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EXHIBIT 10.2
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$100,000,000
364-DAY REVOLVING CREDIT AGREEMENT
AMONG
TESORO PETROLEUM CORPORATION,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
BANC ONE CAPITAL MARKETS, INC.,
AS ARRANGER,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT,
THE BANK OF NOVA SCOTIA,
AS SYNDICATION AGENT
AND
ABN AMRO BANK, N.V.,
AS DOCUMENTATION AGENT
DATED AS OF OCTOBER 4, 2000
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS..................................................................................1
1.1 Defined Terms.......................................................................1
1.2 Other Definitional Provisions......................................................18
SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS...................................................18
2.1 Revolving Commitments..............................................................18
2.2 Procedure for Borrowing............................................................19
2.3 Repayment of Loans; Evidence of Debt...............................................19
2.4 Commitment Fees, etc...............................................................20
2.5 Termination or Reduction of Revolving Commitments..................................20
2.6 Optional Prepayments...............................................................20
2.7 Mandatory Commitment Termination and Prepayment upon Change of Control.............21
2.8 Conversion and Continuation Options................................................21
2.9 Minimum Amounts and Maximum Number of Eurodollar Tranches..........................22
2.10 Interest Rates and Payment Dates...................................................22
2.11 Computation of Interest and Fees...................................................22
2.12 Inability to Determine Interest Rate...............................................23
2.13 Pro Rata Treatment and Payments....................................................23
2.14 Requirements of Law................................................................24
2.15 Taxes..............................................................................26
2.16 Indemnity..........................................................................27
2.17 Illegality.........................................................................28
2.18 Change of Lending Office...........................................................28
2.19 Extension of Revolving Termination Date............................................28
SECTION 3. LETTERS OF CREDIT...........................................................................30
3.1 L/C Commitment.....................................................................30
3.2 Procedure for Issuance of Letter of Credit.........................................30
3.3 Fees and Other Charges.............................................................31
3.4 L/C Participations.................................................................31
3.5 Reimbursement Obligation of the Borrower...........................................32
3.6 Obligations Absolute...............................................................32
3.7 Letter of Credit Payments..........................................................33
3.8 Applications.......................................................................33
3.9 Indemnification of Issuing Lender..................................................33
SECTION 4. REPRESENTATIONS AND WARRANTIES..............................................................34
4.1 Financial Condition................................................................34
4.2 No Change..........................................................................34
4.3 Corporate Existence; Compliance with Law...........................................34
4.4 Corporate Power; Authorization; Enforceable Obligations............................35
4.5 No Legal Bar.......................................................................35
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4.6 No Material Litigation.............................................................35
4.7 No Default.........................................................................36
4.8 Ownership of Property; Liens.......................................................36
4.9 Intellectual Property..............................................................36
4.10 Taxes..............................................................................36
4.11 Federal Regulations................................................................36
4.12 Labor Matters......................................................................36
4.13 ERISA..............................................................................37
4.14 Investment Company Act; Other Regulations..........................................37
4.15 Subsidiaries.......................................................................37
4.16 Use of Proceeds....................................................................37
4.17 Environmental Matters..............................................................37
4.18 Accuracy of Information, etc.......................................................38
4.19 Solvency...........................................................................39
4.20 Senior Indebtedness................................................................39
4.21 Excluded Subsidiaries..............................................................39
SECTION 5. CONDITIONS PRECEDENT........................................................................39
5.1 Conditions to Initial Extension of Credit..........................................39
5.2 Conditions to Each Extension of Credit.............................................40
SECTION 6. AFFIRMATIVE COVENANTS.......................................................................41
6.1 Financial Statements...............................................................41
6.2 Certificates; Other Information....................................................41
6.3 Payment of Obligations.............................................................42
6.4 Conduct of Business and Maintenance of Existence, etc..............................42
6.5 Maintenance of Property; Insurance.................................................43
6.6 Inspection of Property; Books and Records; Discussions.............................43
6.7 Notices............................................................................43
6.8 Environmental Laws.................................................................44
6.9 Additional Subsidiaries............................................................44
SECTION 7. NEGATIVE COVENANTS..........................................................................45
7.1 Financial Condition Covenants......................................................45
7.2 Limitation on Indebtedness.........................................................45
7.3 Limitation on Liens................................................................45
7.4 Limitation on Fundamental Changes..................................................47
7.5 Limitation on Disposition of Property..............................................47
7.6 Limitation on Restricted Payments..................................................48
7.7 Limitation on Investments..........................................................48
7.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.........49
7.9 Limitation on Transactions with Affiliates.........................................50
7.10 Limitation on Changes in Fiscal Periods............................................50
7.11 Limitation on Negative Pledge Clauses..............................................50
7.12 Limitation on Restrictions on Subsidiary Distributions.............................50
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7.13 Limitation on Lines of Business....................................................51
SECTION 8. EVENTS OF DEFAULT...........................................................................51
SECTION 9. THE ADMINISTRATIVE AGENT....................................................................53
9.1 Appointment; Nature of Relationship................................................53
9.2 Powers.............................................................................54
9.3 General Immunity...................................................................54
9.4 No Responsibility for Loans, Recitals, etc.........................................54
9.5 Action on Instructions of Lenders..................................................55
9.6 Employment of Agents and Counsel...................................................55
9.7 Reliance on Documents; Counsel.....................................................55
9.8 Administrative Agent's Reimbursement and Indemnification...........................55
9.9 Notice of Default..................................................................56
9.10 Rights as a Lender.................................................................56
9.11 Lender Credit Decision.............................................................56
9.12 Successor Administrative Agent.....................................................57
9.13 Delegation to Affiliates...........................................................57
9.14 Documentation Agent, Syndication Agent, etc........................................58
SECTION 10. MISCELLANEOUS...............................................................................58
10.1 Amendments and Waivers.............................................................58
10.2 Notices............................................................................59
10.3 No Waiver; Cumulative Remedies.....................................................59
10.4 Survival of Representations and Warranties.........................................60
10.5 Payment of Expenses................................................................60
10.6 Successors and Assigns; Participations and Assignments.............................61
10.7 Adjustments; Set-off...............................................................63
10.8 Counterparts.......................................................................64
10.9 Severability.......................................................................64
10.10 Integration........................................................................64
10.11 GOVERNING LAW......................................................................64
10.12 Submission To Jurisdiction; Waivers................................................64
10.13 Acknowledgements...................................................................65
10.14 Confidentiality....................................................................65
10.15 Enforceability; Usury..............................................................66
10.16 Accounting Changes.................................................................67
10.17 WAIVERS OF JURY TRIAL..............................................................67
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SCHEDULES:
1.1A Revolving Commitments
4.4 Consents, Authorizations, Filings and Notices
4.13 ERISA
4.15 Subsidiaries; Excluded Subsidiaries
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E-1 Form of Legal Opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
E-2 Form of Legal Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
F Form of Note
G Form of Exemption Certificate
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364-DAY REVOLVING CREDIT AGREEMENT, dated as of October 4,
2000, among TESORO PETROLEUM CORPORATION, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
time to time parties to this Agreement (the "Lenders"), BANC ONE CAPITAL
MARKETS, INC., as arranger (in such capacity, the "Arranger"), BANK ONE, NA, as
administrative agent (in such capacity, the "Administrative Agent"), THE BANK OF
NOVA SCOTIA, as syndication agent (in such capacity, the "Syndication Agent")
and ABN AMRO BANK, N.V., as documentation agent (in such capacity, the
"Documentation Agent").
RECITALS
WHEREAS, the Borrower has requested that the Lenders make
available the credit facility described herein and the Revolving Credit Facility
(as hereafter defined) for the purposes described in this Agreement and the
Revolving Credit Agreement (as hereafter defined);
WHEREAS, the Lenders are willing to make such credit
facilities available to the Borrower on the terms and subject to the conditions
contained herein and in the Revolving Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this subsection 1.1 shall have the respective meanings set forth in this
subsection 1.1.
"Adjustment Date": as defined in the Pricing Grid.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either
to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors (or persons performing similar functions)
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Administrative
Agent, Syndication Agent and the Documentation Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to the sum of (a) the aggregate undrawn amount of such
Lender's Revolving Commitment at such time and (b) the aggregate
principal amount of such Lender's Revolving Extensions of Credit then
outstanding.
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"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.
"Agreement": this 364-Day Revolving Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Anacortes Facility": Borrower's Anacortes refining facility,
located near Anacortes, Washington.
"Applicable Margin": (a) with respect to Eurodollar Loans,
1.25% and (b) with respect to Base Rate Loans, 0.0%; provided, that on
and after the Adjustment Date with respect to the Borrower's fiscal
quarter ended September 30, 2000, the Applicable Margin shall be
determined pursuant to the Pricing Grid (subject to the exceptions set
forth therein).
"Application": an application, in such form as an Issuing
Lender may specify from time to time, requesting such Issuing Lender to
open a Letter of Credit.
"Assignee": as defined in subsection 10.6(c).
"Assignor": as defined in subsection 10.6(c).
"Available Revolving Commitment": as to any Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving
Extensions of Credit then outstanding.
"Base Rate": for any day, a rate of interest per annum equal
to the higher of (i) the Prime Rate for such day and (ii) the sum of
the Federal Funds Effective Rate for such day plus 1/2% per annum. For
purposes hereof: "Prime Rate" shall mean a rate per annum equal to the
prime rate of interest announced from time to time by Bank One, NA or
its parent (which is not necessarily the lowest rate charged to any
customer), changing when and as said prime rate changes.
"Base Rate Loans": Loans for which the applicable rate of
interest is based upon the Base Rate.
"Benefitted Lender": as defined in subsection 10.7.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make
Loans hereunder.
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"Business Day": (i) for all purposes other than as covered by
clause (ii) below, a day other than a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois are authorized or required
by law to close and (ii) with respect to all notices and determinations
in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as a liability for capital leases on a
balance sheet of such Person under GAAP, and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the
liability amount thereof at such time determined in accordance with
GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date
of acquisition; (b) certificates of deposit, time deposits, eurodollar
time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by
any commercial bank organized under the laws of the United States of
America or any state thereof having combined capital and surplus of not
less than $500,000,000; (c) commercial paper of an issuer rated at
least A-2 by S&P or P-2 by Moody's, or carrying an equivalent rating by
a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or
fully guaranteed or insured by the United States government; (e)
securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any
foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's; (f) securities with maturities of six months or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b)
of this definition; or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (f) of this definition.
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"Change of Control": a "Change of Control" shall be deemed to
have occurred if (i) there shall be consummated (A) any consolidation
or merger of the Borrower in which the Borrower is not the continuing
or surviving corporation or pursuant to which shares of the Borrower's
common stock would be converted into cash, securities or other
property, other than a merger of the Borrower where a majority of the
Board of Directors of the surviving corporation are, and for a two year
period after the merger continue to be, persons who were directors of
the Borrower immediately prior to such merger or were elected directors
as directors, or nominated for election as directors, by a vote of at
least two-thirds of the directors then still in office who were
directors of the Borrower immediately prior to such merger, or (B) any
sale, lease exchange or transfer (in one transaction or a series of
transactions) of all or substantially all of the assets of the
Borrower, unless, immediately following such sale, lease, exchange or
transfer, such assets are owned, directly or indirectly, by the
Borrower or one or more Subsidiaries of the Borrower, or (ii) the
shareholders of the Borrower shall approve any plan or proposal for the
liquidation or dissolution of the Borrower or (iii)(A) any "person" as
defined in the Exchange Act, other than the Borrower or a Subsidiary or
any employee benefit plan sponsored by the Borrower or a Subsidiary,
shall become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of securities of the Borrower representing 50%
or more of the combined voting power of the Borrower's then outstanding
securities ordinarily (and apart from rights accruing in special
circumstances) having the right to vote in the election of directors,
as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise, and (B) at any time during
a period of two consecutive years thereafter, individuals who
immediately prior to the beginning of such period constituted the Board
of Directors of the Borrower shall cease for any reason to constitute
at least a majority thereof, unless the election or the nomination by
the Board of Directors for election by the Borrower's shareholders of
each new director during such period was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of such period.
"Closing Date": the date on which the conditions precedent set
forth in subsection 5.1 shall have been satisfied or waived, which date
is October 4, 2000.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Fee Rate": 0.325% per annum; provided that, if the
Borrower obtains a corporate credit rating or issuer rating from
Standard & Poor's Ratings Services ("S&P") or ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's"), of BBB- or Baa3, respectively, or better,
the Commitment Fee Rate shall be reduced by .050% on the date either
S&P or Moody's announces such upgrade.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
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"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected
as a charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income and franchise tax expense, (b)
Consolidated Interest Expense and, to the extent not included in
Consolidated Interest Expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans),
(c) depreciation, depletion and amortization expense, (d) amortization
of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring
expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period, losses on sales of assets outside of the ordinary course of
business) and (f) any other non-cash charges, and minus, to the extent
included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income, (b) any extraordinary, unusual
or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income for such period, gains on the sales of assets outside of the
ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (b) Consolidated Fixed Charges for such
period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period and
(b) dividends paid by the Borrower in cash during such period in
respect of Capital Stock of the Borrower.
"Consolidated Interest Expense": for any period, total
interest expense of the Borrower and its Subsidiaries for such period
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, all commissions, discounts
and other fees and charges owed with respect to bankers' acceptance
financing and net costs under Hedge Agreements (but excluding
hydrocarbon swaps or other similar agreements providing protection
against fluctuations of hydrocarbon prices) in respect of interest
rates to the extent such net costs are allocable to such period in
accordance with GAAP). Consolidated Interest Expense shall in any event
include (a) interest attributable to Capital Lease Obligations of the
Borrower and its Subsidiaries, (b) the implied interest component under
Securitization Transactions entered into by the Borrower or any of its
Subsidiaries (including, without limitation, the discount in connection
with the sale of receivables and receivables related assets in
connection with a Securitization Transaction) and (c) the Synthetic
Lease Interest Component of any Synthetic Lease entered into by the
Borrower or any of its Subsidiaries.
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"Consolidated Leverage Ratio": as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such
period; provided that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any period, the Consolidated
EBITDA of any Person acquired by the Borrower or its Subsidiaries
during such period shall be included on a pro forma basis for such
period (assuming the consummation of such acquisition and the
incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such period) if the consolidated balance
sheet of such acquired Person and its consolidated Subsidiaries as at
the end of the period preceding the acquisition of such Person and the
related consolidated statements of income and stockholders' equity and
of cash flows for the period in respect of which Consolidated EBITDA is
to be calculated (i) have been previously provided to the
Administrative Agent and the Lenders and (ii) either (A) have been
reported on without a qualification arising out of the scope of the
audit by independent certified public accountants of nationally
recognized standing or (B) have been found acceptable by the
Administrative Agent.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings
of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law (other than
fraudulent conveyance or similar laws) applicable to such Subsidiary.
"Consolidated Shareholders' Equity": as of any date of
determination, with respect to such Person, the consolidated total
stockholders' equity of such Person and its Consolidated Subsidiaries,
determined in accordance with GAAP.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis.
Consolidated Total Debt shall in any event exclude obligations of the
Borrower and its Subsidiaries in respect of any letters of credit
issued in the ordinary course of business of the Borrower and its
Subsidiaries, other than any such letter of credit issued to support
Indebtedness or other obligations of any Person other than the Borrower
or any Subsidiary of the Borrower.
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"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its Property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; the terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States
of America.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, approvals, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum
rates of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by
a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S.
dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, provided that, (i) if
Reuters Screen FRBD is not available to the Administrative Agent for
any reason, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as
reported by any other generally recognized financial information
service as of 11:00 a.m.
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(London time) two Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, and (ii)
if no such British Bankers' Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Eurodollar Base
Rate for the relevant Interest Period shall instead be the rate
determined by the Administrative Agent to be the rate at which Bank
One, NA or one of its Affiliate banks offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, in the approximate amount of Bank
One, NA's relevant Eurodollar Loan and having a maturity equal to such
Interest Period.
"Eurodollar Loans": Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to a Eurodollar Loan for the
relevant Interest Period, the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the
Eurocurrency Reserve Requirement (expressed as a decimal) applicable to
such Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, as applicable, has been satisfied.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in
respect of which the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result
in adverse tax consequences to the Borrower.
"Excluded Subsidiaries": the collective reference to the
"Excluded Subsidiaries" listed on Schedule 4.15.
"Existing Credit Agreement": the Third Amended and Restated
Credit Agreement, dated as of July 2, 1998, as amended and modified
from time to time, among the Borrower, Bank One, NA (formerly known as
The First National Bank of Chicago), as administrative agent, and
others.
"Federal Funds Effective Rate": for any day, an interest rate
per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published for such
day (or, if such day is not a Business Day, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:00 a.m. (Chicago time) on
such day on such transactions received by
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the Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent in its sole discretion.
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the
Borrower and the Lenders in accordance with subsection 9.2.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time, except that for
purposes of subsection 7.1, GAAP shall be determined on the basis of
such principles in effect on the date hereof and consistent with those
used in the preparation of the most recent audited financial statements
delivered pursuant to subsection 4.1(b).
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (including, without
limitation, the National Association of Insurance Commissioners).
"Guarantee Agreement": the Guarantee Agreement to be executed
and delivered by each Subsidiary Guarantor, substantially in the form
of Exhibit A, as the same may be amended, supplemented or otherwise
modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase Property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person
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may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"Hedge Agreements": all interest rate swaps, caps, collar
agreements, hydrocarbon swaps or similar arrangements entered into by
the Borrower providing for protection against fluctuations in interest
rates, currency exchange rates or hydrocarbon prices or the exchange of
nominal interest obligations, either generally or under specific
contingencies.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
Property or services (other than current trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), (e) all Capital
Lease Obligations of such Person, (f) all reimbursement obligations of
such Person, contingent or otherwise, as an account party under
acceptance, letter of credit or similar facilities, (g) all obligations
of such Person, contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any Capital Stock of such Person, (h) all
Guarantee Obligations of such Person for obligations of the kind
referred to in clauses (a) through (g) above; (i) for the purposes of
subsections 7.2 and 8(e) only, all obligations of the kind referred to
in clauses (a) through (h) above secured by (or for which the holder of
such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation,
(j) for the purposes of subsection 8(e) only, all obligations of such
Person in respect of Hedge Agreements, (k) the liquidation value of any
mandatorily redeemable preferred Capital Stock of such Person or its
Subsidiaries held by any Person other than such Person and its Wholly
Owned Subsidiaries, (l) the aggregate net amount of indebtedness or
obligations of such Person relating to the sale, contribution or other
conveyance of accounts receivable in a Securitization Transaction (or
similar transaction) regardless of whether such transaction is effected
without recourse or in a manner which would not be reflected on a
balance sheet in accordance with GAAP, (m) the amount of any Synthetic
Lease Obligations of such Person and the principal portion of all
obligations of such Person under any other tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
under GAAP and (n) the Indebtedness of any partnership or
unincorporated joint venture in which such Person
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is a general partner or a joint venturer, but only to the extent to
which there is recourse to such Person for the payment of such
Indebtedness. Obligations of the Borrower and its Subsidiaries to pay
dues to Marine Spill Response Corporation in an aggregate amount of up
to $5,000,000 shall not be deemed to constitute Indebtedness.
"Indemnified Liabilities": as defined in subsection 10.5.
"Indemnitee": as defined in subsection 10.5.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses,
technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the
first day of each April, July, October and January to occur while such
Loan is outstanding and the final maturity date of such Loan, (b) as to
any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan
having an Interest Period of six months, each of (i) the day which is
three months after the first day of such Interest Period and (ii) the
last day of such Interest Period and (d) as to any Loan (other than any
Base Rate Loan), the date of any repayment or prepayment made in
respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one, two, three
or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar
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month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Revolving Termination Date shall end on the Revolving Termination
Date; and
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Investments": as defined in subsection 7.7.
"Issuing Lenders": Bank One, NA, Bank of Tokyo-Mitsubishi,
Ltd. and ABN AMRO Bank, N.V, in their capacity as issuers of any Letter
of Credit.
"L/C Commitment": $100,000,000.
"L/C Fee Payment Date": the first day of each April, July,
October and January and the last day of the Revolving Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
subsection 3.5.
"L/C Participants": the collective reference to all the
Lenders other than such Issuing Lender.
"Letters of Credit": as defined in subsection 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": as defined in subsection 2.1.
"Loan Documents": this Agreement, the Guarantee Agreement and
the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
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"Majority Lenders": at any time, the holders of more than 50%
of the sum of (a) the Available Revolving Commitments and (b) the
aggregate unpaid principal amount of the Total Revolving Extensions of
Credit then outstanding.
"Mandatorily Convertible Preferred Stock": any and all shares,
interests, participations or other equivalents (however designated),
including depositary shares, of the 7.25% Mandatorily Convertible
Preferred Stock issued by the Borrower, as more fully described in that
certain Certificate of Designation, dated as of June 25, 1998, of the
Borrower's Restated Certificate of Incorporation.
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement or any of the other
Loan Documents or the rights or remedies of the Agents or the Lenders
hereunder or thereunder.
"Material Subsidiary Guarantor": at any date of determination,
any Subsidiary Guarantor, other than Tesoro Marine Services, Inc.,
which (a) has total assets exceeding 15% of the consolidated total
assets of the Borrower and its Subsidiaries taken as a whole or (b) has
consolidated net income for the period of four consecutive fiscal
quarters most recently ended on or prior to such date of determination
exceeding 15% of the Consolidated Net Income of the Borrower and its
Subsidiaries for such period.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other
substances or forces of any kind, whether or not any such substance or
force is defined as hazardous or toxic under any Environmental Law,
that is regulated pursuant to or could give rise to liability under any
Environmental Law.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 2.15(a).
"Non-U.S. Lender": as defined in subsection 2.15(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent
or to any Lender (or, in the case of Hedge Agreements, any
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affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which arise under this Agreement, any other Loan Document,
the Letters of Credit, any Hedge Agreement entered into with any Lender
or any affiliate of any Lender or any other document made, delivered or
given by any Loan Party pursuant hereto or thereto, whether on account
of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant hereto) or
otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document, other than, in each case,
any franchise tax or similar tax based upon the income, capital, assets
or other properties of any Lender.
"Participant": as defined in subsection 10.6(b).
"Payment Office": the office specified from time to time by
the Administrative Agent as its payment office by notice to the
Borrower and the Lenders in accordance with subsection 10.2.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Projections": as defined in subsection 6.2(c).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"Reference Lender": Bank One, NA.
"Register": as defined in subsection 10.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
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"Reimbursement Obligation": the obligation of the Borrower to
reimburse such Issuing Lender pursuant to subsection 3.5 for amounts
drawn under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 66
2/3% of the sum of (a) the Available Revolving Commitments and (b) the
aggregate unpaid principal amount of the Total Revolving Extensions of
Credit then outstanding; provided that, if more than 15 Lenders are
party to this Agreement, the Required Lenders shall be the Majority
Lenders.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer, general counsel, vice president corporate
resources, vice president financial resources, vice president
controller or vice president and treasurer of the Borrower, but in any
event, with respect to financial matters, the chief financial officer,
vice president financial resources, vice president controller or vice
president and treasurer of the Borrower.
"Restricted Payments": as defined in subsection 7.6.
"Revolving Commitment": as to any Lender, the obligation of
such Lender, if any, to make Loans and participate in Letters of
Credit, in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such
Lender's name on Schedule 1.1A, as the same may be changed from time to
time pursuant to the terms hereof. The original amount of the Total
Revolving Commitments is $100,000,000.
"Revolving Commitment Period" the period from and including
the Closing Date to the Revolving Termination Date.
"Revolving Credit Agreement" the Revolving Credit Agreement,
dated as of the date hereof, entered into among the Borrower, the
Lenders parties thereto, Bank One, NA, as administrative agent, and
others, as the same may be amended, extended, supplemented or otherwise
modified from time to time.
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"Revolving Credit Facility" the credit facility made available
pursuant to the Revolving Credit Agreement.
"Revolving Extensions of Credit" as to any Lender at any time,
an amount equal to the sum of (a) the aggregate principal amount of all
Loans made by such Lender then outstanding, and (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding.
"Revolving Percentage": as to any Lender at any time, the
percentage which such Lender's Revolving Commitment then constitutes of
the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Loans then outstanding
constitutes of the aggregate principal amount of the Loans then
outstanding).
"Revolving Termination Date": October 3, 2001, as such date
may be extended pursuant to provisions hereof, except if such date is
not a Business Day, the preceding Business Day.
"SEC": U.S. Securities and Exchange Commission.
"Securitization Transaction": any financing transaction or
series of financing transactions that have been or may be entered into
by the Borrower or any of its Subsidiaries pursuant to which the
Borrower or such Subsidiary may sell, convey or otherwise transfer to
any other Person, or may grant a security interest in, any accounts
receivable, notes receivable, right to future lease payments or
residuals or other similar rights to payment (the "Securitization
Receivables") (whether such Securitization Receivables are then
existing or arising in the future) of the Borrower or such Subsidiary,
and any assets related thereto.
"Senior Subordinated Note Indenture": the Indenture, dated as
of July 2, 1998, entered into by the Borrower, certain of its
Subsidiaries and U.S. Bank Corporate Trust Services, as trustee, in
connection with the issuance of the Senior Subordinated Notes, together
with all instruments and other agreements entered into by the Borrower
or such Subsidiaries in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance herewith.
"Senior Subordinated Notes": the $300,000,000 aggregate
principal amount of 9% Senior Subordinated Notes of the Borrower due
2008 issued on July 2, 1998 pursuant to the Senior Subordinated Note
Indenture.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person,
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contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present
fair saleable value of the assets of such Person will, as of such date,
be greater than the amount that will be required to pay the liability
of such Person on its debts as such debts become absolute and matured,
(c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such
Person will be able to pay its debts as they mature. For purposes of
this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Excluded Subsidiary and any Excluded Foreign Subsidiary.
"Synthetic Lease": each arrangement, however described, under
which the obligor accounts for its interest in the property covered
thereby under GAAP as lessee of a lease which is not a capital lease
under GAAP and accounts for its interest in the property covered
thereby for Federal income tax purposes as the owner.
"Synthetic Lease Interest Components": with respect to any
Person for any period, the portion of rent paid or payable (without
duplication) for such period under Synthetic Leases for such Person
that would be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13 if such Synthetic Leases
were treated as capital leases under GAAP.
"Synthetic Lease Obligation": as to any Person with respect to
any Synthetic Lease at any time of determination, the amount of the
liability of such Person in respect of such Synthetic Lease that would
(if such lease was required to be classified and accounted for as a
capital lease on a balance sheet of such Person in accordance with
GAAP) be required to be capitalized on the balance sheet of such Person
at such time.
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"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Lenders
outstanding at such time.
"Transferee": as defined in subsection 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
2.1 Revolving Commitments (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving loans
("Loans") to the Borrower from time to time during the Revolving Commitment
Period in an aggregate principal amount at any one time outstanding which, when
added to such Lender's Revolving Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Commitment.
During
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the Revolving Commitment Period the Borrower may use the Revolving Commitments
by borrowing, prepaying the Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Loans may from time to time
be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with subsections 2.2 and 2.8,
provided that no Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Revolving Termination Date.
(b) The Borrower shall repay all outstanding Loans on the
Revolving Termination Date.
2.2 Procedure for Borrowing (a) The Borrower may borrow under
the Revolving Commitments during the Revolving Commitment Period on any Business
Day, provided that the Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 11:00
a.m., Central Time, (a) in the case of Eurodollar Loans, three Business Days
prior to the requested Borrowing Date, or (b) in the case of Base Rate Loans, on
the requested Borrowing Date), specifying (i) the amount and Type of Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefore. Each borrowing under the
Revolving Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if
the then aggregate Available Revolving Commitments are less than $500,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 1:00 p.m., Central Time (in the case of a
borrowing of Base Rate Loans in respect of which notice of such borrowing is
given on such Borrowing Date) and 11:00 a.m. Central Time (in the case of any
other borrowing), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. The Administrative Agent
shall make available to the Borrower the aggregate of the amounts made available
to the Administrative Agent by the Lenders in like funds as received by the
Administrative Agent.
2.3 Repayment of Loans; Evidence of Debt (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Lender the then unpaid principal amount of each Loan
of such Lender on the Revolving Termination Date (or such earlier date on which
the Loans become due and payable pursuant to Section 8). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Loans from
time to time outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection 2.10.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
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(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to subsection 10.6(e), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.3(b) shall, to the extent permitted
by applicable law, be prima facie evidence (in the absence of manifest error) of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Loans of such
Lender, substantially in the form of Exhibit F, with appropriate insertions as
to date and principal amount.
2.4 Commitment Fees, etc (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the Closing Date to the last day of the Revolving
Commitment Period, computed at the Commitment Fee Rate on the average daily
amount of the Available Revolving Commitment of such Lender during the period
for which payment is made, payable quarterly in arrears on the first day of each
January, April, July and October and on the Revolving Termination Date,
commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Borrower and the Administrative Agent.
2.5 Termination or Reduction of Revolving Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate any of the Revolving Commitments or, from
time to time, to reduce the amount of any of the Revolving Commitments;
provided, that no such termination or reduction of Revolving Commitments shall
be permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the Total Revolving Extensions of Credit
would exceed the Total Revolving Commitments. Any such reduction shall be in a
minimum amount equal to $5,000,000, or a whole multiple of $1,000,000 in excess
thereof (or, if the then aggregate Revolving Commitments are less than
$5,000,000, such lesser amount), and shall reduce permanently the relevant
Revolving Commitments then in effect.
2.6 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice
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delivered to the Administrative Agent at least three Business Days prior thereto
in the case of Eurodollar Loans and, prior to 11:00 a.m., Central Time, on the
date of such prepayment in the case of Base Rate Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to subsection
2.16. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Base Rate Loans) accrued interest to such
date on the amount prepaid. Partial prepayments of Loans shall be in an
aggregate principal amount of $1,000,000 or a whole multiple thereof (or if the
then aggregate principal amount of Loans outstanding is less than $1,000,000,
such lesser amount).
2.7 Mandatory Commitment Termination and Prepayment upon
Change of Control. Upon the occurrence of a Change of Control, (a)
automatically, without any notice, the Revolving Commitments shall immediately
terminate and (b) the Borrower shall immediately prepay all Loans, together with
all accrued and unpaid interest thereon and shall immediately cash collateralize
all outstanding L/C Obligations in the manner contemplated by the last paragraph
of Section 8.
2.8 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving
the Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefore), provided, that no Base Rate Loan may be converted
into a Eurodollar Loan (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Lenders have determined
in its or their sole discretion not to permit such conversions or (ii) after the
date that is one month prior to the Revolving Termination Date. Upon receipt of
any such notice, the Administrative Agent shall promptly notify each Lender
thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided, that no Eurodollar Loan may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Majority Lenders have determined in its or their sole discretion not
to permit such continuations or (ii) after the date that is one month prior to
the Revolving Termination Date, and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically
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converted to Base Rate Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice, the Administrative Agent shall promptly
notify each relevant Lender thereof.
2.9 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than six Eurodollar Tranches shall
be outstanding at any one time.
2.10 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is equal to (x) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection 2.10 plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans plus 2%, and (ii) if all or
a portion of any interest payable on any Loan or Reimbursement Obligation or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to Base Rate Loans plus 2%, in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.10 shall be payable from time to time on demand.
2.11 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
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practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
2.10(a).
2.12 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined in good
faith (which determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as Base Rate Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the last day of the Interest Period then
in effect with respect to such Eurodollar Loans, to Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Loans to Eurodollar Loans.
2.13 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Revolving Commitments of the
Lenders shall be made pro rata according to the Revolving Percentages of the
Lenders. Each payment (including prepayments) in respect of principal or
interest in respect of the Loans, each payment in respect of fees payable
hereunder, and each payment in respect of Reimbursement Obligations, shall be
applied to the amounts of such obligations owing to the Lenders pro rata
according to the respective amounts then due and owing to the Lenders.
(b) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Central Time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
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payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefore, such Lender shall
pay to the Administrative Agent, on demand, such amount with interest thereon at
a rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum equal to the
daily average Federal Funds Effective Rate, on demand, from the Borrower.
(d) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.14 Requirements of Law (a) If the adoption of or any change
in any Requirement of Law (exclusive of any organizational or governance
document of any Lender or Agent) or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
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(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter
of Credit, any Application or any Eurodollar Loan made
by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded
Taxes covered by subsection 2.15 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities
in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not
otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition; and
the result of any of the foregoing is to increase the
cost to such Lender, by an amount which such Lender
deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing
or participating in Letters of Credit, or to reduce any
amount receivable hereunder in respect thereof,
then, in any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes entitled to
claim any additional amounts pursuant to this subsection 2.14, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law (exclusive of any organizational or
governance document of any Lender or Agent) regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefore, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) A certificate as to any additional amounts payable
pursuant to this subsection 2.14 submitted by any Lender to the Borrower (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. The obligations of the Borrower pursuant to this subsection 2.14 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
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2.15 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
are required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this subsection 2.15 or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender at the
time the Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment, to
receive additional amounts from the Borrower with respect to such Non-Excluded
Taxes pursuant to this subsection 2.15(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof or other evidence of payment thereof
satisfactory to the Administrative Agent. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Agents the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by any Agent or any Lender as a result of any such failure. The
agreements in this subsection 2.15 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S.
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Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" a statement substantially in the form of Exhibit G and a Form W-8BEN,
or any subsequent versions thereof or successors thereto properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Non-U.S. Lender on or before the date it becomes a party to this
Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
2.16 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any
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amounts payable pursuant to this subsection 2.16 submitted to the Borrower by
any Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.17 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law (exclusive of any
organizational or governance document of any Lender or Agent) or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to subsection
2.16.
2.18 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of subsection 2.14,
2.15(a) or 2.17 with respect to such Lender, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this subsection
2.18 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to subsection 2.14, 2.15(a) or 2.17.
2.19 Extension of Revolving Termination Date. (a) The Borrower
may, by written notice to the Administrative Agent (such notice being an
"Extension Notice") given no earlier than sixty days prior to the Revolving
Termination Date, request the Lenders to consider an extension of the then
applicable Revolving Termination Date to a date which is 364 days after the then
applicable Revolving Termination Date. The Administrative Agent shall promptly
transmit any Extension Notice to each Lender. Each Lender shall notify the
Administrative Agent whether it wishes to extend the then applicable Revolving
Termination Date no earlier than 30 days, and no later than 15 days, prior to
the Revolving Termination Date, and any such notice given by a Lender to the
Administrative Agent, once given, shall be irrevocable as to such Lender. Any
Lender which does not expressly notify the Administrative Agent no earlier than
30 days, and no later than 15 days, prior to the Revolving Termination Date that
it wishes to so extend the then applicable Revolving Termination Date shall be
deemed to have rejected the Borrower's request for extension of such Revolving
Termination Date. Lenders consenting to extend the then applicable Revolving
Termination Date are hereinafter referred to as "Continuing Lenders", and
Lenders declining to consent to extend such Revolving Termination Date (or
Lenders deemed to have so declined) are hereinafter referred to as "Non-
Extending Lenders". If Lenders holding not less than 80% of the Revolving
Commitments then in effect have elected (in their sole and absolute discretion)
to so extend the Revolving Termination Date, the
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Administrative Agent shall notify the Borrower of such election by such Lenders,
and effective on the date of such notice by the Administrative Agent to the
Borrower, the Revolving Termination Date shall be automatically and immediately
so extended with respect to all Continuing Lenders. Upon the delivery of an
Extension Notice and upon the extension of the Revolving Termination Date
pursuant to this subsection, the Borrower shall be deemed to have represented
and warranted on and as of the date of such Extension Notice and the effective
date of such extension, as the case may be, that no Default or Event of Default
has occurred and is continuing. Notwithstanding anything contained in this
Agreement to the contrary, no Lender shall have any obligation to extend the
Revolving Termination Date, and each Lender may at its option, unconditionally
and without cause, decline to extend the Revolving Termination Date.
(b) If the Revolving Termination Date shall have been extended
in accordance with this subsection, all references herein to the "Revolving
Termination Date" shall refer to the Revolving Termination Date as so extended.
(c) If any Lender shall determine not to extend the Revolving
Termination Date as requested by any Extension Notice given by the Borrower
pursuant to this subsection, the Revolving Commitment of such Lender shall
terminate on the Revolving Termination Date without giving any effect to such
proposed extension, and the Borrower shall on such date pay to the
Administrative Agent, for the account of such Lender, the principal amount of,
and accrued interest on, such Lender's Loans, together with any amounts payable
to such Lender pursuant to Sections 2.14, 2.15 and 2.16 and any fees or other
amounts owing to such Lender under this Agreement; provided that if such
Non-Extending Lender has been replaced pursuant to paragraph (d) below then the
provisions of such paragraph (d) shall apply. The Total Revolving Commitment
shall be reduced by the amount of the Revolving Commitment of such Non-Extending
Lender to the extent the Revolving Commitment of such Non-Extending Lender has
not been transferred to one or more Continuing Lenders pursuant to paragraph (d)
below.
(d) A Non-Extending Lender shall be obligated, at the request
of the Borrower and subject to payment by the Borrower to the Administrative
Agent, for the account of such Non-Extending Lender, of the principal amount of,
and accrued interest on, such Lender's Loans, together with any amounts payable
to such Lender pursuant to Sections 2.14, 2.15 and 2.16 and any fees or other
amounts owing to such Lender under this Agreement, to transfer without recourse,
representation, warranty (other than good title to its Loans) or expense to such
Non-Extending Lender, at any time prior to the Revolving Termination Date
applicable to such Non-Extending Lender, all of its rights (except those which
by their terms survive termination) and obligations hereunder to another
financial institution or group of financial institutions selected by the
Borrower in consultation with the Administrative Agent and willing to
participate in the facility in the place of such Non-Extending Lender; provided
that, if such transferee is not a Lender, such transferee(s) satisfies all the
requirements of this Agreement and the Administrative Agent and the Borrower
each shall have consented to such transfer, which consent shall not be
unreasonably withheld. Each such transferee shall become a Continuing Lender
hereunder in replacement of the Non-Extending Lender and shall enjoy all rights
and assume all obligations on the part of the Lenders set forth in this
Agreement. Simultaneously with such transfer, each
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such transferee shall execute and deliver to the Administrative Agent an
Assignment and Acceptance assuming all obligations of the Lenders set forth in
this Agreement.
(e) If the Revolving Termination Date shall have been extended
in respect of Continuing Lenders in accordance with Section 2.19(a), any notice
of borrowing pursuant to Section 2.2 specifying a Borrowing Date occurring after
the Revolving Termination Date applicable to a Non-Extending Lender or
requesting an Interest Period extending beyond such date shall (a) have no
effect in respect of such Non-Extending Lender and (b) not specify a requested
aggregate principal amount exceeding the aggregate Available Revolving
Commitment (calculated on the basis of the Revolving Commitments of the
Continuing Lenders).
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof and in reliance on the agreements of the other Lenders set forth in
subsection 3.4(a), each Issuing Lender agrees to issue letters of credit (the
"Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Commitment Period in such form as may be approved from time to
time by such Issuing Lender; provided, that an Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
aggregate amount of the Available Revolving Commitments would be less than zero.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the Revolving Termination Date.
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) An Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would violate or cause
violation by such Issuing Lender or any L/C Participant of any limits imposed by
any applicable Requirement of Law (exclusive of any organizational or governance
document of any Lender or Agent) imposed after the Closing Date.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, an Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall an Issuing Lender be required to issue any Letter
of Credit earlier than one Business Day after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by such Issuing
Lender and the Borrower. Each Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof. Each Issuing
Lender shall promptly furnish to the Administrative Agent, which
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shall in turn promptly furnish to the Lenders, notice of the issuance of each
Letter of Credit issued by it (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay (i) to
the Administrative Agent, for the account of the Lenders, a fee with respect to
each outstanding Letter of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans minus the fronting fee
referred to in clause (ii) below and (ii) to the relevant Issuing Lender for its
own account with respect to each outstanding Letter of Credit a fronting fee
calculated at a rate per annum equal to 0.125%; all such fees in respect of each
Letter of Credit shall be calculated on the face amount thereof for the actual
number of days outstanding and the actual amounts outstanding (provided that in
no event shall the fronting fee for any Letter of Credit be less than $300), and
shall be payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date of such Letters of Credit.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse each Issuing Lender for its own account for such normal and
customary costs and expenses as are incurred or charged by such Issuing Lender
in negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Effective on the date of issuance
thereof, each Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce such Issuing Lenders to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from each Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Percentage in
such Issuing Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by such Issuing Lender thereunder in
accordance with the terms of this Agreement. Notwithstanding the provisions
contained in the next to last sentence of subsection 3.5, each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if a draft
is paid under any Letter of Credit issued by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower for all Reimbursement
Obligations in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand at such Issuing Lender's address
for notices specified herein an amount equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Lender pursuant to subsection 3.4(a) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit is paid to such Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any
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L/C Participant pursuant to subsection 3.4(a) is not made available to the
relevant Issuing Lender by such L/C Participant within three Business Days after
the date such payment is due, such Issuing Lender shall be entitled to recover
from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to Base Rate
Loans under the Revolving Facility. A certificate of an Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under this subsection
3.4(b) shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), such
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by such Issuing Lender), or any payment of interest on account
thereof, such Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by such Issuing Lender shall be required to be returned by such Issuing
Lender, such L/C Participant shall immediately return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the relevant Issuing Lender on each date on which such
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any unexpired Letter of Credit and paid by such Issuing Lender for the
amount of (a) such draft so paid and (b) any costs or expenses provided for in
subsection 3.3(b) which are incurred by such Issuing Lender in connection with
such payment. Each such payment shall be made to the relevant Issuing Lender at
its address for notices specified herein in lawful money of the United States of
America and in immediately available funds. Interest shall be payable on any and
all amounts remaining unpaid by the Borrower under this subsection 3.5 from the
date such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, subsection 2.10(b)
and (ii) thereafter, subsection 2.10(c). Each drawing under any Letter of Credit
shall (unless an event of the type described in clause (i) or (ii) of subsection
8(f) shall have occurred and be continuing with respect to the Borrower, in
which case the procedures specified in subsection 3.4 for funding by L/C
Participants shall apply) constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to subsection 2.2 of Base Rate
Loans in the amount of such drawing plus interest and expenses incurred by the
relevant Issuing Lender. The Borrowing Date with respect to such borrowing shall
be the date of such drawing and all proceeds of such borrowing shall be paid to
the relevant Issuing Lender.
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against any Issuing Lender, any
beneficiary of a Letter of Credit or any other Person; provided, that in
honoring each Letter of Credit, such Issuing Lender has acted in good faith and
has examined such Letter of Credit and the accompanying document or documents,
as the case may be, with such care as to ascertain that on their face they
appear to comply with the terms of such Letter of
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Credit. The Borrower also agrees with each Issuing Lender, subject to the
proviso contained in the preceding sentence, that such Issuing Lender shall not
be responsible for, and the Borrower's Reimbursement Obligations under
subsection 3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. No Issuing Lender shall be liable for (i) any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Issuing Lender, (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason, (iii) failure of the beneficiary of any
such Letter of Credit to comply fully with conditions required in order to draw
upon such Letter of Credit, which failure is not the result of gross negligence
or willful misconduct of such Issuing Lender as determined by a final and
nonappealable decision of a court of competent jurisdiction, (iv) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing thereunder and (v) any consequences arising from causes beyond
the control of such Issuing Lender, including, without limitation, the actions
of any Governmental Authority. The Borrower agrees that any action taken or
omitted by such Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards or care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of such Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of an Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit issued by such Issuing Lender shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit and appear on their face
to comply with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9 Indemnification of Issuing Lender. To the extent the
relevant Issuing Lender is not reimbursed and indemnified by the Borrower, each
Lender will reimburse and indemnify such Issuing Lender in proportion to its
Revolving Percentage, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
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expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such Issuing Lender in performing its duties hereunder, in any way relating to
or arising out of this Agreement and by reason of the ordinary negligence of
such Issuing Lender; provided that no Lender shall be liable to such Issuing
Lender for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Issuing Lender's gross negligence or willful misconduct. The
provisions of this subsection 3.9 shall survive any termination of this
Agreement and the payment of the Obligations and shall continue thereafter in
full force and effect.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to each Agent and each
Lender that:
4.1 Financial Condition. The audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at December 31, 1999,
and the related consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by and accompanied by an unqualified
report from Deloitte & Touche LLP, present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the fiscal year then ended. The unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at June 30, 2000, and the related
unaudited consolidated statements of income and cash flows for the six-month
period ended on such date, present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
six -month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Borrower and its Subsidiaries do not have any
material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from December 31, 1999 to and including the date hereof there
has been no Disposition by the Borrower and its consolidated Subsidiaries of any
material part of its business or Property.
4.2 No Change. Since December 31, 1999 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to
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own and operate its Property, to lease the Property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification, except where the failure to be so
qualified and in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 4.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect (except as noted in Schedule
4.4), and (ii) any consent that may be required to be obtained by or on behalf
of any Lender. Each Loan Document has been duly executed and delivered on behalf
of each Loan Party party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law applicable to, or any material Contractual Obligation of,
the Borrower or any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation.
No Requirement of Law or Contractual Obligation applicable to the Borrower or
any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby or (b) which could reasonably be expected to have
a Material Adverse Effect.
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4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default of its Contractual Obligations in any respect which
could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has indefeasible title to, or a valid leasehold interest in, all of
its material real property, and good title to, or a valid leasehold interest in,
all its other material Property, and none of such Property is subject to any
Lien except as permitted by subsection 7.3.
4.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending against the Borrower or any of its Subsidiaries by
any Person challenging or questioning the use of any such Intellectual Property
by the Borrower or any of its Subsidiaries or the validity or effectiveness of
any such Intellectual Property, nor does the Borrower know of any valid basis
for any such claim. The use of such Intellectual Property by the Borrower and
its Subsidiaries does not infringe on the rights of any Person known by the
Borrower to have a legal right therein.
4.10 Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all Federal, state and other material tax returns
which are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
Property and all other taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority, and no tax Lien has been filed, and, to
the knowledge of the Borrower, no claim which could reasonably be expected to
have a Material Adverse Effect is being asserted, with respect to any such tax,
fee or other charge (other than any such claim the amount or validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be).
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor
disputes against the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect. Hours worked by
and payment made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the
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aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrower or
the relevant Subsidiary.
4.13 ERISA. Except as set forth on Schedule 4.13, neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan which has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation
is made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the date hereof.
4.16 Use of Proceeds. The proceeds of the Loans shall be used
to refinance certain existing Indebtedness of the Borrower and its Subsidiaries,
to provide for ongoing working capital, capital expenditures and general
corporate needs and the issuance of letters of credit.
4.17 Environmental Matters.
(a) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, the Borrower and each of its Subsidiaries: (i) is, and within
the period of all applicable statutes of limitation has been, in compliance with
all applicable Environmental Laws; (ii) holds all Environmental Permits (each of
which is in full force and effect) required for any of its current operations or
for any property owned, leased, or otherwise operated by it; (iii) is, and
within the period of all applicable statutes of limitation has been, in
compliance with all of its Environmental Permits; and (iv) reasonably believes
that: each of its Environmental Permits will be timely renewed and
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complied with, without material expense; any additional Environmental Permits
that may be required of any of it will be timely obtained and complied with,
without material expense; and compliance with any Environmental Law that is or
is expected to become applicable to it will be timely attained and maintained.
(b) The presence of Materials of Environmental Concern at, on,
under, in, or about any real property now owned, leased or operated by the
Borrower or any of its Subsidiaries, or at any location to which Materials of
Environmental Concern have been sent by or on behalf of the Borrower for re-use
or recycling or for treatment, storage, or disposal, could not reasonably be
expected to have a Material Adverse Effect. The Borrower has not received any
notice from any Governmental Authority or any Person having a property interest
in the relevant property that would give the Borrower reason to believe that the
presence of Materials of Environmental Concern at, on, under, in, or about any
real property formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
(c) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: there is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating to
any Environmental Law to which the Borrower or any of its Subsidiaries is, or to
the knowledge of any of them will be, named as a party that is pending or, to
the knowledge of any of them, threatened.
(d) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has received
any request for information or been notified that it is a potentially
responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(e) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has entered
into or agreed to any consent decree, order, or settlement or other agreement,
nor is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative, arbitral, or other forum, relating to compliance with
or liability under any Environmental Law.
(f) Other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect: neither the Borrower nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any liabilities of any kind, fixed or
contingent, known or unknown, under any Environmental Law or with respect to any
Materials of Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Administrative Agent or the Lenders or
any of them, by or on behalf of any
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Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
4.19 Solvency. Each Loan Party is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
4.20 Senior Indebtedness. The Obligations will constitute
"Senior Debt" of the Borrower within the meaning of the Senior Subordinated Note
Indenture. The obligations of each Subsidiary Guarantor under the Guarantee
Agreement constitute "Senior Debt" of such Subsidiary Guarantor within the
meaning of the Senior Subordinated Note Indenture. The Obligations will
constitute "Designated Senior Debt" for purposes of the Senior Subordinated Note
Indenture (and, to the extent necessary, the Borrower hereby designates, for
purposes of the Senior Subordinated Note Indenture, the Obligations as
"Designated Senior Debt").
4.21 Excluded Subsidiaries. The aggregate book value of the
assets of all Excluded Subsidiaries on the date hereof does not exceed
$2,500,000 in the aggregate.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower, (ii) the Guarantee Agreement, executed and delivered by a duly
authorized officer of or agent for each Subsidiary Guarantor, and (iii) for the
account of each Lender so requesting in accordance with subsection 2.3(e), Notes
conforming to the requirements hereof and executed and delivered by a duly
authorized officer of the Borrower.
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(b) Existing Credit Agreement. The Administrative Agent shall
have received satisfactory evidence that all amounts outstanding under the
Existing Credit Agreement have been paid in full and that the Existing Credit
Agreement has been terminated.
(c) Financial Statements. The Lenders shall have received the
unaudited financial statements for the Borrower and its Subsidiaries for the
most recently concluded quarterly period for which such financial statements are
available.
(d) Approvals. All governmental and third party approvals
necessary or, in the reasonable judgment of the Administrative Agent, advisable
in connection with the Loan Documents and the transactions contemplated thereby
and the continuing operations of the Borrower and its Subsidiaries shall have
been obtained and be in full force and effect.
(e) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of such other documents or instruments as may be
reasonably requested by the Administrative Agent, including, without limitation,
a copy of the Senior Subordinated Note Indenture and any other debt instrument,
security agreement or other material contract for borrowed money to which any of
the Loan Parties may be a party.
(f) Fees. The Lenders, the Agents and the Arranger shall have
received all fees required to be paid, and all reasonable expenses for which
invoices have been presented, on or before the Closing Date. All such amounts
shall be paid with proceeds of Loans made on the Closing Date and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(g) Closing Certificates. The Administrative Agent shall have
received, with counterparts for each Lender, certificates of each Loan Party,
dated the Closing Date, which together contain the information set forth in
Exhibit C, with appropriate insertions and attachments.
(h) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel
to the Borrower and its Subsidiaries, substantially in the form of Exhibit E-1;
and
(ii) the legal opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., general counsel
of the Borrower and its Subsidiaries, substantially in the form of Exhibit E-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date is subject to the satisfaction of the following conditions precedent:
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(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extensions
of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, the Borrower
shall and (except in the case of subsection 6.1) shall cause its Subsidiaries
to:
6.1 Financial Statements. Furnish to each Agent and each
Lender:
(a) as soon as available, but in any event within 105 days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated financial statements of the Borrower and its consolidated
Subsidiaries for such year as filed on Form 10-K with the SEC, setting forth in
each case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte & Touche LLP or other
independent certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated financial statements of the
Borrower and its consolidated Subsidiaries for such quarter as filed on Form
10-Q with the SEC, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent and
each Lender, or, in the case of clause (e), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent certified
public accountants reporting on such
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financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to subsection 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii)
in the case of quarterly or annual financial statements, a Compliance
Certificate containing all information necessary for determining compliance by
the Borrower and its Subsidiaries with the provisions of this Agreement referred
to therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be;
(c) as soon as available, and in any event no later than 60
days after the end of each fiscal year of the Borrower, a detailed consolidated
budget for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following fiscal
year, and the related consolidated statements of projected cash flow, projected
changes in financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such fiscal year (collectively, the "Projections"), which Projections shall in
each case be accompanied by a certificate of a Responsible Officer stating that
such Projections are based on reasonable estimates, information and assumptions
and that such Responsible Officer has no reason to believe that such Projections
are misleading in any material respect;
(d) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders of any
class of its debt securities or public equity securities and, within ten days
after the same are filed, copies of all financial statements and reports
(excluding the related exhibits thereto unless specifically requested by such
Agent or Lender) which the Borrower may make to, or file with, the SEC or any
successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
(i) Preserve, renew and keep in full force and effect its corporate existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by subsection 7.4 and except, in the
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case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations and Requirements of Law applicable to it except to
the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all Property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted (as determined by the Borrower in its reasonable
discretion), (b) maintain with financially sound and reputable insurance
companies (or, to the extent reasonable and customary among companies engaged in
the same or a similar business, through self-insurance) insurance on all its
Property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law applicable to it
shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time during normal business hours and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding in which the Borrower or any
of its Subsidiaries is a party in which the amount involved is $5,000,000 or
more and not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity
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or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws. (a) (i) Comply with all Environmental
Laws applicable to it, and obtain, comply with and maintain any and all
Environmental Permits necessary for its operations as conducted and as planned;
and (ii) take all reasonable efforts to ensure that all of its tenants,
subtenants, contractors, subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and maintain any and all
Environmental Permits, applicable to any of them insofar as any failure to so
comply, obtain or maintain, or take such efforts, reasonably could be expected
to adversely affect the Borrower. For purposes of the preceding sentence, the
Borrower or any of its Subsidiaries shall not be deemed to be in noncompliance
or default with any applicable Environmental Law or Environmental Permit if,
upon learning of any actual or suspected noncompliance, the Borrower and/or
Subsidiary, as the case may be, shall promptly undertake all reasonable efforts
to achieve compliance; provided, that, in any case, such noncompliance, and any
other noncompliance with Environmental Laws, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Comply with all orders and directives of all Governmental
Authorities regarding Environmental Laws, other than such orders and directives
as to which an appeal has been timely and properly taken in good faith
(provided, that the pendency of any and all such appeals could not reasonably be
expected to have a Material Adverse Effect).
(c) Prior to acquiring any ownership or leasehold interest in
real property, or other interest in any real property that could give rise to
the Borrower or any Subsidiary being found to be an operator subject to
potential liability under any Environmental Law (or any entity with such
interests in any real property), conduct an assessment of the presence or
potential presence of significant levels of any Materials of Environmental
Concern on, under, in, or about the property, or of other conditions that could
give rise to potentially significant liability under or violations of
Environmental Law relating to such acquisition.
6.9 Additional Subsidiaries. With respect to any new
Subsidiary (other than an Excluded Subsidiary or Excluded Foreign Subsidiary)
created or acquired after the Closing Date (which, for the purposes of this
paragraph, shall include any existing Subsidiary that ceases to be an Excluded
Subsidiary or an Excluded Foreign Subsidiary), by the Borrower or any of its
Subsidiaries, promptly cause the new Subsidiary to become a party to the
Guarantee Agreement.
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SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, the Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower to exceed 3.5 to 1.0; provided, that for the purposes
of determining the Consolidated Leverage Ratio for the fiscal quarter of the
Borrower ending September 30, 2000, the Consolidated EBITDA will be 1.33 times
the Consolidated EBITDA for the three consecutive fiscal quarters ending on such
date.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower to be less than, (i) with respect to any such
period ending on or prior to September 30, 2001, 2.25 to 1.00 and, (ii) with
respect to any such period ending after September 30, 2001, 2.50 to 1.0;
provided, that for the purposes of determining the Consolidated Fixed Charge
Coverage Ratio for the fiscal quarter of the Borrower ending September 30, 2000,
the Consolidated EBITDA and Consolidated Fixed Charges will be 1.33 times the
Consolidated EBITDA and Consolidated Fixed Charges for the three consecutive
fiscal quarters ending on such date.
(c) Consolidated Total Debt. Permit the ratio of Consolidated
Total Debt to the sum of (i) Consolidated Total Debt and (ii) Consolidated
Shareholders' Equity to be more than .55 to 1.00 on any date.
7.2 Limitation on Indebtedness. Create, incur, assume or
permit to exist any Indebtedness, except that the Borrower or any of its
Subsidiaries may create, incur, assume or permit to exist Indebtedness if no
Default or Event of Default shall have occurred and be continuing after giving
effect to such Indebtedness.
7.3 Limitation on Liens. Create, incur, assume or permit to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or other governmental charges
not yet due or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are maintained
on the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or which are
being contested in good faith by appropriate proceedings;
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(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), provided that no such Lien is spread to cover any additional Property
after the Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred to finance the acquisition or construction of, or repairs,
improvements or additions to, fixed or capital assets, provided that (i) such
Liens shall be created substantially simultaneously with the acquisition of such
fixed or capital assets, (ii) such Liens do not at any time encumber any
Property of the Borrower or its Subsidiaries other than the Property financed by
such Indebtedness and (iii) the amount of Indebtedness secured thereby is not
increased;
(h) any interest or title of a lessor under any lease entered
into by the Borrower or any other Subsidiary in the ordinary course of its
business and covering only the assets so leased;
(i) any Lien securing Indebtedness, neither assumed nor
guaranteed by the Borrower or any of its Subsidiaries nor on which it
customarily pays interest, existing upon real estate or rights in or relating to
real estate acquired by the Borrower for substation, metering station, pump
station, storage, gathering line, transmission line, transportation line,
distribution line or for right-of-way purposes, any Liens reserved in leases for
rent and for compliance with the terms of the leases in the case of leasehold
estates, to the extent that any such Lien referred to in this clause (i) does
not materially impair the use of the Property covered by such Lien for the
purposes of which such Property is held by the Borrower or any of its
Subsidiaries;
(j) inchoate Liens arising under ERISA;
(k) any obligations or duties affecting any of the Property of
the Borrower or its Subsidiaries to any municipality or public authority with
respect to any franchise, grant, license or permit which do not materially
impair the use of such Property for the purposes for which it is held;
(l) defects, irregularities and deficiencies in title of any
rights of way or other Property of the Borrower or any Subsidiary which in the
aggregate do not materially impair the use of such rights of way or other
Property for the purposes for which such rights of way and other Property are
held by the Borrower or any Subsidiary, and defects, irregularities and
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deficiencies in title to any Property of the Borrower or its Subsidiaries, which
defects, irregularities or deficiencies have been cured by possession under
applicable statutes of limitation;
(m) Liens in favor of collecting or payor banks having a right
of setoff, revocation, refund or chargeback with respect to money or instruments
of the Borrower or any of its Subsidiaries on deposit with or in possession of
such bank;
(n) Liens created in connection with any Securitization
Transaction and any Synthetic Lease, in each case encumbering only the Property
that is the subject of such transaction;
(o) Liens on any part of the Anacortes Facility (other than
Liens on the fluid catalytic cracking unit or the solvent deasphalter to the
extent permitted by subsection 7.3(g)), provided, that the Obligations are
secured on a first priority basis prior to all other Indebtedness secured
thereby; and
(p) Liens on existing assets of the Borrower or its
Subsidiaries securing up to an aggregate of $20,000,000 of Indebtedness.
7.4 Limitation on Fundamental Changes. Except for Excluded
Subsidiaries, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its Property or
business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary Guarantor
(provided that the Subsidiary Guarantor shall be the continuing or surviving
corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon dividend, distribution, voluntary liquidation or otherwise)
to the Borrower or any Subsidiary Guarantor; and
(c) so long as permitted by subsection 7.7 and so long as no
Default or Event of Default shall have occurred and be continuing after giving
effect to such merger or consolidation, any Person may be merged or consolidated
with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor
shall be the continuing or surviving corporation).
7.5 Limitation on Disposition of Property. Except for Excluded
Subsidiaries, dispose of any of its Property (including, without limitation,
receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out Property in the
ordinary course of business;
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(b) the sale of inventory, hydrocarbon production, other
mineral products and products refined therefrom in the ordinary course of
business;
(c) Dispositions permitted by subsection 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Subsidiary Guarantor;
(e) Disposition pursuant to any casualty or condemnation; and
(f) Dispositions pursuant to sale and leaseback transactions,
in an aggregate principal amount not to exceed $20,000,000;
(g) Dispositions pursuant to Securitization Transactions;
(h) the Disposition of the assets or Capital Stock of Tesoro
Marine Services, Inc. for the fair market value of such assets or Capital Stock;
and
(i) other Dispositions outside the ordinary course of business
occurring during the term of this Agreement which yield gross proceeds to the
Borrower or any of its Subsidiaries (valued at fair market value in the case of
non-cash proceeds) in an aggregate amount not in excess of $25,000,000.
7.6 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Borrower or any
Subsidiary, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that (a) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary Guarantor, (b) so long as no Default or Event of
Default shall be in existence, the Borrower may pay dividends on the Mandatorily
Convertible Preferred Stock at the stated rate, (c) the Borrower may pay
dividends on its common stock, or repurchase shares of its common stock, in an
aggregate amount not to exceed $15,000,000 in any fiscal year of the Borrower
and (d) the Borrower may repurchase up to 1,372,600 shares of its common stock
(in addition to any shares repurchased pursuant to the foregoing clause (c)) in
open market transactions or privately negotiated transactions so long as no
Default or Event of Default shall be in existence of the time of such
repurchase.
7.7 Limitation on Investments. Make any advance, loan,
extension of credit (by way of guaranty or otherwise) or capital contribution
to, or purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting an ongoing business from, or make any
other investment in, any other Person (all of the foregoing, "Investments"),
except:
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(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) Loans and advances to officers, directors and employees of
the Borrower or any of its Subsidiaries in the ordinary course of business
(including, without limitation, for travel, entertainment and relocation
expenses) in an aggregate amount for the Borrower and its Subsidiaries not to
exceed $7,500,000 at any one time outstanding;
(d) Investments in assets useful in the Borrower's business
made by the Borrower or any of its Subsidiaries with the proceeds of any
casualty or condemnation;
(e) the Borrower's 50% limited partnership interest in Tesoro
Building Project, Ltd., a Delaware limited partnership;
(f) (i) the purchase of stock issued by the Borrower from
participants in the incentive stock plans of the Borrower made for the purpose
of satisfying federal withholding tax obligations of such participants as
provided for under the terms of such incentive stock plans or stock incentive
grants thereunder or (ii) the purchase of existing options issued to such
participants pursuant to such incentive stock plans in order to make stock
available for issuance to current employees;
(g) purchases of all or substantially all of the Capital Stock
of Persons engaged in lines of business similar to the line of business of the
Borrower on the date of this Agreement;
(h) Investments by the Borrower or any of its Subsidiaries in
(i) the Borrower or any Person that, prior to such investment, is a Subsidiary
Guarantor or (ii) any Person which is not a Subsidiary Guarantor in an aggregate
amount not to exceed $7,500,000;
(i) Investments, in an aggregate amount not exceeding
$30,000,000, by the Borrower or any of its Subsidiaries in the businesses of
branded dealers and distributors in connection with retail gasoline station
improvements;
(j) Investments by the Borrower or any of its Subsidiaries
consisting of the receipt by the Borrower or such Subsidiary of Capital Stock or
other securities, obligations or production payments in settlement of debts
created in the ordinary course of business and owing to, or in satisfaction of
judgments in favor of, the Borrower or any of its Subsidiaries; and
(k) the Borrower may enter into a joint venture or partnership
and, in connection therewith, sell or transfer to such joint venture or
partnership all of the assets or Capital Stock of Tesoro Marine Services, Inc.
7.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, the Senior Subordinated Notes, or segregate funds for any such payment,
prepayment, repurchase, redemption or defeasance,
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(except that the Borrower may purchase in open market transactions up to
$20,0000,000 aggregate principal amount of Senior Subordinated Notes), (b)
amend, modify or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Senior
Subordinated Notes (other than any such amendment, modification, waiver or other
change which (i) would extend the maturity or reduce the amount of any payment
of principal thereof, reduce the rate or extend the date for payment of interest
thereon or relax any covenant or other restriction applicable to the Borrower or
any of its Subsidiaries and (ii) does not involve the payment of a consent fee),
(c) designate any Indebtedness (other than the Obligations) as "Designated
Senior Debt" for the purposes of the Senior Subordinated Note Indenture or (d)
amend its certificate of incorporation in any manner determined by the
Administrative Agent to be adverse to the Lenders.
7.9 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise
not prohibited by this Agreement, (b) in the ordinary course of business of the
Borrower or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's-length transaction with
a Person which is not an Affiliate.
7.10 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of the Borrower to end on a day other than December 31 or change the
Borrower's method of determining fiscal quarters.
7.11 Limitation on Negative Pledge Clauses. Enter into or
permit to exist or become effective any agreement which prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
permit to exist any Lien upon any of its Property or revenues, whether now owned
or hereafter acquired, to secure the Obligations or, in the case of any
Subsidiary Guarantor, its obligations under the Guarantee Agreement, other than
(a) this Agreement and the other Loan Documents and (b) any agreements governing
any purchase money Liens, Capital Lease Obligations, Synthetic Leases or
Securitization Transactions otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby).
7.12 Limitation on Restrictions on Subsidiary Distributions.
Enter into or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant
to an agreement which has been entered into in connection with the Disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary
and (iii) solely in the case of the foregoing clause (c), customary
non-assignment
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provisions in leases entered into in the ordinary course of business and
consistent with the past practices of the Borrower and its Subsidiaries.
7.13 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of subsection
6.4(a) (with respect to the Borrower only), subsection 6.7(a) or Section 7 of
this Agreement; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this Section
8), and such default shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation constituting Indebtedness, but excluding
the Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any
such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or
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more defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the aggregate outstanding principal amount of which is
at least $15,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in the sole
judgment of the Required Lenders, reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by
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insurance as to which the relevant insurance company has acknowledged coverage)
of $15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(i) The guarantee contained in Section 2 of the Guarantee
Agreement shall cease, for any reason, to be in full force and effect or any
Loan Party shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken, so long as such Event of Default is in existence and has not otherwise
been cured or waived in accordance herewith: (i) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment; Nature of Relationship. Bank One, NA is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Administrative Agent") hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with
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the rights and duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Section 9.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
9.2 Powers. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
9.3 General Immunity. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be liable to the Lenders
or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
9.4 No Responsibility for Loans, Recitals, etc.. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Section 5,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default or Event of
Default; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (g) the financial condition
of the Borrower or any guarantor of any of the Obligations or of any of the
Borrower's or any such guarantor's respective Subsidiaries. The Administrative
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Administrative Agent at such
time, but is
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voluntarily furnished by the Borrower to the Administrative Agent (either in its
capacity as Administrative Agent or in its individual capacity).
9.5 Action on Instructions of Lenders. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all Lenders, in the case of
actions which, pursuant to subsection 10.1, require the consent of all Lenders),
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing to do so by the
Required Lenders (or all Lenders, in the case of actions which, pursuant to
subsection 10.1, require the consent of all Lenders). The Administrative Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
9.6 Employment of Agents and Counsel. The Administrative Agent
may execute any of its duties as Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
9.7 Reliance on Documents; Counsel. The Administrative Agent
shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Administrative Agent, which counsel may be employees of the
Administrative Agent.
9.8 Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Revolving Commitments (or, if the Revolving
Commitments have been terminated, in proportion to their Revolving Commitments
immediately prior to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses incurred by the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs,
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expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other documents,
provided that (i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Administrative Agent and (ii) any indemnification
required pursuant to subsection 2.15 shall, notwithstanding the provisions of
this subsection 9.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this subsection 9.8
shall survive payment of the Obligations and termination of this Agreement.
9.9 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
9.10 Rights as a Lender. In the event the Administrative Agent
is a Lender, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document with respect to its Revolving
Commitment and its Loans as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" shall, at
any time when the Administrative Agent is a Lender, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
9.11 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender and based on the financial statements prepared by
the Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Arranger or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
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9.12 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of the
Borrower or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents and the resigning or removed
Administrative Agent shall pay to the successor Administrative Agent any
unamortized portion of Administrative Agent's fees previously paid to such
resigning or removed Administrative Agent . After the effectiveness of the
resignation or removal of an Administrative Agent, the provisions of this
Section 9 shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this subsection 9.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent. Any successor Administrative Agent appointed pursuant to
this subsection 9.12 shall (unless an Event of Default under subsection 8(a) or
subsection 8(f) shall have occurred and be continuing) be subject to the
approval of the Borrower (which approval shall not be unreasonably withheld or
delayed).
9.13 Delegation to Affiliates. The Borrower and the Lenders
agree that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of
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the indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Sections 9 and 10.
9.14 Documentation Agent, Syndication Agent, etc. Neither any
of the Lenders identified in this Agreement as a "Documentation Agent" or
"Syndication Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Administrative Agent in subsection 9.11.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders, or the Agents, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan or any Reimbursement Obligation, reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of the Revolving Commitment of any Lender, in each case without the consent
of each Lender directly affected thereby; (ii) amend, modify or waive any
provision of this subsection 10.1 or reduce any percentage specified in the
definition of Majority Lenders or Required Lenders, consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, or release any Material Subsidiary
Guarantor from its obligations under the Guarantee Agreement, in each case
without the consent of all Lenders; (iii) amend, modify or waive any provision
of Section 9 without the consent of the Agents; or (iv) amend, modify or waive
any provision of Section 3 without the consent of such Issuing Lender. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon. Any
such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing
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provisions of this subsection 10.1; provided, that delivery of an executed
signature page of any such instrument by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower and the Administrative
Agent, as follows, and (b) in the case of each Lender, the address of which the
Administrative Agent will have been notified by such Lender in connection with
the syndication of the Revolving Commitments or, in the case of a Lender which
becomes a party to this Agreement pursuant to an Assignment and Acceptance, the
address set forth in such Assignment and Acceptance, or (c) in the case of any
party, to such other address as such party may hereafter notify to the other
parties hereto:
The Borrower: Tesoro Petroleum Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Bank One, NA
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
Mail Code TX2-4335
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or any Lender shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any party hereto, any right, remedy,
power or privilege hereunder or
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under the other Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out of pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and such Issuing Lender,
(b) to pay or reimburse each of the Lenders and Agents for all its reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Agents, (c) to pay, indemnify, and hold each Lender and
the Agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay caused by any Loan
Party in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the Agents and
their respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of the
Borrower, any of its Subsidiaries or any property at any time owned, leased or
in any way used by the Borrower or any of its Subsidiaries (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities (i) to the extent such Indemnified Liabilities are
found by a final and nonappealable decision of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of such
Indemnitee or (ii) solely related to the transfer, assignment or other
disposition by or on behalf of any Indemnitee of any Note or any interest in its
Commitments or rights to payment under this Agreement. Without limiting the
foregoing,
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and to the extent permitted by applicable law, the Borrower agrees not to assert
and to cause its Subsidiaries not to assert, and hereby waives and agrees to
cause its Subsidiaries so to waive, all rights for contribution or any other
rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them now or
hereafter might have by statute or otherwise against any indemnitee. The
agreements in this subsection 10.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due but unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.14, 2.15 and 2.16 with respect to its
participation in the Revolving Commitments and the Loans outstanding from time
to time as if it was a Lender; provided that, in the case of subsection 2.15,
such Participant shall have complied with the requirements of such subsection
and provided, further, that no Participant shall be entitled to receive any
greater amount pursuant to any such subsection than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
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(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to (i) any Lender or
any affiliate thereof (provided that the consent of such Issuing Lender shall be
obtained in connection with any assignment of Revolving Commitments to an
affiliate of a Lender), (ii) with the consent of the Borrower, the
Administrative Agent and such Issuing Lender, (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit D, executed by such Assignee and such Assignor (and, where
the consent of the Borrower, the Administrative Agent or such Issuing Lender is
required pursuant to the foregoing provisions, by the Borrower or the Borrower
and such other Persons, as the case may be) and delivered to the Administrative
Agent for its acceptance and recording in the Register; provided that, unless
otherwise agreed by the Borrower and the Administrative Agent, and except in the
case of an assignment by a Lender of all of its Revolving Commitment and/or
Loans under this Agreement and the Revolving Credit Agreement, (i) no assignment
to an Assignee (other than any Lender or any affiliate thereof) of Revolving
Commitment and/ or Loans under this Agreement shall be in an amount which, when
aggregated with the amount of Revolving Commitment and/ or Loans under (and as
defined in) the Revolving Credit Agreement assigned concurrently with such
assignment hereunder, is less than $5,000,000 and (ii) after giving effect to
any assignment hereunder, the Assignor must have Revolving Commitment and/or
Loans under this Agreement in an amount which, when aggregated with the amount
of Revolving Commitment and/ or Loans of such Assignor under (and as defined in)
the Revolving Credit Agreement, is at least $10,000,000. Each assignment of
Revolving Commitments and/or Loans by a Lender must be accompanied by an
assignment by such Assignor Lender to the same Assignee of a proportionate
amount of such Assignor Lender's Revolving Commitments and/or Loans under (and
as defined in) the Revolving Credit Agreement. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Revolving Commitment and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be a party hereto). Notwithstanding any provision of this
subsection 10.6(c), the consent of the Borrower shall not be required for any
assignment which occurs at any time when any Event of Default shall have
occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in subsection 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of the
Loans and any Notes evidencing such Loans recorded therein for all purposes of
this Agreement. Any assignment of any Loan, whether or
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not evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a duly
executed Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the Borrower marked
"cancelled". The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by subsection 10.6(c), by each such other Person) together
with payment by such Assignor and/or such Assignee (as agreed between them) to
the Administrative Agent of a registration and processing fee of $3,500 (except
that no such registration and processing fee shall be payable in the case of an
Assignee which is already a Lender or is an affiliate of a Lender or a Person
under common management with a Lender), the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower. On or prior to such effective date, the Borrower, at its own
expense, upon request, shall execute and deliver to the Administrative Agent (in
exchange for the Note of the assigning Lender) a new Note, to the order of such
Assignee in an amount equal to the Revolving Commitment assumed or acquired by
it pursuant to such Assignment and Acceptance and, if the Assignor has retained
a Revolving Commitment, upon request, a new Note, to the order of the Assignor
in an amount equal to the Revolving Commitment, retained by it hereunder. Such
new Note or Notes shall be dated the Closing Date and shall otherwise be in the
form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 10.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law; provided, that all
related costs, fees and expenses assessed against or incurred by such Lender
solely in connection with any such assignment to any Federal Reserve Bank or any
related re-assignment to such Lender shall be for the sole account of such
Lender.
10.7 Adjustments; Set-off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of the Obligations
owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause
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such Benefitted Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, at any time when an Event of Default is in existence, each
Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower, as the case may be. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or, in the other
Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers (a) The Borrower
hereby irrevocably and unconditionally:
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(i) submits for itself and its Property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction.
(b) Each party hereto hereby waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection 10.12 any special, exemplary,
punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate of any Lender, (b) to any Participant or Assignee (each,
a "Transferee") or prospective Transferee which agrees to comply with the
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provisions of this subsection 10.14, (c) any of its employees, directors,
agents, attorneys, accountants and other professional advisors, (d) upon the
request or demand of any Governmental Authority having jurisdiction over it, (e)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law (exclusive of any
organizational or governance document of such Agent or Lender), (f) if requested
or required to do so in connection with any litigation or similar proceeding,
(g) which has been publicly disclosed other than in breach of this subsection
10.14, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (i) in connection with the exercise of any
remedy hereunder or under any other Loan Document. In the event that any Agent
or Lender shall have received a demand or request, or intends to respond to or
otherwise satisfy a requirement, for the delivery of any such confidential
information pursuant to the foregoing clause (f), such Agent or Lender promptly
shall make reasonable efforts to notify the Borrower thereof within any
applicable time period permitted to contest compliance with any such demand,
request or requirement; provided, that in no event shall any Lender or Agent be
liable for any action taken pursuant to such clause (f) or for any failure so to
notify the Borrower in accordance with the foregoing.
10.15 Enforceability; Usury. In no event shall any provision
of this Agreement, the Notes, or any other instrument evidencing or securing the
indebtedness of the Borrower hereunder ever obligate the Borrower to pay or
allow any Lender to collect interest on the Loans or any other indebtedness of
the Borrower hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest Lawful Rate"),
or obligate the Borrower to pay any taxes, assessments, charges, insurance
premiums or other amounts to the extent that such payments, when added to the
interest payable on the Loans, would be held to constitute the payment by the
Borrower of interest at a rate greater than the Highest Lawful Rate; and this
provision shall control over any provision to the contrary.
Without limiting the generality of the foregoing, in the event
the maturity of all or any part of the principal amount of the indebtedness of
the Borrower hereunder shall be accelerated for any reason, then such principal
amount so accelerated shall be credited with any interest theretofore paid
thereon in advance and remaining unearned at the time of such acceleration. If,
pursuant to the terms of this Agreement or the Notes, any funds are applied to
the payment of any part of the principal amount of the indebtedness of the
Borrower hereunder prior to the maturity thereof, then (a) any interest which
would otherwise thereafter accrue on the principal amount so paid by such
application shall be canceled, and (b) the indebtedness of the Borrower
hereunder remaining unpaid after such application shall be credited with the
amount of all interest, if any, theretofore collected on the principal amount so
paid by such application and remaining unearned at the date of said application;
and if the funds so applied shall be sufficient to pay in full all the
indebtedness of the Borrower hereunder, then the Lenders shall refund to the
Borrower all interest theretofore paid thereon in advance and remaining unearned
at the time of such acceleration. All sums paid or agreed to be paid to the
Administrative Agent or to any Lender for the use, forbearance or detention of
sums due hereunder shall, to the extent permitted by law applicable to the
Administrative Agent or such Lender, be amortized, prorated, allocated
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and spread throughout the full term of the Loans until paid in full, so that the
rate or amount of interest on account of any Loans or other amounts hereunder
does not exceed the maximum amount allowed by such applicable law. Regardless of
any other provision in this Agreement, or in any of the written evidences of the
indebtedness of the Borrower hereunder, the Borrower shall never be required to
pay any unearned interest on such indebtedness or any portion thereof, and shall
never be required to pay interest thereon at a rate in excess of the Highest
Lawful Rate construed by courts having competent jurisdiction thereof.
10.16 Accounting Changes. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or successors thereto or
agencies with similar functions).
10.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
TESORO PETROLEUM CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Financial Resources
BANC ONE CAPITAL MARKETS, INC.,
as Arranger
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
BANK ONE, NA, as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
THE BANK OF NOVA SCOTIA, as
Syndication Agent and as a Lender
By: /s/ F.C.H. ▇▇▇▇▇
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
ABN AMRO BANK, N.V.,
as Documentation Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
74
BANK OF TOKYO-MITSUBISHI, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP & Manager
[Signature page to 364-Day Revolving Credit Agreement]
75
COMERICA BANK, as a Lender
By: /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: ACCOUNT OFFICER
[Signature page to 364-Day Revolving Credit Agreement]
76
CREDIT LYONNAIS, as a Lender
By: /s/ PHILIPPE SOUSTRA
Name: Philippe Soustra
Title: Senior Vice President
[Signature page to 364-Day Revolving Credit Agreement]
77
THE FROST NATIONAL BANK, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Market President
[Signature page to 364-Day Revolving Credit Agreement]
78
THE FUJI BANK, LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT & MANAGER
[Signature page to 364-Day Revolving Credit Agreement]
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GUARANTY FEDERAL BANK, as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[Signature page to 364-Day Revolving Credit Agreement]
80
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[Signature page to 364-Day Revolving Credit Agreement]
81
NATIONAL BANK OF ALASKA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chan
Title: Vice President
[Signature page to 364-Day Revolving Credit Agreement]
82
ANNEX A
PRICING GRID I
Applicable Margin
for Base Rate Applicable Margin for
Level Consolidated Leverage Ratio Loans Eurodollar Loans
----- ------------------------------------ ----------------- ---------------------
I > or = to 3.25 : 1.0 0.000% 2.000%
II > or = to 3.0 : 1.0 but < 3.25 : 1.0 0.000% 1.750%
III > or = to 2.5 : 1.0 but < 3.0 : 1.0 0.000% 1.500%
IV > or = to 2.0 : 1.0 but < 2.5 : 1.0 0.000% 1.250%
V < 2.0 : 1.0 0.000% 1.000%
PRICING GRID II
Applicable Margin
for Base Rate Applicable Margin for
Level Consolidated Leverage Ratio Loans Eurodollar Loans
----- ------------------------------------ ----------------- ---------------------
I > or = to 3.25 : 1.0 0.000% 1.750%
II > or = to 3.0 : 1.0 but < 3.25 : 1.0 0.000% 1.500%
III > or = to 2.5 : 1.0 but < 3.0 : 1.0 0.000% 1.375%
IV > or = to 2.0 : 1.0 but < 2.5 : 1.0 0.000% 1.150%
V < 2.0 : 1.0 0.000% 1.000%
Changes in the Applicable Margin resulting from changes in the Consolidated
Leverage Ratio shall become effective on the date (the "Adjustment Date") on
which financial statements are delivered to the Lenders pursuant to subsection
6.1 (but in any event not later than the 60th day after the end of each of the
first three quarterly periods of each fiscal year or the 105th day after the end
of each fiscal year, as the case may be) and shall remain in effect until the
next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified
above, then, until such financial statements are delivered, the Consolidated
Leverage Ratio as at the end of the fiscal period that would have been covered
thereby shall for the purposes of this definition be deemed to be greater than
3.25 : 1.0. In addition, at all times while an Event of Default shall have
occurred and be continuing, the Consolidated Leverage Ratio shall for the
purposes of this definition be deemed to be greater than 3.25 : 1.0. Each
determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal
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quarters of the Borrower and its consolidated Subsidiaries ending at the end of
the period covered by the relevant consolidated financial statements; provided
that the Consolidated EBITDA used to calculate the Consolidated Leverage Ratio
for the fiscal quarter ended September 30, 2000 be will equal 1.33 times the sum
of the Consolidated EBITDA for the three consecutive fiscal quarters ended on
such date.
The Pricing Grid set forth above under the caption "Pricing Grid II" will be
applicable only with respect to Adjustment Dates on which the Borrower has a
corporate credit rating or issuer rating from S&P or ▇▇▇▇▇'▇ of at least BBB- or
Baa3, respectively.
-ii-
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The Schedules and Exhibits listed in the Table of Contents of this agreement
have been omitted. The Registrant will furnish a copy of any omitted schedules
or exhibits to the Securities and Exchange Commission upon request.