credit Loans anticipated to be requested by the Borrower each month
-10-
during the term of construction of the Improvements (including an itemization of
direct costs and Indirect Costs to be included in each such requisition).
Discount Notes. The 15% Senior Discount Notes due August 1, 2008 in the
--------------
aggregate original principal amount of not more than $55,600,000 issued by
Holdings and Petro Holdings Financial pursuant to the Discount Notes Indenture
and in the form delivered to the Agent prior to the Closing Date.
Discount Notes Indenture. The Indenture dated on or prior to the Closing
------------------------
Date, among Holdings, Petro Holdings Financial and the Trustee, in the form
delivered to the Agent on or prior to the Closing Date.
Distribution. The payment by any Person of any distributions or other
------------
payments to its partners as such or, as the case may be, its shareholders or
other equity holders as such; the declaration or payment of any dividend on or
in respect of any partnership interest in or shares of any class of capital
stock or other equity interests of any Person, other than dividends or other
distributions payable solely in partnership interests or in shares of the same
or a junior class of stock or Capital Interests of such Person; or the purchase
or other retirement of any partnership interest in, or shares of any class of
capital stock or other equity interests of, any Person, directly or indirectly
through a Subsidiary or otherwise; the return of capital by any Person to its
shareholders or partners as such; or any other distribution on or in respect of
any partnership interest or shares of any class of capital stock or Capital
Interests of any Person.
Dollars or $. Dollars in lawful currency of the United States of America.
------- -
Domestic Lending Office. Initially, the office of each Bank designated as
-----------------------
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
-------- -
located within the United States that will be making or maintaining Base Rate
Loans.
Domestic Subsidiary. Any Subsidiary (direct or indirect, existing on the
-------------------
date hereof or acquired or formed hereafter in accordance with the provisions
hereof) of the Borrower which is incorporated under the laws of the United
States of America, or a State or other subdivision of the United States of
America.
Drawdown Date. The date on which any Revolving Credit Loan or Term Loan is
-------------
made or is to be made, and the date on which any Revolving Credit Loan is
converted or continued in accordance with (S)2.7, or all or any portion of any
Term Loan is converted or continued in accordance with (S)4.1.4(b) or
(S)4.2.4(b), as the case may be.
Eligible Assignee. Any of (a) (i) a commercial bank or finance company
-----------------
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
--------
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a
-11-
member of the OECD; (iv) the central bank of any country which is a member of
the OECD; (v) any other bank, insurance company, commercial finance company or
other financial institution or fund approved by the Agent, such approval not to
be unreasonably withheld; and (vi) after the occurrence and during the
continuation of a Default or Event of Default, any other Person approved by the
Agent, which approval shall not be unreasonably withheld; and (b) any Bank and
any Affiliate of any Bank and, with respect to any Bank that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor of such Bank or by an Affiliate of such investment
advisor (and treating all such funds so managed as a single Eligible Assignee);
provided that no Affiliate of the Borrower shall be an Eligible Assignee.
--------
Employee Benefit Plan. Any employee benefit plan within the meaning of
---------------------
(S)3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See (S)8.18(a).
------------------
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
-----
ERISA Affiliate. Any Person which is treated as a single employer with the
---------------
Borrower under (S)414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
----------------------
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any date with respect to a Eurodollar Rate
-------------------------
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
-----------------------
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated
-------------------------
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
-------- -
any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
---------------
Loan, the rate of interest equal to (a) the arithmetic average of the rates per
annum for the Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two (2) Eurodollar Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations of such Eurodollar Lending Office
are customarily conducted, for delivery
-12-
on the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of the Eurodollar Rate Loan of
the Reference Bank to which such Interest Period applies, divided by (b) a
number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate A Loans. Revolving Credit Loans and all or any portion of
-----------------------
the Term Loan A bearing interest calculated by reference to the Eurodollar Rate.
Eurodollar Rate B Loans. All or any portion of the Term Loan B bearing
-----------------------
interest calculated by reference to the Eurodollar Rate.
Eurodollar Rate Loans. The Eurodollar Rate A Loans and the Eurodollar Rate
---------------------
B Loans.
Event of Default. See (S)14.1.
----------------
Foreign Subsidiary. Any Subsidiary (direct or indirect, existing on the
------------------
date hereof or acquired or formed hereafter in accordance with the provisions
hereof) of the Borrower which is incorporated under the laws of a jurisdiction
other than the United States of America, or a State or other subdivision of the
United States of America.
General Partner Guaranty. The General Partner Guaranty in substantially
------------------------
the form of Exhibit J-3 hereto, dated or to be dated on or prior to the Closing
-----------
Date, made by Petro, Inc. in favor of the Banks and the Agent pursuant to which
Petro, Inc. guarantees to the Banks and the Agent the payment and performance of
the Obligations and in form and substance satisfactory to the Banks and the
Agent.
generally accepted accounting principles. (a) When used in (S)11, whether
----------------------------------------
directly or indirectly through reference to a capitalized term used therein,
means (i) principles that are consistent with the principles adopted by the
Financial Accounting Standards Board and its predecessors, in effect for the
fiscal year ended on the Balance Sheet Date, and (ii) to the extent consistent
with such principles, the accounting practice of the Borrower reflected in its
financial statements for the year ended on the Balance Sheet Date, and (b) when
used in general, other than as provided above, means principles that are (i)
consistent with the principles adopted by the Financial Accounting Standards
Board and its predecessors, as in effect from time to time, and (ii)
consistently applied with past financial statements of the Borrower adopting the
same principles, provided that in each case referred to in this definition of
"generally accepted accounting principles" a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
-----------------------
meaning of (S)3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guaranty. The Second Amended and Restated Guaranty in substantially the
--------
form of Exhibit J-1 hereto, dated or to be dated on or prior to the Closing
------- ---
Date, made by each Domestic Subsidiary of the Borrower (unless such Domestic
Subsidiary is an
-13-
Immaterial Subsidiary) in favor of the Banks and the Agent pursuant to which
each Domestic Subsidiary of the Borrower jointly and severally guaranties to the
Banks and the Agent the payment and performance of the Obligations and in form
and substance satisfactory to the Banks and the Agent.
Hazardous Substances. Any hazardous waste, as defined by 42 U.S.C.
--------------------
(S)6903(5), any hazardous substances as defined by 42 U.S.C. (S)9601(14), any
pollutant or contaminant as defined by 42 U.S.C. (S)9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws.
Holdings. Petro Stopping Centers Holdings, L.P., a Delaware limited
--------
partnership.
Holdings Guaranty. The Holdings Guaranty in substantially the form of
-----------------
Exhibit J-2 hereto, dated or to be dated on or prior to the Closing Date, made
-----------
by Holdings in favor of the Banks and the Agent pursuant to which Holdings
guaranties to the Banks and the Agent the payment and performance of the
Obligations and in form and substance satisfactory to the Banks and the Agent.
Holdings Partnership Agreement. The Limited Partnership Agreement of
------------------------------
Holdings, dated as of July 23, 1999, among Petro, Inc., Petro Warrant, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., JAJCO II, Inc., Mobil and Volvo Holdings,
and in the form delivered to the Agent on or prior to the Closing Date.
Immaterial Subsidiary. Any Subsidiary of the Borrower which does not
---------------------
conduct any substantial revenue producing business and has assets with an
aggregate value of less than $1,000,000, provided that the assets of all
--------
Immaterial Subsidiaries shall not exceed $5,000,000 in the aggregate and no
Subsidiary which is, or is required to be a guarantor under the Senior Notes
Indenture shall constitute an Immaterial Subsidiary.
Improvement Capital Expenditures. Capital Expenditures of the Borrower and
--------------------------------
its Subsidiaries in connection with making improvements to existing facilities
or the construction or acquisition of property not constituting New Site Capital
Expenditures.
Improvements. As to each Project, the buildings, fixtures, equipment and
------------
other improvements to be demolished, developed, constructed or renovated on the
Land in accordance with the Plans and Specifications.
Indebtedness. With respect to any Person, whether recourse is to all or a
------------
portion of the assets of such Person or non-recourse, and whether or not
contingent, the following (without duplication): (a) all indebtedness of such
Person for borrowed money, whether current or funded, secured or unsecured,
recourse or non-recourse, (b) all obligations (other than interest, premium and
additional payments, if any) of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) all indebtedness of such Person for the
deferred purchase price of property or services represented by a note or other
security (other than in respect of any trade payable), (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 indebtedness of
such Person
-14-
secured by a purchase money mortgage or other lien to secure all or part of the
purchase price of property subject to such mortgage or lien, (f) all Capitalized
Lease obligations (other than the interest component of such Capitalized Lease
obligations), (g) any liability of such Person in respect of banker's
acceptances, letters of credit or similar facilities issued for the account of
such Person, (h) all other indebtedness secured by any mortgage, pledge,
security interest, lien, charge or other encumbrance existing on property owned
or acquired subject thereto, whether or not the liability secured thereby shall
have been assumed (limited, however, in the case of liabilities of others, to
the lesser of the amount of such liabilities or the value of such property), (i)
all guarantees, endorsements and other contingent obligations whether direct or
indirect in respect of indebtedness of others, including any obligation to
supply funds to or in any manner to invest in, directly or indirectly, the
debtor, to purchase indebtedness, or to assure the owner of indebtedness against
loss, through an agreement to purchase goods, supplies, or services for the
purpose of enabling the debtor to make payment of the indebtedness held by such
owner or otherwise, (j) the obligations to reimburse the issuer in respect of
any letters of credit, (k) the maximum fixed redemption or repurchase price of
Redeemable Capital Interests in such Person at the time of determination; (l)
any interest swap obligations or currency hedge obligations of such Person at
the time of determination; (m) Attributable Debt with respect to any sale and
leaseback transaction to which such Person is a party, and (n) all obligations
of the types referred to in paragraphs (a) through (m) of this definition of
Indebtedness of another Person and all dividends or other distributions of
another Person, the payment of which, in either case (i) such Person has
guaranteed or (ii) is secured by (or the holder of such Indebtedness or the
recipient of such dividends or other distributions has an existing right,
whether contingent or otherwise, to be secured by) any lien upon the property or
other assets of such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, dividends or other distributions.
For purposes of the foregoing, (i) the maximum fixed repurchase price of any
Redeemable Capital Interests that do not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Interests as
if such Redeemable Capital Interests were repurchased on any date of
determination, provided, however, that, if such Redeemable Capital Interests are
-------- -------
not then permitted to be repurchased, the repurchase price shall be the book
value of such Redeemable Capital Interests; and (ii) the amount outstanding at
any time of any Indebtedness issued with original issue discount is the
principal amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such time as determined in
accordance with generally accepted accounting principles.
Indirect Costs. For each Project, the title insurance premiums, survey
--------------
charges, engineering fees, architectural fees, real estate taxes during the
period of construction, commitment fees and interest payable to the Banks under
the Revolving Credit Loans, premiums for insurance, legal fees and all other
expenses which are, in accordance with generally accepted accounting principles,
Capital Expenditures relating to the Project.
Ineligible Securities. Securities which may not be underwritten or dealt
---------------------
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. (S)24, Seventh), as amended.
-15-
Initial Project Loan. With respect to any Project, the first Revolving
--------------------
Credit Loan to be made hereunder the proceeds of which will be used to finance
the Property Costs of such Project.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
---------------------
calendar quarter which includes the Drawdown Date thereof, and the last day of
each subsequent calendar quarter; and (b) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (i) three (3) months or less, the last
day of such Interest Period and (ii) more than three (3) months, the date that
is three (3) months from the first day of such Interest Period, the date which
is every succeeding three (3) months from the last Interest Payment Date and, in
addition, the last day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or any
---------------
relevant portion of the Term Loans, (a) initially, the period commencing on the
Drawdown Date of such Loan and ending on the last day of one of the periods set
forth below, as selected by the Borrower in a Loan Request (i) for any Base Rate
Loan, the last day of the calendar quarter; and (ii) for any Eurodollar Rate
Loan, 1, 2, 3, 6, or, if available to all of the Banks, 9 or 12 months; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
--------
subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall be extended to the next succeeding
Eurodollar 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
Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in
(S)2.7, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar 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 Eurodollar Business Day of a calendar month; and
(e) any Interest Period relating to any Eurodollar Rate Loan
that would otherwise extend beyond the Revolving Credit Loan Maturity
Date (if comprising a Revolving Credit Loan), the Term Loan A Maturity
Date (if comprising Term Loan A or a portion thereof) or the Term Loan
B
-16-
Maturity Date (if comprising Term Loan B or a portion thereof) shall
end on the Revolving Credit Loan Maturity Date, the Term Loan A
Maturity Date or the Term Loan B Maturity Date (as the case may be).
International Standby Practices. With respect to any standby Letter of
-------------------------------
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Investments. Any direct or indirect loan, advance (or other extension of
-----------
credit) or capital contribution to (by means of any transfer of cash or other
property or assets to another Person or any other payments for property or
services for the account or use of another Person), including without limitation
the following: (a) the purchase or acquisition of any Capital Interest or other
evidence of beneficial ownership in another Person; (b) the purchase,
acquisition or guarantee of the Indebtedness of another Person or the issuance
of a "keep well" with respect thereto; and (c) the purchase or acquisition of
the business or assets of another Person; provided, however, that (a) accounts
-------- -------
receivable purchased by the Borrower from its franchisees, licensees and third
party contractors in the ordinary course of business consistent with past
practices on commercially reasonable terms in accordance with normal trade
practices; (b) the acquisition of current assets in the ordinary course of
business; and (c) prepaid expenses and workers' compensation, utility, lease and
similar deposits made in the ordinary course of business shall not constitute
Investments as defined herein. In determining the aggregate amount of
Investments outstanding at any particular time: (i) the amount of any Investment
represented by a guaranty shall be taken at not less than the principal amount
of the obligations guaranteed and still outstanding; (ii) there shall be
deducted in respect of each such Investment any amount received as a return of
capital (but only by repurchase, redemption, retirement, repayment, liquidating
dividend or liquidating distribution); (iii) there shall not be deducted in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise; and (iv) there shall not be
deducted from the aggregate amount of Investments any decrease in the value
thereof.
▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇ Investments, a Pennsylvania general partnership.
---------
▇▇▇▇▇▇▇▇▇ Purchase Agreement. The Partnership Interest Purchase Agreement,
----------------------------
dated as of July 23, 1999, between Holdings and ▇▇▇▇▇▇▇▇▇, and in the form
delivered to the Agent on or prior to the Closing Date.
Land. The Real Estate on which a Stopping Center or Petro:Lube has been
----
built or is to be built.
Letter of Credit. See (S)5.1.1.
----------------
Letter of Credit Application. See (S)5.1.1.
----------------------------
Letter of Credit Participation. See (S)5.1.4.
------------------------------
-17-
Leverage Ratio. The ratio of Consolidated Funded Indebtedness at the end
--------------
of any fiscal quarter to Consolidated EBITDA for the four (4) fiscal quarters
then ended of the Borrower.
Lien. As to any Person, (a) any lien, encumbrance, mortgage, pledge,
----
charge, restriction, or other security interest of any kind upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) any transfer of any such property or
assets or the income or profits therefrom for the purpose of securing the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) any acquisition, or agreement or option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) the existence
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever under applicable law over its general creditors; or (e) any sale,
assignment, pledge or other transfer of any accounts, contract rights, general
intangibles, chattel paper or instruments, with or without recourse.
Loan Account. With respect to any Revolving Credit Loan, Term Loan A or
------------
Term Loan B, the records or accounts kept by any Bank with respect to such Loan.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
--------------
Applications, the Letters of Credit, the Comdata Subordination Agreement, and
the Security Documents and any agreements relating to the interest rate
protection arrangements required pursuant to (S)9.19 hereof.
Loan Request. See (S)2.6.
------------
Loans. The Revolving Credit Loans and the Term Loans.
-----
Maintenance Capital Expenditures. All Capital Expenditures other than
--------------------------------
those constituting New Site Capital Expenditures or Improvement Capital
Expenditures.
Majority Banks. As of any date, the Banks holding at least fifty-one
--------------
percent (51%) of the sum of the outstanding principal amount of the Loans plus
----
the unused portion of the Commitments on such date, plus the Maximum Drawing
-----
Amount of Letters of Credit on such date; and if no such Loans and Letters of
Credit are outstanding, the Banks whose aggregate Commitments constitute at
least fifty-one percent (51%) of the Total Commitment.
Maximum Drawing Amount. The maximum aggregate amount that the
----------------------
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Mobil. Mobil Long Haul Inc., a Delaware corporation.
-----
Mortgage Amendments. Collectively, each of the amendments to each of the
-------------------
Mortgages entered into prior to the Closing Date, which amendments shall be
dated on or prior to the Closing Date and shall be in form and substance
satisfactory to the Agent.
-18-
Mortgaged Property. Any Real Estate which is subject to any Mortgage,
------------------
including any Real Estate acquired by the Borrower or a Subsidiary after the
Closing Date which shall become subject to a Mortgage upon acquisition.
Mortgages. Collectively, (a) the several mortgages and deeds of trust,
---------
dated as of May 18, 1994, as amended, and as further amended by the Mortgage
Amendments pertaining to such Mortgage, from the Borrower and its Subsidiaries
to the Agent with respect to the fee and leasehold interests of the Borrower and
its Subsidiaries in the Real Estate referred to in Exhibit L-1 hereto and in
------- ---
form and substance satisfactory to the Banks and the Agent, (b) each of (i) the
Mortgage dated as of September 6, 1994, as amended, and as further amended by
the Mortgage Amendments, pertaining to such Mortgage on the fee interest of the
Borrower in the Real Estate located in Ocala, Florida; and (ii) the Mortgage
dated as of January 5, 1996, as amended, and as further amended by the Mortgage
Amendments, pertaining to such Mortgage on the fee interest of the Borrower in
the Real Estate located in Medford, Oregon; (c) the Mortgage dated as of January
30, 1997, as amended by the Mortgage Amendments, pertaining to such Mortgage on
the fee interest of the Borrower in the Real Estate located in Franklin,
Kentucky; (d) the several mortgages and deeds of trust, dated or to be dated on
or prior to the Closing Date, from the Borrower and its Subsidiaries in the Real
Estate referred to in Exhibit L-2 hereto and in form and substance satisfactory
-----------
to the Banks and the Agent, and (e) such additional mortgages and deeds of trust
as may be dated after the Closing Date from the Borrower and its Subsidiaries
with respect to fee and leasehold interests in Real Estate acquired after the
Closing Date which the Borrower or such Subsidiary is required to mortgage
pursuant to (S)9.13.
Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37)
------------------
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
New Profit Center Improvements. As to each New Profit Center Project, the
------------------------------
buildings, fixtures, equipment and other improvements to be constructed on the
existing Stopping Center or Petro:Lube, as the case may be, in accordance with
the plans and specifications applicable thereto.
New Profit Center Personal Property. As to each New Profit Center Project,
-----------------------------------
the materials, furnishings, fixtures, machinery, equipment and all items of
tangible and intangible personal property now or hereafter owned by the Borrower
or any of its Subsidiaries, wherever located, and either (a) to be incorporated
into the New Profit Center Improvements, (b) used in connection with the
construction of the New Profit Center Improvements or (c) to be used in
connection with the operation of the Land where such New Profit Center Project
is located or New Profit Center Improvements or both.
New Profit Center Project. The construction, acquisition or development by
-------------------------
the Borrower or any Subsidiary of any New Profit Center on any existing Stopping
Center or Petro:Lube.
New Profit Center Property. As to each New Profit Center Project, the New
--------------------------
Profit Center Improvements and the New Profit Center Personal Property.
New Profit Center Property Costs. As to each New Profit Center Project,
--------------------------------
all New Site Capital Expenditures and, without duplication, all costs that will
be incurred by the Borrower or any of its Subsidiaries in connection with the
construction of the New
-19-
Profit Center Improvements, and the carrying of the New Profit Center Property
through the date which is, as to each New Profit Center Project, the last to
occur of (a) the issuance by the architect (if any) responsible for such New
Profit Center Project of a final certificate for payment, (b) the Borrower's or
such Subsidiary's final payment of amounts outstanding under each such
construction contract and (c) the issuance of a complete, unconditional
certificate or certificates of occupancy for use of the New Profit Center
Improvements.
New Profit Centers. Any new profit center or operation intended to create
------------------
new or expanded revenues acquired, developed or constructed after the Closing
Date on any existing Stopping Center or Petro:Lube.
New Site Capital Expenditures. Capital Expenditures made for the purpose
------------------------------
of, and in connection with, (a) the acquisition or construction by the Borrower
or any of its Subsidiaries of Stopping Centers and Petro:Lubes to be acquired,
constructed or opened after the Closing Date, (b) any Other Permitted
Acquisition and (c) any New Profit Center.
Non-Wholly Owned Subsidiary. Any Subsidiary of which less than 100%, but
---------------------------
more than 50% of, the outstanding Common Interests thereof are owned and
controlled, directly or indirectly, by the Borrower.
Notes. The Revolving Credit Notes and the Term Notes.
-----
Obligations. All indebtedness, obligations and liabilities of the Borrower
-----------
and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Loans made or Reimbursement Obligations incurred or any Letter of Credit
Application, Letter of Credit, any interest rate protection agreements or other
instruments at any time evidencing any thereof.
Old Indenture. The Indenture dated as of May 24, 1994 and as amended
-------------
pursuant to the terms set forth in the Indenture Tender Offer, among the
Borrower, Petro Financial and First Trust National Association, as Trustee, in
the form delivered to the Agent prior to the Closing Date.
Old Notes. The 12.50% Senior Notes due 2002 in the aggregate amount of
---------
$100,000,000 issued by the Borrower and Petro Financial pursuant to the Old
Indenture and in the form delivered to the Agent prior to the Closing Date, and
of which less than $10,000,000 in principal amount shall be outstanding from and
after the Closing Date.
Operating Partnership Agreement. The Fourth Amended and Restated Limited
-------------------------------
Partnership Agreement of the Borrower, dated as of July 23, 1999, among
Holdings, Petro Holdings GP, LLC, ▇▇▇▇▇ ▇.. ▇▇▇▇▇▇▇▇, Jr. and Petro Inc. and in
the form delivered to the Agent on or prior to the Closing Date.
Original Credit Agreement. As defined in the preamble.
-------------------------
-20-
Other Taxes. Any present or future stamp or documentary taxes or any other
-----------
excise or property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Credit Agreement or any other Loan Document.
outstanding. With respect to the Loans, the aggregate unpaid principal
-----------
thereof as of any date of determination.
Partnership Pledge Agreement. The Collateral Assignment of Partnership
----------------------------
Interest in substantially the form of Exhibit F hereto, dated or to be dated as
------- -
of the Closing Date, between Holdings and the Agent and in form and substance
satisfactory to the Banks and the Agent.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of ERISA
----
and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Second Amended and Restated Perfection
-----------------------
Certificates as defined in the Security Agreements.
Permitted Acquisition Closing Date. The date on which a Permitted
----------------------------------
Acquisition occurs.
Permitted Acquisitions. See (S)10.5.1 hereof.
----------------------
Permitted Liens. Liens, security interests, mortgages and other
---------------
encumbrances permitted by (S)10.2.
Person. Any individual, corporation, partnership, trust, unincorporated
------
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Personal Property. As to each Project, the materials, furnishings,
-----------------
fixtures, machinery, equipment and all items of tangible and intangible personal
property now or hereafter owned by the Borrower, wherever located, and either
(a) to be incorporated into the Improvements, (b) used in connection with the
construction of the Improvements or (c) to be used in connection with the
operation of the Land or Improvements or both.
Petro Distributing. Petro Distributing, Inc., a Delaware corporation.
------------------
Petro Financial. Petro Financial Corporation, a Delaware corporation.
---------------
Petro Holdings Financial. Petro Holdings Financial Corporation, a Delaware
------------------------
corporation.
Petro, Inc.. Petro, Inc., a Texas corporation
-----------
Petro:Lube. A lube, oil and filter, tire and minor mechanical maintenance
----------
express facility for trucks and other heavy duty vehicles.
-21-
Petro:Lube Improvements. As to each Petro:Lube Project, the buildings,
-----------------------
fixtures, equipment and other improvements to be constructed on the Land in
accordance with the plans and specifications applicable thereto.
Petro:Lube Project. The construction or development by the Borrower or any
------------------
Subsidiary of any Petro:Lube, or the renovation of any facility to become a
Petro:Lube acquired by the Borrower or any Subsidiary in any Permitted
Acquisition, on any Real Estate owned, leased or acquired by the Borrower or any
Subsidiary.
Petro:Lube Personal Property. As to each Petro:Lube Project, the
----------------------------
materials, furnishings, fixtures, machinery, equipment and all items of tangible
and intangible personal property now or hereafter owned by the Borrower or any
Subsidiary, wherever located, and either (a) to be incorporated into the
Petro:Lube Improvements, (b) used in connection with the construction of the
Petro:Lube Improvements or (c) to be used in connection with the operation of
the Land or Petro:Lube Improvements or both.
Petro:Lube Property. As to each Petro:Lube Project, the Land, the
-------------------
Petro:Lube Improvements and the Petro:Lube Personal Property.
Petro Warrant. Petro Warrant Holdings Corporation, a Delaware corporation.
-------------
Plans and Specifications. As to each Project, the plans and specifications
------------------------
for the Improvements, as modified from time to time, and more particularly
identified on a schedule to the Construction Contract pertaining thereto or with
the Construction Budget thereto
Preferred Interests. As applied to the Capital Interests in any Person,
-------------------
means Capital Interests in such Person of any class or classes (however
designated) that rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to Common Interests in such Person.
Prescribed Forms. Duly executed forms or statements, and in such number of
----------------
copies, which may, from time to time be prescribed by law and which, pursuant to
applicable provisions of (a) an income tax treaty between the United States and
the country of residence of the Bank providing the forms or statements, (b) the
Code, or (c) any applicable rule or regulation under the Code, permit the
Borrower or the Agent to make payments hereunder for the account of such Bank
free of deduction or withholding of income or similar taxes. Each of the
Borrower and the Agent agrees and acknowledges that delivery of the following
documents by a Bank which is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and intends to claim exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest" shall constitute delivery of Prescribed Forms
for purposes of this definition: (i) a Form W-8, or any subsequent versions
thereof or successors thereto, and (ii) a certificate representing that such
Bank is not a bank for purposes of Section 881(c) of the Code, is not a 10-
percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
the Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code), properly completed and
duly executed by such Bank claiming complete exemption from, or a reduced rate
of, U.S. Federal withholding tax
-22-
on payments of interest by the Borrower under this Credit Agreement and the
other Loan Documents.
Pro Forma Basis. In connection with a Permitted Acquisition, other than
---------------
Permitted Acquisitions of Undeveloped Land, the Consolidated Funded Indebtedness
and Consolidated EBITDA for calculation of the Leverage Ratio for the fiscal
quarter in which such Permitted Acquisition occurred and each of the three (3)
succeeding fiscal quarters with reference to the audited historical financial
results of the Person or assets so acquired and the Borrower and its
Subsidiaries for the applicable Test Period after giving effect on a pro forma
--- -----
basis to such Permitted Acquisition and assuming that such Permitted Acquisition
had been consummated at the beginning of such Test Period in the manner
described in (i), (ii) and (iii) below:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all Indebtedness
of the Person acquired or to be acquired in such Permitted Acquisition
which was or will have been repaid in connection with the consummation of
the Permitted Acquisition shall be deemed to have been repaid concurrently
with the incurrence of the Indebtedness incurred in connection with the
Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant to the
preceding clause (i) shall be deemed to have borne interest at the sum of
(a) the Eurodollar Rate for Eurodollar Rate Loans having an Interest Period
of one month in effect on the date of determination plus (b) the Applicable
----
Margin for Revolving Credit Loans then in effect (after giving effect to
the Permitted Acquisition on a Pro Forma Basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to the
change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Agent in writing (which approval
shall not be unreasonably withheld) shall be deemed to have been realized
on the first day of the Test Period.
Project. As applicable, (a) the construction by the Borrower or any
-------
Subsidiary of any Stopping Center or the renovation of any Improvements acquired
by the Borrower or any Subsidiary in any Permitted Acquisition, on any Real
Estate owned, leased or acquired by the Borrower or any Subsidiary, or (b) any
Petro:Lube Project, or (c) any New Profit Center Project, or (d) the development
of any Land in connection with the foregoing.
Property. As to each Project, the Land, Improvements and Personal
--------
Property.
Property Costs. As to each Project, all New Site Capital Expenditures and,
--------------
without duplication, all costs that will be incurred by the Borrower in
connection with the acquisition of the Land, the construction of the
Improvements, and the carrying of the Property through the Completion Date,
including without limitation all Indirect Costs.
Rate Adjustment Period. See the definition of Applicable Margin.
----------------------
-23-
Real Estate. All real property at any time owned or leased (as lessee or
-----------
sublessee) by the Borrower or any of its Subsidiaries.
Recapitalization. The recapitalization of the Borrower on the
----------------
Recapitalization Closing Date by Holdings, Mobil, Volvo, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., JAJCO II, Inc. and certain other investors
(collectively, the "Sponsors") pursuant to the terms of the Recapitalization
Documents and the transactions contemplated thereby.
Recapitalization Closing Date. The first date on which the conditions set
-----------------------------
forth in the Recapitalization Documents have been satisfied and the
Recapitalization has occurred.
Recapitalization Documents. Collectively, the Operating Partnership
--------------------------
Agreement, the Holdings Partnership Agreement, the Consent Documents, the
Chartwell Purchase Agreement, the ▇▇▇▇▇▇▇▇▇ Purchase Agreement and all
agreements and documents required to be entered into or delivered pursuant
thereto or in connection with the Recapitalization, each in the form delivered
to the Agent on or before the Recapitalization Closing Date.
Record. The grid attached to a Note, or the continuation of such grid, or
------
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Redeemable Capital Interest. In any Person, any equity security of such
---------------------------
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or otherwise (including the
passage of time or the happening of an event), is required to be redeemed, is
redeemable at the option of the holder thereof in whole or in part (including by
operation of a sinking fund), or is convertible or exchangeable for Indebtedness
of such Person at the option of the holder thereof, in whole or in part, at any
time prior to the Term Loan B Maturity Date; provided, however, that Preferred
-------- -------
Interests of the Borrower or any Subsidiary thereof that are issued with the
benefit of provisions requiring a change of control offer to be made for such
Preferred Interests in the event of a Change of Control of the Borrower shall
not be deemed to be Redeemable Capital Interests solely by virtue of such
provision.
Reference Bank. BankBoston, N.A. (f/k/a The First National Bank of
--------------
Boston).
Reimbursement Obligation. The Borrower's obligation to reimburse the Agent
------------------------
and the Banks on account of any drawing under any Letter of Credit as provided
in (S)5.2.
Rental Obligations. All present and future obligations of the Borrower or
------------------
any of its Subsidiaries under any rental agreements or leases of real or
personal property, other than (a) obligations that can be terminated by the
giving of notice without liability to the Borrower or such Subsidiary in excess
of the liability for rent due as of the date on which such notice is given and
for periods through the effective date of termination specified in such notice,
not to exceed ninety (90) days after the date of notice, and under which no
penalty or premium is paid as a result of any such termination and (b)
obligations in respect of Capitalized Leases.
-24-
Replacement Asset. With respect to any asset sale, a property or asset
-----------------
that consists of a Stopping Center or that, as determined by the board of
Directors of the Borrower, as evidenced by a board resolution, is used or will
be used in connection with the Stopping Center business of the Borrower or any
Subsidiary Guarantor or a business reasonably related thereto.
Replacement Bank. See (S)6.13.
----------------
Revolving Credit Loan Commitment Percentage. With respect to each Bank,
-------------------------------------------
the percentage set forth on Schedule 1 hereto as such Bank's percentage of the
----------
aggregate Commitments of all the Banks.
Revolving Credit Loan Maturity Date. July 23, 2004.
-----------------------------------
Revolving Credit Loans. Revolving credit loans made or to be made by the
----------------------
Banks to the Borrower pursuant to (S)2.
Revolving Credit Note Record. A Record with respect to a Revolving Credit
----------------------------
Note.
Revolving Credit Notes. See (S)2.4.
----------------------
Section 20 Subsidiary. A Subsidiary of the bank holding company
---------------------
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
Security Agreements. Collectively, the Third Amended and Restated Security
-------------------
Agreement between the Borrower and the Agent substantially in the form of
Exhibit G-1 hereto, and the Second Amended and Restated Security Agreement among
-----------
the Subsidiaries of the Borrower and the Agent substantially in the form of
Exhibit G-2 hereto, each dated or to be dated on or prior to the Closing Date,
------------
and in form and substance satisfactory to the Banks and the Agent.
Security Documents. The Guaranty, the Holdings Guaranty, the General
------------------
Partner Guaranty, the Security Agreements, the Assignment of Contracts, the
Mortgages, the Trademark Assignments, the Partnership Pledge Agreements, and the
Stock Pledge Agreement.
Senior Notes. The 10 1/2% Senior Notes due 2007 in the aggregate
------------
outstanding principal amount of not more than $135,000,000 issued by the
Borrower and Petro Financial pursuant to the Senior Notes Indenture, as amended
by the Supplemental Indenture dated as of the date hereof, and in the form
delivered to the Agent prior to the Closing Date.
Senior Notes Indenture. The Indenture dated January 30, 1997, among the
----------------------
Borrower, Petro Financial and the Trustee, as amended by the Supplemental
Indenture dated as of the date hereof in the form delivered to the Agent on or
prior to the Closing Date.
Sponsors. As defined in the definition of Recapitalization.
--------
Stock Pledge Agreement. The Second Amended and Restated Stock Pledge
----------------------
Agreement in substantially the form of Exhibit H hereto, dated or to be dated on
------- -
or
-25-
prior to the Closing Date, between the Borrower and the Agent and in form and
substance satisfactory to the Banks and the Agent.
Stopping Centers. Multi-service truck stops, stopping center facilities or
----------------
other travel plaza facilities known as "Petro Stopping Centers" or "Petro: 2"
(or such other names as the Borrower may from time to time adopt) which
facilities provide services and amenities to commercial truck drivers and/or
trucking companies as well as other highway motorists and local residents and
which are operated by the Borrower or any of its Subsidiaries.
Subject Receivables. Those Accounts Receivable of the Borrower or any of
-------------------
its Subsidiaries in which the collection rights with respect thereto are
transferred to Comdata pursuant to the terms of the Comdata Agreement.
Subsidiary. Any corporation, association, trust, partnership or other
----------
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock or other voting equity interests.
Survey. In relation to each Mortgaged Property, an instrument survey of
------
such Mortgaged Property dated as of a date subsequent to January 1, 1992 for
each Mortgaged Property owned or leased by the Borrower or any of its
Subsidiaries on or prior to January 30, 1997 and such other later date as is
acceptable to the Agent for any Mortgaged Property owned or leased by the
Borrower or any of its Subsidiaries after the Closing Date, which shall show the
location of all buildings, structures, easements and utility lines on such
Mortgaged Property, shall be sufficient to remove the survey exception from the
Title Policy, shall show that all such buildings and structures are within the
lot lines of such Mortgaged Property, shall show any encroachments by others,
and shall show whether such Mortgaged Property is located in a flood hazard
district as established by the Federal Emergency Management Agency or any
successor agency or is located in any flood plain or flood hazard district
established under federal, state or local law.
Surveyor Certificate. In relation to each Mortgaged Property for which a
--------------------
Survey has been conducted, a certificate executed by the surveyor who prepared
such Survey dated as of a recent date and containing substantially the
information contained in the form of certification attached hereto as Exhibit Q
---------
hereto, addressed or certified to the Agent and the Title Insurance Company.
Taking. Any condemnation for public use of, or damage by reason of, the
------
action of any governmental authority or agency, or any transfer by private sale
in lieu thereof, either temporarily or permanently.
Tax Distributions. Distributions to the partners of the Borrower and its
-----------------
Subsidiaries made for the purpose of providing funds to pay such partner's tax
liability in respect of the taxable income of the Borrower or to pay (in the
case of Holdings as a partner of the Borrower) the tax liability of a partner of
Holdings in respect of the taxable income of Holdings and the Borrower.
Aggregate Tax Distributions shall not exceed for any year, an amount equal to
the Borrower's or such Subsidiary's (as the case may be) taxable income for such
year multiplied by the maximum combined federal and state tax rate for
individuals or corporations, as the case may be (expressed as a decimal) then in
effect calculated on a consolidated basis to the extent
-26-
applicable. Tax Distributions paid with respect to the first fiscal quarter of
any year shall not exceed an amount equal to twenty-five percent (25%) of the
greater of the prior year's tax liability or the amount necessary to take
advantage of applicable safe harbors for estimated tax payments.
Taxes. Any and all present or future taxes, levies, imposts, deductions,
-----
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank and the Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction (or any political subdivision thereof)
under the laws of which such Bank or the Agent, as the case may be, is organized
or maintains a lending office.
Term A Notes. See (S)4.1.2.
-------------
Term A Note Record. A record with respect to a Term A Note.
-------------------
Term B Notes. See (S)4.2.2.
-------------
Term B Note Record. A record with respect to a Term B Note.
-------------------
Term Loan A. The term loan made or to be made by the Banks to the
------------
Borrower on the Conversion Date as contemplated by (S)4.1 hereof.
Term Loan A Maturity Date. July 23, 2004.
--------------------------
Term Loan B. The conversion on the Closing Date of a portion of the
-----------
existing Loans made by the Banks to the Borrower pursuant to the Original Credit
Agreement to Term Loan B in the aggregate principal amount of $40,000,000
pursuant to (S)4.2.
Term Loan B Maturity Date. July 23, 2006.
--------------------------
Term Loans. Term Loan A and Term Loan B.
----------
Term Note Records. Term A Note Records and Term B Note Records.
-----------------
Term Notes. The Term A Notes and the Term B Notes.
----------
Test Period. The period of all fiscal quarters (and any portion of a
-----------
fiscal quarter) included in any covenant calculation and occurring prior to the
date of such Permitted Acquisition as set forth in the definition of "Pro Forma
Basis".
Title Insurance Company. ▇▇▇▇▇▇▇ Title Guaranty Company or such other
-----------------------
title insurance company which is acceptable to the Agent.
Title Policy. In relation to the Mortgaged Property existing on the
------------
Closing Date, ALTA (or state regulated form in Texas and other states where ALTA
policies are not available) standard form mortgage policies of title insurance
issued by the Title Insurance Company in an aggregate amount not to exceed one
hundred percent (100%) of the maximum committed amount of the Loans, and if
acquired following the Closing Date, in an amount reasonably estimated by the
Borrower to equal the sum of the purchase price for such Mortgaged Property
(including all diligence, acquisition and closing costs) and all additional
Property Costs for the Project to be constructed thereon, insuring the priority
of the Mortgage of such Mortgaged Property, and that
-27-
the Borrower or one of its Subsidiaries holds fee simple or leasehold title, as
applicable, to such Mortgaged Property, subject only to the encumbrances
permitted by such Mortgage and which shall not contain exceptions for mechanics
liens, persons in occupancy (other than tenants under recorded or unrecorded
leases) or matters which would be shown by a survey (except as may be permitted
by such Mortgage), shall not insure over any matter except to the extent that
any such affirmative insurance is acceptable to the Agent in its sole
discretion, and shall contain such endorsements and affirmative insurance as the
Agent in its reasonable discretion may require, including but not limited to (a)
comprehensive endorsement, (b) variable rate of interest endorsement, (c)
revolving credit endorsement, (d) tie-in endorsement, (e) doing business
endorsement, (f) first loss endorsement and (g) gap endorsement (or in Texas and
any other state where ALTA policies are not available, similar endorsements to
the extent available). Any Title Policy for a Project under construction may
contain a "pending disbursements" or other similar limitation if the Title
Insurance Company issuing such Title Policy will not insure the priority of the
advances under a revolving credit endorsement; provided, that unless otherwise
-------- ----
agreed by the Agent, the full premium for such Title Policy shall be paid upon
the issuance thereof. The Borrower shall be entitled to enter into Mortgages for
Properties earlier than required hereunder to enable the Borrower to provide the
Agent with Title Policies under rate rules generally referred to as
"simultaneous issuance rules."
Total Commitment. The sum of the Commitments of the Banks, as in effect
----------------
from time to time, as the same may be reduced from time to time pursuant to
(S)2.3. On the Closing Date, the Total Commitment is $85,000,000. Following
the Conversion Date, the Total Commitment shall not exceed $25,000,000.
Trademark Assignments. The Trademark Collateral Assignment and Security
---------------------
Agreement in substantially the form of Exhibit K hereto, dated as of May 18,
------- -
1994 and as amended by the First Amendment thereto dated as of December 31,
1994, the Second Amendment thereto dated as of January 30, 1997, and the Third
Amendment thereto dated on or prior to the Closing Date made by the Borrower in
favor of the Agent and in form and substance satisfactory to the Banks and the
Agent.
Trustee. State Street Bank and Trust Company.
-------
Type. As to any Revolving Credit Loan or all or any portion of the Term
----
Loans, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
Undeveloped Land. As of any date of determination, any real property owned
----------- ----
by the Borrower or any of its Subsidiaries which has not been, or is not in the
process of being, developed into a Stopping Center or Petro:Lube within one year
from the date of such acquisition.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
---------------
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
-------------------------------
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, (S)5.2.
-28-
Volvo. Volvo Trucks of North America, Inc., a Delaware corporation.
-----
Volvo Holdings. Volvo Petro Holdings, L.L.C., a Delaware limited liability
--------------
company.
Voting Stock. Stock or similar interests, of any class or classes (however
------------
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
Wholly-Owned Subsidiary. Any Subsidiary of which 100% of the outstanding
-----------------------
Capital Interests thereof are owned and controlled, directly or indirectly, by
the Borrower. For all purposes hereof, Petro Distributing and Petro Financial
are deemed to be Wholly-Owned Subsidiaries of the Borrower.
1.2. Rules of Interpretation.
-----------------------
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time
to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts,
have the meanings assigned to them therein, with the term "instrument"
being that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "(S)" refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
-29-
(j) A reference to any date herein which is specifically
identified as a fiscal month, fiscal quarter or fiscal year end date
shall mean the fiscal month, fiscal quarter or fiscal year, as the
case may be, ending nearest such date.
2. THE REVOLVING CREDIT FACILITY.
----------------------------
2.1. Commitment to Lend. Subject to the terms and conditions set
------------------
forth in this Credit Agreement, each of the Banks severally agrees to lend
to the Borrower and the Borrower may borrow, repay, and reborrow from time
to time between the Closing Date and the Revolving Credit Loan Maturity
Date upon notice by the Borrower to the Agent given in accordance with
(S)2.6, such sums as are requested by the Borrower up to a maximum
aggregate amount outstanding (after giving effect to all amounts requested)
at any one time equal to such Bank's Commitment minus such Bank's Revolving
-----
Credit Loan Commitment Percentage of the sum of the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations, provided that the sum of the
--------
outstanding amount of the Revolving Credit Loans (after giving effect to
all amounts requested) plus the Maximum Drawing Amount and all Unpaid
----
Reimbursement Obligations shall not at any time exceed the Total
Commitment. The Revolving Credit Loans shall be made pro rata in accordance
--- ----
with each Bank's Revolving Credit Loan Commitment Percentage. Each request
for a Revolving Credit Loan hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in (S)12 and (S)13,
in the case of the initial Revolving Credit Loans to be made on the Closing
Date, and (S)13, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.
2.2. Commitment Fee. The Borrower agrees to pay to the Agent for the
--------------
accounts of the Banks in accordance with their respective Revolving Credit
Loan Commitment Percentages a commitment fee calculated at the rate of one-
half of one percent (1/2%) on the average daily amount during each calendar
quarter or portion thereof from the Closing Date to the Revolving Credit
Loan Maturity Date by which the Total Commitment minus the sum of the
-----
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
outstanding amount of Revolving Credit Loans during such calendar quarter.
The commitment fee shall be payable quarterly in arrears on the last day of
each calendar quarter for such calendar quarter commencing on the first
such date following the Closing Date, with a final payment on the Revolving
Credit Maturity Date or any earlier date on which the Commitments shall
terminate.
2.3. Reduction of Total Commitment. The Borrower shall have the
-----------------------------
right at any time and from time to time upon three (3) Business Days prior
written notice to the Agent to reduce by $1,000,000 or an integral multiple
of $1,000,000 in excess thereof or terminate entirely the Total Commitment,
whereupon the Commitments of the Banks shall be reduced pro rata in
--- ----
accordance with their respective Revolving Credit Loan Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the Borrower delivered
pursuant to this (S)2.3, the Agent will notify the Banks of the substance
thereof. Upon the effective date of any such reduction or termination, the
Borrower shall pay to the Agent for the respective accounts of the Banks
the full amount of any
-30-
commitment fee then accrued on the amount of the reduction. No reduction or
termination of the Commitments may be reinstated.
2.4. Loan Account.
------------
(a) The Revolving Credit Loans and the Obligations of the
Borrower in respect thereof shall be evidenced by this Credit
Agreement and the Loan Account maintained by each Bank with respect to
the Revolving Credit Loans. The Borrower irrevocably authorizes each
Bank to make or cause to be made, at or about the time of the Drawdown
Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal on such Revolving Credit Loan, an appropriate
notation in such Loan Account reflecting the making of such Revolving
Credit Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Revolving Credit Loans set forth in such
Loan Account shall be prima facie evidence (absent manifest error) of
----- -----
the principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount in
such Loan Account shall not limit or otherwise affect the obligation
of the Borrower hereunder to make payments of principal of, or
interest on, the Revolving Credit Loans when due. The Borrower hereby
irrevocably and unconditionally promises to pay the Revolving Credit
Loans in accordance with the terms hereof.
(b) The Borrower agrees that, upon the request to the Agent by
any Bank, the Borrower will execute and deliver to such Bank a
promissory note of the Borrower evidencing the Revolving Credit Loans
of such Bank, substantially in the form of Exhibit A-1 hereto (each a
-----------
"Revolving Credit Note"), with appropriate insertions as to date and
principal amount.
2.5. Interest on Revolving Credit Loans. Except as otherwise
----------------------------------
provided in (S)6.11, (a) each Base Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day
of the Interest Period with respect thereto at the rate per annum equal to
the Base Rate plus the Applicable Margin; and (b) each Eurodollar Rate Loan
----
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at the rate per annum equal to the Eurodollar Rate determined for
such Interest Period plus the Applicable Margin. The Borrower irrevocably
----
and unconditionally promises to pay interest on each Revolving Credit Loan
in arrears on each Interest Payment Date with respect thereto.
2.6. Requests for Revolving Credit Loans. The Borrower shall give to
-----------------------------------
the Agent written notice in the form of Exhibit B hereto (or telephonic
------- -
notice confirmed in a writing in the form of Exhibit B hereto) of each
------- -
Revolving Credit Loan requested hereunder (a "Loan Request") no later than
(a) 1:00 p.m. (Boston time) on the proposed Drawdown Date of any Base Rate
Loan and (b) three (3) Eurodollar Business Days prior to the proposed
Drawdown Date of any Eurodollar Rate Loan provided, however the Borrower
-------- -------
shall not request any Eurodollar Rate Loan until the date which is seven
(7) days following the Closing Date. Each such notice shall specify (i) the
principal amount of the
-31-
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit
Loan, (iv) the Type of such Revolving Credit Loan and (v) whether all or
any portion of the proceeds of such Revolving Credit Loan are being used to
finance construction or a Permitted Acquisition. Promptly upon receipt of
any such notice, the Agent shall notify each of the Banks thereof. Each
Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from
the Banks on the proposed Drawdown Date. Each Loan Request shall be in a
minimum aggregate amount of $500,000 or an integral multiple of $100,000 in
excess thereof, subject to (S)2.7.3. In addition, the Borrower shall comply
with all of the necessary provisions and conditions set forth in (S)(S)12
and 13 hereof as applicable.
2.7. Conversion Options.
------------------
2.7.1. Conversion to Different Type of Revolving Credit Loan.
-----------------------------------------------------
The Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
provided that (a) with respect to any such conversion of a Eurodollar
--------
Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at
least one (1) Business Day's prior written notice of such election;
(b) with respect to any such conversion of a Base Rate Loan to a
Eurodollar Rate Loan, the Borrower shall give the Agent at least three
(3) Eurodollar Business Days' prior written notice of such election;
(c) with respect to any such conversion of a Eurodollar Rate Loan to a
Base Rate Loan, such conversion shall only be made on the last day of
the Interest Period with respect to such Eurodollar Rate Loan and (d)
no Base Rate Loan may be converted into a Eurodollar Rate Loan when
any Default or Event of Default has occurred and is continuing. On
the date on which such conversion is being made each Bank shall take
such action as is necessary to transfer its applicable Commitment
Percentage of such Revolving Credit Loans to its Domestic Lending
Office or its Eurodollar Lending Office, as the case may be. All or
any part of outstanding Revolving Credit Loans of any Type may be
converted into a Revolving Credit Loan of another Type as provided
herein, provided that any partial conversion shall be in an aggregate
--------
principal amount of $500,000 or an integral multiple of $100,000 in
excess thereof. Each Conversion Request relating to the conversion of
a Base Rate Loan to a Eurodollar Rate Loan shall specify the Interest
Period for such converted Eurodollar Rate Loan and shall be
irrevocable by the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any
---------------------------------------------
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice
provisions contained in (S)2.7.1 that would have been applicable for a
conversion into such Type; provided that no Eurodollar Rate Loan may
--------
be continued as such when any Default or Event of Default has occurred
and is continuing, but shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto
ending
-32-
during the continuance of any Default or Event of Default of which
officers of the Agent active upon the Borrower's account have actual
knowledge. In the event that the Borrower fails to provide any such
notice with respect to the continuation of any Eurodollar Rate Loan as
such, then such Eurodollar Rate Loan shall be automatically converted
to a Base Rate Loan on the last day of the Interest Period relating
thereto. The Agent shall notify the Banks promptly when any such
automatic conversion contemplated by this (S)2.7 is scheduled to
occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from
---------------------
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $1,000,000 or an integral multiple of
$100,000 in excess thereof. In addition, no more than ten (10)
Eurodollar Rate Loans (in the aggregate including Revolving Credit
Loans and Term Loans) having different Interest Periods shall be
outstanding at any one time.
2.8. Funds for Revolving Credit Loans.
--------------------------------
2.8.1. Funding Procedures. Not later than 2:00 p.m. (Boston
------------------
time) on the proposed Drawdown Date of any Revolving Credit Loans,
each of the Banks will make available to the Agent, at the Agent's
Head Office, in immediately available funds, the amount of such Bank's
Commitment Percentage of the amount of the requested Revolving Credit
Loans. Upon receipt from each Bank of such amount, and upon receipt of
the documents required by (S)(S)12 and 13 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the
Agent will make available to the Borrower the aggregate amount of such
Revolving Credit Loans made available to the Agent by the Banks. The
failure or refusal of any Bank to make available to the Agent at the
aforesaid time and place on any Drawdown Date the amount of its
Commitment Percentage of the requested Revolving Credit Loans shall
not relieve any other Bank from its several obligation hereunder to
make available to the Agent the amount of such other Bank's Commitment
Percentage of any requested Revolving Credit Loans.
2.8.2. Advances by Agent. The Agent may, unless notified to the
-----------------
contrary by any Bank prior to a Drawdown Date, assume that such Bank
has made available to the Agent on such Drawdown Date the amount of
such Bank's Commitment Percentage of the Revolving Credit Loans to be
made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the
Agent such amount on a date after such Drawdown Date, such Bank shall
pay to the Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of
the weighted average interest rate per annum paid by the Agent for
federal funds acquired by the Agent during each day included in such
period, times (b) the amount of such Bank's Commitment Percentage of
-----
such
-33-
Revolving Credit Loans, times (c) a fraction, the numerator of which
-----
is the number of days that elapse from and including such Drawdown
Date to the date on which the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans shall become immediately
available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any
amounts owing under this paragraph shall be prima facie evidence of
----- -----
the amount due and owing to the Agent by such Bank. If the amount of
such Bank's Commitment Percentage of such Revolving Credit Loans is
not made available to the Agent by such Bank within four (4) Business
Days following such Drawdown Date, the Agent shall be entitled to
recover such amount from the Borrower on demand, with interest thereon
at the rate per annum applicable to the Revolving Credit Loans made on
such Drawdown Date.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
---------------------------------------
3.1. Maturity. The Borrower promises to pay on the Revolving Credit
--------
Loan Maturity Date, and there shall become absolutely due and payable on
the Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid
interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time
----------------------------------------------
the sum of the outstanding amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Commitment, then the Borrower shall immediately pay the amount of
such excess to the Agent for the respective accounts of the Banks for
application: first, to any Unpaid Reimbursement Obligations; second, to the
Revolving Credit Loans; and third, to provide to the Agent cash collateral
for Reimbursement Obligations as contemplated by (S)5.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or prepayment of Revolving
Credit Loans shall be allocated among the Banks, in proportion, as nearly
as practicable, to each Reimbursement Obligation or (as the case may be)
the respective unpaid principal amount of the Revolving Credit Loans owing
to such Bank, with adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in proportion.
3.3. Optional Repayments of Revolving Credit Loans. The Borrower
---------------------------------------------
shall have the right, at its election, to repay the outstanding amount of
the Revolving Credit Loans, as a whole or in part, at any time without
penalty or premium (but subject to (S)6.10). The Borrower shall give the
Agent, no later than 11:00 a.m., Boston time, on the date of any proposed
prepayment written notice of any proposed prepayment pursuant to this
(S)3.3 of Base Rate Loans, and three (3) Eurodollar Business Days' prior
written notice of any proposed prepayment pursuant to this (S)3.3 of
Eurodollar Rate Loans, in each case specifying the proposed date of
prepayment of Revolving Credit Loans and the principal amount to be
prepaid. Each such partial prepayment of the Revolving Credit Loans shall
be in a minimum aggregate amount of $250,000 or a whole multiple of $50,000
in excess thereof and shall be applied, in the absence of instruction by
the Borrower, first to the principal of Base Rate Loans and then to the
principal of Eurodollar Rate Loans or both, at the Agent's option. Each
-34-
partial prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each
Bank's Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
-35-
4. THE TERM LOANS.
---------------
4.1. Term Loan A.
------------
4.1.1. Conversion of Revolving Credit Loans; the Term Loan.
---------------------------------------------------
Subject to the terms and conditions hereinafter set forth, including,
without limitation, the satisfaction of the conditions set forth in
(S)13 hereof, on the Conversion Date, an amount equal to the lesser of
(a) the aggregate outstanding principal amount of the Revolving Credit
Loans specified herein, and (b) the Total Commitment minus
-----
$25,000,000, shall be converted into a Term Loan A, held severally by
the Banks in accordance with their Commitment Percentages. On the
Conversion Date the Borrower shall pay to the Agent for the pro rata
--- ----
accounts of the Banks all interest accrued to such date on the
Revolving Credit Loans so converted, together with any Unpaid
Reimbursement Obligations, any commitment fees and other fees payable
to the Agent and the Banks hereunder, and, as soon as reasonably
practicable after such payment, each Bank shall surrender to the
Borrower its Revolving Credit Note (if any) and the Borrower shall, if
requested by such Bank, execute and deliver (i) a Term A Note
evidencing the amount of the outstanding Revolving Credit Loans so
converted, and (ii) a new Revolving Credit Note evidencing such Bank's
Commitment Percentage of the Total Commitment in effect following the
Conversion Date.
4.1.2. Loan Account.
------------
(a) The Term Loan A and the Obligations of the Borrower in
respect thereof shall be evidenced by this Credit Agreement and the
Loan Account maintained by each Bank with respect to the Term Loan A.
The Borrower irrevocably authorizes each Bank to make or cause to be
made, at or about the time of the Drawdown Date of the Term Loan A or
at the time of receipt of any payment of principal on such Term Loan
A, an appropriate notation in such Loan Account reflecting the making
of such Term Loan A or (as the case may be) the receipt of such
payment. The outstanding amount of the Term Loan A set forth in such
Loan Account shall be prima facie evidence (absent manifest error) of
----- -----
the principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount in
such Loan Account shall not limit or otherwise affect the obligation
of the Borrower hereunder to make payments of principal of, or
interest on, the Term Loan A when due. The Borrower hereby
irrevocably and unconditionally promises to pay the Term Loan A in
accordance with the terms hereof.
(b) The Borrower agrees that, upon the request to the Agent
by any Bank, the Borrower will execute and deliver to such Bank a
promissory note of the Borrower evidencing the Term Loan A of such
Bank, substantially in the form of Exhibit A-2 hereto (each a "Term A
------- ---
Note"), with appropriate insertions as to date and principal amount.
4.1.3. Scheduled Installment Payments of Principal of Term Loan
--------------------------------------------------------
A. The Borrower promises to pay to the Agent for the account of
-
-36-
the Banks the principal amount of Term Loan A in eight (8) consecutive
quarterly installments, each equal as near as possible to one-eighth
(1/8) of the principal amount of the Term Loan A outstanding on the
Conversion Date, such installments to be due and payable on the last
day of each calendar quarter of each calendar year, commencing on
September 30, 2002, with a final payment on the Term Loan A Maturity
Date in an amount equal to the unpaid balance of Term Loan A.
4.1.4. Interest on Term Loan A.
-----------------------
(a) Interest Rates. Except as otherwise provided in
--------------
(S)6.11, Term Loan A shall bear interest during each Interest Period
relating to all or any portion of Term Loan A at the following rates:
(i) To the extent that all or any portion of Term
Loan A bears interest during such Interest Period based on the Base
Rate, Term Loan A or such portion shall bear interest during such
Interest Period at the rate per annum of the Base Rate plus the
----
Applicable Margin.
(ii) To the extent that all or any portion of Term
Loan A bears interest during such Interest Period based on the
Eurodollar Rate, Term Loan A or such portion shall bear interest
during such Interest Period at the rate per annum of the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin.
----
The Borrower irrevocably and unconditionally promises to pay
interest on Term Loan A or any portion thereof outstanding during each
Interest Period in arrears on each Interest Payment Date applicable to
such Interest Period.
(b) Notification by Borrower. The Borrower shall
------------------------
notify the Agent, such notice to be irrevocable, at least three (3)
Business Days prior to the Conversion Date if all or any portion of
the Term Loan A is to bear interest at the Eurodollar Rate. After the
Term Loan A has been made, the provisions of (S)2.7 shall apply
mutatis mutandis with respect to the Term Loan A so that the Borrower
------- --------
may have the same interest rate options with respect to all or any
portion of the Term Loan A as it would be entitled to with respect to
the Revolving Credit Loans (subject to the same limitations as apply
to Revolving Credit Loans under (S)2.7, except as to the minimum
integral multiples of partial conversions, which, in the case of the
Term Loan A shall be in integral multiples of $500,000).
(c) Amounts, etc. No Interest Period relating to Term
------------
Loan A or any portion thereof bearing interest based on the Eurodollar
Rate shall extend beyond the date on which a regularly scheduled
installment payment of the principal of Term Loan A is to be made
unless a portion of Term Loan A at least equal to such installment
payment has an Interest Period ending on such date or is a Base Rate
Loan.
-37-
4.2. Term Loan B.
------------
4.2.1. Commitment to Lend. Subject to the terms and conditions
------------------
set forth in this Credit Agreement, each Bank agrees to convert
existing Loans under the Original Credit Agreement and to lend to the
Borrower on the Closing Date Term Loan B in an amount equal to its
Term Loan B Commitment Percentage of the principal amount of
$40,000,000.
4.2.2. Loan Account.
------------
(a) The Term Loan B and the Obligations of the Borrower in
respect thereof shall be evidenced by this Credit Agreement and the
Loan Account maintained by each Bank with respect to the Term Loan B.
The Borrower irrevocably authorizes each Bank to make or cause to be
made, at or about the time of the Drawdown Date of the Term Loan B or
at the time of receipt of any payment of principal on such Term Loan
B, an appropriate notation in such Loan Account reflecting the making
of such Term Loan B or (as the case may be) the receipt of such
payment. The outstanding amount of the Term Loan B set forth in such
Loan Account shall be prima facie evidence (absent manifest error) of
----- -----
the principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount in
such Loan Account shall not limit or otherwise affect the obligation
of the Borrower hereunder to make payments of principal of, or
interest on, the Term Loan B when due. The Borrower hereby
irrevocably and unconditionally promises to pay the Term Loan B in
accordance with the terms hereof.
(b) The Borrower agrees that, upon the request to the Agent
by any Bank, the Borrower will execute and deliver to such Bank a
promissory note of the Borrower evidencing the Term Loan B of such
Bank, substantially in the form of Exhibit A-3 hereto (each a "Term B
------- ---
Note"), with appropriate insertions as to date and principal amount.
4.2.3. Scheduled Installment Payments of Principal of Term Loan
--------------------------------------------------------
B. The Borrower promises to pay to the Agent for the account of the
-
Banks the principal amount of Term Loan B in consecutive quarterly
installments, such installments to be in the amounts set forth in the
table below and due and payable on the last day of each calendar
quarter of each calendar year, commencing on September 30, 2000, with
a final payment on the Term Loan B Maturity Date in an amount equal to
the unpaid balance of Term Loan B.
Quarter Ending Payment Amount
-------------- --------------
September 30, 2000 through June 30, $ 250,000
2004
September 30, 2004 through June 30, $3,000,000
2005
-38-
September 30, 2005 through March 31, $6,000,000
2006
Term Loan B Maturity Date Remaining Unpaid Balance
of Term Loan B
4.2.4. Interest on Term Loan B.
-----------------------
(a) Interest Rates. Except as otherwise provided in
--------------
(S)6.11, Term Loan B shall bear interest during each Interest Period
relating to all or any portion of Term Loan B at the following rates:
(i) To the extent that all or any portion of Term Loan
B bears interest during such Interest Period based on the Base Rate,
Term Loan B or such portion shall bear interest during such Interest
Period at the rate per annum of the Base Rate plus the Applicable
----
Margin.
(ii) To the extent that all or any portion of Term Loan
B bears interest during such Interest Period based on the Eurodollar
Rate, Term Loan B or such portion shall bear interest during such
Interest Period at the rate per annum of the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
----
The Borrower irrevocably and unconditionally promises to pay
interest on Term Loan B or any portion thereof outstanding during each
Interest Period in arrears on each Interest Payment Date applicable to
such Interest Period.
(b) Notification by Borrower. The Borrower shall notify the
------------------------
Agent, such notice to be irrevocable, at least three (3) Business Days
prior to the Drawdown Date of Term Loan B if all or any portion of the
Term Loan B is to bear interest based on the Eurodollar Rate provided,
--------
however, the Borrower shall not request any Eurodollar Rate Loan until
the date which is seven (7) days following the Closing Date. After
Term Loan B has been made, the provisions of (S)2.7 shall apply
mutatis mutandis with respect to Term Loan B so that the Borrower may
------- --------
have the same interest rate options with respect to all or any portion
of Term Loan B as it would be entitled to with respect to the
Revolving Credit Loans (subject to the same limitations as apply to
Revolving Credit Loans under (S)2.7, except as to the minimum integral
multiples of partial conversions, which, in the case of the Term Loan
B shall be in integral multiples of $500,000).
(c) Amounts, etc. No Interest Period relating to Term Loan
------------
B or any portion thereof bearing interest at the Eurodollar Rate shall
extend beyond the date on which a regularly scheduled installment
payment of the principal of Term Loan B is to be made unless a portion
of Term Loan B at least equal to such installment payment has an
Interest Period ending on such date or is a Base Rate Loan.
4.3. Optional Prepayment of the Term Loans.
-------------------------------------
-39-
4.3.1. Term Loan A. The Borrower shall have the right at any
-----------
time to prepay the Term Loan A on or before the Term Loan A Maturity
Date, as a whole, or in part, upon not less than three (3) Business
Days' prior written notice to the Agent, without premium or penalty
(but subject to (S)6.10), provided that (a) each partial prepayment
shall be in the principal amount of $500,000 or an integral multiple
thereof, and (b) each partial prepayment shall be allocated among the
Banks, in proportion, as nearly as practicable, to the respective
outstanding amount of each Bank's Term Loan A, with adjustments to the
extent practicable to equalize any prior prepayments not exactly in
proportion. Any prepayment of principal of the Term Loan A shall
include all interest accrued to the date of prepayment and shall be
applied pro rata against the remaining scheduled installments of
principal due on the Term Loan A. No amount repaid with respect to the
Term Loan A may be reborrowed.
4.3.2. Term Loan B. The Borrower shall have the right at any
-----------
time to prepay the Term Loan B on or before the Term Loan B Maturity
Date, as a whole, or in part, upon not less than three (3) Business
Days' prior written notice to the Agent (subject to (S)6.10); provided
--------
that (a) each partial prepayment shall be in the principal amount of
$500,000 or an integral multiple thereof, and (b) each partial
prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective outstanding amount of each
Bank's Term Loan B, with adjustments, to the extent practicable, to
equalize any prior prepayments not exactly in proportion. Any
prepayment of principal of the Term Loan B shall be applied against
the scheduled installments of principal due on the Term Loan B in the
inverse order of maturity. No amount repaid with respect to the Term
Loan B may be reborrowed. If the Borrower prepays the Term Loan B in
whole or in part, the Borrower shall pay a premium with respect to
each such prepayment in an amount determined in accordance with the
percentages set forth in the following table opposite the period
during which such prepayment is made:
Period Prepayment Premium
------ ------------------
Closing Date through
first anniversary thereof 1% of amount prepaid
First anniversary of
Closing Date through second
anniversary of Closing Date 0.50% of amount prepaid
Thereafter -0-
4.4. Mandatory Prepayment of the Term Loans.
--------------------------------------
4.4.1. Proceeds. Concurrently with the receipt by the
--------
Borrower or any of its Subsidiaries of cash proceeds from (a) sales or
other dispositions of assets (other than the sale or disposition of
assets in the
-40-
ordinary course of business consistent with past practices) which
exceed, in the aggregate, $5,000,000 over the term of this Credit
Agreement and which have not been either (i) reinvested by the
Borrower in Replacement Assets in which the Agent shall have a first
priority perfected security interest for the benefit of the Agent and
the Banks (subject only to those liens permitted pursuant to
(S)10.2(a), (S)10.2(b), (S)10.2(e), (S)10.2(f), (S)10.2(i),
(S)10.2(k), (S)10.2(l), (S)10.2(q) and (S)10.2(s)) within 270 days of
receipt by the Borrower or such Subsidiary (and, for purposes of this
(S)4.4.1(a)(i), to the extent the Borrower or any such Subsidiary
purchased any Replacement Asset not more than thirty (30) days prior
to the Borrower's or such Subsidiary's receipt of the cash proceeds of
any such sale or disposition, such a purchase shall be considered as
being reinvested for purposes of this (S)4.4.1, or (ii) subject to a
commitment by the Borrower or such Subsidiary pursuant to any contract
to be used to make such a reinvestment in Replacement Assets in which
the Agent shall have a first priority perfected security interest for
the benefit of the Agent and the Banks (subject only to those liens
permitted pursuant to (S)10.2(a), (S)10.2(b), (S)10.2(e), (S)10.2(f),
(S)10.2(i), (S)10.2(k), (S)10.2(l), (S)10.2(q) and (S)10.2(s)),
subject only to customary conditions (other than the obtaining of
financing), on or prior to the 270th day following the Borrower's or
such Subsidiary's receipt of the cash proceeds and the cash proceeds
contractually committed are so applied within 365 days following
receipt of such proceeds, (b) the sale of stock, partnership interests
or other equity issuances of the Borrower or any of its Subsidiaries
other than in connection with the Borrower's equity incentive plan,
private investments by existing investors and their affiliates in an
aggregate amount not to exceed $10,000,000 and proceeds from the
issuance of the Discount Notes, (c) proceeds from debt issuances other
than those permitted pursuant to (S)10.1, and (d) insurance claims
received by the Borrower or its Subsidiaries which have not been
either (i) reinvested by the Borrower or such Subsidiary within one
year of receipt by such Person of such proceeds (and, for purposes of
this (S)4.4.1(d)(i), to the extent the Borrower or any such Subsidiary
purchased any Replacement Asset or commenced repairs not more than
ninety (90) days prior to the Borrower's or such Subsidiary's receipt
of the claimed amounts but after the casualty that gave rise to such
proceeds, such a purchase or repair costs shall be considered as being
reinvested for purposes of this (S)4.4.1) or (ii) subject to a
commitment by the Borrower or such Subsidiary pursuant to any contract
to be used to make such a reinvestment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the
270th day following the Borrower's or such Subsidiary's receipt of the
claimed amount and the claimed amounts contractually committed are so
applied within 365 days following receipt of such amounts, the
Borrower shall pay to the Agent for the respective accounts of the
Banks an amount equal to 100% of such proceeds, to be applied if such
prepayment is made prior to the Conversion Date, to the Term Loan B
based on the then outstanding amount of the Term Loan B and applied
against the scheduled installments of principal due in the inverse
order of maturity, or, if such prepayment is made following the
Conversion Date, to be applied pro rata to each of the Term Loans
--- ----
based on the then outstanding amounts of the Term Loans and applied
against the
-41-
scheduled installments of principal due or the respective Term Loans
in the inverse order of maturity. Furthermore, if following the
Conversion Date, there are no amounts outstanding under the Term
Loans, to be applied to the outstanding Revolving Credit Loans and to
permanently reduce the Total Commitment by such amount.
4.4.2. Excess Cash Flow Recapture. The Borrower promises to pay
--------------------------
to the Agent for the pro rata account of the Banks on or before April
15 of each calendar year ending on or after the Borrower's fiscal year
ending closest to December 31, 1999 an amount equal to fifty percent
(50%) of the Consolidated Excess Cash Flow for each of the Borrower's
fiscal years ending closest to December 31, 1999 and each December 31
thereafter, provided, however any payments required to be made
-------- -------
pursuant to this (S)4.4.2 for any fiscal year shall not be required to
be made if the Borrower can demonstrate to the reasonable satisfaction
of the Agent that (a) the Leverage Ratio as at the end of each of (i)
the fiscal year for which such payments are to be made and (ii) the
fiscal quarter occurring immediately preceding the date such payment
would otherwise be due and payable was less than 3.00:1.00 and (b) No
Default or Event of Default has occurred and is continuing. Such
payments shall be applied if such prepayment is made prior to the
Conversion Date, to the Term Loan B based on the then outstanding
amount of the Term Loan B and applied against the scheduled
installments of principal due in the inverse order of maturity, or, if
such prepayment is made following the Conversion Date, to be applied
pro rata to each of the Term Loans based on the then outstanding
--- ----
amounts of the Term Loans and applied against the scheduled
installments of principal due or the respective Term Loans and applied
against the scheduled installments of principal due or the respective
Term Loans in the inverse order of maturity following the Conversion
Date, if there are no amounts outstanding under the Term Loans, to be
applied to the outstanding Revolving Credit Loans and to permanently
reduce the Total Commitment by such amount.
4.4.3. Application. In the event any holder of the Term Loan B
-----------
elects not to receive any prepayments it is otherwise entitled to
receive pursuant to this (S)4.4 and so notifies the Agent in writing
of such election prior to the time such payment is due, fifty percent
(50%) of all such prepayments such holder was otherwise entitled to
receive pursuant to this (S)4.4 shall be applied to the Term Loan A,
or, if there are no outstanding amounts due under the Term Loan A,
then to repay outstanding Revolving Credit Loans to the extent of the
amounts outstanding under the Revolving Credit Loans and to provide
cash collateral for the Obligations and so long as no Default has
occurred and is continuing, the remainder of such prepayments shall be
retained by the Borrower. The Agent shall promptly notify the Borrower
in writing of any such elections.
Notwithstanding the requirements of (S)(S)4.4.1, 4.4.2, and
4.4.3, no repayments under this (S)4.4 shall be applied to reduce the
Total Commitment to an amount less than $25,000,000. If any such
payment would otherwise be required, it shall be applied to repay any
outstanding
-42-
Revolving Credit Loans (or cash collateralize Letters of Credit, if
any) but not to reduce the Total Commitment.
5. LETTERS OF CREDIT.
-----------------
5.1. Letter of Credit Commitments.
----------------------------
5.1.1. Commitment to Issue Letters of Credit. Subject to the
-------------------------------------
terms and conditions hereof and the execution and delivery by the
Borrower of a letter of credit application on the Agent's customary
form (a "Letter of Credit Application"), the Agent on behalf of the
Banks and in reliance upon the agreement of the Banks set forth in
(S)5.1.4 and upon the representations and warranties of the Borrower
contained herein, agrees, in its individual capacity, to issue, extend
and renew for the account of the Borrower one or more standby letters
of credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and agreed to by the
Agent; provided, however, that, after giving effect to such request,
-------- -------
(a) the sum of the aggregate Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $10,000,000 at any one time
and (b) the sum of (i) the Maximum Drawing Amount on all Letters of
Credit, (ii) all Unpaid Reimbursement Obligations, and (iii) the
amount of all Revolving Credit Loans outstanding shall not exceed the
Total Commitment.
5.1.2. Letter of Credit Applications. Each Letter of Credit
-----------------------------
Application shall be completed to the satisfaction of the Agent. In
the event that any provision of any Letter of Credit Application shall
be inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern, it being understood and agreed that the
provisions of the Letter of Credit Application regarding
indemnification, set-off, insecurity and default shall be governed by
the indemnification, set-off, default and remedies provisions of this
Credit Agreement.
5.1.3. Terms of Letters of Credit. Each Letter of Credit
--------------------------
issued, extended or renewed hereunder shall, among other things, (a)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, and (b) have an expiry date no later
than the date which is fourteen (14) days (or, if the Letter of Credit
is confirmed by a confirmer or otherwise provides for one or more
nominated persons, thirty (30) days) prior to the Revolving Credit
Loan Maturity Date. Each Letter of Credit so issued, extended or
renewed shall be subject to the Uniform Customs or, in the case of a
standby Letter of Credit issued on or after January 1, 1999, either
the Uniform Customs or International Standby Practices.
5.1.4. Reimbursement Obligations of Banks. Each Bank severally
----------------------------------
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Revolving Credit
Loan
-43-
Commitment Percentage, to reimburse the Agent on demand for the amount
of each draft paid by the Agent under each Letter of Credit to the
extent that such amount is not reimbursed by the Borrower pursuant to
(S)5.2 (such agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank).
5.1.5. Participations of Banks. Each such payment made by a Bank
-----------------------
shall be treated as the purchase by such Bank of a participating
interest in the Borrower's Reimbursement Obligation under (S)5.2 in an
amount equal to such payment. Each Bank shall share in accordance with
its participating interest in any interest which accrues pursuant to
(S)5.2.
5.2. Reimbursement Obligation of the Borrower. In order to induce the
----------------------------------------
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in (S)5.2(b) and (c)
and subject to the last sentence of (S)5.3, on each date that any
draft presented under such Letter of Credit is honored by the Agent,
or the Agent otherwise makes a payment with respect thereto, (i) the
amount paid by the Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs
and expenses reasonably incurred by the Agent or any Bank in
connection with any payment made by the Agent or any Bank under, or
with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an
amount equal to such difference, which amount shall be held by the
Agent for the benefit of the Banks and the Agent as cash collateral
for all Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with (S)16, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Agent for the benefit of the Banks and the Agent
as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining
unpaid by the Borrower under this (S)5.2 at any time from the date such
amounts become due and payable (whether as stated in this (S)5.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Agent on demand at the rate specified in
(S)6.11 for overdue principal on the Revolving Credit Loans. Cash
collateral held by the Agent pursuant to this (S)5.2 shall, at the written
request of the Borrower,
-44-
be invested (at the Borrower's risk) in overnight or other short term
investments reasonably acceptable to the Agent. The Agent shall maintain a
perfected security interest in such investments in a manner satisfactory to
it. Interest or other earnings on such investments shall constitute
additional cash collateral but shall be released to the Borrower at its
request from time to time, to the extent that the amount of cash collateral
exceeds the amount required by this (S)5.2.
5.3. Letter of Credit Payments. If any draft shall be presented or
-------------------------
other demand for payment shall be made under any Letter of Credit, the
Agent shall notify the Borrower of the date and amount of the draft
presented or demand for payment and of the date and time when it expects to
pay such draft or honor such demand for payment. If the Borrower fails to
reimburse the Agent as provided in (S)5.2 on or before the date that such
draft is paid or other payment is made by the Agent, the Agent may at any
time thereafter notify the Banks of the amount of any such Unpaid
Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the
Business Day next following the receipt of such notice, each Bank shall
make available to the Agent, at its Head Office, in immediately available
funds, such Bank's Revolving Credit Loan Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the
product of (a) the average, computed for the period referred to in clause
(c) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such
period, times (b) the amount equal to such Bank's Revolving Credit Loan
-----
Commitment Percentage of such Unpaid Reimbursement Obligation, times (c) a
-----
fraction, the numerator of which is the number of days that elapse from and
including the date the Agent paid the draft presented for honor or
otherwise made payment to the date on which such Bank's Revolving Credit
Loan Commitment Percentage of such Unpaid Reimbursement Obligation shall
become immediately available to the Agent, and the denominator of which is
360. All such payments shall constitute a Revolving Credit Loan made to the
Borrower (irrespective of the satisfaction by the Borrower of the
conditions set forth in (S)13 hereof or the requirement of the Borrower to
deliver a Loan Request pursuant to (S)2.6 hereof). The responsibility of
the Agent to the Borrower and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity on their face in
all material respects with such Letter of Credit.
5.4. Obligations Absolute. The Borrower's obligations under this (S)5
--------------------
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the Agent, any Bank
or any beneficiary of a Letter of Credit. The Borrower further agrees with
the Agent and the Banks that the Agent and the Banks shall not be
responsible for, and the Borrower's Reimbursement Obligations under (S)5.2
shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even if such documents should
in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Borrower, the beneficiary of any Letter
of Credit or any financial institution or other party to which any Letter
of Credit may be transferred or
-45-
any claims or defenses whatsoever of the Borrower against the beneficiary
of any Letter of Credit or any such transferee. The Agent and the Banks
shall not 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. The Borrower agrees
that any action taken or omitted by the Agent or any Bank under or in
connection with each Letter of Credit and the related drafts and documents,
if done in good faith, shall be binding upon the Borrower and shall not
result in any liability on the part of the Agent or any Bank to the
Borrower, subject, however, to the last sentence of (S)5.3.
5.5. Reliance by Issuer. To the extent not inconsistent with (S)5.4,
------------------
the Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action under
this Agreement unless it shall first have received such advice or
concurrence of the Majority Banks as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Banks
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Majority Banks, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon the Banks and all future holders of the Revolving Credit Loans
or of a Letter of Credit Participation.
5.6. Letter of Credit Fee. The Borrower shall pay to the Agent a fee
--------------------
(in each case, a "Letter of Credit Fee") in respect of each standby Letter
of Credit issued pursuant to this Credit Agreement, equal to the Applicable
Margin at the date of issuance, extension or renewal of such Letter of
Credit multiplied by the face amount of each such Letter of Credit, plus an
----
issuance fee in respect of each standby Letter of Credit equal to 1/8% on
the face amount of each such Letter of Credit (the "Standby Issuance Fee"),
and the Agent shall in turn remit to each Bank its pro rata portion of such
--- ----
Letter of Credit Fee (but not the Standby Issuance Fee). The Letter of
Credit Fee for each Letter of Credit shall be payable quarterly in arrears
on the last Business Day of each calendar quarter then ending. In addition,
the Borrower shall pay to the Agent, for its own account, the Agent's
standard issuance, processing, negotiation, amendment and administrative
fees, determined in accordance with customary fees and charges for similar
facilities.
6. CERTAIN GENERAL PROVISIONS.
--------------------------
6.1. Fees Payable to Agent.
---------------------
6.1.1. Closing Fee. The Borrower shall pay to the Agent for its
------- ---
own account on the Closing Date a closing fee as set forth in the letter
agreement dated as of the Closing Date between the Borrower and the Agent.
-46-
6.1.2. Agent's Fee. The Borrower shall pay to the Agent an
------- ---
Agent's fee as set forth in the letter agreement dated as of the
Closing Date between the Borrower and the Agent.
6.2. Payments to Agent. All payments of principal, interest,
-----------------
Reimbursement Obligations, commitment fees, Letter of Credit Fees and any
other amounts due hereunder or under any of the other Loan Documents shall
be made to the Agent, for the respective accounts of the Banks and the
Agent, at the Agent's Head Office or at such other location in the Boston,
Massachusetts, area that the Agent may from time to time designate, in each
case in immediately available funds. All such payments may be made by
debiting an account of the Borrower with the Agent containing sufficient
funds to make such payment; and the Borrower hereby authorizes the Agent to
debit any such account to make payments hereunder when due
6.3. Taxes. (a) Any and all payments by the Borrower to each Bank or
-----
the Agent under this Credit Agreement shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, the Borrower
shall pay all Other Taxes.
(b) To the fullest extent permitted by applicable law, the Borrower
agrees to indemnify and hold harmless each Bank and the Agent for the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this (S)6.3) paid by such Bank
or the Agent and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. Payment under
this indemnification shall be made within thirty (30) days after the date
the Bank or the Agent makes written demand therefor in accordance with this
(S)6.3.
(c) If the Borrower shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to
any Bank or the Agent, then: (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this (S)6.3) such Bank or the Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made; (ii) the Borrower shall make such
deductions and withholdings; and (iii) the Borrower shall pay the full
amount deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(d) Notwithstanding anything to the contrary contained in this Credit
Agreement, each of the Borrower and the Agent shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or
other similar taxes imposed by the United States of America from interest,
fees or other amounts payable hereunder for the account of any Bank
(without the payment by the Borrower of increased amounts to such Bank
pursuant to clause (a), (b) or (c) above) other than a Bank (i) which is a
domestic corporation (as such term is defined in Section 7701 of the Code)
for federal income tax purposes or (ii) which has the Prescribed Forms on
file with the Borrower and the Agent for the applicable year, provided that
--------
if the Borrower shall so deduct or withhold any
-47-
such taxes, it shall provide a statement to the Agent and such Bank,
setting forth the amount of such taxes so deducted or withheld, the
applicable rate and any other information or documentation which such Bank
or the Agent may reasonably request for assisting such Bank or the Agent to
obtain any allowable credits or deductions for the taxes so deducted or
withheld in the jurisdiction or jurisdictions in which such Bank is subject
to tax.
(e) Within thirty (30) days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish the Agent the
original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Agent. Should any Bank or the
Agent ever receive any refund, credit or deduction from any taxing
authority to which such Bank or the Agent would not be entitled but for the
payment by the Borrower of Taxes as required by this (S)6.3 (it being
understood that the decision as to whether or not to claim, and if claimed,
as to the amount of any such refund, credit or deduction shall be made by
such Bank or the Agent in its sole discretion), such Bank or the Agent, as
the case may be, thereupon shall repay to the Borrower an amount with
respect to such refund, credit or deduction equal to any net reduction in
taxes actually obtained by such Bank or the Agent, as the case may be, and
determined by such Bank or the Agent, as the case may be, to be
attributable to such refund, credit or deduction.
(f) Each Bank shall use its reasonable best efforts (consistent with
its internal policies and legal and regulatory restrictions) to select a
jurisdiction for its lending office or change the jurisdiction of its
lending office, as the case may be, so as to avoid the imposition of any
Taxes or Other Taxes or to eliminate any such additional payment by the
Borrower which may thereafter accrue; provided that no such selection or
--------
change shall be made if, in the judgment of such Bank, such selection or
change would be disadvantageous to such Bank.
6.4. Computations. All computations of interest on the Base Rate Loans
------------
shall be based on a 365-day year and paid for the actual number of days
elapsed. All computations of interest on the Eurodollar Rate Loans and of
commitment fees, Letter of Credit Fees or other fees shall, unless
otherwise expressly provided herein, be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate
Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and
interest shall accrue during such extension. The outstanding amount of the
Loans as reflected on the Loan Accounts from time to time shall be
considered correct and binding on the Borrower, absent manifest error,
unless within twenty (20) Business Days after receipt of any notice by the
Borrower of such outstanding amount, the Borrower shall notify the Agent to
the contrary.
6.5. Inability to Determine Eurodollar Rate. In the event, prior to
--------------------------------------
the commencement of any Interest Period relating to any Eurodollar Rate
Loan, the Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate that would otherwise determine
the rate of interest to be applicable to any Eurodollar Rate Loan during
any Interest
-48-
Period, the Agent shall forthwith give notice of such determination (which
shall be conclusive and binding on the Borrower and the Banks) to the
Borrower and the Banks. In such event (a) any Loan Request, Advance Request
or Conversion Request with respect to Eurodollar Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans,
(b) each Eurodollar Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan, and
(c) the obligations of the Banks to make Eurodollar Rate Loans shall be
suspended until the Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent shall so notify the
Borrower and the Banks.
6.6. Illegality. Notwithstanding any other provisions herein, if any
----------
present or future law, regulation, treaty or directive or change in the
interpretation or application thereof shall make it unlawful for any Bank
to make or maintain Eurodollar Rate Loans, such Bank shall forthwith give
notice of such circumstances to the Borrower and the other Banks and
thereupon (a) the commitment of such Bank to make Eurodollar Rate Loans or
convert Loans of another Type to Eurodollar Rate Loans shall forthwith be
suspended and (b) such Bank's Loans then outstanding as Eurodollar Rate
Loans, if any, shall be converted automatically to Base Rate Loans on the
last day of each Interest Period applicable to such Eurodollar Rate Loans
or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay the Agent for the account of such Bank, upon
demand by such Bank, any additional amounts necessary to compensate such
Bank for any costs incurred by such Bank in making any conversion in
accordance with this (S)6.6, including any interest or fees payable by such
Bank to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder.
6.7. Additional Costs, etc. If any present or future applicable law,
---------------------
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made
upon or otherwise issued to any Bank or the Agent by any central bank or
other fiscal, monetary or other authority (whether or not having the force
of law), shall:
(a) impose or increase or render applicable (other than to the
extent specifically provided for in (S)6.8 or elsewhere in this Credit
Agreement) any special deposit, reserve, assessment, liquidity,
capital adequacy or other similar requirements (whether or not having
the force of law) against assets held by, or deposits in or for the
account of, or loans by, or letters of credit issued by, or
commitments of an office of any Bank, or
(b) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment,
or any class of loans, letters of credit or commitments of which any
of the
-49-
Loans or such Bank's Commitment forms a part, and the result of any of
the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or
such Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank or
the Agent hereunder on account of such Bank's Commitment, any
Letter of Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment
or to forego any interest or Reimbursement Obligation or other
sum payable hereunder, the amount of which payment or foregone
interest or Reimbursement Obligation or other sum is calculated
by reference to the gross amount of any sum receivable or deemed
received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such
Bank or (as the case may be) the Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Bank or the
Agent such additional amounts as will be sufficient to compensate such Bank
or the Agent for such additional cost, reduction, payment or foregone
interest or Reimbursement Obligation or other sum; provided, however, the
-------- -------
Borrower shall not be liable for any increased amounts incurred or accrued
more than ninety (90) days prior to the giving by such Bank or (as the case
may be) the Agent to the Borrower of the demand for such increased amounts.
6.8. Capital Adequacy. If any Bank or the Agent determines after the
----------------
date hereof that (a) the adoption of or change in any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) regarding capital requirements for banks or bank holding
companies or any change in the interpretation or application thereof by a
court or governmental authority with appropriate jurisdiction, or (b)
compliance by such Bank or the Agent or any corporation controlling such
Bank or the Agent with any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect of reducing the return on
such Bank's or the Agent's commitment with respect to any Loans to a level
below that which such Bank or the Agent could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's or
the Agent's then existing policies with respect to capital adequacy and
assuming full utilization of such entity's capital) by any amount deemed by
such Bank or (as the case may be) the Agent to be material, then such Bank
or the Agent may notify the Borrower of such fact. To the extent that the
amount of such reduction in the return on capital is not reflected in the
Base Rate, the Borrower agrees to pay such Bank or (as the case may be) the
Agent for the amount of such reduction in the return on capital as and when
such reduction is determined upon presentation by such Bank or (as the case
may be) the Agent of a certificate in accordance with (S)6.9 hereof. Each
-50-
Bank shall allocate such cost increases among its customers in good faith
and on an equitable basis. The Borrower shall not be liable for any amounts
pursuant to this (S)6.8 incurred or accruing more than ninety (90) days
prior to the presentation of such certificate.
6.9. Certificate. A certificate setting forth any additional amounts
-----------
payable pursuant to (S)(S)6.7 or 6.8 and a brief explanation of such
amounts which are due, submitted by any Bank or the Agent to the Borrower,
shall be conclusive, absent manifest error, that such amounts are due and
owing.
6.10. Indemnity. The Borrower agrees to indemnify each Bank and to
---------
hold each Bank harmless from and against any loss, cost or expense
(including with respect to the Applicable Margin and fees owing to the
Agent or any Bank) that such Bank may sustain or incur as a consequence of
(a) default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Rate Loans, (b) default by the Borrower in making a borrowing or
conversion after the Borrower has given (or is deemed to have given) a Loan
Request, notice (in the case of all or any portion of Term Loan A pursuant
to (S)4.1.4(b) or Term Loan B pursuant to (S)4.2.4(b) or a Conversion
Request relating thereto in accordance with (S)2.6, (S)2.7, (S)4.1.4(b) or
(S)4.2.4(b)), or (c) the making of any payment of a Eurodollar Rate Loan or
the making of any conversion of any such Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain any such Loans.
6.11. Interest After Default.
----------------------
6.11.1. Overdue Amounts. Overdue principal and (to the extent
---------------
permitted by applicable law) interest on the Loan and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to two percent (2%) above the rate otherwise
in effect for Base Rate B Loans until such amount shall be paid in
full (after as well as before judgment).
6.11.2. Amounts Not Overdue. During the continuance of a
-------------------
Default or an Event of Default, the principal amount of the Loans not
overdue shall, until such Default or Event of Default has been cured
or remedied or such Default or event of Default has been waived by the
Majority Banks pursuant to (S)28, bear interest at a rate per annum
equal to the two percent (2%) above the rate of interest otherwise
applicable to such Loans pursuant to (S)2.5, (S)4.1.4, and (S)4.2.4.
6.12. Interest Limitation. It is the intention of the parties hereto
-------------------
that each Bank shall conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby would be usurious as
to any Bank under laws applicable to it (including the laws of the United
States of America or any
-51-
other jurisdictions whose laws may be mandatorily applicable to such Bank),
then, in that event, notwithstanding anything to the contrary in the Loan
Documents, the Credit Agreement or any other agreements entered into in
connection with or as security for the Obligations, it is agreed as
follows: (a) the aggregate of all consideration which constitutes interest
under laws applicable to any Bank that is contracted for, taken, reserved,
charged or received by such Bank under the Loan Documents, the Credit
Agreement or any other agreements entered into in connection with or as
security for the Obligations or otherwise in connection with the
Obligations shall under no circumstances exceed the maximum amount allowed
by such applicable law, and any excess shall be cancelled automatically and
if theretofore paid shall be credited by such Bank on the principal amount
of the Indebtedness (or, to the extent that the principal amount of the
Indebtedness shall have been or would thereby be paid in full, refunded by
such Bank to the Borrower); and (b) in the event that the maturity of the
Loans is accelerated, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest under law
applicable to any Bank may never include more than the maximum amount
allowed by such applicable law, and excess interest, if any, provided for
in this Credit Agreement or otherwise shall be cancelled automatically by
such Bank as of the date of such acceleration or prepayment and, if
therefore paid, shall be credited by such Bank on the principal amount of
the Indebtedness (or, to the extent that the principal amount of the
Indebtedness shall have been or would thereby be paid in full, refunded by
such Bank to the Borrower). All sums paid or agreed to be paid to any Bank
for the use, forbearance or detention of sums due hereunder shall, to the
extent permitted by laws applicable to such Bank, be amortized, prorated,
allocated and spread through the term of the Loans until payment in full so
that the rate or amount of interest on account of any Loans does not exceed
the maximum amount allowed by such applicable law. If at any time and from
time to time (a) the amount of interest payable to any Bank on any date
shall be computed at the highest lawful rate applicable to such Bank
pursuant to this paragraph and (b) in respect of any subsequent interest
computation period the amount of interest otherwise payable to such Bank
would be less than the amount of interest payable to such Bank computed at
the highest lawful rate applicable to such Bank, then the amount of
interest payable to such Bank in respect of such subsequent interest
computation period shall continue to be computed at the highest lawful rate
applicable to such Bank until the total amount of interest payable to such
Bank shall equal the total amount of interest which would have been payable
to such Bank if the total amount of interest had been computed without
giving effect to this paragraph.
To the extent that Article 5069-1.04 of the Texas Revised Civil
Statutes is relevant to any Bank for the purpose of determining the highest
lawful rate, each such Bank hereby elects to determine the applicable rate
ceiling under such Article by the indicated (weekly) rate ceiling from time
to time in effect.
6.13. Replacement of Bank. In the event that any Bank makes a demand
-------------------
for payment pursuant to (S)(S)6.3, 6.7 or 6.8, or terminates the Commitment
of the Bank to make, or convert Loans of another Type to, Eurodollar Rate
Loans pursuant to (S)6.6, the Borrower shall have the right, if no Default
or Event of Default then exists, to replace such Bank in accordance
-52-
with this (S)6.13. If the Borrower determines to replace such Bank, the
Borrower shall have the right to replace such Bank with an entity that is
an Eligible Assignee (a "Replacement Bank"); provided that such Replacement
----------- ----
Bank, (a) shall be reasonably acceptable to the Agent, (b) shall
unconditionally offer in writing (with a copy to the Agent) to purchase all
of such Bank's rights under the Loan Documents and interest in the Loans
owing to such Bank and the Reimbursement Obligations owing to such Bank, in
each case without recourse, at the principal amount of such Obligations
plus interest and fees accrued thereon to the date of such purchase on a
date therein specified, and (c) shall execute and deliver to the Agent an
Assignment and Acceptance in accordance with (S)21 hereof. Upon
satisfaction of the requirements set forth in the second sentence of this
(S)6.13, acceptance of such offer to purchase by the Bank to be replaced,
payment to such Bank of the purchase price in immediately available funds,
and the payment by the Borrower of all requested costs accruing to the date
of purchase which the Borrower is obligated to pay under (S)6.10 and all
other amounts owed by the Borrower to such Bank (other than the principal
of and interest on the Obligations of such Bank purchased by the
Replacement Bank), and execution of the Assignment and Acceptance by all
parties thereto in accordance with (S)21 hereof, the Replacement Bank shall
constitute a "Bank" hereunder with a Commitment as so specified and the
Bank being so replaced shall no longer constitute a "Bank" hereunder and
shall thereupon be released from any and all liabilities in respect of the
Credit Agreement and the other Loan Documents. If, however, (i) a Bank
accepts such an offer and such proposed Replacement Bank fails to purchase
such rights and interests on such specified date in accordance with the
terms of such offer and to execute an Assignment and Acceptance, the
Borrower shall continue to be obligated to pay the increased costs or
additional amounts due to such Bank pursuant to (S)(S)6.3, 6.7 or 6.8 (if a
demand for repayment of increased costs or additional amounts pursuant to
any of such Sections is the basis for the proposed replacement), as the
case may be, or (ii) the Bank proposed to be replaced fails to accept such
purchase offer, the Borrower (if the basis for the proposed replacement is
a demand for payment of increased costs or additional amounts pursuant to
(S)(S)6.3, 6.7 or 6.8) shall not be obligated to pay to such Bank such
increased costs or additional amounts incurred or accrued from and after
the date of such purchase offer.
7. COLLATERAL SECURITY AND GUARANTIES.
----------------------------------
7.1. Security of Borrower. The Obligations shall be equally and
--------------------
ratably secured by (a) a perfected first priority security interest in or
lien on the Collateral (subject only to Permitted Liens entitled to
priority under applicable law) pursuant to the terms of the Security
Documents to which the Borrower is a party, and (b) a pledge by the
Borrower of (i) one hundred percent (100%) of the capital stock of each of
its Domestic Subsidiaries, and (ii) sixty-six percent (66%) of the capital
stock of each of its Foreign Subsidiaries, pursuant to the terms of the
Stock Pledge Agreement, provided, that the Borrower will not be required to
--------
pledge the capital stock of any Subsidiary which is an Immaterial
Subsidiary.
7.2. Guaranties and Security of Domestic Subsidiaries. The Obligations
------------------------------------------------
shall also be guaranteed pursuant to the terms of the Guaranty by
-53-
each of the Domestic Subsidiaries of the Borrower (unless such Domestic
Subsidiary is an Immaterial Subsidiary). The obligations of the Domestic
Subsidiaries under the Guaranty shall be in turn equally and ratably
secured by a perfected first priority security interest in or lien on the
Collateral (subject only to Permitted Liens entitled to priority under
applicable law) pursuant to the terms of the Security Documents to which
such Domestic Subsidiary is a party.
7.3. Guaranties of Holdings and Petro, Inc. The Obligations shall
-------------------------------------
also be guaranteed pursuant to the terms of the Holdings Guaranty and the
General Partner Guaranty. The Obligations of Holdings under the Holdings
Guaranty shall be in turn solely secured by a perfected first priority
security interest in all of the partnership interests of the Borrower owned
by Holdings pursuant to the Partnership Pledge Agreement to which it is a
party. The Obligations of Petro, Inc. under the General Partner Guaranty
shall be in turn solely secured by a perfected first priority security
interest in all of the partnership interests of the Borrower owned by
Petro, Inc. pursuant to the Partnership Pledge Agreement to which it is a
party.
8. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrower represents and warrants to the Banks and the Agent as follows:
8.1. Partnership and Corporate Authority.
-----------------------------------
8.1.1. Existence; Good Standing. (a) The Borrower (i) is a
------------------------
limited partnership duly organized, validly existing and in good
standing under the laws of its state of organization, (ii) has all
requisite partnership power to own its property and conduct its
business as now conducted and presently contemplated and (iii) is duly
authorized to do business in each jurisdiction where such
qualification is necessary except where failure to be so qualified
would not have a materially adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries, considered
as a whole;
(b) Each of Petro Financial, Petro Distributing and the
general partners of the Borrower (i) is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation, (ii) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently
contemplated, including, without limitation, with respect to the
general partners of the Borrower, to act as general partner of the
Borrower, as the case may be, and (iii) is in good standing as a
foreign corporation and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a
failure to be so qualified would not have a materially adverse effect
on the business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole.
8.1.2. Authorization. The execution, delivery and performance
-------------
of this Credit Agreement and the other Loan Documents to which the
Borrower or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby by such party (a) are
within the corporate or partnership authority of such party, (b) have
been
-54-
duly authorized by all necessary corporate or partnership proceedings,
(c) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which such party
is subject or any judgment, order, writ, injunction, license or permit
applicable to such party and (d) do not conflict with any provision of
the corporate charter, bylaws, partnership certificate or partnership
agreement, as the case may be, of, or any agreement or other
instrument binding upon, such party.
8.1.3. Enforceability. The execution and delivery of this Credit
--------------
Agreement and the other Loan Documents to which the Borrower or any of
its Subsidiaries is or is to become a party will result in valid and
legally binding obligations of such party enforceable against it in
accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and by
general principles of equity.
8.2. Governmental Approvals. The execution, delivery and performance
----------------------
by the Borrower and any of its Subsidiaries of this Credit Agreement
and the other Loan Documents to which such person is or is to become a
party and the transactions contemplated hereby and thereby by such party do
not require the approval or consent of, or filing (except as set forth in
Schedule 8.18 hereto) with, any governmental agency or authority other than
-------------
those already obtained, other than any approval, consent or filing which
would not reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole or the rights and obligations arising
under the transactions contemplated in the Loan Documents, or, in the case
of any filing, approval or consent which may need to be obtained in
connection with (a) the construction of any new Project, Petro:Lube Project
or New Profit Center Project, (b) maintaining the perfected security
interest of the Agent under the Loan Documents, (c) any partnership or
corporate filings necessary in the ordinary course of business (including,
without limitation, necessary filings to maintain good standing and legal
existence of such Person and any necessary securities law filings), and (d)
the maintenance of any existing or after acquired licenses or permits will
be obtained as required by such governmental agency or authority; provided
--------
that certain licenses and permits pertaining to the operation or use of the
Mortgaged Properties may require steps for transfer or reissuance upon
foreclosure or the exercise of other remedies by the Agent or the Banks.
8.3. Title to Properties; Leases. Except as indicated on Schedule 8.3
--------------------------- ------------
hereto, the Borrower and its Subsidiaries own all of the assets reflected
in the consolidated balance sheet of the Borrower and its Subsidiaries as
at the Balance Sheet Date or acquired since that date (except for property
and assets sold or otherwise disposed of in the ordinary course of business
since that date or in accordance with this Credit Agreement), subject to no
rights of others, including any mortgages, leases, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
8.4. Financial Statements and Projections.
------------------------------------
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8.4.1. Financial Statements. There has been furnished to each of
--------------------
the Banks a consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of the Borrower's fiscal year ended December, 1998, and a
consolidated statement of income of the Borrower and its Subsidiaries for
the fiscal year then ended, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP together
with a copy of the Borrower's interim unaudited financial statements
through March 31, 1999. Such balance sheet and statement of income have
been prepared in accordance with generally accepted accounting principles
and fairly present the financial condition of the Borrower as at the close
of business on the date thereof and the results of operations for the
fiscal year then ended. There are no contingent liabilities of the Borrower
or any of its Subsidiaries as of such date involving material amounts,
known to the officers of the Borrower, which were not disclosed in such
balance sheet and the notes related thereto. The Borrower has also
furnished to each of the Banks a pro forma balance sheet of the Borrower
and its Subsidiaries which fairly presents the estimated financial
condition of the Borrower after giving pro forma effect to the
Recapitalization and the transactions contemplated thereby as if the
Recapitalization had occurred on such date.
8.4.2. Projections. The projections of the annual balance sheets
-----------
and related statements of income and cash flow of the Borrower and their
Subsidiaries on a consolidated basis for the seven twelve month periods
beginning on the Closing Date most recently delivered to the Agent have
been delivered to the Agent on or prior to the Closing Date. The
projections were based when made upon what were believed by the Borrower
and its management on the date when made to be reasonable estimates and
assumptions, have been prepared on the basis of the assumptions stated
therein and as of the Closing Date reflect what are believed to be the
reasonable estimates of the Borrower and its Subsidiaries of the results of
operations and other information projected therein, it being understood
that the projections are not guaranties of results and that actual results
will vary from the projections, and such variations may be material.
8.4.3. Solvency. (a) The Borrower and its Subsidiaries, on a
--------
consolidated basis, both before and after giving effect to the
Recapitalization, this Credit Agreement and the transactions contemplated
hereby and thereby, are and will be solvent (within the meaning
contemplated by Section 548 of Title 11 of the United States Code and any
similar state statute which may be applicable), have and will have assets
having a fair value in excess of the amount required to pay their probable
liabilities on their existing debts as they become absolute and matured,
and have and will have access to adequate capital for the conduct of their
business (taking into account the particular capital requirements of the
business conducted by the Borrower and its Subsidiaries and the projected
capital requirements and capital availability therefor) and the ability to
pay their debts from time to time incurred in connection therewith as such
debts mature.
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(b) Holdings and its Subsidiaries, on a consolidated basis,
after giving effect to the issuance of the Discount Notes, will be
solvent (within the meaning contemplated by Section 548 of Title 11 of
the United States Code and any similar state statute which may be
applicable), have and will have assets having a fair value in excess
of the amount required to pay their probable liabilities on their
existing debts as they become absolute and matured, and have and will
have access to adequate capital for the conduct of their business
(taking into account the particular capital requirements of the
business conducted by Holdings and its Subsidiaries and the projected
capital requirements and capital availability therefor) and the
ability to pay their debts from time to time incurred in connection
therewith as such debts mature.
8.5. No Material Changes, etc. Since the Balance Sheet Date there has
------------------------
occurred no materially adverse change in the financial condition or
business of the Borrower and its Subsidiaries as shown on or reflected in
the consolidated balance sheet of the Borrower and its Subsidiaries as at
the Balance Sheet Date, or the consolidated statement of income for the
fiscal year then ended, other than changes in the ordinary course of
business that have not had any materially adverse effect either
individually or in the aggregate on the business or financial condition of
the Borrower and its Subsidiaries, considered as a whole and other than the
Recapitalization and the financing thereof. Since the Balance Sheet Date,
the Borrower has not made any Distribution other than Tax Distributions in
amounts which would be permitted hereunder.
8.6. Franchises, Patents, Copyrights, etc. Each of the Borrower and
------------------------------------
its Subsidiaries possesses all material franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict in any material respect with any rights of
others.
8.7. Litigation. Except as set forth in Schedule 8.7 hereto, there
---------- ------------
are no actions, suits, proceedings or investigations of any kind pending
or, to its knowledge, threatened against the Borrower or any of its
Subsidiaries before any court, tribunal or administrative agency or board
as to which there is any reasonable possibility of an adverse determination
which would not reasonably be expected to have, either in any case or in
the aggregate, a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries, considered as a
whole, or materially impair the right of the Borrower and its Subsidiaries,
considered as a whole, to carry on business substantially as now conducted
by them, or result in any substantial liability not adequately covered by
insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries, or which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
8.8. No Materially Adverse Contracts, etc. Neither the Borrower nor
------------------------------------
any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or
is
-57-
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries,
considered as a whole.
8.9. Compliance with Other Instruments, Laws, etc. Neither the
--------------------------------------------
Borrower nor any of its Subsidiaries is in violation of any provision of
its charter documents, bylaws, partnership certificate, partnership
agreement or any agreement or instrument to which it may be subject or by
which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing
cases in a manner that could reasonably be expected to result in the
imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of the Borrower and its
Subsidiaries, considered as a whole.
8.10. Tax Status. The Borrower and its Subsidiaries (a) have made or
----------
filed all federal and state income and all other material tax returns,
reports and declarations required by any jurisdiction to which any of them
is subject, (b) have paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and (c) have set aside on their books in accordance with
generally accepted accounting principles provisions reasonably adequate for
the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction (except for amounts contested in good faith after the Closing
Date as to which the Borrower or the applicable Subsidiary has set aside on
its books adequate provisions in accordance with generally accepted
accounting principles), and the officers of the Borrower know of no basis
for any such claim.
8.11. No Event of Default. No Default or Event of Default has occurred
-------------------
and is continuing.
8.12. Holding Company and Investment Company Acts. Neither the
-------------------------------------------
Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company
Act of 1935; nor is it an "investment company", or an "affiliated company"
or a "principal underwriter" of an "investment company", as such terms are
defined in the Investment Company Act of 1940. Neither the Borrower nor any
of its Subsidiaries has engaged in any transaction with any "affiliated
company" or "principal underwriter" of an "investment company" in violation
of the Investment Company Act of 1940.
8.13. Absence of Financing Statements, etc. Except with respect to
------------------------------------
Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document (other than those
filed in error and those evidencing indebtedness paid and discharged in
full) filed or recorded with any filing records, registry or other public
office and currently in effect, that purports to cover, affect or give
notice of any present or possible
-58-
future lien on, or security interest in, any material assets or property of
the Borrower or any of its Subsidiaries or any rights relating thereto.
8.14. Perfection of Security Interest. All filings, assignments,
-------------------------------
pledges and deposits of documents or instruments have been made and all
other actions have been taken that are necessary or advisable, under
applicable law, to establish and perfect the Agent's security interest in
the Collateral (other than filings to be made by the Agent of financing
statements or Mortgages or amendments thereto delivered by the Borrower and
its Subsidiaries on the Closing Date or thereafter as may be required by
the Agent). The Collateral and the Agent's rights with respect to the
Collateral are not subject to any setoff, claims, withholdings or other
defenses. The Borrower or a Subsidiary of the Borrower party to one of the
Security Agreements is the owner of the Collateral that is the subject of
such Security Agreement free from any lien, security interest, encumbrance
and any other claim or demand, except for Permitted Liens.
8.15. Certain Transactions. Except for transactions pursuant to which
--------------------
the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than such Person could
obtain in arms length transactions from third parties, none of the
officers, directors, or employees of the Borrower or any of its
Subsidiaries is presently a party to any transaction with the Borrower or
any of its Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner, except as disclosed on Schedule 8.15
-------------
hereto and except for renewals and extensions of the existing agreements
described on Schedule 8.15 so long as such renewals and extensions are on
-------------
substantially the same terms as the agreement being renewed or extended.
8.16. Employee Benefit Plans.
----------------------
8.16.1. In General. Except as set forth on Schedule 8.16
---------- -------------
hereto, each Employee Benefit Plan has been maintained and operated in
compliance in all material respects with the provisions of ERISA and, to
the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions. The Borrower has
heretofore delivered or made available to the Agent the most recently
completed annual report, Form 5500, with all required attachments, and
actuarial statement required to be submitted under (S)103(d) of ERISA, with
respect to each Guaranteed Pension Plan, if any.
8.16.2. Terminability of Welfare Plans. Each Employee Benefit
------------------------------
Plan which is an employee welfare benefit plan within the meaning of
(S)3(1) or (S)3(2)(B) of ERISA may be terminated by the Borrower or an
ERISA Affiliate, as appropriate, at any time (or at any time subsequent to
the expiration of any applicable bargaining agreement) in the discretion
-59-
of the Borrower or such ERISA Affiliate, without material liability to any
Person.
8.16.3. Guaranteed Pension Plans. Each contribution required to
------------------------
be made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of (S)302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan. No
liability to the PBGC (other than required insurance premiums, all of which
have been paid) has been incurred by the Borrower or any ERISA Affiliate
with respect to any Guaranteed Pension Plan and there has not been any
ERISA Reportable Event, or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the PBGC.
Based on the latest valuation of each Guaranteed Pension Plan (which in
each case occurred within twelve months prior to the date of this
representation), and on the actuarial methods and assumptions employed for
that valuation, the aggregate benefit liabilities of all such Guaranteed
Pension Plans within the meaning of (S)4001 of ERISA did not exceed the
aggregate value of the assets of all such Guaranteed Pension Plans by more
than $1,000,000, disregarding for this purpose the benefit liabilities and
assets of any Guaranteed Pension Plan with assets in excess of benefit
liabilities.
8.16.4. Multiemployer Plans. Neither the Borrower nor any ERISA
-------------------
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under (S)4201 of ERISA or as a
result of a sale of assets described in (S)4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
(S)4241 or (S)4245 of ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under (S)4041A of ERISA.
8.17. Regulations U and X. The proceeds of the Revolving Credit Loans
-------------------
and the Term Loans shall be used solely to convert the Obligations under the
Original Credit Agreement to Obligations hereunder, to pay costs and expenses
incurred in connection with the Recapitalization in an amount not to exceed the
amount permitted by (S)12.18 hereof and thereafter for working capital and
partnership and general corporate purposes and Capital Expenditures (including
making Investments in Subsidiaries to permit such Subsidiaries to make Capital
Expenditures as permitted hereunder) (subject to the limitations set forth in
(S)9.12 hereof). The Borrower will obtain Letters of Credit solely for
partnership and general corporate purposes. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such terms
are used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
8.18. Environmental Compliance. The Borrower has taken all reasonable
------------------------
steps to investigate the past and present condition and usage of the
-60-
Real Estate and the operations conducted thereon and, based upon such
diligent investigation, has determined that except as set forth on Schedule
--------
8.18 hereto:
----
(a) none of the Borrower, its Subsidiaries or any operator of
the Real Estate or any operations thereon is in violation, or has
received written notice of an alleged violation of any judgment,
decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising
under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state
or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment (hereinafter "Environmental Laws"),
which violation would have a material adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries,
considered as a whole;
(b) neither the Borrower nor any of its Subsidiaries has
received notice from any third party including, without limitation:
any federal, state or local governmental authority, (i) that any one
of them has been identified by the United States Environmental
Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List,
40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any Hazardous
Substance which any one of them has generated, transported or disposed
of has been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that any
Borrower or any of its Subsidiaries conduct a remedial investigation,
removal or other response action pursuant to any Environmental Law; or
(iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each
case, contingent or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances
which claim, cause of action or proceeding could have any of the
effects described in (S)8.7;
(c) during the period of the Borrower's or its Subsidiaries'
ownership, and to the best of the Borrower's knowledge with respect to
all periods prior thereto: (i) no portion of the Real Estate has been
used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws;
and no underground tank or other underground storage receptacle for
Hazardous Substances is located on any portion of the Real Estate
except in accordance with any applicable Environmental Laws; (ii) in
the course of any activities conducted by the Borrower, its
Subsidiaries or operators of its properties, no Hazardous Substances
have been generated or are being used on the Real Estate except in
accordance with applicable Environmental Laws; (iii) there have been
no releases (i.e. any past or present releasing, spilling, leaking,
pumping, pouring, emitting,
-61-
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of the Borrower or its Subsidiaries, which releases would
have a material adverse effect on the value of any of the Real Estate
or adjacent properties or the environment; (iv) to the best of the
Borrower's knowledge, there have been no releases on, upon, from or
into any real property in the vicinity of any of the Real Estate
which, through soil or groundwater contamination, may have come to be
located on, and which would have a material adverse effect on the
value of, the Real Estate; and (v) in addition, any hazardous waste,
as defined by 42 U.S.C. (S)6903(5) that has been generated on any of
the Real Estate has been transported offsite only by carriers having
an identification number issued by the EPA, treated or disposed of
only by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of the Borrower's knowledge,
operating in compliance with such permits and applicable Environmental
Laws; and
(d) None of the Borrower and its Subsidiaries, any Mortgaged
Property or any of the other Real Estate is subject to any applicable
environmental law requiring the performance of Hazardous Substances
site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the
recording or delivery to other Persons of an environmental disclosure
document or statement by virtue of the transactions set forth herein
and contemplated hereby, or as a condition to the recording of any
Mortgage or to the effectiveness of any other transactions
contemplated hereby.
8.19. Subsidiaries, etc. As of the Closing Date, Petro Distributing
-----------------
and Petro Financial are the only Subsidiaries of the Borrower. In addition,
the Borrower will not, after the Closing Date, have any other Subsidiaries
except as permitted by the terms of this Credit Agreement. Except as set
forth on Schedule 8.19 hereto, and except for transactions listed on
-------------
Schedule 10.8 and similar future arrangements otherwise permitted under
-------------
this Credit Agreement which might be deemed to give rise to de facto joint
--------
ventures or partnership by operation of general principles of partnership
law, neither the Borrower nor any Subsidiary of the Borrower is engaged in
any joint venture or partnership with any other Person.
8.20. Reasonably Equivalent Value. The Borrower each of its
---------------------------
Subsidiaries has received reasonably equivalent value for the Obligations it has
incurred, and the security interests and mortgages it has granted, hereunder and
under the other Loan Documents. The incurrence by the Borrower and each of its
Subsidiaries of their Obligations and the granting by the Borrower and each of
its Subsidiaries of security interests and mortgages on their properties do not
result in any fraudulent transfer or fraudulent conveyance within the meaning of
any applicable federal or state statute or the interpretation thereof or
relevant common law.
-62-
8.21. Chief Executive Offices. The Borrower's chief executive office
-----------------------
is at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at which location its books
and records are kept.
8.22. Fiscal Year. The Borrower has a fiscal year which is the twelve
-----------
months ending on December 31 of each calendar year.
8.23. No Amendments to Certain Documents. Since the Closing Date the
----------------------------------
Borrower has not amended the Operating Partnership Agreement, the Holdings
Partnership Agreement, the Consent Documents, the Chartwell Purchase
Agreement or the ▇▇▇▇▇▇▇▇▇ Purchase Agreement in any material respect. Each
of the representations and warranties made by the Borrower in any of the
Loan Documents, the Discount Notes Indenture, the Discount Notes, the
Operating Partnership Agreement, the Holdings Partnership Agreement, the
Consent Documents, the Chartwell Purchase Agreement or the ▇▇▇▇▇▇▇▇▇
Purchase Agreement was true and correct in all material respects when made
and remains true and correct in all material respects on the Closing Date,
except to the extent that any of such representations and warranties
relate, by the express terms thereof, solely to a date falling prior to the
Closing Date, and except to the extent that any of such representations and
warranties may have been affected by the consummation of the transactions
contemplated and permitted by the Loan Documents and the Recapitalization.
8.24. Representations Under Recapitalization Documents. The Borrower
------------------------------------------------
is not aware of any breach under the Recapitalization Documents or aware
that any of the representations and warranties made by any of the Borrower,
Petro Warrant, the ▇▇▇▇▇▇▇▇ Group, Mobil, or Volvo contained in the
Recapitalization Documents is not true and correct in all material respects
as of the Closing Date.
8.25. Insurance. The Borrower and each of its Subsidiaries maintains
---------
with financially sound and reputable insurers insurance with respect to its
properties and businesses against such casualties and contingencies as are
in accordance with sound business practices, with the details of such
coverage being more fully described on Schedule 8.25 hereto, as amended
-------------
from time to time in accordance with sound business practices.
8.26. Bank Accounts. Schedule 8.26 (as updated on a quarterly basis
------------- -------------
in accordance with (S)9.4 hereto) sets forth the account numbers and
location of all bank accounts of the Borrower and all of its Subsidiaries.
8.27. Year 2000 Problem. The Borrower and its Subsidiaries have (i)
-----------------
reviewed the areas within their businesses and operations which could be
adversely affected by failure to become "Year 2000 Ready" (i.e. that
computer applications imbedded microchips and other systems used by the
Borrower or any of its Subsidiaries or any of its material vendors, will be
able properly to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999),
(ii) developed a detailed plan and timetable to become "Year 2000 Ready" in
a timely manner, and (iii) committed a combination of external and internal
resources to support the Year 2000 plan of the Borrower and its
Subsidiaries. Based upon such review, the
-63-
Borrower reasonably believes that the Borrower and its Subsidiaries will
become "Year 2000 Ready" not later than October 31, 1999, except to the
extent that failure to do so would not reasonably be expected to have any
materially adverse effect on the business or financial condition of the
Borrower or any of its Subsidiaries considered as a whole.
8.28. Representations Regarding each Project.
--------------------------------------
8.28.1. Condition of Property. As of the date of each
---------------------
Borrower's Requisition submitted by the Borrower with respect to a
Project, except as disclosed therein, (a) neither the Property nor any
portion thereof will have been damaged or injured as a result of any
fire, explosion, accident, flood or other casualty which is not
covered by insurance and which could reasonably be expected to have a
material adverse effect on the economic viability of the Project, (b)
no portion of the Property will be the subject of a Taking which could
reasonably be expected to have a material adverse effect on the
economic viability of the Project, and (c) the Borrower shall not have
received written notice of any contemplated or proposed Taking which
could reasonably be expected to have a material adverse effect on the
economic viability of the Project.
8.28.2. Relevant Contracts. At the time of making any Loan
------------------
Request to fund any Property Costs associated with any Project, each
(a) Construction Contract pertaining thereto is in full force and
effect; (b) both the Borrower and the Contractor are in material
compliance with their respective obligations under the Construction
Contract; (c) the work to be performed by the Contractor under the
Construction Contract is the work called for by the Plans and
Specifications and all work required to complete the Improvements
(other than work contemplated to be completed by the Borrower's
employees) in accordance with the Plans and Specifications is provided
for under the Construction Contract; (d) all work on the Improvements
shall be completed substantially in accordance with the Plans and
Specifications in a good and workmanlike manner and shall be free of
any material defects; and (e) to the extent the Project is being
constructed on leased Real Estate, that the Borrower is not in
material default of any terms of the lease and that the lease is in
full force and effect. Notwithstanding the foregoing, in the event the
Contractor is in default of its obligations under the Construction
Contract, at the sole option of the Borrower, the Borrower shall have
the right to terminate such Construction Contract and enter into a
substitute or replacement Construction Contract with a new Contractor,
in which event such new Construction Contract shall be assigned to the
Agent and a copy of such new Construction Contract shall be provided
to Agent promptly following the execution thereof.
8.29. Disclosure. None of the Recapitalization Documents nor any
----------
representation or warranty made by the Borrower or any of its Subsidiaries
in this Credit Agreement, the Recapitalization Documents or in any
agreement, instrument, document, certificate, written statement or letter
furnished to the Agent or the Banks, by or on behalf of such Person in
connection with any of the transactions contemplated by any of the Loan
Documents or the
-64-
Recapitalization Documents contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained therein taken as a whole not misleading as of the time when made
or deemed to be made in light of the circumstances in which they are made.
There is no fact known to the Borrower or any of its Subsidiaries on or as
of the Closing Date (other than general market, economic or geopolitical
conditions) which materially adversely affects, or which would, in the
reasonable judgment of the Borrower, materially adversely affect in the
reasonably foreseeable future the financial position, business, operations
or affairs of the Borrower and its Subsidiaries, considered as a whole.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
-------------------------------------
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation or Letter of Credit is outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligation to issue, extend or
renew any Letters of Credit:
9.1. Punctual Payment. The Borrower will duly and punctually pay or
----------------
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the commitment fees, the Agent's
fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such
other Loan Documents.
9.2. Maintenance of Office. The Borrower will maintain its chief
---------------------
executive office in El Paso, Texas or at such other place in the United
States of America as the Borrower shall designate upon written notice to
the Agent, where notices, presentations and demands to or upon the Borrower
in respect of the Loan Documents to which the Borrower is a party may be
given or made.
9.3. Records and Accounts. The Borrower will (a) keep, and cause each
--------------------
of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain adequate accounts
and reserves, to the extent required by generally accepted accounting
principles, for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves.
9.4. Financial Statements, Certificates and Information. The
--------------------------------------------------
Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
one hundred (100) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries, the consolidating balance sheet of each of Holdings and
its Subsidiaries and the Borrower and its Subsidiaries, each as at the
end of such year, and the related consolidated statements of income,
and consolidated
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statements of cash flow and consolidating statements of income and
consolidating statements of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year and
all such consolidated and consolidating statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles, and such consolidated statements are reported upon without
qualification by a nationally recognized independent certified public
accounting firm or by other independent certified public accountants
of nationally recognized standing, together with a written statement
from such accountants to the effect that they have read a copy of
(S)11 of this Credit Agreement in connection with their audit of the
Borrower and its Subsidiaries, and that, in making the examination
necessary to said certification, they have obtained no knowledge of
any Default or Event of Default under (S)11 of the Credit Agreement,
or, if such accountants shall have obtained knowledge of any then
existing Default or Event of Default under (S)11 of the Credit
Agreement they shall disclose in such statement any such Default or
Event of Default; provided that such accountants shall not be liable
--------
to the Banks for failure to obtain knowledge of any Default or Event
of Default;
(b) as soon as practicable, but in any event not later than
fifty-five (55) days after the end of each of the fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of
each of Holdings and its Subsidiaries and the Borrower and its
Subsidiaries and the unaudited consolidating balance sheet of each of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries,
each as at the end of such quarter, and the related consolidated
statements of income, consolidated statements of cash flow for the
portion of such Person's fiscal year then elapsed, all in reasonable
detail, showing operating contribution on a Stopping Center by
Stopping Center basis and with respect to the Borrower the comparison
of the Borrower's performance for such period to the Borrower's
projected budget for such period, and prepared in accordance with
generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of the
Borrower that the information contained in such financial statements
fairly presents the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by
the principal financial or accounting officer of the Borrower in
substantially the form of Exhibit C hereto (the "Compliance
---------
Certificate") and setting forth in reasonable detail (i) computations
evidencing compliance with the covenants contained in (S)11 and (if
applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date, (ii) an updated
Schedule 8.26 identifying any bank account opened or closed during the
-------------
fiscal quarter then ended (iii) an updated Schedule 8.18 identifying
-------------
any new underground storage tanks located on the Mortgaged Properties,
and (iv) a schedule identifying the actual operating expenses of
Holdings for the fiscal quarter then ended
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compared to the amounts previously provided in the budget delivered to
the Agent pursuant to (S)9.4(e)(ii).
(d) contemporaneously with the filing or mailing thereof, copies
of all material of a financial nature filed with the Securities and
Exchange Commission;
(e) not later than January 31 of each year, or such later time
as agreed to by the Agent, (i) the budgets of the Borrower and its
Subsidiaries for such year and (ii) the budget of the operating
expenses for such year intended to be distributed to Holdings pursuant
to (S)10.4(c); and
(f) from time to time such other financial data and information
as the Agent or any Bank may reasonably request.
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9.5. Notices.
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9.5.1. Defaults. The Borrower will promptly upon becoming
--------
aware thereof, notify the Agent and each of the Banks in writing of
the occurrence of any Default or Event of Default, together with a
statement of the President or Chief Financial Officer of the Borrower
setting forth the details of such Default or Event of Default and the
action which the Borrower has taken or proposes to take with respect
thereto. If any Person shall give any notice or take any other action
in respect of a claimed default (whether or not constituting an Event
of Default) under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation having a principal amount
of $500,000 or more, to which or with respect to which the Borrower or
any of its Subsidiaries is a party or obligor, whether as principal,
guarantor, surety or otherwise, the Borrower shall promptly give
written notice thereof to the Agent and each of the Banks, describing
the notice or action and the nature of the claimed default.
9.5.2. Environmental Events. The Borrower will promptly give
--------------------
notice to the Agent and each of the Banks (a) of any violation of any
Environmental Law that the Borrower or any of its Subsidiaries reports
in writing or is reportable by such Person in writing (or for which
any written report supplemental to any oral report is made) to any
federal, state or local environmental agency that would reasonably be
expected to materially affect the assets, liabilities, financial
conditions or operations of the Borrower and its Subsidiaries,
considered as a whole, or the Agent's mortgages, deeds of trust or
security interests pursuant to the Security Documents, and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or
other action, including a notice from any agency of potential
environmental liability, or any federal, state or local environmental
agency or board, that would reasonably be expected to materially
affect the assets, liabilities, financial conditions or operations of
the Borrower and its Subsidiaries, considered as a whole, or the
Agent's mortgages, deeds of trust or security interests pursuant to
the Security Documents.
9.5.3. Notification of Claim against Collateral. The Borrower
----------------------------------------
will, promptly after becoming aware thereof, notify the Agent and each
of the Banks in writing of any setoff, claims (including, with respect
to the Real Estate, environmental claims), withholdings or other
defenses to which any of the Collateral having a value in excess of
$500,000, or the Agent's rights with respect to such Collateral, are
subject, except for Permitted Liens.
9.5.4. Notice of Litigation and Judgments. The Borrower will,
----------------------------------
and will cause each of its Subsidiaries to, give notice to the Agent
and each of the Banks in writing within fifteen (15) days of becoming
aware of any litigation or proceedings threatened in writing or any
pending litigation and proceedings against the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party
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involving a claim against the Borrower or any of its Subsidiaries as
to which there is a reasonable probability of an adverse determination
and which if adversely determined would reasonably be expected to have
a materially adverse effect on the Borrower and its Subsidiaries,
considered as a whole, and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of
its Subsidiaries to, give notice to the Agent and each of the Banks,
in writing, in form and detail satisfactory to the Agent, within ten
(10) days of any judgment, final or otherwise, against the Borrower or
any of its Subsidiaries in an amount which exceeds applicable
insurance coverage by more than $500,000.
9.6. Existence; Maintenance of Properties. The Borrower will do or
------------------------------------
cause to be done all things necessary to preserve and keep in full force
and effect its partnership existence, rights and franchises and to preserve
and keep in full force and effect the partnership or corporate existence of
its general partner and its Subsidiaries, and those of their general
partners, and the rights and franchises of its Subsidiaries, except where
the loss or termination of such rights or franchises or, in the case of a
Subsidiary, the corporate or partnership existence, will have a material
adverse effect on the Borrower and its Subsidiaries considered as a whole;
provided that this sentence shall not prohibit any transactions permitted
--------
by (S)10.4 and (S)10.5. The Borrower (a) will cause all of its properties
and those of its Subsidiaries used or useful in the conduct of its business
or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary
equipment, (b) will cause to be made all necessary repairs, renewals and
replacements thereof, all as in the judgment of such Person may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, and (c) will, and will
cause each of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by them (considering the Borrower and its
Subsidiaries as a whole) and in related businesses (including expansions of
such business or related business); provided that nothing in this (S)9.6
--------
shall prevent the Borrower from discontinuing the operation and maintenance
of any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the reasonable judgment of such Person, desirable in
the conduct of its or their business and that does not, with other such
discontinuances, in the aggregate materially adversely affect the business
of the Borrower and its Subsidiaries on a consolidated basis. Such
properties may be disposed of if such a disposition is permitted by
(S)10.5.2 hereof
9.7. Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such
casualties and contingencies as shall be in accordance with the schedule of
insurance coverages set forth in Schedule 8.25 hereto and the general
-------------
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such forms and for such
periods as may be reasonable and prudent and in accordance with the terms
of the Security Agreements. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance on the Mortgaged Properties in
accordance with the terms
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of the Mortgages to which it is a party; provided, however, that
-------- -------
notwithstanding the provisions of the Mortgages, flood and earthquake
coverages under all-risk property insurance shall be subject to an
aggregate limit of not less than $3,000,000 for all Mortgaged Properties
(other than the Mortgaged Property in Corning, California which shall
continue to be subject to an aggregate limit of not less than $5,000,000).
9.8. Taxes. The Borrower will, and will cause each of its
-----
Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become delinquent, all taxes, assessments
and other governmental charges imposed upon it and its real properties,
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a lien or charge upon any of its property;
provided that any such tax, assessment, charge, levy or claim need not be
--------
paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower or such Subsidiary
shall have set aside on its books adequate reserves, to the extent required
by generally accepted accounting principles, with respect thereto; and
provided further that the Borrower and each Subsidiary of the Borrower will
-------- -------
pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any lien that may have
attached as security therefor.
9.9. Inspection of Properties and Books, etc.
---------------------------------------
9.9.1. General. The Borrower shall permit the Banks, through
-------
the Agent or any of the Banks' other designated representatives, to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and
to discuss the affairs, finances and accounts of the Borrower and its
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or
any Bank may reasonably request; provided, that, for all Stopping
--------
Centers, at any time prior to a Default or an Event of Default, the
Agent or such Bank shall give the Borrower prior written notice of
such inspection, the inspection shall occur during daytime business
hours, and the Agent or such Bank shall be accompanied by a designated
officer or director of the Borrower (so long as the Borrower makes
such designated officer or director available at such time).
9.9.2. Commercial Finance Examinations. The Borrower will
-------------------------------
permit the Agent's commercial finance examiners to visit its premises
and conduct an audit of such Person's books and records. The Borrower
agrees to pay the reasonable fees and expenses of such commercial
finance examinations; provided, that absent a Default or an Event of
--------
Default the Borrower shall only be required to pay the fees and
expenses of two (2) commercial finance examinations per year the cost
of such exams in the absence of a Default or an Event of Default not
to exceed $20,000 in the aggregate in any fiscal year.
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9.9.3. Appraisals. Periodically, upon the request of the
----------
Agent, the Borrower will obtain and deliver to the Agent appraisal
reports in form and substance and from appraisers satisfactory to the
Agent, stating the then current fair market, orderly liquidation and
forced liquidation values of all or any portion of the equipment or
real estate owned by the Borrower or any of its Subsidiaries. The
determination as to whether to require appraisals of some or all of
the Mortgaged Property pursuant to this (S)9.9.3 shall be at the sole
discretion of the Agent taking into account applicable laws and
regulatory requirements (including, without limitation, FIRREA), then
existing market conditions, and such other factors as the Agent deem
relevant. Such appraisals will occur no more frequently than once in
any twelve month period, or more frequently as determined by the Agent
if a Default or Event of Default shall have occurred and be
continuing.
9.9.4. Environmental Assessments. The Agent may, at
-------------------------
reasonable times and without unreasonable interference with the
operations of the Borrower, in its discretion for the purpose of
assessing and ensuring the value of any Mortgaged Property, obtain one
or more environmental assessments or audits of such Mortgaged Property
prepared by a hydrogeologist, an independent engineer or other
qualified consultant or expert approved by the Agent to evaluate or
confirm (a) whether any Hazardous Substances are present in the soil
or water at such Mortgaged Property and (b) whether the use and
operation of such Mortgaged Property complies with all Environmental
Laws provided, that, at any time prior to a Default or an Event of
--------
Default, the Agent shall give the Borrower prior written notice of
such environmental assessment, such assessment shall occur during day
time business hours, and the Agent shall be accompanied by a
designated officer or director of the Borrower (so long as the
Borrower makes a designated officer or director available at such
time). Environmental assessments may include without limitation
detailed visual inspections of such Mortgaged Property including any
and all storage areas, storage tanks, drains, dry ▇▇▇▇▇ and leaching
areas, and the taking of soil samples, surface water samples and
ground water samples, as well as such other investigations or analyses
as the Agent reasonably deems appropriate. All such environmental
assessments shall be conducted and made at the expense of the
Borrower. The Agent will not obtain more than one environmental
assessment in any twelve month period for any Mortgaged Property,
unless a Default or Event of Default shall have occurred and be
continuing.
9.10. Compliance with Laws, Contracts, Licenses, and Permits. The
------------------------------------------------------
Borrower will, and will cause each of its Subsidiaries to, comply in all
material respects with (a) the applicable laws and regulations wherever its
business is conducted, including all Environmental Laws, (b) the provisions
of its partnership certificate, partnership agreement, charter documents
and by-laws, (c) all material agreements and instruments by which it or any
of its properties may be bound except as would not reasonably be expected
to have a material adverse effect on the business, assets or financial
condition of the Borrower and its Subsidiaries considered as a whole, and
(d) all applicable decrees, orders,
-71-
and judgments. If any authorization, consent, approval, permit or license
from any officer, agency or instrumentality of any government shall become
necessary or required in order that the Borrower or any of its Subsidiaries
may fulfill any of its obligations hereunder or under any of the other Loan
Documents to which such Person is a party, the Borrower will, or (as the
case may be) will cause such Subsidiary to, immediately take or cause to be
taken all reasonable steps within the power of such Person to obtain such
authorization, consent, approval, permit or license and furnish the Agent
and the Banks with evidence thereof.
9.11. Employee Benefit Plans. The Borrower will (a) promptly upon
----------------------
filing the same with the Department of Labor or Internal Revenue Service
upon request of the Agent, furnish to the Agent a copy of the most recent
actuarial statement required to be submitted under (S)103(d) of ERISA and
Annual Report, Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan and (b) promptly upon receipt or dispatch, furnish
to the Agent any notice, report or demand sent or received in respect of a
Guaranteed Pension Plan under (S)(S)302, 4041, 4042, 4043, 4063, 4065, 4066
and 4068 of ERISA, or in respect of a Multiemployer Plan, under
(S)(S)4041A, 4202, 4219, 4242, or 4245 of ERISA.
9.12. Use of Proceeds. The Borrower will use the proceeds of the
---------------
Revolving Credit Loans and the Term Loans solely to convert the Obligations
under the Original Credit Agreement to Obligations hereunder, to finance
Capital Expenditures, to pay fees and expenses relating to the
Recapitalization and for working capital and general corporate or
partnership purposes. The Borrower will obtain Letters of Credit solely for
general corporate or partnership purposes.
9.13. Additional Mortgaged Property. If, after the Closing Date, the
-----------------------------
Borrower or any of its Subsidiaries acquires or leases Real Estate to be
used as a Stopping Center or Petro:Lube or which is purchased by the
Borrower or such Subsidiary for an amount in excess of $1,000,000, the
Borrower shall, or shall cause such Subsidiary to, contemporaneously with
the Permitted Acquisition Closing Date, deliver to the Agent a fully
executed mortgage or deed of trust substantially in the form of Exhibit E
------- -
hereto and other documents in order to give the Agent, for the benefit of
the Banks, a first priority mortgage on and security interest in such Real
Estate and related personal property, subject only to Permitted Liens,
together with the additional items that the Borrower would be required to
deliver to the Agent pursuant to (S)13.6 hereto if the Borrower were to
request a Revolving Credit Loan to fund such acquisition (excluding the
items described in (S)13.6.2 hereto regarding "Use of Proceeds"), provided,
--------
however, as to any leasehold interest it shall not be a Default or Event of
-------
Default hereunder if the Borrower, after using its best efforts to obtain
any necessary consents, is unable to execute and deliver such leasehold
mortgage or deed of trust due to a failure to obtain any third-party
consents needed to grant such mortgage or deed of trust. The Borrower
further agrees that, following the taking of such actions with respect to
such Real Estate, the Agent shall have for the benefit of the Banks and the
Agent a valid and enforceable first priority mortgage or deed of trust over
and security interest in such real
-72-
estate and related personal property, free and clear of all liens and
encumbrances except for Permitted Liens.
9.14. Title Insurance. The Borrower shall deliver to the Agent
---------------
within sixty (60) days of the Closing Date (a) as to each Mortgaged
Property on which a Mortgage is granted on the Closing Date, a Title Policy
covering each such Mortgaged Property; (b) as to each Mortgaged Property on
which a Mortgage was granted prior to the Closing Date, a Title Policy
endorsement covering each of the Mortgaged Properties for which a Title
Policy was previously delivered, together with proof of payment of all fees
and premiums for such policies and endorsements, from the Title Insurance
Company and in amounts satisfactory to the Agent, insuring the interest of
the Agent and each of the Banks as mortgagee under the Mortgages or (c)
other evidence that the Borrower or its Subsidiaries has good title to the
Mortgaged Property, which evidence shall be satisfactory to the Agent.
Until such Title Policies have been delivered, the aggregate outstanding
principal amount of the Loans shall not exceed $115,000,000.
Notwithstanding the foregoing, in the event that the Borrower is unable to
deliver the Title Policies within sixty (60) days, the Agent may, in its
sole discretion, extend the time for such delivery for an additional thirty
(30) days.
9.15. Landlord Consents. Subject to the provisions of (S)9.13 hereof,
-----------------
the Borrower and its Subsidiaries shall deliver to the Agent within sixty
(60) days of the Closing Date all consents required for the Agent to
receive, as part of the Security Documents, a collateral assignment of each
material leasehold of personal property, and a mortgage of each material
leasehold of real property included in the Collateral, together in each
case with such estoppel certificates as the Agent may request.
9.16. Survey and Taxes. The Borrower shall deliver to the Agent
----------------
within sixty (60) days of the Closing Date, as to each Mortgaged Property
on which a Mortgage is granted on the Closing Date, (a) a Survey of each
such Mortgaged Property together with a Surveyor Certificate relating
thereto and (b) evidence of payment of real estate taxes and municipal
charges on all Real Estate not delinquent on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Borrower is unable to
deliver the Surveys and the evidence of payment of real estate taxes and
municipal charges within sixty (60) days, the Agent may, in its sole
discretion, extend the time for such delivery for an additional thirty (30)
days.
9.17. Local Counsel Opinions. Within sixty (60) days of the Closing
----------------------
Date, each of the Banks and the Agent shall have received a favorable legal
opinion addressed to the Banks and the Agent, dated as of the current date,
from local counsel to the Borrower and its Subsidiaries in all states where
any of the Mortgaged Property for which a Mortgage is being granted on the
Closing Date is located, in form and substance satisfactory to the Agent
and the Banks. Notwithstanding the foregoing, in the event that the
Borrower is unable to deliver the legal opinions within sixty (60) days,
the Agent may, in its sole discretion, extend the time for such delivery
for an additional thirty (30) days.
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9.18. Cash Management. At all times after the occurrence and during
---------------
the continuance of an Event of Default, at the request of the Agent, the
Borrower will, and will cause its Subsidiaries to, together with the
employees, agents and other Persons acting on behalf of the Borrower or
such Subsidiary, cause all domestic cash receipts and all payments
constituting proceeds of accounts receivable or other Collateral to be
paid, in the form received, with any appropriate endorsements, into the
account with the Agent or such other account, which shall be subject to an
agency agreement as shall be satisfactory to the Agent.
9.19. Interest Rate Protection Arrangements. Within sixty (60) days
-------------------------------------
of the Closing Date, the Borrower shall obtain interest rate protection
arrangements satisfactory to the Agent which shall cover at least fifty
percent (50%) of the principal amount of the Term Loan B and shall have a
term reasonably acceptable to the Agent, and the Borrower shall maintain
such interest rate protection arrangements or replacements thereof
acceptable to the Agent during the term of this Credit Agreement.
9.20. Cost Overruns. In the event the Borrower becomes aware of any
-------------
change in Property Costs with respect to a Project which will increase the
Project's Construction Budget (as the Construction Budget is revised from
time to time and approved by the Agent) and cause the aggregate
Construction Budget to be increased by more than fifteen percent (15%), the
Borrower shall promptly notify the Agent in writing and promptly submit to
the Agent for its approval a revised Construction Budget. No further
Revolving Credit Loans for such Project need be made by the Agent unless
and until the revised Construction Budget so submitted by the Borrower to
the Agent is approved by the Agent, and the Agent reserves the right to
approve or disapprove of any revised Construction Budget in its reasonable
discretion, such approval or disapproval to be provided by the Agent in a
timely manner.
9.21. Contingency Reserve. The Borrower covenants and agrees that
-------------------
the amount allocated as Contingency Reserves in each Construction Budget
shall not exceed ten percent (10%) without the prior approval of the Agent.
9.22. Deposit of Funds Advanced. The Borrower may, but shall not be
-------------------------
obligated to, open and maintain an account with the Agent into which the
Agent shall deposit the proceeds of each Revolving Credit Loan which is
permitted to be funded hereunder and the proceeds of which are to be used
within one year of the Drawdown Date of such Revolving Credit Loan for a
Project, a Petro:Lube Project or a New Profit Center Project. The Agent is
hereby irrevocably authorized to charge any account of the Borrower with
the Agent, including such account, without the further approval of the
Borrower, for (a) any expenses incurred by the Agent or any Bank
(including, without limiting the generality of the foregoing, Construction
Inspector fees and reasonable attorneys' fees), or (b) any other sums due
to the Agent or any of the Banks under this Credit Agreement or any of the
other Loan Documents, all to the extent that the same are not paid by the
respective due dates thereof.
9.23. Advances to Contractor. Upon the occurrence and during the
----------------------
continuance of a Default or Event of Default, or upon the request of the
-74-
Borrower, as the case may be, at its option the Agent may, upon prior
written notice to the Borrower, make any or all advances for construction
expenses directly to the Contractor for deposit in an appropriately
designated special bank account, and the execution of this Credit Agreement
by the Borrower shall, and hereby does, constitute an irrevocable
authorization so to advance the proceeds of any Revolving Credit Loan. No
further authorization from the Borrower shall be necessary to warrant such
direct advances to the Contractor and all such advances shall satisfy pro
---
tanto the obligations of the Agent and the Banks hereunder and shall be
-----
secured by the Security Documents and the other Loan Documents as fully as
if made directly to the Borrower.
9.24. Construction Inspector. Upon not less than ten (10) days
----------------------
written notice to the Borrower, the Agent may retain the Construction
Inspector at the cost of the Borrower to perform the following services on
behalf of the Agent;
(a) to review applicable Loan Requests and material change
orders; and
(b) to make periodic inspections for the purpose of assuring
that construction of the Improvements to date is in accordance with
the Plans and Specifications and to approve the Borrower's then
current Loan Request, as the case may be, as being consistent with the
Construction Budget and the Borrower's Obligations under this Credit
Agreement.
The fees of the Construction Inspector shall be paid by the Borrower
forthwith upon billing therefor and expenses incurred by the Agent on
account thereof shall be reimbursed to the Agent forthwith upon request
therefor, but neither the Agent nor the Construction Inspector shall have
any liability to the Borrower on account of (i) the services performed by
the Construction Inspector, (ii) any neglect or failure on the part of the
Construction Inspector to properly perform its services, or (iii) any
approval by the Construction Inspector of construction of the Improvements.
Neither the Agent nor the Construction Inspector assumes any obligation to
the Borrower or any other person concerning the quality of construction of
the Improvements or the absence therefrom of defects.
9.25. Completion of Project. Upon the completion of any Project, the
---------------------
Borrower shall deliver to the Agent the following:
(a) final written lien waivers or other evidence satisfactory
to the Agent that no liens exist from (i) the Contractor and (ii) any
subcontractor, supplier or materialman whose aggregate contract amount
is at least $500,000 who is entitled to file a lien which has priority
over the Mortgage or liens under the applicable Security Documents
under applicable state law;
(b) a copy of any certificate of occupancy issued with respect
to the Improvements (to the extent a certificate of occupancy is
required under applicable law);
-75-
(c) a certificate of the Borrower's Architect (of if there is
no Borrower's Architect, representative of the Borrower responsible
for such Project) that the Improvements have been completed in all
material respects in accordance with the Plans and Specifications and
that the Improvements comply in all material respects with all
applicable requirements and governmental approvals and are in all
respects (except for work to be performed by tenants) ready for
occupancy;
(d) an endorsement to the Title Policy previously issued with
respect to such Project removing any "pending disbursements" or
similar limitations obtained in such Title Policy; and
(e) such other information, documentation and certification as
the Agent shall reasonably request.
9.26. Further Assurances. The Borrower will, and will cause each of
------------------
its Subsidiaries to, cooperate with the Banks and the Agent and execute
such further instruments and documents as the Banks or the Agent shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan Documents.
9.27. Compliance with Environmental Laws. The Borrower will, and
----------------------------------
will cause its Subsidiaries to, (a) use the Real Estate or any portion
thereof for the handling, processing, storage or disposal of Hazardous
Substances, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (c) generate any Hazardous Substances on any of the Real
Estate, (d) conduct any activity at any Real Estate or use any Real Estate
in any manner so as to cause a release (i.e. releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Hazardous
Substances on, upon or into the Real Estate or (e) otherwise conduct any
activity at any Real Estate or use any Real Estate, in each case (a)
through (e), in compliance with all applicable Environmental Laws in all
material respects.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
------------------------------------------
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit is outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligations to issue, extend
or renew any Letters of Credit:
10.1. Restrictions on Indebtedness. The Borrower will not, nor will
----------------------------
the Borrower permit any of its Subsidiaries to, create, incur, assume,
guarantee or be or remain liable, contingently or otherwise, with respect
to any Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under any
of the Loan Documents;
(b) Indebtedness to suppliers in respect of long term supply
contracts consistent with industry practices;
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(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of (S)9.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal
so long as execution is not levied thereunder or in respect of which
the Borrower or such Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of
which a stay of execution shall have been obtained pending such appeal
or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(f) Indebtedness evidenced by the Old Notes or the Senior
Notes (including without limitation any guarantees of such Senior
Notes by Subsidiaries which are Guarantors);
(g) obligations of the Borrower and its Subsidiaries under
Capitalized Leases; provided that the aggregate principal amount of
--------
all such Indebtedness of the Borrower and its Subsidiaries permitted
pursuant to this (S)10.1(g) shall not exceed the aggregate amount of
$5,000,000 at any one time;
(h) Indebtedness existing on the date hereof and listed and
described on Schedule 10.1 hereto, including the remaining unamortized
-------- ----
portion of the original issue discount of such Indebtedness;
(i) Indebtedness of a Subsidiary of the Borrower which is a
Guarantor existing on the Closing Date to the Borrower or another
Subsidiary of the Borrower which is a Guarantor; provided that the
--------
same are evidenced by promissory notes, leases or contracts in form
and substance satisfactory to the Agent which are pledged to the Agent
for the benefit of the Banks or evidenced only by open account;
(j) Indebtedness of the Borrower to a Subsidiary of the
Borrower so long as (i) such Indebtedness is subordinated to the
Obligations pursuant to the terms of the subordination agreement
attached hereto as Exhibit I and (ii) such Indebtedness complies with
------- -
the applicable provisions of the Senior Notes Indenture and the
Discount Notes Indenture relating to intercompany debt limitations;
(k) Indebtedness in respect of performance, surety or appeal
bonds obtained in the ordinary course of the Borrower's business and
in connection with transactions in the ordinary course of the
Borrower's business;
(l) Indebtedness under fuel price swaps, fuel price caps, and
fuel price collar or floor agreements, and similar agreements or
arrangements
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designed to protect against or manage fluctuations in fuel prices with
respect to fuel sold in the ordinary course of business of the
Borrower and its Subsidiaries in amounts and on terms consistent with
past practices of the Borrower and its Subsidiaries;
(m) Indebtedness in respect of Distributions permitted under
this Credit Agreement and accruals or declarations of such
Distributions;
(n) Indebtedness in respect of contribution, indemnification
and reimbursement obligations owed by the Borrower or any of its
Subsidiaries to any of the other of them in respect of the Senior
Notes and the Obligations under this Credit Agreement or other
Indebtedness permitted hereunder, provided that any such Indebtedness
--------
of the Borrower to a Subsidiary shall be subordinated in the manner
provided in (S)10.1(j);
(o) Indebtedness consisting of guaranties by the Borrower or
any of its Subsidiaries of Indebtedness of the Borrower or any other
Subsidiary which is a Guarantor and is permitted under this Credit
Agreement; provided that, except for guaranties by the Borrower
--------
provided in connection with Indebtedness permitted by subsection (b)
hereof, the Borrower provides a copy of any such guaranty to the Agent
at the time such guaranty is made;
(p) Indebtedness under interest rate swap agreements or
similar interest rate protection agreements entered into in the
ordinary course of business and not entered into for speculative
purposes;
(q) Indebtedness of the Borrower or any of its Subsidiaries
incurred in connection with the acquisition after the date hereof of
any Capital Assets by the Borrower or such Subsidiary to the seller of
such Capital Asset; provided that (i) the terms of such Indebtedness
--------
do not contain amortization requirements which result in a shorter
average life, earlier maturities, prepayment penalties, premiums or
other costs and expenses, or affirmative covenants, negative covenants
or defaults which are materially more restrictive to the Borrower or
its Subsidiaries than the terms of this Credit Agreement; (ii) the
maturity of such Indebtedness occurs after the Term Loan B Maturity
Date; and (iii) if the aggregate outstanding principal amount of all
such Indebtedness is in excess of $5,000,000, such Indebtedness shall
be subordinated to the Obligations on terms satisfactory to the Agent;
(r) Indebtedness of the Borrower or any of its Subsidiaries
assumed or acquired in connection with the acquisition after the date
hereof of any Capital Assets by the Borrower or such Subsidiary;
provided, that (i) such Indebtedness is either unsecured Indebtedness
--------
or secured only by all or any portion of the Capital Asset being
acquired and (ii) the aggregate amount of all such Indebtedness of the
Borrower and its Subsidiaries pursuant to this (S)10.1(r) shall not
exceed the aggregate outstanding principal amount of $12,500,000 at
any time;
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(s) Indebtedness of the Borrower or any of its Subsidiaries,
as applicable, incurred to refinance and replace Indebtedness of such
Person permitted under clauses (f), (h), (q) and (r) hereof, provided
that (i) the principal amount (or committed principal amount) of such
refinancing or replacement Indebtedness shall not exceed the
outstanding principal amount (or committed principal amount) of the
Indebtedness being refinanced or replaced, plus all penalties,
premiums and costs associated therewith; (ii) such refinancing or
replacement Indebtedness does not contain amortization requirements
which result in a shorter average life, earlier maturities, higher
interest rates, prepayment penalties, premiums or other costs and
expenses, or affirmative covenants, negative covenants or defaults
which are materially more restrictive to the Borrower or such
Subsidiary, as applicable, than the similar requirements of the
Indebtedness being refinanced or replaced;
(t) Indebtedness of the Borrower or any of its Subsidiaries in
respect of any deferred purchase price obligations of the Borrower or
such Subsidiary for equipment in the aggregate amount not to exceed
the aggregate outstanding principal amount of $3,000,000;
(u) other Indebtedness not otherwise permitted by this
(S)10.1; provided that the aggregate outstanding principal amount of
--------
all such Indebtedness of the Borrowers, and its Subsidiaries permitted
pursuant to this (S)10.1(u) shall not exceed the aggregate outstanding
principal amount of $2,000,000 at any time;
(v) Indebtedness of the Borrower to Comdata arising out of the
Comdata Agreement, in an amount not to exceed $25,000,000 in the
aggregate at any time; and
(w) Guaranties by the Borrower or any of its Subsidiaries of
Indebtedness in an aggregate amount not to exceed $2,000,000; provided
that the Borrower and its Subsidiaries may guarantee Indebtedness in
an additional amount not to exceed $3,000,000 in the aggregate subject
to a dollar for dollar reduction in the amount of Indebtedness
permitted by (S)10.1(r) for each dollar guaranteed hereunder above
$2,000,000.
10.2. Restrictions on Liens. The Borrower will not, nor will the
---------------------
Borrower permit any of its Subsidiaries to, create or incur or suffer to be
created or incurred or to exist any Lien; provided that the Borrower and
--------
any Subsidiary of the Borrower may create or incur or suffer to be created
or incurred or to exist:
(a) Liens (other than Liens on Mortgaged Properties) in favor
of the Borrower on all or part of the assets of Subsidiaries of the
Borrower securing Indebtedness owing by Subsidiaries of the Borrower
to the Borrower;
(b) Liens to secure taxes, assessments and other government
charges or liens on properties to secure claims for labor, material or
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supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of (S)9.8;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) Liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by (S)10.1(d);
(e) Liens of carriers, warehousemen, mechanics and materialmen,
and other like Liens on properties to the extent that payment therefor
shall not at the time be required to be made in accordance with the
provisions of (S)9.8;
(f) encumbrances on Real Estate consisting of leases, licenses,
easements, rights of way, zoning restrictions, restrictions on the use
of real property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Borrower or a
Subsidiary of the Borrower is a party, and other minor liens or
encumbrances none of which in the opinion of the Borrower interferes
materially with the use of the property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, which
defects do not individually or in the aggregate have a materially
adverse effect on the business of the Borrower individually or of the
Borrower and its Subsidiaries on a consolidated basis;
(g) Liens existing on the date hereof and listed on Schedule
--------
10.2 hereto;
----
(h) subject to the limitation set forth in (S)4.4.1 hereof,
purchase money security interests in or purchase money liens on real
or personal property other than Mortgaged Properties acquired after
the date hereof to secure purchase money Indebtedness of the type and
amount permitted by (S)10.1(q), incurred in connection with the
acquisition of such property, which security interests or liens cover
only the real or personal property so acquired; provided, however, to
-------- -------
the extent all or any portion of such Indebtedness is in excess of the
aggregate outstanding principal amount of $5,000,000 at any time, such
security interest and/or lien shall be subordinated to the liens and
security interests of the Agent on terms acceptable to the Agent, and
such liens shall only be permitted to be incurred to the extent no
Default or Event of Default has occurred and is continuing or would
exist as a result of such incurrence;
(i) subject to the limitation set forth in (S)4.4.1 hereof,
security interests in or liens on Capital Assets acquired after the
date hereof to secure the Indebtedness of the type and amount
permitted by (S)10.1(r), incurred in connection with the acquisition
of such property, which security interests or liens cover only all or
any portion of the Capital Asset so acquired, and such liens shall
only be permitted to be incurred to the extent no Default or Event of
Default has occurred and is continuing or would exist as a result of
such incurrence;
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(j) Liens on each Mortgaged Property as and to the extent
permitted by the Mortgage applicable thereto;
(k) interests of lessors under leases permitted by (S)10.1(g) or
(S)11.5;
(l) Liens in favor of the Agent for the benefit of the Banks and
the Agent under the Loan Documents;
(m) Liens securing refinancing Indebtedness permitted under
(S)10.1(s) hereof, but only to the extent that the Indebtedness so
refinanced was secured, and only covering assets which secured the
Indebtedness being refinanced;
(n) Liens (other than Liens on Mortgaged Properties) to secure
the performance of tenders, bids, surety or performance bonds and
other similar obligations incurred in the ordinary course of business
consistent with past practices;
(o) Liens in respect of any transfer of certain credit card
receivables solely for the purpose of facilitating collection on
behalf of the Borrower and for the Borrower's account on such
receivables;
(p) Liens in respect of fuel swaps and other hedging
arrangements as permitted by (S)10.1(l) hereof;
(q) interest of lessees under leases;
(r) Liens on equipment purchased as permitted by (S)10.1(t)
hereof; and
(s) Liens on assets sold which were created solely by virtue of
an asset sale permitted by (S)10.5.2.
10.3. Restrictions on Investments. The Borrower will not, nor will
---------------------------
the Borrower permit any of its Subsidiaries to make or permit to exist or
to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower and repurchase obligations in respect thereof
having a term of not more than thirty (30) days entered into with any
United States bank having assets in excess of $1,000,000,000;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of (i) United States banks having total
assets in excess of $1,000,000,000 or (ii) United States banks having
total assets of less than $1,000,000,000 as long as such Investments
do not remain in such banks for more than seven (7) days in amounts in
excess of FDIC insurance coverage and do not exceed $500,000 per bank
in the aggregate at any time;
-81-
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States
of America or any state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 2" if rated by
▇▇▇▇▇'▇ Investors Services, Inc., or not less than "A 2" if rated by
Standard and Poor's Ratings Group;
(d) Investments existing on the date hereof and listed on
Schedule 10.3 hereto;
-------- ----
(e) Investments with respect to Indebtedness permitted by
(S)10.1(i) and (j) so long as such entities remain Subsidiaries of the
Borrower and Guarantors and such Investments are evidenced by
intercompany notes which are satisfactory to the Banks, payable to the
order of the Borrower and pledged to the Agent for the benefit of the
Banks in the manner provided in (S)10.1(i) or evidenced only by open
account;
(f) Investments consisting of the Guarantees, or Investments by
the Borrower in Subsidiaries of the Borrower existing on the Closing
Date, or Investments with respect to Indebtedness permitted by
(S)10.1(o), Investments by Petro Distributing or Petro Financial in
the Old Notes, and Investments by Petro Distributing, Petro Financial
or any other Subsidiary in respect of the Senior Notes;
(g) Investments consisting of noncash proceeds of asset
dispositions permitted by (S)10.5.2;
(h) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $750,000 in the aggregate at
any time outstanding;
(i) shares of any so-called "money market fund" provided, that
--------
such fund is registered under the Investment Company Act of 1940, has
net assets in excess of $100,000,000, has an investment portfolio with
an average maturity of 365 days or less, and invests substantially all
of its assets in Investments of the types listed in clauses (a), (b)
and (c) above;
(j) Investments consisting of Capital Expenditures (other than
Capital Expenditures in respect of Capital Assets which are capital
stock or other equity interests);
(k) Investments in respect of fuel price swaps, fuel price caps,
fuel price collars and fuel price floors and similar agreements and
hedging obligations and arrangements incurred in the ordinary course
of business consistent with past practices (but only to the extent
done to protect against or manage the Borrower or any Subsidiary to
exposure to fluctuations in fuel prices and not for speculative
purposes);
(l) Investments received in settlement of obligations owed to
the Borrower or any of its Subsidiaries or as a result of bankruptcy
or
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insolvency proceedings or upon foreclosure or enforcement of any lien
in favor of the Borrower or any Subsidiary;
(m) Investments by the Borrower or any of its Subsidiaries not
otherwise permitted hereunder, provided the aggregate amount of all
such outstanding Investments does not exceed $7,500,000 at any time
plus, to the extent the Borrower would be permitted to make a
----
Distribution pursuant to (S)10.4(a), the amount the Borrower would be
permitted to make pursuant to (S)10.4(a) and did not otherwise make as
a Distribution pursuant thereto;
(n) Investments by the Borrower or any of its Subsidiaries in
either Wholly-Owned Subsidiaries or Non-Wholly Owned Subsidiaries;
provided such Subsidiary has guaranteed all the Obligations of the
--------
Borrower hereunder pursuant to a guaranty in form and substance
satisfactory to the Agent and has granted to the Agent a first
priority perfected security interest in all of its assets (subject
only to Permitted Liens) to secure such Obligations pursuant to
documents and agreements in form and substance satisfactory to the
Agent;
(o) Investments in respect of interest rate swaps, caps, collars
and similar agreements and fuel swaps in each case permitted
hereunder; and
(p) Investments by the Borrower in respect of the purchase by
the Borrower of the Capital Interests or assets of any Person, so long
as (i) if Capital Interests such an acquisition is permitted by
(S)10.5.1 hereof; (ii) such Person shall become a Wholly-Owned
Subsidiary or Non-Wholly Owned Subsidiary and a Guarantor (unless such
Person is an Immaterial Subsidiary), and (iii) the Loan Documents
shall be amended and/or supplemented as necessary to make the terms
and conditions of the Loan Documents applicable to such new
Subsidiary.
10.4. Distributions. The Borrower will not make any Distributions
-------------
other than Tax Distributions; provided, however, so long as no Default or
-------- -------
Event of Default has occurred and is continuing or would exist as a result
thereof, the Borrower shall be permitted to make the following:
(a) so long as the Borrower has demonstrated to the reasonable
satisfaction of the Agent that the Leverage Ratio both before and after
giving effect to the proposed payment is not greater than 3.00:1.00, the
Borrower shall be permitted to make payments to Holdings to permit Holdings
to make Distributions on Holdings' limited partnership interests in an
amount not to exceed in the aggregate in any fiscal year, twenty percent
(20%) of the result of (i) the Consolidated Net Income of the Borrower for
such fiscal year minus (ii) Tax Distributions made by the Borrower with
-----
respect to such fiscal year;
(b) to Holdings in any fiscal year in an aggregate amount equal to
the amount of interest Holdings is required to pay on the Discount Notes in
such fiscal year solely for the purpose of making such interest payments,
provided that no such payments shall be permitted until after July 23,
--------
2004;
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(c) payments to Holdings to enable Holdings to pay reasonable
operating expenses incurred in the ordinary course of business, provided
--------
that the expected amounts shall be detailed in an annual budget with such
budgeted amounts to be reasonably approved by the Agent and the actual
operating expenses shall be reconciled with such budget on a quarterly
basis and reported pursuant to (S)9.4(c) hereto, provided, further, that if
--------
the actual operating expenses are in excess of such budgeted amounts, such
excess operating expenses shall be subject to the approval of (i) the
Agent, if the aggregate excess amount is no more than twenty percent (20%)
of the budgeted amount and (ii) the Majority Banks, if the aggregate excess
amount is greater than twenty percent (20%) of the budgeted amount; and
(d) payments to Holdings solely for the purpose of payments to
management for the repurchase of Capital Interests in Holdings required or
permitted under the terms of employment contracts or option plans provided
that such payments shall not exceed $1,000,000 in the aggregate in the
period from the Closing Date through July 23, 2002 and $5,000,000 in the
aggregate thereafter.
10.5. Merger, Consolidation and Disposition of Assets.
-----------------------------------------------
10.5.1. Mergers and Acquisitions. The Borrower will not, nor
------------------------
will the Borrower permit any of its Subsidiaries to, become a party to
any merger or consolidation, or agree to or effect any acquisition of
all or substantially all the assets of any Person or any operating
unit of any Person or stock acquisition other than (a) the merger of
the Borrower with another Person solely to effect a conversion of the
Borrower to a corporate entity; (b) the acquisition of assets (which
may include unimproved real estate) in the ordinary course of business
consistent with past practices; (c) other asset or stock acquisitions
of Persons in the same or a similar line of business (i.e. the truck
stop and stopping center business, services supporting the trucking
and travel plaza industry and diesel and gas fueling operations) as
the Borrower or its Subsidiary (collectively with the acquisitions
permitted by paragraphs (a) and (b) hereof, the "Permitted
Acquisitions") where (i) the Borrower has provided the Agent with five
(5) Business Days prior written notice of such Permitted Acquisition,
which notice shall include a reasonably detailed description of such
Permitted Acquisition and the material documents, agreements and
instruments to be entered into in connection with such Permitted
Acquisition; (ii) the business to be acquired would not subject the
Banks or the Agent to regulatory or third party approvals in
connection with the exercise of their rights and remedies under this
Credit Agreement or any other Loan Documents; (iii) the business and
assets so acquired shall be acquired by the Borrower or such
Subsidiary free and clear of all liens (other than as permitted by
(S)10.2 hereof) and all Indebtedness (other than as permitted by
(S)10.1 hereof); (iv) the Borrower or such Subsidiary has taken all
necessary actions to grant to the Agent a first priority perfected
lien on all assets and stock to be acquired in connection with such
Permitted Acquisition (other than Permitted Liens) and, to the extent
applicable, has provided the Agent with all documents, agreements and
information required pursuant to
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(S)9.13 hereof; (v) the Borrower has demonstrated to the reasonable
satisfaction of the Agent, based on a pro forma Compliance
--- -----
Certificate, compliance with (S)11 hereof on a Pro Forma Basis
immediately prior to and after giving effect to such Permitted
Acquisition; and (vi) no Default or Event of Default has occurred and
is continuing or would exist as a result of giving effect to such
Permitted Acquisition; (e) the merger or consolidation of one or more
of the Subsidiaries of the Borrower with and into the Borrower, or (f)
the merger or consolidation of two (2) or more Subsidiaries of the
Borrower. In addition, in the event any new Subsidiary is formed as a
result of or in connection with any acquisition, such new Subsidiary
shall (unless such new Subsidiary is an Immaterial Subsidiary),
simultaneously with such acquisition, become a guarantor of the
Obligations and grant to the Agent for the benefit of the Agent and
the Banks a first priority perfected lien on all of its assets.
In the event any new Domestic Subsidiary (other than an
Immaterial Subsidiary) is formed as a result of or in connection with
any acquisition, simultaneously therewith, the Loan Documents shall be
amended and/or supplemented as necessary to make the terms and
conditions of the Loan Documents applicable to such Subsidiary. In
the case of the Borrower forming or purchasing such Domestic
Subsidiary, such Domestic Subsidiary (other than an Immaterial
Subsidiary) shall become a guarantor hereunder, and shall grant to the
Agent for the benefit of the Banks a perfected, first priority
security interest in its assets, in accordance with the terms of the
Security Agreement and the other Security Documents.
10.5.2. Disposition of Assets. The Borrower will not, nor will
---------------------
the Borrower permit any of its Subsidiaries to, become a party to or
agree to or effect any disposition of assets, other than (a) the
disposition of assets in the ordinary course of business, consistent
with past practices or the transfer of assets from any Subsidiary to
the Borrower; (b) the contribution by the Borrower of assets to any
joint venture to the extent such an Investment is permitted pursuant
to (S)10.3(m); (c) to the extent such a transaction would be
considered a disposition of assets, the execution and delivery by the
Borrower or any of its Subsidiaries of any ground lease on any Real
Estate with any Person in an arms-length transaction for fair and
reasonable value; (d) the sale or other disposition by the Borrower or
any of its Subsidiaries of any Undeveloped Land to any Person other
than a Subsidiary in an arms-length transaction for fair and
reasonable value; (e) other dispositions of assets other than Asset
Swaps to any third parties which are not Affiliates in an arms-length
transaction for fair and reasonable value; (f) Asset Swaps to any
unaffiliated third parties in an arms-length transaction for fair and
reasonable value in an aggregate amount not to exceed $20,000,000
during the term of this Credit Agreement, provided that (i) the
--------
acquisition by the Borrower or such Subsidiary of the asset to be
acquired pursuant to any Asset Swap is permitted pursuant to (S)10.5.1
hereof, (ii) the Borrower or such Subsidiary has complied with all the
covenants and requirements contained herein as if such acquisition was
a Permitted Acquisition; and (iii) such Asset Swap is also considered
an "Asset Swap"
-85-
pursuant to the Senior Notes Indenture; and (g) dispositions in
connection with fuel price swaps in the ordinary course of business;
provided, that, prior to making any dispositions set forth in this
--------
(S)10.5.2, the Borrower shall have delivered to the Agent on the date
of any such sale or disposition a certificate signed by an authorized
officer of the Borrower and evidence satisfactory to the Agent showing
that (i) no Default or Event of Default has occurred and is continuing
at the time of such sale or disposition and no such Default or Event
of Default will exist after giving effect to such sale; (ii) if the
net proceeds of each such sale (or a series of related sales) exceeds,
in the aggregate, $500,000, at least eighty-five percent (85%) of the
purchase price for such assets is received in cash; provided, however,
-------- -------
any Asset Swap entered into by the Borrower or any Subsidiary which is
permitted hereunder and entered into in the ordinary course of
business shall not be subject to this clause (ii); (iii) the Borrower
or such Subsidiary, as applicable, has delivered any promissory note
or other instrument received by the Borrower or such Subsidiary in
connection with such sale or disposition to the Agent to be held in
pledge for the benefit of itself and the Banks in accordance with the
terms of the Loan Documents; and (iv) the net cash proceeds received
from any such sales or dispositions shall be applied in the manner and
at the times as are required by (S)4.4.1. hereof. In addition, in the
event the Borrower or any Subsidiary effects the sale of any assets in
excess of $3,000,000 pursuant to this (S)10.5.2 to any Person other
than a Subsidiary of the Borrower, simultaneously with such
disposition the Borrower shall deliver to the Agent a written notice
of such disposition, together with a written notification to the Agent
setting forth the amount of cash proceeds received by the Borrower
from such disposition.
Notwithstanding anything to the contrary contained in this
(S)10.5.2, (A) the Borrower and its Subsidiaries shall not be
permitted to dispose of any assets or take (or omit to take) any
action in connection with any asset sale or other disposition or
engage in any other transaction which action (or omission) would
require any repayment, repurchase or redemption (or any mandatory
offer to repay, repurchase or redeem) by the Borrower or any of its
Subsidiaries of the Senior Notes pursuant to (S)4.9 of the Senior
Notes Indenture prior to the repayment in full of all the Obligations,
or would violate the provisions of (S)4.9 of the Senior Notes
Indenture; (B) the Borrower shall not directly or indirectly sell or
otherwise dispose of all or substantially all of its assets; and (C)
except as expressly permitted in this (S)10.5.2, neither the Borrower
nor its Subsidiaries shall sell or otherwise dispose of any capital
stock of any Person which is either the Borrower or a Guarantor or is
an entity the capital stock of which is pledged under the Loan
Documents by the Borrower or any Guarantor, except for transfers to
the Borrower or another Guarantor (with each such transfer to a the
Borrower or another Guarantor to be subject to the Agent's security
interest therein for the benefit of the Agent and the Banks).
10.6. Sale and Leaseback. The Borrower will not, nor will the
------------------
Borrower permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby the Borrower or any Subsidiary of the
Borrower shall sell or
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transfer any property owned by it in order then or thereafter to lease such
property or lease other property that the Borrower or any Subsidiary of the
Borrower intends to use for substantially the same purpose as the property
being sold or transferred, unless such property is sold to an unaffiliated
third party for fair and reasonable value in cash in accordance with
(S)10.5.2 and the Indebtedness incurred in connection therewith is
permitted under (S)10.1(g).
10.7. Employee Benefit Plans. Neither the Borrower nor any ERISA
----------------------
Affiliate will:
(a) knowingly engage in any nonexempt "prohibited transaction"
within the meaning of (S)406 of ERISA or (S)4975 of the Code which
would reasonably be expected to result in a material liability for the
Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S)302 of ERISA, in
excess of $1,000,000, whether or not such deficiency is or may be
waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to
(S)302(f) or (S)4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of (S)4001 of ERISA)
of all Guaranteed Pension Plans exceeding the value of the aggregate
assets of such Plans by more than $1,000,000, disregarding for this
purpose the benefit liabilities and assets of any such Plan with
assets in excess of benefit liabilities.
10.8. Transactions with Affiliates. The Borrower will not, nor will
----------------------------
the Borrower allow its Subsidiaries to, engage in transactions with its
Affiliates except for (a) transactions with Affiliates entered into on or
prior to the Closing date and described on Schedule 10.8 hereto, (b)
-------- ----
transactions which are on terms no less favorable to such Person than such
Person could obtain in arms-length transactions from third parties which
are not Affiliates, (c) the payment of reasonable and customary fees for
services as directors and attendance at meetings consistent with the
Borrower's past practice, to directors of the Borrower or its Subsidiaries
who are not employees of the Borrower or its Subsidiaries, and (d)
Distributions to the extent permitted by (S)10.4 hereof.
10.9. No Changes to Old Notes, Senior Notes or Discount Notes. The
--------------------------------------------------------
Borrower will not amend any provisions of the Old Notes, the Old Indenture,
the Senior Notes or the Senior Notes Indenture, the Discount Notes or the
Discount Notes Indenture without the prior written consent of the Majority
Banks except for amendments which are permitted to be effected by the
Trustee without the consent of the holders thereof.
10.10. Fiscal Year. The Borrower will not change the date of the end
-----------
of its fiscal year from that referred to in (S)8.22 hereof.
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10.11. No Negative Pledges. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to enter into, any agreement (excluding this
Credit Agreement, the other Loan Documents, the Discount Notes and the
Discount Notes Indenture) prohibiting the creation or assumption of any
lien upon its properties, revenues or assets or those of any of its
Subsidiaries, whether now owned or hereafter acquired other than agreements
with Persons prohibiting any such lien on assets in which such Person has a
prior security interest which is permitted by (S)10.2.
10.12. Upstream Limitations. The Borrower will not, nor will the
--------------------
Borrower permit any of its Subsidiaries to enter into any agreement,
contract or arrangement (other than the Credit Agreement and the other Loan
Documents) restricting the ability of any Subsidiary to pay or make
dividends or distributions in cash or kind to the Borrower or to any
Subsidiary, to make loans, advances or other payments of whatsoever nature
to the Borrower or to any Subsidiary or to make transfer or distributions
of all or any part of its assets to the Borrower or to any Subsidiary of
such Subsidiary.
10.13. Inconsistent Agreements. The Borrower will not, nor will the
-----------------------
Borrower permit any of its Subsidiaries to, enter into any agreement
containing any provision which would be violated or breached by the
performance by the Borrower or such Subsidiary of its obligations hereunder
or under any of the Loan Documents.
10.14. Undeveloped Land. The Borrower will not, and will not permit
----------------
any of its Subsidiaries, to own Undeveloped Land acquired by the Borrower
or any of its Subsidiaries at any time after the Closing Date to the extent
that the value of all such Undeveloped Land (which value shall be
determined based upon the respective purchase price for each property so
acquired) exceeds $7,500,000 in the aggregate; provided, however, for
-------- -------
purposes of this (S)10.14, any Undeveloped Land acquired by the Borrower or
any of its Subsidiaries at any time after the Closing Date with the
proceeds received by the Borrower or such Subsidiary from a disposition of
Undeveloped Land owned prior to the Closing Date shall not be included in
the valuation for purposes of compliance with this (S)10.14.
11. FINANCIAL COVENANTS OF THE BORROWER.
-----------------------------------
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation or Letter of Credit is outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligation to issue, extend or
renew any Letters of Credit:
11.1. Maximum Consolidated Leverage Ratio. The ratio of Consolidated
-----------------------------------
Funded Indebtedness on the last day of any fiscal quarter (or at any date
when computing Consolidated Funded Indebtedness on a Pro Forma Basis)
during a period set forth below (the "Determination Date") to Consolidated
EBITDA for the period of four (4) consecutive fiscal quarters ended on or
most recently before such Determination Date shall not exceed, at any time
during the periods set forth below, the ratio set forth opposite the
applicable period set forth in the table below:
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--------------------------------------------------------------
Period Ratio
------ -----
--------------------------------------------------------------
Closing Date through June 29, 2002 5.00:1.00
--------------------------------------------------------------
June 30, 2002 through June 29, 2003 4.50:1.00
--------------------------------------------------------------
Thereafter 4.00:1.00
--------------------------------------------------------------
11.2. Minimum Net Worth. The Borrower will not permit Consolidated
-----------------
Net Worth at the end of any fiscal year to be less than the sum of (a) the
Consolidated Net Worth reported in the Borrower's pro forma balance sheet
--- -----
as of the Closing Date less $10,000,000, plus (b) on a cumulative basis,
----
fifty percent (50%) of positive consolidated net income for each fiscal
year, determined in accordance with generally accepted accounting
principles, beginning with the fiscal year ending December 31, 1999 plus
----
(c) accrued dividends paid after the Closing Date in additional Capital
Interests less Distributions paid pursuant to (S)10.4(a) hereof; provided,
---- --------
however, in the event accounting adjustments resulting from the
-------
Recapitalization or the other transactions contemplated by this Credit
Agreement and the other Loan Documents result in certain non-cash charges
to Consolidated Net Income not otherwise anticipated in the underlying
assumptions of the Borrower's financial projections prepared and delivered
to the Agent and the Banks on or prior to the Closing Date, the Borrower,
the Agent and the Banks agree to negotiate in good faith a modification to
subparagraph (b) hereof to take into account the impact on Consolidated Net
Income due to such non-cash charges not otherwise anticipated.
11.3. Consolidated Cash Flow Ratio. The ratio of Consolidated Cash
----------------------------
Flow for the period consisting of the four (4) consecutive fiscal quarters
ending on the last day of any fiscal quarter set forth in the table below
to Consolidated Financial Obligations for such period shall not be less
than the amount set forth below in such table opposite such date:
-------------------------------------------------------------------
Fiscal Quarter Ending Ratio
--------------------- -----
-------------------------------------------------------------------
Closing Date through 6/29/02 1.25:1.00
-------------------------------------------------------------------
6/30/02 through 6/29/03 1.00:1.00
-------------------------------------------------------------------
6/30/03 through 6/29/04 1.10:1.00
-------------------------------------------------------------------
Thereafter 1.25:1.00
-------------------------------------------------------------------
11.4. Consolidated EBITDA/Interest.
----------------------------
The ratio of Consolidated EBITDA for the period consisting of the four (4)
consecutive fiscal quarters ending on the last day of any fiscal quarter
set forth in the table below to Consolidated Cash Interest Expense for such
period shall not be less than the amounts set forth below in such table
opposite such date:
-------------------------------------------------------------------
Fiscal Quarter Ending Ratio
--------------------- -----
-------------------------------------------------------------------
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Closing Date through 6/29/02 2.00:1.00
-------------------------------------------------------------------
6/30/02 through 6/29/03 2.25:1.00
-------------------------------------------------------------------
6/30/03 through 6/29/04 2.50:1.00
-------------------------------------------------------------------
Thereafter 2.75:1.00
-------------------------------------------------------------------
11.5. Operating Leases. The Borrower will not, and will not permit
----------------
any of its Subsidiaries to, as lessee, enter into, permit to exist, or
renew any agreements to rent or lease any real or personal property if the
annual rental expenses (determined in accordance with generally accepted
accounting principles) and (without duplication) the Rental Obligations
then due and payable of the Borrower and its Subsidiaries (on a
consolidated basis) under any rental agreements or leases of real or
personal property (other than Capitalized Leases) exceeds $10,000,000 in
any fiscal year.
12. CLOSING CONDITIONS.
------------------
The obligations of the Banks to make the initial Revolving Credit Loans and
the Term Loan B and of the Agent to issue any initial Letters of Credit shall be
subject to the satisfaction of the following conditions precedent:
12.1. Loan Documents, etc.
-------------------
12.1.1. Loan Documents. Each of the Loan Documents shall have
--------------
been duly executed and delivered by the respective parties thereto,
shall be in full force and effect and shall be in form and substance
satisfactory to each of the Banks. Each Bank shall have received a
fully executed copy of each such document.
12.1.2. Recapitalization Documents. Each of the
--------------------------
Recapitalization Documents shall have been duly executed and delivered
by the respective parties thereto, shall be in full force and effect
and shall be in form and substance satisfactory to each of the Banks.
The Agent shall have received a fully executed copy of each such
document.
12.1.3. Discount Notes. Each of the Discount Notes and the
--------------
Discount Notes Indenture shall have been duly executed and delivered
by the respective parties thereto, shall be in full force and effect
and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a copy of each such fully executed
document.
12.2. Certified Copies of Charter Documents. Each of the Banks
-------------------------------------
shall have received (a) from the Borrower a copy, certified by a duly
authorized officer of such Person to be true and complete on the Closing
Date, of each of its partnership certificate and partnership agreement as
in effect on such date of certification, and (b) from Petro Financial,
Petro Distributing and the respective general partners of the Borrower, a
copy, certified by a duly authorized officer of such Person to be true and
complete on the Closing Date, of its charter or other incorporation
documents and its by-laws as in effect on such date of certification.
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12.3. Action. All corporate and partnership action necessary for the
------
valid execution, delivery and performance by the Borrower and each of its
Subsidiaries of this Credit Agreement and the other Loan Documents to which
it is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Banks shall have been provided to
each of the Banks.
12.4. Incumbency Certificate. Each of the Banks shall have received
----------------------
from the Borrower and each of its Subsidiaries an incumbency certificate,
dated as of the Closing Date, signed by a duly authorized officer of such
Person, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign, in the name and on behalf
of each of such Person, each of the Loan Documents to which such Person is
or is to become a party; (b) in the case of the Borrower, to make Loan
Requests and Conversion Requests and to apply for Letters of Credit; and
(c) to give notices and to take other action on its behalf under the Loan
Documents.
12.5. Validity of Liens. The Security Documents shall be effective to
-----------------
create and continue in favor of the Agent a legal, valid and enforceable
first (except for Permitted Liens entitled to priority under applicable
law) security interest in and lien upon the Collateral. All filings,
recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Agent to protect and preserve such security
interests shall have been duly effected, or provision satisfactory to the
Agent for such filings, recordings and other actions shall have been made.
The Agent shall have received evidence thereof in form and substance
satisfactory to the Agent.
12.6. Perfection Certificates and UCC Search Results. The Agent
----------------------------------------------
shall have received from each of the Borrower and its Subsidiaries a
completed and fully executed Perfection Certificate and the results of UCC
searches with respect to the Collateral, indicating no liens other than
Permitted Liens and otherwise in form and substance satisfactory to the
Agent.
12.7. Certificates of Insurance. The Agent shall have received (a) a
-------------------------
certificate of insurance from an independent insurance broker dated as of
the Closing Date, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance obtained
in accordance with Schedule 8.25 hereto and the provisions of the Security
-------------
Agreements and (b) certified copies of all policies evidencing such
insurance (or certificates therefor signed by the insurer or an agent
authorized to bind the insurer).
12.8. FEMA Certification. The Agent shall have received a FEMA
------------------
certification from the Title Insurance Company with respect to each
Mortgaged Property as to which a survey is not available as of the Closing
Date on which a Mortgage is granted on the Closing Date.
12.9. Opinions of Counsel. Each of the Banks and the Agent shall have
-------------------
received a favorable legal opinion addressed to the Banks and the Agent,
dated as of the Closing Date, in form and substance satisfactory to the
Banks and the Agent, from each of (a) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel
to the
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Borrower and its Subsidiaries, and (b) Kemp, Smith, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.,
counsel to the Borrower and Petro Inc.
12.10. Payment of Fees. The Borrower shall have paid to the Banks or
---------------
the Agent, as appropriate, the commitment fee, the Agent's fee and the
closing fee pursuant to (S)(S)2.2, 6.1.1 and 6.1.2.
12.11. Solvency Certificate. The Agent shall have received a
--------------------
certificate in form and substance satisfactory to the Agent from the
Borrower's chief financial officer as to solvency of the Borrower and its
Subsidiaries.
12.12. Consent Under Senior Indenture. The Agent shall have received
------------------------------
evidence satisfactory to the Agent that the Borrower has received the
consent in accordance with the Consent Documents of holders holding more
than fifty-one percent (51%) of the aggregate outstanding principal amount
of the Senior Notes.
12.13. Discount Notes. The Agent shall have received evidence
--------------
satisfactory to the Agent that the Discount Notes have been issued in
accordance with the terms of the Discount Notes Indenture in an aggregate
amount of not more than $55,600,000 and Holdings has received at least
$40,000,000 of the gross proceeds of such issuance in cash and Discount
Notes with an accreted value of $14,830,000 have been issued to Chartwell
in partial payment of the purchase price in the Chartwell Purchase
Agreement.
12.14. Satisfaction of Conditions of Recapitalization Documents. The
--------------------------------------------------------
Agent shall have received evidence that all of the closing conditions in
the Recapitalization Documents have been satisfied in all material respects
without recourse to any provision permitting the waiver by any party
thereto of any condition, obligation, covenant or other requirement.
12.15. Completion of Recapitalization. The Recapitalization shall
------------------------------
have been completed pursuant to the Recapitalization Documents.
12.16. No Material Adverse Change. The Agent and the Banks shall be
--------------------------
satisfied that no material adverse change in the business, assets,
arrangements or financial condition, income or prospects of the Borrower
and its Subsidiaries taken as a whole has occurred prior to the Closing
Date.
12.17. Capitalization. The Agent and the Banks shall have received
--------------
evidence satisfactory to the Agent and the Banks that Holdings has received
not less than (a) $30,000,000 in proceeds from the issuance of equity to
Volvo; (b) $5,000,000 in proceeds from the issuance of equity to Mobil; and
(c) $40,000,000 in cash proceeds from the issuance of the Discount Notes by
Holdings.
12.18. Transaction Costs. The aggregate amount of transaction costs
-----------------
associated with this transaction and the Recapitalization (including,
without limitation, consent solicitation fees and expenses) shall not
exceed $10,000,000 in the aggregate.
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12.19. Consents and Approvals. The Agent shall have received evidence
----------------------
that all consents and approvals necessary to complete the Recapitalization
and the transactions contemplated hereby have been obtained.
12.20. Pro Forma Balance Sheet. The Agent shall have received a
-----------------------
satisfactory pro forma balance sheet as of the Balance Sheet Date.
12.21. Pro Forma Compliance Certificate. The Agent shall have
--------------------------------
received a compliance certificate setting forth in reasonable detail
computations evidencing compliance with the covenants set forth in (S)11 as
of the Closing Date and for the twelve-month period most recently ended.
13. CONDITIONS TO ALL BORROWINGS.
----------------------------
The obligations of the Banks to make any Loan, including the Revolving
Credit Loans and the Term Loan And of the Agent to issue, extend or renew any
Letter of Credit, in each case whether on or after the Closing Date, shall also
be subject to the satisfaction of the following conditions precedent:
13.1. Representations True; No Event of Default. Each of the
-----------------------------------------
representations and warranties of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they were made
and shall also be true in all material respects at and as of the time of
the making of such Loan or the issuance, extension or renewal of such
Letter of Credit, with the same effect as if made at and as of that time
(except to the extent of changes resulting from transactions contemplated
or permitted by this Credit Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing. The
Agent shall have received a certificate of the Borrower signed by an
authorized officer of the Borrower to such effect.
13.2. No Legal Impediment. No change shall have occurred in any law
-------------------
or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make such Loan
or to participate in the issuance, extension or renewal of such Letter of
Credit or in the reasonable opinion of the Agent would make it illegal for
the Agent to issue, extend or renew such Letter of Credit.
13.3. Governmental Regulation. Each Bank shall have received such
-----------------------
statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of
the Federal Reserve System.
13.4. Proceedings and Documents. All proceedings in connection with
-------------------------
the transactions contemplated by this Credit Agreement, the other Loan
Documents and all other documents incident thereto shall be satisfactory in
substance and in form to the Banks and to the Agent and the Agent's Special
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Counsel, and the Banks, the Agent and such counsel shall have received all
information and such counterpart originals or certified or other copies of
such documents as the Agent may reasonably request.
13.5. Indenture Compliance. The Agent shall have received a
--------------------
certificate from the Borrower certifying that the Loan being requested may
be incurred in compliance with the covenants set forth in (S)4.6 of the
Discount Notes Indenture and (S)4.6 of the Senior Notes Indenture, together
with such evidence and calculations demonstrating the satisfaction of such
covenant as the Agent may reasonably request.
13.6. Conditions to Revolving Credit Loans for Permitted
--------------------------------------------------
Acquisitions.
------------
13.6.1. Acquisition Documents. Not less than five (5) Business
---------------------
Days prior to the scheduled Permitted Acquisition Closing Date, the
Agent shall have received (a) written notification of the Permitted
Acquisition, together with copies of all then current drafts of the
material documents to be entered into in connection with such
Permitted Acquisition, (b) a written statement from the Borrower
indicating (i) the purchase price of such Permitted Acquisition and
the Borrower's good faith estimate of all additional Property Costs
for the Project to be constructed thereon, and (ii) that to the best
of the Borrower's knowledge, the proposed Permitted Acquisition will
not result in a Default or Event of Default under this Credit
Agreement, and (c) a pro forma compliance certificate, evidencing
---------
compliance with (S)11 hereof on a pro forma basis immediately prior to
---------
and after giving effect to the requested Revolving Credit Loan.
13.6.2. Use of Proceeds. The Agent shall have received evidence
---------------
that the Borrower has used the proceeds of each applicable Revolving
Credit Loan requested solely to finance the purchase price and related
transaction costs of each Permitted Acquisition for which such
Revolving Credit Loan is being requested, and the Borrower is in
compliance with (S)9.12 hereof.
13.7. Conditions to Revolving Credit Loans for Permitted Acquisitions
---------------------------------------------------------------
of Real Estate.
--------------
In addition to the conditions precedent applicable to all Revolving
Credit Loans hereunder, the obligations of the Banks to make any Revolving
Credit Loan for a Permitted Acquisition involving Real Estate, shall be
subject to the following conditions precedent:
13.7.1. Environmental Matters. Not less than five (5) Business
---------------------
Days prior to the scheduled Permitted Acquisition Closing Date, the
Agent shall have received a copy of each environmental assessment
obtained by the Borrower with respect to the Real Estate to be
acquired.
13.7.2. Survey and Title. The Agent shall have received a
----------------
Survey of the Real Estate to be acquired, together with a Surveyor
Certificate, and to the extent that the Borrower is required to
deliver a
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Mortgage with respect to such Real Estate pursuant to (S)9.13 hereof,
the Agent shall have received a current commitment from the Title
Insurance Company to issue a Title Policy covering such Real Estate,
the Borrower shall have paid all premiums applicable to such Title
Policy, and the Title Insurance Company shall have agreed to deliver
the Title Policy to the Agent within sixty (60) days of the Permitted
Acquisition Closing Date.
13.7.3. Mortgage. To the extent required pursuant to (S)9.13
--------
hereof, the Agent shall have received an executed Mortgage covering
the Real Estate to be acquired, in form sufficient for recording, in
order to give the Agent, for the benefit of the Banks, a first
priority mortgage on and security interest in such Real Estate and
related personal property, subject only to Permitted Liens.
13.7.4. Local Counsel Opinion. To the extent a Mortgage is
---------------------
required to be delivered by the Borrower, the Agent shall have
received a favorable legal opinion addressed to the Banks and the
Agent, dated as of the Permitted Acquisition Closing Date, from local
counsel to the Borrower in the state where the Mortgaged Property is
located, substantially similar in all material respects to the local
counsel opinions delivered in connection with the Mortgaged Properties
for which Mortgages were granted on the Closing Date.
13.7.5. Insurance. The Agent shall have received an updated
---------
Certificate of Insurance evidencing maintenance of the policies of
insurance required hereby.
13.7.6. Use of Proceeds. The Agent shall have received
---------------
reasonably satisfactory evidence that the proceeds of the requested
Revolving Credit Loan will be used for the Permitted Acquisition and
otherwise in accordance with (S)9.12.
13.8. Conditions to Revolving Credit Loans for Construction. In
-----------------------------------------------------
addition to the conditions precedent applicable to all Revolving Credit
Loans hereunder, the obligations of the Banks to make any Initial Project
Loan with respect to any Project shall be subject to the following
additional conditions precedent.
13.8.1. Borrower's Requisition. The Borrower, in addition to
----------------------
complying with the Loan Request set forth in (S)2.6, shall complete,
execute and deliver to the Agent a Borrower's Requisition in the form
attached hereto as Exhibit O (hereinafter referred to as "Borrower's
---------
Requisition"), which shall include (a) the total amount of the
Revolving Credit Loan being requested, together with an explanation in
sufficient detail as to the application of the proceeds of such
Revolving Credit Loan, as well as the total amount currently due and
payable (set forth in an itemized format) on the Project for which the
Revolving Credit Loan is requested, and (b) such other information and
documentation as the Agent shall reasonably request.
13.8.2. Construction Documents. The Architects' Contract and the
----------------------
Construction Contract to which such applicable Revolving Credit
-95-
Loan for such Project, shall have been duly executed and delivered by
the parties thereto, shall be in full force and effect, and the Agent
shall have received a certified copy or a fully executed counterpart
thereof. The Borrower's Architect and the Contractor shall have duly
executed and delivered to the Agent a consent to the assignment of the
Architect's Contract and the Construction Contract, and the Agent
shall have received the original or a fully executed counterpart
thereof.
13.8.3. Other Contracts. Upon the request of the Agent, the
---------------
Borrower shall have delivered to the Agent correct and complete
photocopies of all other material executed contracts with contractors,
subcontractors, materialmen, engineers or consultants for the Project,
and of all development and management, agreements for the Project.
13.8.4. Construction Budget. The Borrower shall have delivered
-------------------
the Construction Budget to the Agent.
13.8.5. Construction Schedule. The Borrower shall have
---------------------
delivered the Construction Schedule to the Agent.
13.8.6. Plans and Specifications. Upon the request of Agent, a
------------------------
complete set of the Plans and Specifications and evidence
demonstrating that such Plans and Specifications have been approved by
all necessary governmental authorities (if any). In addition, for all
Initial Project Loans, a certification from the Borrower's Architect
(or, if there is not a Borrower's Architect, a representative of the
Borrower responsible for the Project) that to the best of the party's
knowledge, the Improvements to be constructed comply with all
requirements and governmental approvals.
13.8.7. Mortgage. To the extent not previously provided, and to
--------
the extent required pursuant to (S)9.13 hereof, the Agent shall have
received an executed Mortgage covering Real Estate included in such
Project, in form sufficient for recording, in order to give the Agent,
for the benefit of the Banks, a first priority mortgage on and
security interest in such Real Estate and related personal property,
subject only to Permitted Liens.
13.8.8. Title Policy. To the extent not previously provided, and
------------
to the extent a Mortgage is required pursuant to (S)9.13 hereof, the
Agent shall have received a current commitment from the Title
Insurance Company to issue a Title Policy covering such Real Estate
and the Borrower shall have paid all premiums applicable to such Title
Policy, and the Title Insurance Company shall have agreed to deliver
the Title Policy to the Agent within sixty (60) days of the Permitted
Acquisition Closing Date.
13.8.9. Other Insurance. The Agent shall have received an
---------------
updated certificate evidencing the policies of all insurance required
by this Credit Agreement for such Project
13.8.10. Pro Forma Compliance.. The Agent shall have received
--------------------
a pro forma compliance certificate, evidencing compliance with (S)11
----------
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hereof on a Pro Forma Basis immediately prior to such Revolving Credit
Loan and immediately after giving effect to the aggregate amount of
Revolving Credit Loans required to finance all Project Costs with
respect to such Project.
13.8.11. Environmental Report. Not less than five (5) Business
--------------------
Days prior to the Initial Project Loan, the Agent shall have received
a copy of each environmental assessment obtained by the Borrower with
respect to the Real Estate included in such Project and not previously
delivered to the Agent.
13.8.12. Legal Opinions. To the extent a Mortgage is required
--------------
pursuant to (S)9.13, the Agent shall have received opinions in form
and substance satisfactory to the Agent and the Agent's counsel from
counsel satisfactory to the Agent in the state or states where any
Project is occurring and for which a Mortgage is being granted.
13.8.13. Lien Search. The Agent shall have received the results
-----------
of UCC searches with respect to the Project, indicating that no liens,
encumbrances, security interests, financing statements or title
retention agreements which affect the Property, other than Permitted
Liens.
13.8.14. Notices. All notices required by any governmental
-------
authority or by any applicable legal requirement to be filed prior to
commencement of construction of the Improvements shall have been
filed.
13.8.15. Appraisal. To the extent determined by the Agent to be
---------
required by or advisable under applicable regulatory requirements,
prior to the initial Revolving Credit Loan for any Project, an
appraisal of the Property, including an appraisal of the Property on
an as completed basis.
13.9. Conditions to Revolving Credit Loans for Improvements
-----------------------------------------------------
Subsequent to an Initial Project Loan. In addition to the conditions
-------------------------------------
precedent applicable to all Revolving Loans hereunder, the obligations of
the Banks to make Revolving Loans for Property Costs for a Project after
the Initial Project Loan has been made shall be subject to the following
additional conditions precedent:
13.9.1. Borrower's Requisition. The Borrower shall have
----------------------
delivered to the Agent a complete, executed Borrower's Requisition.
13.9.2. No Damage. At the time of any Revolving Credit Loan, the
---------
Improvements shall not have been injured or damaged by fire,
explosion, accident, flood or other casualty, unless either (a)
pursuant to the Mortgage encumbering such Project, the proceeds of any
hazard insurance to be disbursed have been disbursed directly to the
Borrower, or (b) the Agent shall have received insurance proceeds
sufficient in the judgment of the Agent to effect the satisfactory
restoration of the Improvements and to permit the completion thereof
prior to the Completion Date.
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13.9.3. Certificate. If requested by the Agent, a
-----------
certificate of the Construction Inspector in the form of Exhibit
-------
P.
-
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
------------------------------------
14.1. Events of Default and Acceleration. If any of the following
----------------------------------
events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice or lapse of
time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans or any Reimbursement Obligation when the same shall become
due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower or any of its Subsidiaries shall fail to
pay any interest on the Loans, the commitment fee, any Letter of
Credit Fee or the Agent's fee, when the same shall become due and
payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for
payment or shall fail to pay any other sums due hereunder or
under any of the other Loan Documents within five (5) days of
when the same shall become due and payable;
(c) the Borrower shall fail to comply with any of its
covenants contained in (S)9 (other than the covenants contained
in (S)9.2, (S)9.4, the second sentence of (S)9.6, (S)9.8, (S)9.11
and (S)9.27 (but only to the extent the Borrower or its
Subsidiary has taken all action necessary to remediate the
violation and such remediation is possible without any material
adverse effect on the Borrower and its Subsidiaries)), (S)10
(other than the covenant contained in (S)10.2, but only to the
extent of any lien or other encumbrance which has not been
granted by the Borrower or any of its Subsidiaries and which the
Borrower and such Subsidiary is proceeding in good faith to have
released or otherwise discharged) or (S)11 or any of the
covenants contained in any of the Mortgages;
(d) the Borrower or any of its Subsidiaries shall fail to
perform any term, covenant or agreement contained in (S)9.4 for
ten (10) Business Days after written notice of such failure has
been given to the Borrower by the Agent or the Borrower or any of
its Subsidiaries shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents
(other than those specified elsewhere in this (S)14.1) for thirty
(30) days after written notice of such failure has been given to
the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any
of its Subsidiaries in this Credit Agreement or any of the other
Loan Documents or in any other document or instrument delivered
pursuant to or in connection with this Credit Agreement shall
prove to have been false in any material respect upon the date
when made or deemed to have been made or repeated;
(f) a Change of Control shall occur;
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(g) a default or an event of default shall occur with
respect to the Discount Notes;
(h) a default or an event of default shall occur with
respect to the Old Notes or the Senior Notes;
(i) the Borrower or any of its Subsidiaries shall fail to
pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received or in respect of
any Capitalized Leases, if the aggregate principal amount of such
Indebtedness is in excess of $1,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed
money or credit received or in respect of any Capitalized Leases
in each case in such amount for such period of time as would
permit (assuming the giving of appropriate notice if required)
the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof;
(j) the Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they
mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or
receiver of such Person or of any substantial part of the assets
of such Person or shall commence any case or other proceeding
relating to such Person under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter
in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding
shall be commenced against such Person and such Person shall
indicate its approval thereof, consent thereto or acquiescence
therein or such petition or application shall not have been
dismissed within forty-five (45) days following the filing
thereof;
(k) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the
Borrower or any of its Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a
decree or order for relief is entered in respect of such Person
in an involuntary case under federal bankruptcy laws as now or
hereafter constituted;
(l) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty (30) days, whether or not
consecutive, any final judgment against the Borrower or any of
its Subsidiaries that, with other outstanding final judgments,
undischarged, against such Person exceeds insurance coverage
applicable thereto for which the relevant insurance carrier has
accepted liability by $1,000,000 or more, in the aggregate;
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(m) (i) the holders of all or any part of the Old Notes,
the Senior Notes or the Discount Notes shall accelerate the
maturity of all or any part of such Old Notes, Senior Notes or
Discount Notes, as the case may be, or (ii) the Old Notes, the
Senior Notes or the Discount Notes shall be prepaid, redeemed or
repurchased in whole or in part or the holders shall have the
right to require such Old Notes, Senior Notes or Discount Notes,
as the case may be, to be prepaid, redeemed or repurchased in
whole or in part;
(n) if any of the Loan Documents shall be canceled,
terminated, revoked or rescinded or the Agent's security
interests, mortgages or liens in any material Collateral shall
cease to be perfected, or shall cease to have the priority
contemplated by the Security Documents, in each case otherwise
than in accordance with the terms thereof or with the express
prior written agreement, consent or approval of the Agent (other
than due to the negligence of the Agent in failing to make any
filings required to be made by the Agent), or any action at law,
suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto
or any of their respective stockholders, or any court or any
other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or
more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(o) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall
have determined in their reasonable discretion that such event
would reasonably be expected to result in liability of the
Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and such event in the circumstances occurring would
reasonably be expected to constitute grounds for the termination
of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee
shall have been appointed by the United States District Court to
administer such Plan; or the PBGC shall have instituted
proceedings to terminate such Guaranteed Pension Plan;
(p) the Borrower or any of its Subsidiaries shall be
enjoined, restrained or in any way prevented by the order of any
court or any administrative or regulatory agency from conducting
any part of its business and such order shall continue in effect
for more than thirty (30) days and would reasonably be expected
to have a material adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries,
considered as a whole;
(q) there shall occur any material damage to, or loss,
theft or destruction of, any Collateral, whether or not insured,
or any strike, lockout, labor dispute, embargo, condemnation, act
of God or public
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enemy, or other casualty, which in any such case causes, for more
than thirty (30) consecutive days, the cessation or substantial
curtailment of revenue producing activities at any facility of
the Borrower or any of its Subsidiaries if such event or
circumstance is not covered by business interruption insurance
and would reasonably be expected to have a material adverse
effect on the business, assets or financial condition of the
Borrower and its Subsidiaries, considered as a whole;
(r) there shall occur the loss, suspension or revocation
of, or failure to renew, any license or permit now held or
hereafter acquired by the Borrower or any of its Subsidiaries if
such loss, suspension, revocation or failure to renew would
reasonably be expected to have a material adverse effect on the
business, assets or financial condition of the Borrower and its
Subsidiaries, considered as a whole; or
(s) the Borrower or any of its Subsidiaries shall be
indicted for a state or federal crime, or criminal action shall
otherwise have been brought against such Person, a punishment for
which in any such case could include the forfeiture of any assets
of such Person having a fair market value in excess of
$1,000,000;
then, if such event is an Event of Default, and so long as the same
may be continuing, the Agent may, and upon the request of the Majority
Banks shall, by notice in writing to the Borrower declare all amounts
owing with respect to this Credit Agreement and the other Loan
Documents and all Reimbursement Obligations to be, and they shall
thereupon forthwith become, immediately due and payable without
presentment, demand, notice of intention to accelerate maturity
(including, without limitation, the notice of intent to accelerate and
the notice of such acceleration), protest or other notice of any kind
all of which are hereby expressly waived by the Borrower; provided
--------
that in the event of any Event of Default specified in (S)(S)14.1(j),
14.1(k) or (S)14.1(m) (but only as (S)14.1(m) pertains to the
acceleration of the Senior Notes or the Discount Notes), all such
amounts shall become immediately due and payable automatically and
without any requirement of notice from the Agent or any Bank.
14.2. Termination of Commitments. If any one or more of the
--------------------------
Events of Default specified in (S)14.1(j), (S)14.1(k) or (S)14.1(m)
(but only as (S)14.1(m) pertains to the acceleration of the Senior
Notes or the Discount Notes) shall occur, any unused portion of the
Total Commitment hereunder shall forthwith terminate and each of the
Banks shall be relieved of all further obligations to make Loans to
the Borrower and the Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other
Event of Default shall have occurred and be continuing, the Agent may
and, upon the request of the Majority Banks shall, by notice to the
Borrower, terminate the unused portion of the Total Commitment
hereunder, and upon such notice being given such unused portion of the
Total Commitment hereunder shall terminate immediately and each of the
Banks shall be relieved of all further obligations to make Loans and
the Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. No termination of the Total
Commitment hereunder shall relieve Holdings, the Borrower or any of
its Subsidiaries of any of the Obligations (other than as provided in
(S)2.3).
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14.3. Remedies. In case any one or more of the Events of Default
--------
shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans pursuant to (S)14.1,
each Bank, if owed any amount with respect to the Loans or the
Reimbursement Obligations, may, with the consent of the Majority Banks
but not otherwise, proceed to protect and enforce its rights by suit
in equity, action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement contained in
this Credit Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
-- -----
appointment of a receiver, and, if such amount shall have become due,
by declaration or otherwise, proceed to enforce the payment thereof or
any other legal or equitable right of such Bank. No remedy herein
conferred upon any Bank or the Agent or the holder of any Loans or
purchaser of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
14.4. Distribution of Collateral Proceeds. In the event that,
-----------------------------------
following the occurrence or during the continuance of any Default or
Event of Default, the Agent or any Bank, as the case may be, receives
any monies in connection with the enforcement of any the Security
Documents, or otherwise with respect to the realization upon any of
the Collateral, such monies shall be distributed for application as
follows:
(a) First, to the payment of, or (as the case may be) the
-----
reimbursement of the Agent for or in respect of all reasonable
costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Agent in connection with the
collection of such monies by the Agent, for the exercise,
protection or enforcement by the Agent of all or any of the
rights, remedies, powers and privileges of the Agent under this
Credit Agreement or any of the other Loan Documents or in respect
of the Collateral or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law
shall have, or may have, priority over the rights of the Agent to
such monies;
(b) Second, to all other Obligations in such order or
------
preference as the Majority Banks may determine; provided,
--------
however, that distributions in respect of such obligations shall
-------
be made (i) pari passu among Obligations with respect to the
---- -----
Agent's fee payable pursuant to (S)6.2 and all other Obligations
and (ii) Obligations owing to the Banks with respect to each type
of Obligation such as interest, principal, fees and expenses,
shall be made among the Banks pro rata; and provided, further,
--- ---- -------- -------
that the Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other
-----
provisions for payment in full satisfactory to the Banks and the
Agent of all of the Obligations, to the payment of any
obligations required to be
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paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of
the Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the
------
Borrower or to such other Persons as are entitled thereto.
15. SETOFF.
------
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to the Borrower and any securities or other property of the Borrower in
the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank under the Loan Documents. Each
of the Banks agrees with each other Bank that (a) if an amount to be set off is
to be applied to Indebtedness of the Borrower to such Bank, such amount shall be
applied ratably to such other Indebtedness owed to such Bank, and (b) if such
Bank shall receive from the Borrower, whether by voluntary payment, exercise of
the right of setoff, counterclaim, cross action, enforcement of the claim
constituting Obligations owed to such Bank by proceedings against the Borrower
at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Obligations owed to such Bank any amount in
excess of its ratable portion of the payments received by all of the Banks with
respect to the Obligations owed to all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
--- -----
otherwise as shall result in each Bank receiving in respect of the Obligations
owed it, its proportionate payment as contemplated by this Credit Agreement;
provided that if all or any part of such excess payment is thereafter recovered
--------
from such Bank, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
16. THE AGENT.
---------
16.1. Authorization.
-------------
(a) The Agent is authorized to take such action on behalf
of each of the Banks and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any
related documents delegated to the Agent, together with such
powers as are reasonably incident thereto, provided that no
--------
duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the
Banks is that of an independent contractor. The use of the term
"Agent" is for convenience only and is used to describe, as a
form of convention, the independent contractual relationship
between the Agent and each of the Banks. Nothing contained in
this Credit Agreement nor the other Loan Documents shall be
construed to create an agency, trust or other fiduciary
relationship between the Agent and any of the Banks. Neither
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the Co-Agent nor the Documentation Agent shall have any duties or
responsibilities under this Credit Agreement.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and
responsibilities hereunder and under the other Loan Documents, the
Agent is nevertheless a "representative" of the Banks, as that term
is defined in Article 1 of the Uniform Commercial Code, for
purposes of actions for the benefit of the Banks and the Agent with
respect to all collateral security and guaranties contemplated by
the Loan Documents. Such actions include the designation of the
Agent as "secured party", "mortgagee" or the like on all financing
statements and other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection, priority or
enforcement of any security interests, mortgages or deeds of trust
in collateral security intended to secure the payment or
performance of any of the Obligations, all for the benefit of the
Banks and the Agent.
16.2. Employees and Agents. The Agent may exercise its powers and
--------------------
execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit
Agreement and the other Loan Documents. The Agent may utilize the
services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrower, except in any case where this
Credit Agreement provides that the Borrower is not responsible for
costs.
16.3. No Liability. Neither the Agent nor any of its shareholders,
------------
directors, officers or employees nor any other Person assisting them
in their duties nor any agent or employee thereof, shall be liable for
any waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as the case
may be, may be liable for losses due to its willful misconduct or
gross negligence.
16.4. No Representations.
------------------
16.4.1. General. The Agent shall not be responsible for the
-------
execution or validity or enforceability of this Credit Agreement, the
Letters of Credit, any of the other Loan Documents or any instrument
at any time constituting, or intended to constitute, collateral
security for the Obligations, or for the value of any such collateral
security or for the validity, enforceability or collectibility of any
such amounts owing with respect to the Obligations, or for any
recitals or statements, warranties or representations made herein or
in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Borrower or any of
its Subsidiaries, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants
or agreements herein or in any instrument at any time constituting, or
intended to constitute, collateral security for the
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Obligations or to inspect any of the properties, books or records of the
Borrower or any of its Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by
the Borrower or any Bank shall have been duly authorized or is true,
accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of the Borrower or any of its Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the Agent
or any other Bank, and based upon such information and documents as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Credit Agreement.
16.4.2. Closing Documentation, etc. For purposes of
--------------------------
determining compliance with the conditions set forth in (S)12, each
Bank that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
document and matter sent by the Agent or the Arranger to, and received
by, such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of the Agent or the
Arranger active upon the Borrower's account shall have received notice
from such Bank prior to the Closing Date specifying such Bank's
objection thereto and such objection shall not have been withdrawn by
notice to the Agent or the Arranger to such effect on or prior to the
Closing Date.
16.5. Payments.
--------
16.5.1. Payments to Agent. A payment by the Borrower to the
-----------------
Agent hereunder or under any of the other Loan Documents for the
account of any Bank shall constitute a payment to such Bank. The Agent
agrees promptly to distribute to each Bank such Bank's pro rata share
--- ----
of payments received by the Agent for the account of the Banks except
as otherwise expressly provided herein or in any of the other Loan
Documents.
16.5.2. Distribution by Agent. If in the opinion of the Agent
---------------------
the distribution of any amount received by it in such capacity
hereunder or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to
make distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that
any amount received and distributed by the Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged
to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
16.5.3. Delinquent Banks. Notwithstanding anything to the
----------------
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (a) to make available to the Agent its
pro rata share of any Loan or to purchase any Letter of Credit
--- ----
Participation
-105-
or (b) to comply with the provisions of (S)15 with respect to making
dispositions and arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all
--- ----
of the Banks, in each case as, when and to the full extent required by
the provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Loans, Unpaid
Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
--- ----
Reimbursement Obligations. The Delinquent Bank hereby authorizes the
Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding
--- ----
Loans and Unpaid Reimbursement Obligations. A Delinquent Bank shall
be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding
Loans and Unpaid Reimbursement Obligations of the nondelinquent Banks,
the Banks' respective pro rata shares of all outstanding Loans and
--- ----
Unpaid Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
16.6. Holders. The Agent may deem and treat the purchaser of any
-------
Letter of Credit Participation as the absolute owner or purchaser thereof
for all purposes hereof until it shall have been furnished in writing with
a different name by such payee or by a subsequent holder, assignee or
transferee.
16.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
---------
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages,
costs, expenses (including any expenses for which the Agent or such
affiliate has not been reimbursed by the Borrower as required by (S)17),
and liabilities of every nature and character arising out of or related to
this Credit Agreement (including without limitation (S)16.5.2) or any of
the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agent's actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Agent's or such affiliate's willful misconduct or gross negligence.
16.8. Agent as Bank. In its individual capacity, BKB shall have the
-------------
same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the purchaser of any Letter
of Credit Participations, as it would have were it not also the Agent.
16.9. Resignation. The Agent may resign at any time by giving sixty
-----------
(60) days prior written notice thereof to the Banks and the Borrower. Upon
any such resignation, the Majority Banks shall have the right to appoint a
successor Agent. Unless a Default or Event of Default shall have occurred
and be
-106-
continuing, such successor Agent shall be reasonably acceptable to the
Borrower. If no successor Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within thirty (30)
days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be a financial institution having a rating of not less than A
or its equivalent by Standard & Poor's Corporation. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation, the provisions of this Credit Agreement and
the other Loan Documents shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was
acting as Agent.
16.10. Notification of Defaults and Events of Default. Each Bank
----------------------------------------------
hereby agrees that, upon learning of the existence of a Default or an Event
of Default, it shall promptly notify the Agent thereof. The Agent hereby
agrees that upon receipt of any notice under this (S)16.10 it shall
promptly notify the other Banks of the existence of such Default or Event
of Default.
16.11. Duties in the Case of Enforcement. In case one of more Events
---------------------------------
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if
(a) so requested by the Majority Banks and (b) the Banks have provided to
the Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any
such other legal and equitable and other rights or remedies as it may have
in respect of such Collateral. The Majority Banks may direct the Agent in
writing as to the method and the extent of any such sale or other
disposition, the Banks hereby agreeing to indemnify and hold the Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need
--------
not comply with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
17. EXPENSES.
--------
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) subject to the limitations and
requirements of (S)6.3, any taxes (including any interest and penalties in
respect thereto) payable by the Agent or any of the Banks (other than taxes
based upon the Agent's or any Bank's net income or otherwise excluded under
(S)6) on or with respect to the transactions contemplated by this Credit
Agreement (the Borrower hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (c) the reasonable fees, expenses and disbursements of
the Agent's Special Counsel and any local counsel to the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein,
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each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the reasonable fees, expenses and disbursements
of the Agent incurred by the Agent in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including fees and expenses of commercial finance
examiners, title insurance premiums and surveyor, engineering, environmental
consulting and appraisal charges, (e) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent, and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or any of its Subsidiaries or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to any
Bank's or the Agent's relationship with the Borrower or any of its Subsidiaries
hereunder or under the other Loan Documents or with respect to the transactions
contemplated hereby other than any such litigation, proceeding or dispute in
which the Agent or the applicable Bank has been finally adjudicated to have
acted with gross negligence or willful misconduct or to have violated its
obligations under this Credit Agreement or any law, and (f) all reasonable fees,
expenses and disbursements of any Bank or the Agent incurred in connection with
UCC searches, other title or collateral searches, UCC filings, other collateral
filings or mortgage recordings and taxes relating to or paid in connection with
mortgages, UCC filings and other collateral filings. The covenants of this (S)17
shall survive payment or satisfaction of all other Obligations.
18. INDEMNIFICATION.
---------------
The Borrower agrees to indemnify and hold harmless the Arranger, the Agent
and the Banks from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (a) any actual or proposed use by the
Borrower or any of its Subsidiaries of the proceeds of any of the Loans or
Letters of Credit, (b) any actual or alleged infringement of any patent,
copyright, trademark, service ▇▇▇▇ or similar right of the Borrower or any of
its Subsidiaries comprised in the Collateral, (c) the Borrower or any of its
Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (d) with respect to the Borrower and its Subsidiaries
and their respective properties and assets, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding and EXPRESSLY INCLUDING ANY SUCH
CLAIM, ACTION OR SUIT ARISING OUT OF THE ORDINARY, SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH INDEMNIFIED PERSON (but excluding such claim, action or suit
to the extent attributable to the bad faith, gross negligence or willful
misconduct of, or violation of any law or regulation by, any such indemnified
person). Notwithstanding the foregoing the Borrower shall not be
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obligated to indemnify any such Person from any loss resulting from a dispute
solely between or among the Banks and any dispute between the Agent and a Bank
in which the Agent has been finally determined by a non-appealable court of
competent jurisdiction to have acted with gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Banks and the Agent
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel; provided, however, the Borrower shall only be required to pay
the reasonable fees and expenses of one such counsel for all the Banks and the
Agent. If, and to the extent that the obligations of the Borrower under this
(S)18 are unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The Borrower shall be entitled to notice of
any proceeding in respect of which a claim for indemnity or contribution will be
made and shall be entitled to participate in the defense of any such proceeding.
The failure to provide such notice shall not discharge or reduce any indemnity
or contribution claim except to the extent that the Borrower has been prejudiced
thereby. The covenants contained in this (S)18 shall survive payment or
satisfaction in full of all other Obligations.
19. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
---------------------------------------------
19.1. Sharing of Information with Section 20 Subsidiary. The Borrower
-------------------------------------------------
acknowledges that from time to time financial advisory, investment banking
and other services may be offered or provided to the Borrower or one or
more of their Subsidiaries, in connection with this Credit Agreement or
otherwise, by a Section 20 Subsidiary. The Borrower, for itself and each of
its Subsidiaries, hereby authorizes (a) such Section 20 Subsidiary to share
with the Agent and each Bank any information delivered to such Section 20
Subsidiary by the Borrower or any of their Subsidiaries, and (b) the Agent
and each Bank to share with such Section 20 Subsidiary any information
delivered to the Agent or such Bank by the Borrower or any of their
Subsidiaries pursuant to this Credit Agreement, or in connection with the
decision of such Bank to enter into this Credit Agreement; it being
understood, in each case, that any such Section 20 Subsidiary receiving
such information shall be bound by the confidentiality provisions of this
Credit Agreement. Such authorization shall survive the payment and
satisfaction in full of all of Obligations.
19.2. Confidentiality. Each of the Banks and the Agent agrees, on
---------------
behalf of itself and each of its affiliates, directors, officers, employees
and representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential
information of the same nature and in accordance with safe and sound
banking or investing practices, any non-public information supplied to it
by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement that is identified by such Person as being confidential at the
time the same is delivered to the Banks or the Agent, provided that nothing
--------
herein shall limit the disclosure of any such information (a) after such
information shall have become public other than through a violation of this
(S)19, (b) to the extent required by statute, rule, regulation or judicial
process, (c) to counsel for any of the Banks or the Agent, (d) to bank
examiners or any other regulatory authority having jurisdiction over any
Bank or the Agent, or to auditors or accountants, (e) to the
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Agent, any Bank or any Section 20 Subsidiary, (f) reasonably required in
connection with any litigation to which any one or more of the Banks, the
Agent or any Section 20 Subsidiary is a party, or in connection with the
enforcement of rights or remedies hereunder or under any other Loan
Document, (g) to a Subsidiary or affiliate of such Bank as provided in
(S)19.1 (h) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant agrees to be bound by
the provisions of (S)21.6, or (i) to any 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 (S)19.2; provided, that, should disclosure of any
--------
such confidential information be required by virtue of either clause (b) or
(d) hereof, the party making such disclosure shall promptly notify the
Borrower as to allow the Borrower to seek a protective order or to take any
other appropriate action; provided, further, that, neither the Agent nor
-------- -------
any Bank shall be required to delay compliance with any directive to
disclose any such information so as to allow the Borrower to effect any
such action.
19.3. Prior Notification. Unless specifically prohibited by
------------------
applicable law or court order, each of the Banks and the Agent shall, prior
to disclosure thereof, notify the Borrower in writing of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Bank by such governmental
agency) or pursuant to legal process.
19.4. Other. In no event shall any Bank or the Agent be obligated or
-----
required to return any materials furnished to it or any Section 20
Subsidiary by the Borrower or any of its Subsidiaries. The obligations of
each Bank under this (S)19 shall supersede and replace the obligations of
such Bank under any confidentiality letter in respect of this financing
signed and delivered by such Bank to the Borrower prior to the date hereof
and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Loans or Reimbursement
Obligations from any Bank.
20. SURVIVAL OF COVENANTS, ETC.
--------------------------
All covenants, agreements, representations and warranties made herein, in
any of the other Loan Documents or in any documents or other papers delivered by
or on behalf of the Borrower or any of its Subsidiaries pursuant hereto shall be
deemed to have been relied upon by the Banks and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the
making by the Banks of any of the Loans and the issuance, extension or renewal
of any Letters of Credit, as herein contemplated, and shall continue in full
force and effect so long as any Letter of Credit or any amount due under this
Credit Agreement or any of the other Loan Documents remains outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligation to
issue, extend or renew any Letter of Credit, and for such further time as may be
otherwise expressly specified with respect to such provisions in this Credit
Agreement. Notwithstanding the foregoing, the covenants contained in (S)(S)9, 10
and 11 shall remain in full force and effect for so long as any Loan, Unpaid
Reimbursement Obligation or Letter of Credit is outstanding or
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any Bank has any obligation to make any Loans or the Agent has any obligation to
issue, extend or renew any Letters of Credit. All written statements contained
in any certificate or other paper delivered to any Bank or the Agent at any time
by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder. The
Agent and the Banks acknowledge and agree that the delivery by the Borrower of
its financial projections and forecasts pursuant to this Credit Agreement does
not constitute a representation or warranty by the Borrower or its Subsidiaries
that the Borrower or such Subsidiary will achieve the results estimated on such
projection or forecast.
21. ASSIGNMENT AND PARTICIPATION.
----------------------------
21.1. Conditions to Assignment by Banks. Except as provided herein,
---------------------------------
each Bank may assign to one or more Eligible Assignees all or a portion of
its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage with respect to
Revolving Credit Loans, Term Loan A and Term Loan B and the same portion of
the Loans at the time owing to it and its participating interest in the
risk relating to any Letters of Credit); provided that (a) each of the
--------
Agent and, so long as no Default or Event of Default has occurred and is
continuing, the Borrower shall have given its prior written consent to such
assignment (other than an assignment between any fund and its affiliated
funds), which consent, in the case of the Borrower, will not be
unreasonably withheld, (b) each such assignment shall be of a constant, and
not a varying, percentage of all the assigning Bank's rights and
obligations in respect of Revolving Credit Loans, Term Loan A or Term Loan
B, as applicable, under this Credit Agreement, provided, however, that
-------- -------
nothing contained herein shall restrict any Bank from making a non-pro
---
rata assignment of its Loans, (c) each assignment shall be in a minimum
----
amount that is at least $5,000,000 (or, if less than $5,000,000, all of the
assigning Bank's rights and obligations in respect of Revolving Credit
Loans, Term Loan A or Term Loan B, as applicable, under the Credit
Agreement), (d) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit D hereto
------- -
(an "Assignment and Acceptance"), together with the Notes, if any, subject
to such assignment and (e) such Eligible Assignee shall (i) be a financial
institution organized under the laws of the United States, or any State
thereof or the District of Columbia or (ii) have duly filed with the
Borrower and the Agent, Internal Revenue Service Form 1001 or Form 4224 or
any other Prescribed Forms (or any successor or similar form) evidencing
that deduction or withholding of United States income taxes is not
required. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five (5) Business Days after the
execution thereof, (a) 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 Bank hereunder, and (b) the assigning Bank shall, to
the extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in (S)21.3, be released from its obligations
under this Credit Agreement.
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21.2. Certain Representations and Warranties; Limitations; Covenants.
--------------------------------------------------------------
By executing and delivering an Assignment and Acceptance, the parties to
the assignment thereunder confirm to and agree with each other and the
other parties hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant
hereto or the attachment, perfection or priority of any security
interest or mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in (S)8.4 and (S)9.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Bank;
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(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements
with the assigning Bank satisfactory to such assignee with respect to
its pro rata share, if any, of Letter of Credit Fees in respect of
--- ----
outstanding Letters of Credit.
21.3. Register. The Agent shall maintain a copy of each Assignment
--------
and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks and
the Commitment Percentage of, and principal amount of the Revolving Credit
Loans owing to and Letter of Credit Participations purchased by, the Banks
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Credit Agreement. The Register shall be
available for inspection by the Borrower and the Banks at any reasonable
time and from time to time upon reasonable prior notice. Upon each such
recordation, the assigning Bank agrees to pay to the Agent a registration
fee in the sum of $2,500.
21.4. New Notes. Upon its receipt of an Assignment and Acceptance
---------
executed by the parties to such assignment, together with each Note (if
any) subject to such assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to
the Borrower and the Banks (other than the assigning Bank). Upon the
request of such Eligible Assignee, the Borrower shall, within five (5)
Business Days after receipt of such request and, at its own expense,
execute and deliver to the Agent, a new Note to the order of such Eligible
Assignee in an amount equal to the amount assumed by such Eligible Assignee
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained some portion of its obligations hereunder, a new Note (if so
requested by the assigning Bank) to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder. Such new Notes (if
any) shall provide that they are replacements for the surrendered Notes,
shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be substantially in the form
of the assigned Notes.
21.5. Participations. Each Bank may sell participations to one or
--------------
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents;
provided that (s) each such participation shall be in an amount of not less
--------
than $5,000,000, (b) any such sale or participation shall not affect the
rights and duties of the selling Bank hereunder to the Borrower or of the
Borrower to such Bank or give rise to any Obligation of the Borrower to
such participant, and (c) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be the rights to
approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase
the amount of the Commitment of such Bank as it relates to such
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participant, reduce the amount of any commitment fees or Letter of Credit
Fees to which such participant is entitled or extend any regularly
scheduled payment date for principal or interest.
21.6. Disclosure. The Borrower agrees that in addition to disclosures
----------
made in accordance with standard and customary banking practices any Bank
may disclose information obtained by such Bank pursuant to this Credit
Agreement to assignees or participants and potential assignees or
participants hereunder; provided that such assignees or participants or
--------
potential assignees or participants shall agree (a) to treat in confidence
such information unless such information otherwise becomes public
knowledge, (b) not to disclose such information to a third party, except
upon the order of any court or administrative agency, or upon the request
of any administrative agency or authority, or upon the request or demand of
any regulatory agency or authority, or otherwise as required by law and (c)
not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation; provided that (to the
--------
extent permitted by applicable law) such Bank will promptly notify the
Borrower of disclosures of confidential information under the exception in
clause (b) above.
21.7. Assignee or Participant Affiliated with the Borrower. If any
----------------------------------------------------
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank
shall have no right to vote as a Bank hereunder or under any of the other
Loan Documents for purposes of granting consents or waivers or for purposes
of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to
(S)14.1 or (S)14.2, and the determination of the Majority Banks shall for
all purposes of this Agreement and the other Loan Documents be made without
regard to such assignee Bank's interest in any of the Loans. If any Bank
sells a participating interest in any of the Loans or Reimbursement
Obligations to a participant, and such participant is the Borrower or an
Affiliate of the Borrower, then such transferor Bank shall promptly notify
the Agent of the sale of such participation. A transferor Bank shall have
no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Agent pursuant to (S)14.1 or (S)14.2 to
the extent that such participation is beneficially owned by the Borrower or
any Affiliate of the Borrower, and the determination of the Majority Banks
shall for all purposes of this Agreement and the other Loan Documents be
made without regard to the interest of such transferor Bank in the Loans to
the extent of such participation.
21.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
-----------------------------------
retain its rights to be indemnified pursuant to (S)18 with respect to any
claims or actions arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the United States of
America or any state thereof, it shall, as a condition precedent to the
effectiveness of the assignment and prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan Documents for
its account, deliver to the Borrower and the Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. If any Reference Bank
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transfers all of its interest, rights and obligations under this Credit
Agreement, the Agent shall, in consultation with the Borrower and with the
consent of the Borrower and the Majority Banks, appoint another Bank to act
as a Reference Bank hereunder. Anything contained in this (S)21 to the
contrary notwithstanding, any Bank may at any time pledge all or any
portion of its interest and rights under this Credit Agreement (including
all or any portion of its Loans) (a) to any of the twelve Federal Reserve
Banks organized under (S)4 of the Federal Reserve Act, 12 U.S.C. (S)341 and
(b) any Bank that is a fund that invests in bank loans may at any time
pledge all or any portion of its interests and rights with respect to its
Loans to any trustee for, or any other representative of, holders of
obligations owed or securities issued by such fund as security for such
obligations or securities, provided that any foreclosure or similar action
--------
by such trustee or other representative shall be subject to the other
provisions of this (S)21. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or under any of the
other Loan Documents.
21.9. Assignment by Borrower. The Borrower shall not assign or
----------------------
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
21.10. Syndication. The Borrower shall provide such written
-----------
information as is reasonably necessary to enable the Agent to complete the
syndication of the Obligations. In addition, the management of the Borrower
will be available at all reasonable times to answer questions and otherwise
cooperate in the syndication process.
22. NOTICES, ETC.
------------
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or any Letter of Credit Applications shall be in writing and
shall be delivered in hand, mailed by United States registered or certified
first class mail, postage prepaid, sent by overnight courier, or sent by
telegraph, telecopy, facsimile or telex and confirmed by delivery via courier or
postal service, addressed as follows:
(a) if to Holdings or the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: each of V.P. Finance and General Counsel; with a
copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ or at such other address for notice as such
Person shall have furnished in writing to the Person giving the notice;
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Energy & Utilities Division or
such other address for notice as the Agent shall last have furnished in
writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1
-------- -
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
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Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (a) if delivered by hand, overnight courier,
telegraph, telecopy, telex or facsimile to a responsible officer of the party to
which it is directed, at the time of the receipt thereof by such officer or the
receipt of such telegraph, telecopy, telex or facsimile and (b) if sent by
registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof; provided, however, that telexed, telecopied
-------- -------
or facsimile notices received by any party after its normal business hours (or
on a day other than a Business Day) shall be effective on the next Business Day.
23. GOVERNING LAW.
-------------
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN (S)22. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
24. HEADINGS.
--------
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
25. COUNTERPARTS.
------------
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
26. ENTIRE AGREEMENT, ETC.
---------------------
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
(S)28.
27. WAIVER OF JURY TRIAL.
--------------------
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Each of the Banks and the Borrower hereby waives its right to a jury trial
with respect to any action or claim arising out of any dispute in connection
with this Credit Agreement or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by law, the Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Borrower (a)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
28. CONSENTS, AMENDMENTS, WAIVERS, ETC.
----------------------------------
Any consent or approval required or permitted by this Credit Agreement to
be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower or any of its Subsidiaries of any terms of this Credit Agreement, the
other Loan Documents or such other instrument or the continuance of any Default
or Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Borrower and the written consent of the Majority Banks.
Notwithstanding the foregoing, a decrease in the rate of interest on the Loans,
extension of maturities of the Loans, extension of any date fixed for payment, a
change in the amount of the Commitments of the Banks or a change in the amounts
of the Term Loans, the method of application of proceeds under (S)4.4 and
(S)14.2, the release of Collateral having a fair market value in excess of
$15,000,000 in any single transaction or series of related transactions and the
release of Collateral having a fair market value in excess of $30,000,000 in the
aggregate during the term of this Credit Agreement (in each case other than a
release of Collateral in connection with any disposition permitted by
(S)10.5.2), the termination of and the amount of commitment fee or Letter of
Credit Fees hereunder may not be changed without the written consent of the
Borrower and the written consent of each Bank affected thereby; the definition
of Majority Banks and this (S)28 may not be amended and no Guarantor may be may
be released without the written consent of all of the Banks; and the amount of
the Agent's Fee or any Letter of Credit Fees payable for the Agent's account and
(S)16 may not be amended without the written consent of the Agent. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of the Agent or any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon the
Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
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29. SEVERABILITY.
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The provisions of this Credit Agreement and the Loans by each Bank are
severable and if any one clause or provision hereof or any Loan shall be held
invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision or
Loan, or part thereof, in such jurisdiction, and shall not in any manner affect
such clause or provision or Loan in any other jurisdiction, or any other clause
or provision of this Credit Agreement or Loan in any jurisdiction.
30. NO RECOURSE AGAINST OTHERS.
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No director, officer, employee, stockholder, general or limited partner or
incorporator, past, present or future, of the Borrower or any of its
Subsidiaries, as such or in such capacity, shall have any personal liability for
any Obligations as maker or guarantor of the Loans, or otherwise under any of
the Loan Documents by reason of his, her or its status as such director,
officer, employee, stockholder, general or limited partner or incorporator.
This limitation of liability does not apply to any claim under the Securities
Act of 1933 or the Securities Exchange Act of 1934, and the Banks are not
waiving any rights under such laws.
31. TRANSITIONAL ARRANGEMENTS.
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31.1. Original Credit Agreement Superseded. This Credit Agreement
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shall on the Closing Date amend and restate the Original Credit Agreement
in its entirety, except as provided in this (S)31. On the Closing Date, the
rights and obligations of the parties evidenced by the Original Credit
Agreement shall be evidenced by the Credit Agreement and the other Loan
Documents, the "Revolving Credit Loans" as defined in the Original Credit
Agreement shall be converted to Revolving Credit Loans as defined herein,
"Term Loan A" as defined in the Original Credit Agreement shall be
converted to a portion of the Term Loan A as defined herein, "Term Loan B"
as defined in the Original Credit Agreement shall be converted to a portion
of the Term Loan B as defined herein, and all outstanding letters of credit
issued by the Agent for the account of the Borrower prior to the Closing
Date shall, for purposes of this Credit Agreement, be Letters of Credit.
31.2. Return and Cancellation of Notes. Contemporaneously with its
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receipt of any Revolving Credit Note and Term Note hereunder, the Banks
will promptly return to the Borrower, marked "Substituted" or "Cancelled"
as the case may be, any notes of the Borrower held by the Banks pursuant to
the Original Credit Agreement.
31.3. Interest and Fees Under Superseded Agreement. All interest and
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fees and expenses, if any, owing or accruing under or in respect of the
Original Credit Agreement through the Closing Date shall be calculated as
of the Closing Date (prorated in the case of any fractional periods), and
shall be paid in accordance with the method, and on the dates, specified in
the Original Credit Agreement, as if the Original Credit Agreement were
still in effect. Commencing on the Closing Date, the commitment fee shall
be payable by the Borrower to the Agent for the account of the Banks in
accordance with (S)2.2.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
PETRO STOPPING CENTERS, L.P.
By: ______________________________________
Name:
Title:
BANKBOSTON, N.A. (formerly known as The First National
Bank of Boston), individually and as Agent
By: ______________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By:________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, individually
and as Documentation Agent
By:_________________________________________
Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME TRUST
By:_________________________________________
Name:
Title:
NATEXIS BANQUE
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
KZH CRESCENT-3 LLC
By:_________________________________________
Name:
Title:
KZH CRESCENT-2 LLC
By:_________________________________________
Name:
Title:
KZH CRESCENT LLC
By:_________________________________________
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: TCW Asset Management Company,
its Investment Advisor
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
SEQUILS I, LTD.
By: TCW Advisors, Inc.,
as its Collateral Manager
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
By:_________________________________________
Name:
Title: