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Exhibit 10.32
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REVOLVING CREDIT AGREEMENT
dated as of
September 13, 2000
among
LYONDELL-CITGO REFINING LP,
a Delaware Limited Partnership
The Lenders from time to
time parties hereto,
CREDIT SUISSE FIRST BOSTON,
as Issuer and Agent
$70,000,000
as arranged by
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Book Manager
and
SOCIETE GENERALE,
as Co-Arranger and Co-Syndication Agent
and
BANK OF AMERICA N.A.,
as Co-Syndication Agent
and
BANC OF AMERICA SECURITIES LLC,
as Co-Arranger
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS......................................................................................... 1
1.01 Certain Defined Terms....................................................................... 1
1.02 Other Definitional Provisions............................................................... 21
1.03 Captions.................................................................................... 22
ARTICLE II CREDIT FACILITY.................................................................................... 22
2.01 The Facility................................................................................ 22
2.02 Making the Loans............................................................................ 23
2.03 Letters of Credit........................................................................... 24
2.04 Reduction or Termination of Commitments..................................................... 29
2.05 Fees........................................................................................ 29
2.06 Interest; Determination and Protection; Illegality.......................................... 30
2.07 Voluntary Interest Period Conversion........................................................ 32
ARTICLE III PAYMENTS, PREPAYMENTS, INCREASED COSTS AND TAXES.................................................. 33
3.01 Payments and Computations................................................................... 33
3.02 Mandatory Prepayments....................................................................... 34
3.03 Voluntary Prepayments....................................................................... 34
3.04 Funding Losses Relating to Eurodollar Rate Loans............................................ 35
3.05 Increased Costs; Capital Adequacy........................................................... 36
3.06 Taxes....................................................................................... 37
3.07 Substitution of Lender...................................................................... 40
ARTICLE IV CONDITIONS TO LOANS; LETTERS OF CREDIT............................................................. 40
4.01 Conditions to Loans and Letters of Credit................................................... 40
4.02 Conditions to Each Borrowing................................................................ 42
4.03 Conditions to Each Letter of Credit......................................................... 43
4.04 Conditions to Conversions................................................................... 43
4.05 Deemed Fulfilled Conditions................................................................. 44
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BORROWER...................................................... 44
5.01 Organization; Power; Qualification.......................................................... 44
5.02 Authorization; Enforceability; Absence of Conflicts; Required Consents...................... 45
5.03 Compliance With Laws........................................................................ 46
5.04 No Defaults................................................................................. 46
5.05 Litigation.................................................................................. 46
5.06 Financial Statements; Disclosure............................................................ 46
5.07 Taxes....................................................................................... 48
5.08 Government Regulation....................................................................... 48
5.09 Employee Benefit Plans...................................................................... 48
5.10 Title to Property; Leases................................................................... 49
5.11 Labor Matters............................................................................... 49
5.12 Intellectual Property....................................................................... 50
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5.13 Use of Proceeds............................................................................. 50
ARTICLE VI FINANCIAL STATEMENTS AND INFORMATION............................................................... 50
6.01 Reporting Requirements...................................................................... 50
6.02 Books and Records........................................................................... 53
6.03 Visits, Inspections and Discussions......................................................... 53
ARTICLE VII CERTAIN COVENANTS................................................................................. 54
7.01 Maintenance of Existence and Properties..................................................... 54
7.02 Compliance With Governmental Requirements................................................... 55
7.03 Payment of Taxes and Claims................................................................. 55
7.04 Insurance; Casualty......................................................................... 55
7.05 Liens....................................................................................... 56
7.06 Restricted Payments......................................................................... 56
7.07 Limitations on Mergers, Etc................................................................. 57
7.08 Disposition of Assets....................................................................... 57
7.09 Indebtedness................................................................................ 57
7.10 Transactions With Affiliates................................................................ 58
7.11 Limitation on Restrictive Covenants......................................................... 58
7.12 Issuance or Disposition of Capital Securities............................................... 59
7.13 Investments................................................................................. 59
7.14 Business.................................................................................... 59
7.15 Fiscal Year................................................................................. 60
7.16 Financial Covenants......................................................................... 60
7.17 Certain Material Agreements................................................................. 60
7.18 Use of Proceeds............................................................................. 61
ARTICLE VIII DEFAULT.......................................................................................... 61
8.01 Events of Default........................................................................... 61
8.02 Remedies.................................................................................... 67
8.03 Application of Proceeds..................................................................... 67
8.04 Cash Collateral............................................................................. 68
8.05 Set-Off; Suspension of Payment and Performance.............................................. 68
8.06 Sharing of Recoveries....................................................................... 69
ARTICLE IX THE AGENT.......................................................................................... 69
9.01 Appointment and Powers...................................................................... 69
9.02 Limitation on Agent's Liability............................................................. 70
9.03 Defaults.................................................................................... 70
9.04 Rights as a Lender.......................................................................... 70
9.05 Indemnification............................................................................. 71
9.06 Non-Reliance on Agent and Other Lenders..................................................... 71
9.07 Resignation of the Agent.................................................................... 71
9.08 CERTAIN INTENTIONS.......................................................................... 72
ARTICLE X MISCELLANEOUS....................................................................................... 72
10.01 Notices and Deliveries...................................................................... 72
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10.02 Expenses; Indemnification................................................................... 74
10.03 Rights Cumulative........................................................................... 76
10.04 Confidentiality............................................................................. 76
10.05 Amendments; Waivers......................................................................... 78
10.06 Assignments and Participations.............................................................. 79
10.07 GOVERNING LAW............................................................................... 82
10.08 JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL.................................................. 82
10.09 Severability of Provisions.................................................................. 83
10.10 Counterparts; Integration; Binding Effect................................................... 83
10.11 Entire Agreement............................................................................ 84
10.12 Successors and Assigns...................................................................... 84
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ANNEXES, SCHEDULES AND EXHIBITS
Annex A - Lender Information
Schedule A - ERISA Assumptions
Exhibit A - Form of Note
Exhibit 1.01-A - Form of Qualified Subordinated Debt
Exhibit 2.02 - Form of Notice of Borrowing
Exhibit 2.03(c)-1 - Form of Commercial Letter of Credit Reimbursement
Agreement
Exhibit 2.03(c)-2 - Form of Standby Letter of Credit Reimbursement
Agreement
Exhibit 2.03(d) - Form of Letter of Credit Request
Exhibit 2.07 - Form of Notice of Conversion
Exhibit 4.01(b)-1 - Form of Secretary's Certificate
Exhibit 4.01(f)-1 - Form of Opinion of New York Counsel to Borrower
Exhibit 4.01(f)-2 - Form of Opinion of Texas Corporate Counsel to
Borrower
Exhibit 4.01(f)-3 - Form of Opinion of Outside Texas Counsel to the
Borrower
Exhibit 4.01(h) - Form of Officer's Certificate
Exhibit 6.01(a) - Form of Quarterly Compliance Certificate
Exhibit 6.01(b) - Form of Annual Compliance Certificate
Exhibit 10.04(c)-1 - Form of Assignee Confidentiality Agreement
Exhibit 10.04(c)-2 - Form of Participant Confidentiality Agreement
Exhibit 10.04(c)-3 - Form of Outside Representative Confidentiality
Agreement
Exhibit 10.06(a) - Form of Assignment Agreement
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<PAGE>
REVOLVING CREDIT AGREEMENT
dated as of September 12, 2000
LYONDELL-CITGO REFINING LP, a Delaware limited partnership, the LENDERS listed
on the signature pages hereof and any Lender hereafter becoming a party hereto
in accordance with the provisions hereof and CREDIT SUISSE FIRST BOSTON, as
Issuer and Agent, as arranged by CREDIT SUISSE FIRST BOSTON, as Sole Lead
Arranger and Book Manager, SOCIETE GENERALE as Co-Arranger and Co-Syndication
Agent, BANK OF AMERICA, N.A., as Co-Syndication Agent, and BANK OF AMERICA
SECURITIES LLC, as Co-Arranger, agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. As used in this Revolving Credit Agreement, the
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following terms have the meanings assigned to them below:
"Accumulated Funding Deficiency" has the meaning specified in Section 302
of ERISA.
"Adjusted Base Rate" means, at any time, the sum of the Base Rate plus the
Applicable Margin for Base Rate Loans, in each case, as in effect at such
time.
"Adjusted Eurodollar Rate" means, for any day in an Interest Period for any
Eurodollar Rate Loan, an interest rate per annum equal to the sum of (a)
the quotient, expressed as a percentage, resulting from the division of (i)
the Eurodollar Rate for such Interest Period by (ii) the percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage in effect on such day,
plus (b) the Applicable Margin in effect on such day.
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"Affiliate" means, as to any Person, any other Person that, directly or
indirectly through one or more intermediaries or otherwise, controls, is
controlled by, or is under common control with, such Person. As used in
this definition, "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
a Person (whether through ownership of securities or limited liability
company, partnership or other ownership interests, by contract or
otherwise). For purposes of this Agreement, each of the Partners is an
Affiliate of the Borrower.
"Affiliate Indebtedness" means, as to any Person, Indebtedness of such
Person which is owed to any Affiliate of such Person.
"Agent" means Credit Suisse First Boston, in its capacity as agent for the
Lenders pursuant to this Agreement, and any successor Agent appointed
pursuant to Section 9.07.
"Agent's Office" means the address of the Agent specified in or determined
in accordance with the provisions of Section 10.01.
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"Agreement" means this Agreement, including all attached Schedules, Annexes
and Exhibits, each as amended, modified and supplemented from time to time.
"Applicable Letter of Credit Fee Percentage" means, at any time, the per
annum percentage equal to the Applicable Margin at such time.
"Applicable Margin" means
(a) with respect to any Eurodollar Rate Loan, the margin calculated as set
out below:
(i) for the period from and including the Closing Date to but
excluding the six-month anniversary thereof, the Applicable
Margin shall be 1.50%;
(ii) for the period from and including the six-month anniversary of
the Closing Date to but excluding the nine-month anniversary of
the Closing Date, the Applicable Margin shall be increased by
0.50% on each monthly anniversary of the Closing Date; and
(iii) for the period from and including the nine-month anniversary of
the Closing Date and at all times thereafter, the Applicable
Margin shall be increased by 0.75% on each monthly anniversary
of the Closing Date; and
(b) with respect to any Base Rate Loan, the margin calculated as set out
below:
(i) for the period from and including the Closing Date to but
excluding the six-month anniversary thereof, the Applicable
Margin shall be zero;
(ii) for the period from and including the six-month anniversary of
the Closing Date to but excluding the nine-month anniversary of
the Closing Date, the Applicable Margin shall be increased by
0.50% on each monthly anniversary of the Closing Date; and
(iii) for the period from and including the nine-month anniversary of
the Closing Date and at all times thereafter, the Applicable
Margin shall be increased by 0.75% on each monthly anniversary
of the Closing Date.
"Assignment Agreement" means any agreement substantially in the form of
Exhibit 10.06(a) with respect to an assignment in accordance with Section
10.06.
"Available Credit" means, at the time of any determination, an amount equal
to (a) the Total Commitment, minus (b) the aggregate outstanding principal
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amount of Loans, minus (c) the Letter of Credit Obligations.
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"Available Net Proceeds" means (a) Net Proceeds minus (b) Net Proceeds used
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to prepay Term Loans and Term Loan Obligations in accordance with the Term
Credit Agreement.
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"Average Consolidated Indebtedness" means, as of the date of any
determination, without duplication of amounts, the average of the aggregate
amounts outstanding at the end of each month during the Borrower's four
most recently ended fiscal quarters of all obligations (other than
obligations in respect of Interest Rate Protection Agreements) of the
Borrower and the Subsidiaries in respect of the principal amount of all
Indebtedness, including, without limitation, the Loans, the Letter of
Credit Obligations, the Term Loans, , all Qualified Subordinated Debt, all
Permitted Replacement Debt and all Distribution Debt.
"Average Debt to EBITDA Ratio" means, as of the date of any determination,
the ratio of (a) Average Consolidated Indebtedness over the Borrower's four
most recently ended fiscal quarters (excluding from the computation thereof
obligations of the Borrower and its Subsidiaries in respect of the
principal amount of all Qualified Subordinated Debt that is Affiliate
Indebtedness) to (b) Consolidated EBITDA for such fiscal quarters.
"Bankruptcy Law" means Title 11 of the United States Code or any other
federal or state law, or any foreign law, relating to bankruptcy,
insolvency, reorganization, relief or protection of debtors.
"Base Rate" means, for any day, a rate per annum equal to the higher of (a)
the Prime Rate in effect on such day and (b) the sum of 0.5%, plus the
----
Federal Funds Rate in effect on such day.
"Base Rate Loan" means any Loan made pursuant to Section 2.01 that bears
interest computed on the basis of the Base Rate.
"Benefit Plan" means, with respect to any Person at any time, any "employee
pension benefit plan" as defined in Section 3(2) of ERISA, including any
plan that is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code (excluding any Multiemployer
Benefit Plan), the funding requirements of which (under Section 302 of
ERISA or Section 412 of the Code) are, or at any time within six years
preceding the time in question were, in whole or in part, the
responsibility of such Person or with respect to which such Person or an
ERISA Affiliate of such Person was a "contributing sponsor" or an
"employer" as defined in Section 4001 and Section 3(5), respectively, of
ERISA.
"Birmingport Facility" has the meaning assigned to such term in the
Contribution Agreement as in effect on the date of this Agreement.
"Borrower" means LYONDELL-CITGO Refining LP, a Delaware limited
partnership.
"Borrowing" means one or more borrowings by the Borrower on the same day
under and pursuant to this Agreement, each of which consists of Loans of
the same Type by the Lenders.
"Business Day" means a day of the year on which banks are not authorized or
required to be closed in New York City and, if the applicable Business Day
relates to any Eurodollar
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Rate Loans, on which dealings are carried on between prime banks in the
London interbank market.
"Capital Lease" means a lease of (or other agreement conveying the right to
use) real or personal property that is required to be classified and
accounted for as a capital lease under GAAP as in effect on the date of
this Agreement, and, for purposes of this Agreement, the amount of any
Capital Lease obligation at any date shall be the capitalized amount
thereof at such date as determined in accordance with GAAP as in effect on
the date of this Agreement.
"Capital Security" means (a) any share, membership or other percentage
interest, unit of participation or other equivalent (however designated) of
a corporate equity security or other equity interest in a Person and (b)
any debt security or other evidence of Indebtedness which is convertible
into or exchangeable for, or any option, warrant or other right to acquire,
any Capital Security of any type referred to in clause (a) of this
definition.
"Change of Control" means the failure of CITGO or Lyondell, individually or
collectively, to own, legally and beneficially, directly or indirectly, at
least 35% of the outstanding ownership and voting interests in the
Borrower.
"Charter Documents" means, with respect to (a) the Borrower, (i) its
Certificate of Limited Partnership, (ii) the Partnership Agreement and
(iii) its Certificate of Conversion, and (b) with respect to any other
Person, (i) the articles or certificate of formation, incorporation or
organization (or the equivalent organizational documents) of such Person,
(ii) the bylaws, limited liability company agreement or regulations (or the
equivalent governing documents) of such Person and (iii) each document
setting forth the designation, amount and relative rights, limitations and
preferences of any class or series of such Person's Capital Securities or
of any rights in respect of such Person's Capital Securities.
"CITGO" means CITGO Petroleum Corporation, a Delaware corporation.
"CITGO GP" means CITGO Gulf Coast Refining Inc., a Delaware corporation
that is a Wholly Owned Subsidiary of CITGO and a general partner in the
Borrower.
"Closing Date" means the earlier of: (a) the date as of which the initial
Loans are made to the Borrower pursuant to this Agreement; and (b) the date
as of which all the conditions set out in Section 4.01 are satisfied or
waived by the Lenders.
"Co-Arrangers" means Banc of America Securities, LLC and Societe Generale,
New York Branch in their respective capacity as co-arrangers.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, with respect to each Lender, the amount set forth
opposite such Lender's name under the heading "Commitment" on Annex A or,
in the case of a Lender that becomes a Lender pursuant to an assignment,
the amount set forth in the applicable
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Assignment Agreement, in either case as the same may be reduced from time
to time pursuant to Sections 2.04 and 3.02(a) or increased or reduced from
time to time pursuant to assignments in accordance with Section 10.06.
"Confidential Information" has the meaning specified in Section 10.04.
"Consolidated EBIT" means, for any period, without duplication of amounts,
the sum of (a) Net Income for such period, plus (b)(i) such amount of
----
Consolidated Interest Expense for such period as was deducted in
determining such Net Income and (ii) the amount classified as income tax
expense and deducted in determining such Net Income.
"Consolidated EBITDA" means, for any period, without duplication of
amounts, the sum of (a) Consolidated EBIT for such period, plus (b) the
----
amount classified as depreciation and amortization expense and deducted in
determining Net Income for such period.
"Consolidated Indebtedness" means, as of the date of any determination,
without duplication of amounts, the aggregate amount of all obligations
(other than obligations in respect of Interest Rate Protection Agreements)
of the Borrower and the Subsidiaries in respect of the principal amount of
all Indebtedness, including, without limitation, the Loans, the Letter of
Credit Obligations, the Term Loans, all Qualified Subordinated Debt, all
Permitted Replacement Debt and all Distribution Debt as of such date.
"Consolidated Interest Expense" means, for any period, without duplication
of amounts, the sum of (a) the amount classified as interest costs and
deducted in determining Net Income for such period, plus (b) the interest
costs of the Borrower and the Subsidiaries on a consolidated basis and
capitalized in accordance with GAAP for such period and not deducted in
determining Net Income for such period.
"Consolidated Net Worth" means, as of the date of any determination,
without duplication of amounts, (i) the aggregate amount of total assets of
the Borrower and the Subsidiaries, minus (ii) the aggregate amount of the
-----
total liabilities of the Borrower and the Subsidiaries, in each case as of
the end of the Borrower's most recently ended fiscal quarter and determined
on a consolidated basis in accordance with GAAP as in effect on the date of
this Agreement and as applied on a basis consistent with the basis on which
GAAP was applied in the preparation of the Initial Financial Statements;
provided, however, that solely for the purpose of calculating the
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Borrower's compliance with the Consolidated Net Worth covenant set out in
Section 7.16(c), 50% of the principal amount of all Qualified Subordinated
Debt that is Affiliate Indebtedness shall be excluded from the calculation
of the aggregate amount of the total liabilities of the Borrower. Without
limiting the generality of the foregoing, the liabilities of the Borrower
at any time shall include the amount of all Distribution Debt and accrued,
unpaid interest thereon at such time.
"Contribution Agreement" means the Contribution Agreement, dated July 1,
1993, between Lyondell and the Borrower, as amended, modified and
supplemented from time to time to the extent permitted by Section 7.17,
unless the context otherwise requires.
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"Convert", "Conversion" or "Converted" each refers to a conversion of Loans
of one Type into Loans of another Type and includes the continuation of
Eurodollar Rate Loans as Eurodollar Rate Loans having a new Interest
Period.
"Coverage Ratio" means, as of the date of any determination, the ratio of
(a) Consolidated EBIT for the Borrower's four most recently ended fiscal
quarters to (b) Consolidated Interest Expense (excluding from the
computation thereof interest costs of the Borrower and its Subsidiaries in
respect of the principal amount of all Qualified Subordinated Debt that is
Affiliate Indebtedness) for such fiscal quarters.
"CRIC" means CITGO Refining Investment Company, an Oklahoma corporation.
"Crude Supply Agreement" means the Crude Supply Agreement, dated as of May
5, 1993, between the Borrower and Lagoven, S.A., a corporation organized
under the laws of the Bolivarian Republic of Venezuela (and subsequently
assigned to PDVSA Petroleos y Gas, S.A.), as amended, modified and
supplemented from time to time to the extent permitted by Section 7.17,
unless the context otherwise requires.
"Current Date" means any day during the 20-day period ending on the Closing
Date.
"Custodian" means any custodian, receiver, sequestrator, trustee or similar
official (a) under any Bankruptcy Law, (b) under any business corporation
statute in the case of assets of any corporation or (c) under or pursuant
to any limited liability company or limited partnership statute in the case
of assets of any limited liability company or limited partnership.
"Debt to Total Capitalization Ratio" means, as of the end of any fiscal
quarter of the Borrower, the ratio of (a) Consolidated Indebtedness
(excluding from such computation obligations of the Borrower and its
Subsidiaries in respect of the principal amount of all Qualified
Subordinated Debt that is Affiliate Indebtedness) to (b) the sum of (i)
Consolidated NetWorth, plus (ii) Consolidated Indebtedness, in each case
----
as of such time.
"Default" means any condition or event that constitutes an Event of Default
or that with the giving of notice or lapse of time or both would become an
Event of Default.
"Default Rate" means the rate otherwise applicable under Section 2.06(a)(i)
or (ii), plus 2.0% or, if there is no such applicable rate in respect of
----
the circumstances for which the Default Rate is used, the Base Rate, plus
----
2.0%.
"Distribution Debt" means obligations of the Borrower created under Section
7.3.(C) of the Partnership Agreement in respect of distributions required
to be made pursuant to Section 7.4 of the Partnership Agreement.
"Dollars" and the sign "$" each means lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to each Lender, (a) the
branch or office of such Lender set forth below such Lender's name under
the heading "Domestic Lending
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Office" on Annex A or, in the case of a Lender that becomes a Lender
pursuant to an assignment, the branch or office of such Lender set forth
under the heading "Domestic Lending Office" in the Assignment Agreement
giving effect to such assignment, or (b) such other branch or office of
such Lender designated by such Lender to the Agent and the Borrower from
time to time as the branch or office at which its Base Rate Loans are to be
made or maintained.
"DRULPA" means the Delaware Revised Uniform Limited Partnership Act.
"Eligible Assignee" means at any time any Lender, bank, finance company,
insurance company, savings and loan association, savings bank, other
financial institution or fund that uses as its source of funds to make and
maintain any Loan, a source satisfying the "ERISA Assumptions" set out on
Schedule A and (a) is regularly engaged in making or purchasing loans or
(b) if not regularly engaged in making commercial loans, is a "qualified
institutional buyer" or an "accredited investor" (as defined in Rule 144A
and Regulation D, respectively, under the Securities Act of 1933).
"Environmental Laws" means any and all Governmental Requirements relating
to the environment, including, without limitation, ambient air, surface
water, land surface or subsurface strata, or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes or noxious noise or
odor into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes (including, without limitation, petroleum,
petroleum distillates, asbestos or asbestos-containing material or
polychlorinated biphenyls).
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means, with respect to any Person, any other Person,
including an Affiliate of such first Person, that is a member or at any
time within six years of the time in question has been a member of any
group of organizations within the meaning of Section 414(b), (c), (m) or
(o) of the Code of which such first Person is or was a member.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System.
"Eurodollar Lending Office" means, with respect to each Lender, (a) the
branch or office of such Lender set forth below such Lender's name under
the heading "Eurodollar Lending Office" on Annex A or, in the case of a
Lender that becomes a Lender pursuant to an assignment, the branch or
office of such Lender set forth under the heading "Eurodollar Lending
Office" in the Assignment Agreement giving effect to such assignment, or
(b) such other branch or office of such Lender designated by such Lender to
the Agent and the Borrower from time to time as the branch or office at
which its Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Loan comprising part of the same Borrowing, the per annum rate determined
by the Agent as
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follows: (a) the Agent shall obtain the rate for deposits in Dollars for a
period comparable to such Interest Period which appears on Page 3750 of the
Bridge Information System's Telerate Service as of 11:00 A.M. (London time)
two Business Days preceding the first day of such Interest Period; and (b)
if the Agent is not able to obtain quotations for the determination of the
Eurodollar Rate pursuant to clause (a) above, the Eurodollar Rate shall be
the per annum rate of interest quoted by the Agent at which Dollar deposits
are offered by the Agent to prime 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, which deposits are for a period equal to such
Interest Period and in an amount substantially equal to the Eurodollar Rate
Loan that the Agent would make in its capacity as a Lender.
"Eurodollar Rate Loan" means any Loan made pursuant to Section 2.01 that
bears interest computed on the basis of the Adjusted Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" means, for any day in an Interest
Period for any Eurodollar Rate Loan, the reserve percentage applicable on
that day under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for the
Agent with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Interim Credit Agreement" means the Credit Agreement, dated May
5, 2000, between the Borrower and PDVSA.
"Federal Funds Rate" means, for each day, the rate per annum (rounded
upwards if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York or, if such
rate is not so published for any day that is a Business Day, the average of
the quotations for such day received by the Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letters" means (a) that certain letter from the Agent to the Borrower,
dated September 11, 2000, respecting certain fees payable by the Borrower
to the Agent the Co-Arrangers, Bank of America, N.A. and the Lenders and
(b) that certain letter from the Issuer to the Borrower, dated September
13, 2000, respecting certain fees payable by the Borrower to the Issuer.
"Financial Statements" means the Initial Financial Statements and the
financial statements of the Borrower and the Subsidiaries required to be
delivered to the Agent by Sections 6.01(a) and (b).
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"GAAP" means generally accepted accounting principles and practices in the
United States as in effect from time to time and concurred in by the
independent certified public accountants certifying the Financial
Statements required by Section 6.01(b), applied on a basis consistent
(except for changes concurred in by such independent certified public
accountants) with the most recent audited Financial Statements delivered to
the Agent, except as otherwise specifically provided herein.
"General Partners" means LRC and CITGO GP.
"Governmental Approval" means any authorization, consent, approval, permit,
franchise, certificate, license, implementing order or exemption of, or
registration or filing with, any Governmental Authority.
"Governmental Authority" means (a) any national, state, county, municipal
or other government, domestic or foreign, or any agency, board, bureau,
commission, court, department or other instrumentality of any such
government or (b) any school district having the authority to assess and
collect Taxes.
"Governmental Requirement" means any law, statute, code, ordinance, order,
rule, regulation, judgment, decree, injunction, writ, edict, award,
authorization or other requirement of any Governmental Authority or any
obligation included in any certificate, franchise, permit or license issued
by any Governmental Authority or resulting from binding arbitration,
including, without limitation, any requirement under common law.
"Granting Lender" has the meaning specified in Section 10.06(h).
"Gross Proceeds" means, with respect to any Permitted Replacement Debt, (a)
if such Permitted Replacement Debt is incurred by the Borrower in a
commercial or other loan transaction or to an Affiliate of the Borrower,
the aggregate unpaid principal amount of such Permitted Replacement Debt
when it is so incurred, or (b) if such Permitted Replacement Debt is
evidenced by "securities" (as defined in the Securities Act of 1933) issued
and sold by the Borrower to one or more underwriters for resale or one or
more investors for investment, the aggregate gross proceeds received by the
Borrower from such sale before the deduction of any expenses related to
such sale, provided, that in the case of any sale to an underwriter for
--------
resale, if such underwriter's underwriting or similar discount or
commission is not reflected as a reduction in the purchase price paid by
such underwriter to the Borrower for such Permitted Replacement Debt from
the price at which such underwriter initially offers such Permitted
Replacement Debt for resale, it shall be deducted, without duplication of
amounts, in determining the Gross Proceeds received by the Borrower from
such Permitted Replacement Debt.
"Guaranty" means, for any Person, without duplication, any liability,
contingent or otherwise, of such Person guaranteeing or otherwise becoming
liable for any obligation of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, and including, without
limitation, any liability of such Person, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such obligation or to purchase (or to advance or supply funds for the
purchase of) any
<PAGE>
-10-
security for the payment of such obligation, (b) to purchase property,
securities or services for the purpose of assuring the owner of such
obligation of the payment of such obligation or (c) to maintain working
capital, equity capital or other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
obligation; provided, that the term "Guaranty" does not include
--------
endorsements for collection or deposit in the ordinary course of the
endorser's business.
"Houston Facility" has the meaning assigned to such term in the
Contribution Agreement as in effect on the date of this Agreement.
"Indebtedness" of any Person means, without duplication, (a) any liability
of such Person (i) for borrowed money or arising out of any extension of
credit to or for the account of such Person (including, without limitation,
reimbursement or payment obligations with respect to surety bonds, letters
of credit, banker's acceptances and similar instruments), for the deferred
purchase price of property or services or arising under conditional sale or
other title retention agreements, other than trade payables arising in the
ordinary course of business, (ii) evidenced by notes, bonds, debentures or
similar instruments, (iii) in respect of Capital Leases or (iv) in respect
of Interest Rate Protection Agreements, (b) any liability secured by any
Lien upon any property or assets of such Person (or upon any revenues,
income or profits of such Person therefrom), whether or not such Person has
assumed such liability or otherwise become liable for the payment thereof,
(c) any liability of others of the type described in the preceding clause
(a) or (b) in respect of which such Person has incurred, assumed or
acquired a liability by means of a Guaranty or (d) with respect to the
Borrower, Distribution Debt.
"Indemnified Person" means, at any time, any Person that is, or at such
time was, the Agent, the Issuer, a Lender, an Affiliate of the Agent, the
Issuer or a Lender or a director, officer, employee or agent of any such
Person.
"Information" means written information, including, without limitation,
data, certificates, reports, statements (excluding Financial Statements)
and documents.
"Initial Financial Statements" means the audited balance sheet of the
Borrower as at December 31, 1999 and the related statements of income and
cash flows for the Borrower's fiscal year ended on such date, copies of
which have been made available to each Lender identified on the signature
pages hereof prior to the date of this Agreement.
"Intellectual Property" means (a) patents and patent rights, (b)
trademarks, trademark rights, trade names, trade name rights, corporate
names, business names, trade styles, service marks and logos and (c)
copyrights, in each case whether registered, unregistered or under pending
registration under the laws of the United States or any other country.
"Interest Payment Date" means the last day of March, June, September and
December of each year.
"Interest Period" means, for each Eurodollar Rate Loan, the period (a)
commencing (i) for each such Loan comprising part of the same Borrowing, on
the date such Loan is made, and (ii) for each such Loan into which any Loan
has been Converted, the date of
<PAGE>
-11-
that Conversion, and (b) ending on the last day of the period selected by
the Borrower pursuant to the provisions below. In the case of all
Eurodollar Rate Loans, the duration of each Interest Period shall be seven
days or one, two, three or six months, in each case as the Borrower may,
upon notice received by the Agent not later than 12:00 Noon (New York City
time) on the third Business day prior to the first day of such Interest
Period, select; provided, however, that: (a) Interest Periods commencing on
-------- -------
the same date for Eurodollar Rate Loans comprising part of the same
Borrowing shall be of the same duration; (b) whenever the last day of any
Interest Period would otherwise occur on a day other than a Business Day,
the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, that if such extension would cause the
--------
last day of such Interest Period to occur in the next succeeding calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and (c) no more than eight Interest Periods may be
outstanding at any time.
"Interest Rate Protection Agreement" means, for any Person, an interest
rate swap, cap or collar agreement or similar arrangement providing for the
transfer or mitigation of interest risks of such Person either generally or
under specific contingencies between such Person and any other Person.
"Interim Revolving Credit Agreement" means the Revolving Credit Agreement
dated May 5, 2000, between the Borrower and PDV Holding, Inc., a Delaware
corporation, which expired on July 31, 2000.
"Issuance Expenses" means, with respect to any Permitted Replacement Debt,
without duplication of amounts, the expenses incurred by the Borrower in
connection with its issuance or sale of such Permitted Replacement Debt
which would be capitalized and classified as debt issuance costs on a
balance sheet of the Borrower prepared in accordance with GAAP as in effect
on the date of this Agreement; provided, however, that "Issuance Expenses"
-------- -------
do not include (a) any amount paid or payable by the Borrower to any
Affiliate of the Borrower (other than, if the Affiliate retains a law firm
as its counsel in connection with such issuance or sale, the reasonable
fees and disbursements of such firm in that connection), (b) any
underwriting or other similar discount or commission or (c) any unamortized
debt discount.
"Issuer" means Credit Suisse First Boston, in its capacity as the issuer of
each Letter of Credit, and any successor Issuer appointed pursuant to
Section 2.03(l).
"Issuer's Office" means the address of the Issuer specified in or
determined in accordance with Section 10.01.
"Lender" means at any time any Person then having any or all of the rights
or obligations of a Lender and which (a) is identified as a Lender on the
signature pages hereof or (b) has been assigned such rights or obligations
pursuant to an Assignment Agreement.
"Lending Office" means, with respect to each Lender, such Lender's Domestic
Lending Office in the case of Base Rate Loans or such Lender's Eurodollar
Lending Office in the case of Eurodollar Rate Loans.
<PAGE>
-12-
"Letter of Credit" means a standby letter of credit or commercial letter of
credit issued by the Issuer for the account of the Borrower pursuant to
Section 2.03.
"Letter of Credit Obligations" means, at the time of any determination, the
sum of (a) the Reimbursement Obligations, plus (b) the Letter of Credit
----
Undrawn Amounts.
"Letter of Credit Reimbursement Agreements" means (a) the Standby Agreement
for Commercial Letters of Credit in the form of Exhibit 2.03(c)-1 and (b)
the Standby Agreement for Standby Letters of Credit in the form of Exhibit
2.03(c)-2.
"Letter of Credit Request" has the meaning specified in Section 2.03(d).
"Letter of Credit Undrawn Amount" means, at the time of any determination,
the aggregate amount available for drawing under all outstanding Letters of
Credit.
"Lien" means, with respect to any property or asset of any Person (or any
revenues, income or profits of such Person therefrom) (in each case whether
the same is consensual or nonconsensual or arises by contract, operation of
law, legal process or otherwise), (a) any mortgage, lien, security
interest, pledge, attachment, levy or other charge or encumbrance of any
kind thereupon or in respect thereof or (b) any other arrangement under
which the same is transferred, sequestered or otherwise identified with the
intention of subjecting the same to, or making the same available for, the
payment or performance of any liability in priority to the payment of the
ordinary, unsecured creditors of such Person. For purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any asset that
it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease or other title
retention agreement relating to such asset.
"Limited Partners" means Lyondell LP and CRIC.
"Litigation" means any case, proceeding, claim, grievance, lawsuit or
investigation conducted by or pending before any Governmental Authority or
any arbitration proceeding.
"Loan" means a loan by a Lender to the Borrower pursuant to Section 2.01.
"Loan Document Claim" means any claim in connection with, arising out of or
relating to any Loan Document or any transaction with any Lender, the
Issuer or the Agent contemplated thereby, whether direct or indirect,
whether based on any federal, state or local law or regulation, securities
or commercial law or regulation, under common law or in equity, or on
contract, tort or otherwise, regardless of whether the transactions
contemplated hereby are ever consummated and regardless of when any such
claim arises.
"Loan Documents" means this Agreement, the Notes, the Letter of Credit
Reimbursement Agreements, the Fee Letters and all other agreements between
the Borrower or any Subsidiary and any one or more of the Lenders, the
Issuer and the Agent respecting fees payable in connection with this
Agreement or any other Loan Document
<PAGE>
-13-
and all other written agreements, documents, instruments and certificates
now or hereafter executed or delivered by the Borrower or any Subsidiary to
or for the benefit of the Agent, the Issuer or any Lender pursuant to or in
connection with any of the foregoing, and any and all amendments,
modifications, supplements, renewals, extensions, increases, restatements,
rearrangements or substitutions from time to time of all or any part of the
foregoing.
"LRC" means Lyondell Refining Company, a Delaware corporation.
"Lyondell" means Lyondell Chemical Company, a Delaware corporation formerly
known as Lyondell Petrochemical Company.
"Lyondell LP" means Lyondell Refining LP, LLC, a Delaware limited liability
company that is a Wholly-Owned Subsidiary of Lyondell and a limited partner
in the Borrower.
"Lyondell Obligations" means the obligations of Lyondell to the Borrower on
the date of this Agreement under Section 5.2.(A) of the Contribution
Agreement with respect to "Pre-Closing Environmental Liabilities and Costs"
that are included in "Retained Liabilities" as provided in Section 2.3.(D)
of the Contribution Agreement and not excluded from "Retained Liabilities"
by Schedule 2.3.(D) to the Contribution Agreement. As used in this
definition, "Contribution Agreement" means the Contribution Agreement as in
effect on the date of this Agreement, and the quoted terms in this
definition have the meanings ascribed to them in the Contribution Agreement
as in effect on the date of this Agreement.
"Material" means material to the business, operations, property or assets,
liabilities, financial condition or results of operations of the Borrower
and the Subsidiaries considered as a whole.
"Material Adverse Effect" means, relative to the occurrence or non-
occurrence of any event and after taking into account existing or
reasonably anticipated insurance coverage and indemnification rights with
respect to such occurrence or non-occurrence, (a) a material adverse effect
on the business, operations, property or assets, liabilities, condition
(financial or otherwise) or results of operations of the Borrower and the
Subsidiaries considered as a whole or (b) a material adverse effect on the
ability of the Borrower to perform its payment or other obligations under
the Loan Documents.
"Material Agreement" means any contract or agreement to which the Borrower
or any Subsidiary is a party or by which the Borrower or any Subsidiary is
bound or to which any property or assets of the Borrower or any Subsidiary
is subject and which is Material. Without limiting the generality of the
foregoing, for purposes of this Agreement, the Supply or Purchase Contracts
and the Contribution Agreement constitute Material Agreements.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Benefit Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, Section 414 of the Code or Section 3(37) of
ERISA (or any
<PAGE>
-14-
similar type of plan established or regulated under the laws of any foreign
country) to which the Borrower or any ERISA Affiliate of the Borrower is
making or accruing or has made or accrued an obligation to make
contributions within six years of the time in question.
"Multiple Employer Plan" means any "employee benefit plan" as defined in
Section 3(3) of ERISA, other than a Multiemployer Benefit Plan, that is
subject to Title IV of ERISA and to which the Borrower or any ERISA
Affiliate of the Borrower and an employer other than the Borrower or any
ERISA Affiliate of the Borrower contribute or have an obligation to
contribute.
"Net Income" means, for any period, the aggregate net income (or net loss)
of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP as in effect on the date of this
Agreement and as applied on a basis consistent with the basis on which GAAP
was applied in the preparation of the Initial Financial Statements.
"Net Proceeds" means, with respect to any Permitted Replacement Debt, (a)
the Gross Proceeds of such Permitted Replacement Debt, minus (b) the
-----
Issuance Expenses paid or payable by the Borrower in connection with the
issuance or sale of such Permitted Replacement Debt.
"Note" means a promissory note of the Borrower in the form of Exhibit A.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Conversion" has the meaning specified in Section 2.07.
"Obligations" means all obligations or liabilities of any form or nature,
whether matured or unmatured, fixed or contingent, of the Borrower to the
Agent, the Issuer or any Lender in connection with, arising under or
related to any Loan Document or any Permitted Interest Rate Protection
Agreement between the Borrower and any Lender.
"Outside Representatives" means, with respect to any Person, the
Representatives of such Person other than its own directors, officers,
employees and Affiliates.
"Partners" means Lyondell LP, CRIC, LRC and CITGO GP and any of their
respective successors and assigns under the Partnership Agreement.
"Partnership Agreement" means the Limited Partnership Agreement of the
Borrower dated as of December 31, 1998, as amended, modified and
supplemented from time to time to the extent no Event of Default occurs
under Section 8.01(i)(iii) as a result of such amendment, modification or
supplement.
"Partnership Governance Committee" means the committee of representatives
of the General Partners through which the General Partners manage the
Borrower in accordance with Article 3 of the Partnership Agreement.
<PAGE>
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"Partnership Governance Committee Action" has the meaning specified in
Section 3.6(A) of the Partnership Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PDVSA" means Petroleos de Venezuela, S.A., a corporation organized under
the laws of the Bolivarian Republic of Venezuela.
"Permitted Interest Rate Protection Agreement" means an Interest Rate
Protection Agreement between the Borrower and a Lender or other financial
institution having combined capital and surplus of at least $500,000,000 or
that has (or that is a subsidiary of a bank holding company that has)
publicly traded unsecured long-term debt securities given a rating of A-
(or the equivalent rating then in effect) or better by S&P or a rating of
A3 (or the equivalent rating then in effect) or better by Moody's.
"Permitted Investments" means (a) at the time of purchase or other
acquisition by the Borrower or any Subsidiary, (i) obligations issued or
guaranteed by the United States of America with a remaining maturity not
exceeding one year, (ii) commercial paper with maturities of not more than
270 days and a published rating of not less than A-1 (or the equivalent
rating then in effect) by S&P or P-1 (or the equivalent rating then in
effect) by Moody's, (iii) time deposits, certificates of deposit and
bankers' acceptances having maturities of not more than one year of any
Lender or any commercial bank or trust company if (A) such bank or trust
company has a combined capital and surplus of at least $500,000,000 and (B)
its unsecured long-term debt obligations, or those of a holding company of
which it is a subsidiary, are rated not less than A- (or the equivalent
rating then in effect) by S&P or A3 (or the equivalent rating then in
effect) by Moody's and (iv) money market funds organized under the laws of
the United States of America or any state thereof which invest primarily in
investments constituting any one or more of the types of "Permitted
Investments" described in subclauses (i), (ii) and (iii) of this clause (a)
without regard to the restrictions on the maturities of such Permitted
Investments, (b) Capital Securities of, or loans or advances to, any
Wholly-Owned Subsidiary, provided, that if any Person that is a Wholly-
--------
Owned Subsidiary ceases at any time to be a Wholly-Owned Subsidiary,
Capital Securities of that Person remaining owned by the Borrower or any
Subsidiary, and any loans or advances to that Person by the Borrower or any
Subsidiary remaining outstanding, will cease being Permitted Investments at
that time and will be deemed acquired or made at that time for purposes of
Section 7.13, (c) advances made by the Borrower to the Partners pursuant to
and in accordance with Section 7.5 of the Partnership Agreement so long as
no Event of Default exists or would exist after giving effect thereto,
provided, that if any such advance is not repaid in the manner required by
--------
Section 7.5 of the Partnership Agreement within 90 days of the date of such
advance, such advance will cease being a Permitted Investment at the close
of business on such 90th day and will be deemed made at that time for
purposes of Section 7.13, and (d) the promissory note in the form set forth
in Exhibit 6.6.(E) to the Partnership Agreement as in effect on the date
hereof, if any, delivered by CITGO GP or CRIC to the Borrower pursuant to
and in accordance with Section 6.6.(E) of the Partnership Agreement.
<PAGE>
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"Permitted Liens" means, as applied to the property or assets of any Person
(or any revenues, income or profits of such Person therefrom): (a) Liens
for Taxes if the same are not at the time due and delinquent or (if
foreclosure, distraint, sale or other similar proceedings have not been
commenced or, if commenced, have been stayed) are being contested in good
faith and by appropriate proceedings, and if such Person has set aside on
its books such reserves (segregated to the extent required by sound
accounting practices) as may be required by GAAP; (b) Liens of carriers,
warehousemen, mechanics, laborers and materialmen for sums not yet due or
(if foreclosure, distraint, sale or other similar proceedings have not been
commenced or, if commenced, have been stayed) being contested in good faith
and by appropriate proceedings, if such Person has set aside on its books
such reserves (segregated to the extent required by sound accounting
practices) as may be required by GAAP; (c) Liens incurred in the ordinary
course of such Person's business in connection with workmen's compensation,
unemployment insurance and other social security legislation (other than
pursuant to ERISA or Section 412(n) of the Code); (d) Liens incurred in the
ordinary course of such Person's business in connection with deposit
accounts or to secure the performance of bids, tenders, trade contracts,
statutory obligations, surety and appeal bonds, performance and return-of-
money bonds and other obligations of like nature; (e) easements, rights-of-
way, reservations, restrictions and other similar encumbrances incurred in
the ordinary course of such Person's business or existing on property and
not materially interfering with the ordinary conduct of such Person's
business; (f) defects or irregularities in such Person's title to its real
properties which do not materially interfere with the ordinary course of
such Person's business (provided that, in the case of the Houston Facility
--------
and the Birmingport Facility, such defects or irregularities also do not
materially diminish the value, from the value as of May 15, 1995, of the
surface estate (the defects or irregularities as of May 15, 1995 with
respect to the Houston Facility being set forth in the Commitment for Title
Insurance issued by Commonwealth Land Title Company of Houston, as agent
for Commonwealth Land Title Insurance Company, under GF No. 9210852, dated
effective as of April 7, 1995, and with respect to the Birmingport Facility
being set forth in the Commitment for Title Insurance issued by Alabama
Title Co., Inc., as agent for Commonwealth Land Title Insurance Company,
under File No. 2571-FF, dated effective as of March 21, 1995)); (g) legal
or equitable encumbrances deemed to exist by reason of negative pledges
such as Section 7.05; (h) any interest or title of a lessor of assets being
leased by any Person pursuant to any Capital Lease permitted by Section
7.09(f) or any lease that, pursuant to GAAP, would be accounted for as an
operating lease; (i) Liens securing purchase money Indebtedness permitted
by Section 7.09(f) so long as such Liens do not attach to any property or
assets other than the properties or assets purchased with the proceeds of
such Indebtedness; and (j) other Liens (other than pursuant to ERISA or
Section 412(n) of the Code), provided that the obligations secured thereby
--------
do not exceed in the aggregate $1,000,000 at any time outstanding.
"Permitted Replacement Debt" means Indebtedness of the Borrower (a) that is
evidenced by notes, bonds, debentures or similar instruments issued or sold
by the Borrower for cash, (b) that is not secured, directly or indirectly,
by any Lien upon any property or assets of the Borrower or any Subsidiary
(or any revenues, income or profits of the Borrower or any Subsidiary
therefrom) and (c) the Gross Proceeds from the
<PAGE>
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issuance or sale of which are used by the Borrower until such time as all
Loans and all Obligations then owing have been paid in full and no Lender
has any Commitment hereunder (i) to prepay any then outstanding Term Loans,
(ii) to pay the Issuance Expenses, if any, incurred by the Borrower in
connection with such issuance or sale, (iii) to pay, if all Term Loans have
been paid in full, such other Term Loan Obligations as have then become
due, (iv) to prepay, if all Term Loan Obligations have been paid in full,
any then outstanding Loans, and (v) to pay, if all Loans have been paid in
full, such other Obligations as have then become due; provided, however,
-------- -------
that unless and until the Loans have been paid in full (or are paid in full
with the proceeds thereof) and no Lender has any Commitment hereunder, any
such Indebtedness shall constitute Permitted Replacement Debt only to the
extent that (A) such Indebtedness does not by its terms, or by the terms of
any agreement or contract under or pursuant to which it is issued or by
which it is governed, provide for any of the following to occur prior to
the first anniversary of the Termination Date: (1) a scheduled payment of
any portion of the principal amount or accreted value of any such
Indebtedness, (2) a mandatory prepayment, redemption or repurchase of any
portion of the principal amount or accreted value of any such Indebtedness
(in the absence of an acceleration of the entire principal amount or
accreted value of such Indebtedness by the holders thereof or their
representative by reason of the occurrence, or the occurrence and
continuation, of a default or an event of default with respect thereto) or
(3) the irrevocable deposit, segregation or setting aside of any funds or
assets by the Borrower, and (B) if such Indebtedness constitutes Affiliate
Indebtedness of the Borrower, it is Qualified Subordinated Debt.
"Person" means any individual, sole proprietorship, corporation,
partnership, limited liability company, business trust, unincorporated
organization, mutual company, joint stock company, estate, trust, union,
employee organization or Governmental Authority or, for the purpose of the
definition of "ERISA Affiliate," any trade or business.
"Prime Rate" means the fluctuating prime commercial lending rate of Credit
Suisse First Boston, as established by Credit Suisse First Boston from time
to time. The Prime Rate shall be adjusted automatically, without notice,
on the effective date of any change in such prime commercial lending rate.
The Prime Rate is not necessarily the lowest rate of interest of Credit
Suisse First Boston.
"Prohibited Transaction" means any transaction that is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA, provided that, with
--------
respect to any transactions involving a Loan or a Letter of Credit, the
ERISA Assumptions set forth on Schedule A are deemed to be true.
"Prospective Assignees" means all Eligible Assignees that are prospective
assignees of any Lender.
"Prospective Participants" means all Eligible Assignees that are
prospective participants of any Lender.
<PAGE>
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"Qualified Subordinated Debt" means any Indebtedness of the Borrower (a)(i)
to any Partner, or any Affiliate of any Partner, having, at the option of
the Borrower, (A) subordination terms substantially identical to those set
forth in Exhibit 1.01-A to the Agreement or (B) such other terms of
subordination as are satisfactory to the Required Lenders or (ii) to any
other Person, having subordination terms reasonably satisfactory to the
Required Lenders and (b) unless and until the Loans have been paid in full
(or are paid in full with the proceeds thereof) and no Lender has any
Commitment hereunder, which does not by its terms, or by the terms of any
agreement or contract under or pursuant to which it is issued or by which
it is governed, provide for any of the following to occur prior to the
first anniversary of the Termination Date: (i) a scheduled payment of any
portion of the principal amount or accreted value of any such Indebtedness,
(ii) a mandatory prepayment, redemption or repurchase of any portion of the
principal amount or accreted value of any such Indebtedness (in the absence
of an acceleration of the entire principal amount or accreted value of such
Indebtedness by the holders thereof or their representative by reason of
the occurrence, or the occurrence and continuation, of a default or an
event of default with respect thereto) or (iii) the irrevocable deposit,
segregation or setting aside of any funds or assets by the Borrower;
provided, however, that any outstanding Qualified Subordinated Debt that is
-------- -------
Affiliate Indebtedness of the Borrower shall cease to be Qualified
Subordinated Debt in the event that (i) such Affiliate Indebtedness is, in
the good faith judgment of the Required Lenders, more favorably
subordinated to holders of Indebtedness pari passu with the Obligations
---- -----
than such Affiliate Indebtedness is subordinated to the Obligations and
(ii) the Borrower does not concurrently therewith cause to be effected
either an amendment of such Affiliate Indebtedness, or a legally, valid,
binding and enforceable agreement relating thereto, whereby such Affiliate
Indebtedness is subordinated to the Obligations on terms substantially
identical to the terms on which it is subordinated to such pari passu
---- -----
Indebtedness.
"Ratable Portion" means, as of the date of any determination, for each
Lender, the fraction, expressed as a percentage, the numerator of which is
such Lender's Commitment and the denominator of which is the Total
Commitment.
"Receiving Party" means the Agent, the Issuer or any Lender.
"Refined Products Purchase Agreement" means the Product Sales Agreement
(Refined Products-CITGO Petroleum Corporation) dated as of July 1, 1993
between the Borrower and CITGO, as amended, modified and supplemented from
time to time to the extent permitted by Section 7.17.
"Refinery" means at any time the refinery of the Borrower located in
Houston, Texas.
"Register" has the meaning specified in Section 10.06(b).
"Regulations T, U and X" means Regulations T, U and X of the Board of
Governors of the Federal Reserve System.
<PAGE>
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"Reimbursement Obligations" means, at the time of any determination, all
matured and unpaid reimbursement or repayment obligations of the Borrower
to the Issuer with respect to Letters of Credit.
"Representatives" means, with respect to any Person, the directors,
officers, employees, Affiliates, accountants, advisors, attorneys,
consultants or other agents of such Person, or any other representatives of
such Person or of any of such directors, officers, employees, Affiliates,
accountants, advisors, attorneys, consultants or other agents.
"Reportable Event" means, with respect to any Benefit Plan of any Person,
(i) the occurrence of any of the events set forth in Section 4043(b) or (c)
(other than a Reportable Event as to which the provision of 30 days' notice
to the PBGC is waived under applicable regulations), 4062(e) or 4063(a) of
ERISA with respect to such Benefit Plan, (ii) any event requiring such
Person or any of its ERISA Affiliates to provide security to such Benefit
Plan under Section 401(a)(29) of the Code or (iii) any failure to make a
payment required by Section 412(m) of the Code with respect to such Benefit
Plan.
"Required Lenders" means, at the time of any determination, Lenders holding
at least 66 2/3% of the then aggregate unpaid principal amount of the Notes
or, if no such principal amount is then outstanding, Lenders having at
least 66 2/3% of the Total Commitment; provided, however, that for purposes
-------- -------
of (a) any amendment of, any consent under, or waiver of any failure of the
Borrower to perform or observe any term, covenant, condition or agreement
contained in, Section 7.17(a) (other than with respect to the Refined
Products Purchase Agreement), (b) any amendment of, or waiver of any Event
of Default specified in, Section 8.01(i)(i) (other than with respect to the
Refined Products Purchase Agreement) or (c) any amendment or waiver of this
proviso, "Required Lenders" means, at the time of any determination,
Lenders holding at least 80% of the then aggregate unpaid principal amount
of the Notes or, if no such principal amount is then outstanding, Lenders
having at least 80% of the Total Commitment.
"Responsible Officer" means (a) the Vice President-General Manager of
Operations or Vice President-General Manager of Planning and
Administration of the Borrower or (b) a senior management employee of the
Borrower or an officer of any Partner, Lyondell or CITGO, in each case, who
has been delegated authority by a Responsible Officer to take the actions
required of a Responsible Officer hereunder pursuant to resolutions adopted
by the Borrower.
"Restricted Payment" means (a) with respect to any Person, any of the
following effected by such Person: (i) any declaration or payment of any
dividend or other distribution, direct or indirect, on account of any
Capital Securities of such Person now or hereafter outstanding, (ii) any
direct or indirect redemption, retirement, purchase or other acquisition
for value of or direct or indirect purchase, payment or sinking fund or
similar deposit for the redemption, retirement, purchase or other
acquisition for value of, or to obtain the surrender of, any Capital
Securities of such Person now or hereafter outstanding or any warrants,
options or other rights to acquire or subscribe for purchase of Capital
Securities of such Person or any Subsidiary of such Person now or hereafter
<PAGE>
-20-
outstanding or (iii) any payment or prepayment of principal of, premium or
interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment of, or of
any claim to rescission with respect to, any Affiliate Indebtedness of such
Person or any Indebtedness of such Person subordinated by the terms thereof
to the prior payment of the Obligations and (b), with respect to the
Borrower or any Subsidiary, any of the following effected directly or
indirectly by such Person: any payment or prepayment of principal of or
premium on or with respect to, or any redemption, purchase, retirement,
defeasance, sinking fund or similar payment of, or of any claim to
rescission with respect to, any Permitted Replacement Debt that is not
Affiliate Indebtedness of the Borrower. Without limiting the generality of
the foregoing, a "Restricted Payment" by the Borrower or any Subsidiary
includes any distribution made by the Borrower, or any Subsidiary for the
account of the Borrower, to a Partner pursuant to the Partnership
Agreement, including, without limitation, Sections 7.2, 7.4 and 7.5
thereof.
"Service Agent" has the meaning specified in Section 10.08.
"S&P" means Standard and Poor's Rating Group.
"SPC" has the meaning specified in Section 10.06(h).
"Subsidiary" means any corporation or other Person of which Capital
Securities having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions (whether or not any
other class of Capital Securities of such corporation or other Person has
or might have voting power by reason of the happening of a contingency) are
at the time owned or controlled, directly or indirectly, by the Borrower.
"Supplemental Supply Agreement" means the Supplemental Supply Agreement,
dated as of May 5, 1993, between the Borrower and PDVSA, as amended,
modified and supplemented from time to time to the extent permitted by
Section 7.17, unless the context otherwise requires.
"Supply or Purchase Contracts" means (a) the Crude Supply Agreement, (b)
the Supplemental Supply Agreement and (c) the Refined Products Purchase
Agreement.
"Taxes" means all taxes, assessments, fees, levies, imposts, duties,
deductions, withholdings or other charges of any nature whatsoever from
time to time or at any time imposed by any Governmental Requirement,
excluding, in the case of each Lender, the Issuer and the Agent, taxes
imposed on its income, and franchise taxes and doing business taxes imposed
on it by the laws of any jurisdiction (or political subdivision thereof).
"Term Credit Agreement" means the Credit Agreement dated as of the date of
this Agreement among the Borrower, the lenders that are parties thereto and
Credit Suisse First Boston, as the agent for such lenders, as amended,
modified and supplemented from time to time.
<PAGE>
-21-
"Term Loan" means any loan made to the Borrower under the Term Credit
Agreement.
"Term Loan Obligations" has the meaning assigned to the term
"Obligations" in the Term Credit Agreement.
"Term Loan Termination Date" has the meaning assigned to the term
"Termination Date" in the Term Credit Agreement.
"Termination Date" means the earlier of (a) the date falling 364 days
after the Closing Date and (b) any date on which the Loans become due and
payable in full, whether by acceleration or otherwise under this
Agreement.
"Termination Event" means, with respect to any Benefit Plan, (a) any
Reportable Event with respect to such Benefit Plan which is likely to
result in the termination of such Benefit Plan, (b) the termination of
such Benefit Plan, or the filing of a notice of intent to terminate such
Benefit Plan, or the treatment of any amendment to such Benefit Plan as a
termination under Section 4041(c) of ERISA, (c) the institution of
proceedings to terminate such Benefit Plan under Section 4042 of ERISA,
(d) the appointment of a trustee to administer such Benefit Plan under
Section 4042 of ERISA or (e) any occurrence similar to any of those
referred to in clauses (a) through (d) above under the applicable
Governmental Requirements of a foreign country.
"Total Commitment" means $70,000,000, the aggregate amount of the
Commitments, as such amount may be reduced from time to time pursuant to
Sections 2.04 and 3.02(a).
"Type" refers to a Base Rate Loan or a Eurodollar Rate Loan.
"United States Person" has the meaning specified in Section 3.06(d).
"Welfare Plan" means an "employee welfare benefit plan" as defined in
Section 3(1) of ERISA in which any personnel of the Borrower or any ERISA
Affiliate of the Borrower participate, excluding any Multiemployer
Benefit Plan subject to ERISA.
"Wholly-Owned Subsidiary" means any corporation or other Person all of
whose outstanding Capital Securities are owned and controlled, directly
or indirectly, by the Borrower.
1.02 Other Definitional Provisions.
-----------------------------
(a) Except as otherwise specified herein, all references herein to any
Governmental Requirement defined or referred to herein, including
the Code, ERISA and the DRULPA, shall be deemed references to such
Governmental Requirement or any successor Governmental Requirement,
as the same may have been or may be amended or supplemented from
time to time, and any rules or regulations promulgated thereunder.
(b) When used in this Agreement, the words "herein," "hereof" and
"hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any
<PAGE>
-22-
provision of this Agreement, and the words "Article," "Section,"
"Annex," "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement
unless otherwise specified.
(c) Whenever the context so requires, the singular number includes the
plural and vice versa.
(d) The word "including" (and, with correlative meaning, the word
"include") means including, without limiting the generality of any
description preceding such word.
(e) References in this Agreement or any other Loan Document to the
Borrower's knowledge shall be deemed references to the actual
knowledge of one or more of the Responsible Officers.
1.03 Captions. Captions to Articles, Sections and subsections of, and Annexes,
--------
Schedules and Exhibits to, this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any
other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
ARTICLE II
CREDIT FACILITY
2.01 The Facility. Each Lender severally agrees, on the terms and conditions
------------
hereinafter set forth, to make Loans to the Borrower from time to time on
any Business Day during the period from the date hereof until the
Termination Date in an aggregate amount not to exceed at any time
outstanding such Lender's Commitment; provided, however, at no time shall
-------- -------
any Lender be obligated to make a Loan in excess of such Lender's Ratable
Portion of the Available Credit. Each Borrowing shall be in an aggregate
amount not less than $1,000,000 or an integral multiple of $100,000 in
excess thereof and shall consist of Loans of the same Type made on the
same day by the Lenders ratably according to their respective
Commitments. Within the foregoing limits, the Borrower may borrow, prepay
and reborrow Loans in accordance with the provisions hereof. The
principal amount outstanding of all Loans shall mature and be due and
payable, together with all accrued and unpaid interest thereon, on the
Termination Date.
2.02 Making the Loans.
----------------
(a) Each Borrowing shall be made on written notice given by the
Borrower to the Agent not later than (i) 10:00 A.M. (New York City
time) on the date of the Borrowing in the case of a Borrowing
consisting of Base Rate Loans and (ii) 12:00 Noon (New York City
time) on the third Business Day prior to the date of the Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Loans.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be
in the form of Exhibit 2.02 and shall specify (A) the date of such
Borrowing, (B) the number of Borrowings and the Type and aggregate
principal amount of Loans comprising
<PAGE>
-23-
each Borrowing and (C) in the case of a Borrowing comprised of
Eurodollar Rate Loans, the initial Interest Period for each such
Loan. Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. The Agent shall promptly deliver a copy of each
Notice of Borrowing to each Lender.
(b) Each Lender shall, before (i) 2:00 P.M. (New York City time) on the
date of a Borrowing consisting of Base Rate Loans and (ii) 12:00
Noon (New York City time) on the date of a Borrowing consisting of
Eurodollar Rate Loans, make available for the account of its
applicable Lending Office to the Agent at the Agent's Office, in
immediately available funds, such Lender's Ratable Portion of such
Borrowing. After the Agent's receipt of such funds and, upon
fulfillment of the applicable conditions set forth in Article IV,
the Agent shall make such funds available to the Borrower's account
at the Agent's Office or as otherwise designated in the Notice of
Borrowing. In the case of any Borrowing consisting of Base Rate
Loans, the Agent will not be required to make funds so available
until 3:00 P.M. (New York City time) on the date of such Borrowing.
(c) Unless the Agent has received notice from a Lender prior to (i)
1:00 P.M. (New York City time) on the date of any Borrowing
consisting of Base Rate Loans and (ii) 11:00 A.M. (New York City
time) on the date of any Borrowing consisting of Eurodollar Rate
Loans that such Lender will not make available to the Agent such
Lender's Ratable Portion of such Borrowing, the Agent may assume
such Lender has made such portion available to the Agent on the
date of such Borrowing in accordance with Section 2.02(b) and the
Agent in its sole discretion may, in reliance on such assumption,
make available to the Borrower on such date a corresponding amount
on behalf of such Lender. If and to the extent that such Lender
shall not have so made its Ratable Portion of a Borrowing available
to the Agent, such Lender and the Borrower severally agree to repay
to the Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such
amount is made available to the Borrower until the date such amount
is repaid to the Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Loans comprising such
Borrowing, and (ii) in the case of such Lender, the Federal Funds
Rate until (and including) the third Business Day after demand is
made and thereafter at the Base Rate. If such Lender shall repay to
the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement. If the Borrower shall repay to the
Agent such corresponding amount, the Borrower shall have no
liability with respect to losses, costs or expenses otherwise
compensable under Section 3.04 in connection therewith.
(d) The obligations of the Lenders to make Loans to the Borrower
pursuant to this Agreement are several and not joint or joint and
several, and the failure of any Lender to make the Loan to be made
by it as part of any Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Loan on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such
other Lender on the date of any Borrowing.
<PAGE>
-24-
2.03 Letters of Credit.
-----------------
(a) The Issuer agrees, on the terms and conditions hereinafter set
forth, to issue, extend and renew Letters of Credit from time to
time on any Business Day during the period from the date of this
Agreement to but not including the 10th day prior to the Termination
Date, in such form as may be requested by the Borrower and agreed to
by the Issuer, which agreement shall not be unreasonably withheld;
provided, however, the Issuer shall have no obligation to, and shall
-------- -------
not, issue any Letter of Credit in excess of the Available Credit.
No Lender other than the Issuer has any obligation to issue any
Letter of Credit.
(b) Each Letter of Credit shall be denominated in Dollars and in no
event shall the expiry date of any Letter of Credit extend beyond
one Business Day prior to the Termination Date. Any extension of any
expiry date or renewal of a Letter of Credit shall constitute an
"issuance" of such Letter of Credit for all purposes of this
Agreement.
(c) In addition to the terms and conditions of this Agreement, each
Letter of Credit shall be issued pursuant to and the Issuer shall be
entitled to the benefits of the applicable Letter of Credit
Reimbursement Agreement. In the event of any conflict between the
terms of any Letter of Credit Reimbursement Agreement and this
Agreement, the terms of this Agreement shall control to the extent
of any such conflict.
(d) Each issuance of a Letter of Credit shall be made on notice given by
the Borrower to the Agent and the Issuer not later than 12:00 Noon
(New York City time) three Business Days prior to the date of the
proposed issuance of the Letter of Credit. Each such notice (a
"Letter of Credit Request") shall be in the form of Exhibit 2.03(d),
shall be irrevocable and shall specify (i) the stated amount of the
Letter of Credit, (ii) the date of issuance of such Letter of
Credit, (iii) the expiry date of such Letter of Credit, (iv) the
beneficiary of such Letter of Credit and (v) such other terms
reasonably satisfactory to the Issuer as to enable the Issuer to
issue such Letter of Credit consistent with the reasonable
requirements of the beneficiary thereof. The Agent shall promptly
deliver a copy of each Letter of Credit Request to each Lender. On
the Business Day prior to the date on which such Letter of Credit is
to be issued, the Agent shall confirm to the Issuer that the
applicable conditions in Article IV have been satisfied as of such
date.
(e) Subject to the terms and conditions of this Section 2.03 and
satisfaction of the conditions set forth in Article IV, the Issuer
shall on the date requested in the Letter of Credit Request issue a
Letter of Credit for the account of the Borrower in accordance with
the Issuer's usual and customary business practices and confirm to
the Agent and each Lender that such Letter of Credit has been
issued. Each Lender and the Borrower hereby acknowledge that each
Letter of Credit issued by the Issuer pursuant to this Agreement is
issued by the Issuer on behalf of all Lenders at the time of such
issuance. Immediately upon the issuance of a Letter of Credit, the
Issuer shall be deemed to have sold and transferred to each
<PAGE>
-25-
such Lender, and each such Lender shall be deemed to have
irrevocably and unconditionally purchased and received from the
Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Ratable Portion
thereof, in such Letter of Credit and the obligations of the
Borrower with respect thereto and any security therefor and any
guaranty pertaining thereto at any time existing.
(f) The Issuer shall promptly notify (i) the Agent and each Lender of
the Issuer's receipt of a draw request under any Letter of Credit,
stating the amount of each Lender's Ratable Portion of such draw
request and the date on which such request will be honored and (ii)
the Borrower of the amount of such draw request and the date on
which such request will be honored. Any failure of the Issuer to
give or any delay in the Issuer's giving any such notice shall not
release or diminish the obligations of the Borrower, the Agent or
the Lenders in respect thereof. In determining whether to pay under
any Letter of Credit, the Issuer shall have no obligation to the
Agent or to any Lender other than to confirm that any documents
required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the
requirements of such Letter of Credit. IN THE ABSENCE OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE ISSUER, THE
ISSUER SHALL HAVE NO LIABILITY TO THE AGENT OR ANY LENDER FOR ANY
ACTION TAKEN OR OMITTED TO BE TAKEN BY IT UNDER OR IN CONNECTION
WITH ANY LETTER OF CREDIT, INCLUDING ANY SUCH ACTION NEGLIGENTLY
TAKEN OR NEGLIGENTLY OMITTED TO BE TAKEN BY IT.
(g) The Borrower shall pay (either from the proceeds of a Borrowing or
otherwise) to the Issuer on demand at the Issuer's Office in Dollars
in immediately available funds the amount of all Reimbursement
Obligations owing to the Issuer under any Letter of Credit, together
with interest thereon at a rate of interest equal to the Base Rate
in effect from time to time for each day from, and including, the
date of payment by the Issuer of the applicable draw request under
such Letter of Credit to, but excluding, the date of payment in full
to the Issuer of such Reimbursement Obligations, irrespective of any
claim, setoff, defense or other right which the Borrower may have at
any time against the Issuer or any other Person. In the event that
the Issuer makes any payment under any Letter of Credit and the
Borrower shall not have repaid such amount to the Issuer when due,
the Issuer shall promptly notify the Agent, which shall promptly
notify each Lender of such failure, and, subject to Section 2.03(e),
each Lender shall promptly and unconditionally pay to the Agent for
the account of the Issuer the amount of such Lender's Ratable
Portion of such payment, in Dollars in immediately available funds
on the Business Day the Agent so notifies such Lender if such notice
is given prior to 12:00 Noon (New York City time) or, if such notice
is given after 12:00 Noon (New York City time), such Lender shall
make its Ratable Portion of such payment available to the Agent
prior to 12:00 Noon (New York City time) on the next succeeding
Business Day. The Agent shall promptly pay to the Issuer such
amounts received by it from each Lender. All such payments by such
<PAGE>
-26-
Lenders shall constitute Base Rate Loans made by such Lenders to the
Borrower pursuant to Section 2.01 (irrespective of the satisfaction of
the conditions in Article IV, which are irrevocably waived) and the
Reimbursement Obligations with respect to which such Loans were made
shall thereupon be paid to the extent of such payments; provided,
--------
however, if pursuant to any Governmental Requirement, such payment
-------
made by any Lender is not permitted to be made as a Loan, such
Reimbursement Obligation shall be reinstated and not so reduced by the
amount of such payment and such Lender's participations therein
pursuant to Section 2.03(e) similarly shall be reinstated to such
amount.
(h) If and to the extent any Lender shall not make such Lender's Ratable
Portion of any Reimbursement Obligations available to the Agent for
the account of the Issuer when due in accordance with Section 2.03(g),
such Lender agrees to pay interest on such unpaid amount for the
account of the Issuer for each day from the date such payment is due
until the date such amount is paid in full to the Agent for the
account of the Issuer at the Federal Funds Rate until (and including)
the third Business Day after the date due and thereafter at the Base
Rate. The obligations of the Lenders under this Section 2.03 are
several and not joint or joint and several, and the failure of any
Lender to make available to the Agent for the account of the Issuer
its Ratable Portion of any Reimbursement Obligations when due in
accordance with Section 2.03(g) shall not relieve any other Lender of
its obligation hereunder to make its Ratable Portion of such
Reimbursement Obligations so available when so due, but no Lender
shall be responsible for the failure of any other Lender to make such
other Lender's Ratable Portion of such Reimbursement Obligations so
available when so due.
(i) (i) Whenever the Issuer receives a payment of a Reimbursement
Obligation from or on behalf of the Borrower as to which the
Agent has received for the account of the Issuer any payment from
a Lender pursuant to Section 2.03(g), the Issuer shall pay to the
Agent and the Agent shall promptly pay to such Lender, which
payment shall be deemed a payment by the Borrower hereunder, an
amount equal to such Lender's Ratable Portion of such payment
from or on behalf of the Borrower.
(ii) If any payment by or on behalf of the Borrower and received by
the Issuer with respect to any Letter of Credit is rescinded or
must otherwise be returned by the Issuer for any reason and the
Issuer has paid to the Agent for the account of any Lender any
portion thereof, then the provisions of Section 2.03(g) shall
apply as if such rescission constitute a failure of the Borrower
to pay, when due to the Issuer, Reimbursement Obligations equal
to such rescinded amount.
(j) Each Lender, upon the demand of the Issuer, shall reimburse the
Issuer, to the extent the Issuer has not been reimbursed by the
Borrower after demand therefor, for the reasonable costs and expenses
(including reasonable attorneys' fees) incurred by the Issuer in
connection with the collection of amounts due under, and the
preservation and enforcement of any rights conferred by, any Letter of
Credit
<PAGE>
-27-
or the performance of the Issuer's obligations under this Agreement in
respect thereof, to the extent of such Lender's Ratable Portion of the
amount of such costs and expenses. The Issuer shall refund any costs
and expenses reimbursed by such Lender that are subsequently recovered
from the Borrower in an amount equal to such Lender's Ratable Portion
thereof.
(k) The obligation of each Lender to make available to the Issuer the
amounts set forth in this Section 2.03 shall be absolute,
unconditional and irrevocable under any and all circumstances, shall
be made without reduction for any set-off, counterclaim or other
deduction of any nature whatsoever, may not be terminated, suspended
or delayed for any reason whatsoever, shall not be subject to any
qualification or exception and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances,
including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against a beneficiary named in
a Letter of Credit, any transferee of any Letter of Credit (or
any Person for whom any such transferee may be acting), the
Agent, the Issuer, any Lender or any other Person, whether in
connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
or
(v) the occurrence of any Default.
(l) (i) If at any time the publicly traded unsecured long-term debt
securities of the Issuer (or of any bank holding company of
which such Issuer is a subsidiary) or its equivalent is rated
less than A- (or the equivalent rating then in effect) by S&P or
A3 (or the equivalent rating then in effect) by Moody's, then
the Borrower may, at its option, request that a new Issuer be
appointed, which shall be a Lender reasonably acceptable to the
Agent, the Required Lenders and the Borrower (which acceptance
shall not be unreasonably withheld) that has (or whose bank
holding company has) such a rating. If the Borrower makes such a
request, the Agent shall promptly appoint such a replacement
Issuer.
<PAGE>
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(ii) Subject to the appointment and acceptance of a successor Issuer
as provided below, the Issuer may resign at any time by giving
notice thereof to the Agent, the Lenders and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders
may, with the consent of the Borrower (which consent shall not
be unreasonably withheld), appoint any Eligible Assignee as the
successor Issuer provided that it meets the qualifications set
--------
forth in Section 2.03(l)(i). If no successor Issuer is so
appointed by the Required Lenders and accepts such appointment
within 30 days after the retiring Issuer's giving of notice of
resignation, then the retiring Issuer may, on behalf of the
Lenders and with the consent of the Borrower (which consent
shall not be unreasonably withheld), appoint any Eligible
Assignee as the successor Issuer, provided that it meets the
--------
qualifications set forth in Section 2.03(l)(i).
(iii) The acceptance of any appointment as the Issuer hereunder by a
successor Issuer shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and
the Agent, and from and after the effective date of such
agreement, such successor Issuer shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties
and obligations of the removed or retiring Issuer with respect
to Letters of Credit to be issued from and after such effective
date, and the removed or retiring Issuer shall be discharged
from its duties and obligations as Issuer under the Loan
Documents with respect to Letters of Credit to be issued from
and after such effective date. On such effective date, the
Borrower shall pay all accrued and unpaid fees owed under any
Loan Document to the removed or retired Issuer for acting in its
capacity as the Issuer. After any retiring Issuer's resignation
or removal as Issuer, the provisions of this Section 2.03 shall
continue in effect for such Person's benefit in respect of any
actions taken or omitted to be taken by it while it was acting
as the Issuer.
2.04 Reduction or Termination of Commitments.
---------------------------------------
(a) Voluntary Reduction or Termination. The Borrower shall have the
----------------------------------
right, subject to the terms and conditions set forth in Section 3.02,
on at least three Business Days' notice to the Agent to terminate in
whole or, from time to time, reduce ratably in part the unused portion
of the Total Commitment; provided that each partial reduction of the
--------
Total Commitment shall be in an aggregate amount equal to the lesser
of (a) $5,000,000 or an integral multiple of $1,000,000 in excess
thereof or (b) the entire unused portion of the Total Commitment.
Upon receipt of any such notice, the Agent shall promptly notify each
Lender of the contents thereof and the amount to which such Lender's
Commitment is to be reduced. For purposes of this Section 2.04, the
unused portion of the Total Commitment at any time is the amount equal
to the Available Credit at that time.
(b) Automatic Termination. The Commitments shall be reduced to zero and
---------------------
terminate on September 15, 2000 if the initial borrowing and the
making of initial
<PAGE>
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loans under the Term Credit Agreement has not occurred on or before
September 15, 2000.
(c) No Reinstatement. No termination or partial reduction of the Total
----------------
Commitment pursuant to this Section 2.04 may be reinstated.
2.05 Fees.
----
(a) Commitment Fees. The Borrower agrees to pay, without duplication, to
---------------
the Agent, for the account of each Lender, a commitment fee on such
Lender's Ratable Portion of the average daily unused Available Credit
from the Closing Date or the date such Lender becomes a Lender
pursuant to an Assignment Agreement until the Termination Date at the
rate of 0.375% per annum, calculated on the basis of a 360-day year
for the actual number of days elapsed, payable in arrears on each
Interest Payment Date, on the date of any reduction of such Lender's
Commitment (to the extent accrued and unpaid on the amount of such
reduction) and on the Termination Date.
(b) Letter of Credit Fees. The Borrower shall pay to the Agent, for the
---------------------
ratable account of the Lenders, a letter of credit fee on the Letter
of Credit Undrawn Amount for each day at the rate per annum equal to
the Applicable Letter of Credit Fee Percentage in effect on such day,
calculated on the basis of a 360-day year, payable in arrears on each
Interest Payment Date and on the date any Letter of Credit is
cancelled or expires to the extent accrued and unpaid on the amount
subject to such cancellation or expiration.
(c) Fee Letters. The Borrower agrees to pay, without duplication, to the
-----------
Agent, for its own account and for account of the Issuer and/or
Lenders and/or Co-Arrangers, as applicable, the fees payable in the
amounts and at the times agreed upon in the Fee Letters.
2.06 Interest; Determination and Protection; Illegality.
--------------------------------------------------
(a) Rates. Each Loan shall bear interest at the rates set forth below,
-----
and the Borrower shall pay interest on the unpaid principal amount of
each Loan made by each Lender from the date of such Loan until such
principal amount shall be paid in full at the times and at the rates
per annum set forth below:
(i) Base Rate Loans. During such periods as such Loan is a Base Rate
---------------
Loan, a rate per annum equal at all times to the Adjusted Base
Rate in effect from time to time and payable on (A) each Interest
Payment Date, commencing September 30, 2000, (B) the date such
Base Rate Loan shall be Converted and (C) the Termination Date.
(ii) Eurodollar Rate Loans. During such periods as such Loan is a
---------------------
Eurodollar Rate Loan, a rate per annum equal at all times during
each Interest Period for such Loan to the Adjusted Eurodollar
Rate for such Interest Period, payable on (A) the last day of
such Interest Period and, in the case of a
<PAGE>
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Eurodollar Rate Loan having an Interest Period longer than
three months, on the three-month anniversary of the first day
of such Interest Period and (B) the Termination Date.
(iii) After the occurrence of any Event of Default specified in
Section 8.01(a) and consisting of the failure of the Borrower
to pay any principal of any Note or interest thereon or any
Reimbursement Obligation and during the continuance thereof,
automatically and without any action by the Agent, the Issuer
or any Lender, to the extent permitted by applicable law, the
outstanding Obligations shall bear interest at a rate per annum
equal to the Default Rate. Such interest shall be payable on
demand and accrue until the earliest of (A) the waiver of such
Event of Default by the requisite number of Lenders or the cure
of such Event of Default, (B) agreement by the requisite number
of Lenders to rescind the charging of interest at the Default
Rate or (C) payment in full of the Obligations and termination
of the Total Commitment.
(b) Interest Rate Determination and Protection; Illegality.
------------------------------------------------------
(i) The Adjusted Eurodollar Rate for each Eurodollar Rate Loan
specified in a Notice of Borrowing or a Notice of Conversion
shall be determined by the Agent two Business Days before the
first day of the Interest Period applicable for such Loan. The
Agent shall give prompt notice to the Borrower and the Lenders
of the applicable Adjusted Eurodollar Rate determined by the
Agent for purposes of Section 2.06(a)(ii), and each such
determination by the Agent shall be conclusive, absent manifest
error. If for any reason the Agent is unable to determine the
Adjusted Eurodollar Rate for any Eurodollar Rate Loan, the
Agent shall so notify the Borrower and the Lenders, whereupon:
(A) such Loan will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base
Rate Loan (or if such Loan is then a Base Rate Loan, will
continue as a Base Rate Loan); and
(B) the obligation of the Lenders to make, or to Convert Loans
into, Eurodollar Rate Loans shall be suspended until the
Agent notifies the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(ii) If, with respect to any Eurodollar Rate Loans, any Lender
reasonably determines that the Adjusted Eurodollar Rate for any
Interest Period for such Loans will not adequately reflect the
cost to such Lender of making, funding or maintaining its
Eurodollar Rate Loans for such Interest Period, such Lender
shall forthwith so notify the Borrower and the Agent,
whereupon:
<PAGE>
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(A) each Eurodollar Rate Loan of such Lender that has been
affected will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base
Rate Loan; and
(B) the obligation of such Lender to make, or to Convert Loans
into, Eurodollar Rate Loans shall be suspended until such
Lender shall notify the Borrower and the Agent that the
circumstances causing such suspension no longer exist.
(iii) If the Borrower shall fail to deliver to the Agent a Notice of
Conversion in accordance with Section 2.07 to select the
duration of any Interest Period for the principal amount
outstanding under any Eurodollar Rate Loan prior to the last
day of the Interest Period applicable to such Loan, such Loan
will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Loan.
(iv) Notwithstanding any other provision of this Agreement, if any
Lender shall notify the Agent and the Borrower that the
introduction of, any change in the interpretation of, or any
change in, any Governmental Requirement after the date hereof
makes it unlawful, or any central lender or comparable agency
or other Governmental Authority asserts after the date hereof
that it is unlawful, for any such Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make
Eurodollar Rate Loans or to fund or maintain Eurodollar Rate
Loans hereunder,
(A) the obligation of such Lender to make, or to Convert Loans
into, Eurodollar Rate Loans shall be suspended until such
Lender shall notify the Borrower and the Agent that the
circumstances causing such suspension no longer exist, and
(B) each Eurodollar Rate Loan of such Lender then outstanding
shall be Converted automatically into a Base Rate Loan
effective on the Agent's receipt of such notification or,
if lawful as determined by such Lender in good faith, on
the last day of the Interest Period then currently
applicable to such Eurodollar Rate Loan, as the case may
be.
(v) Each Lender will promptly notify the Borrower of any event
occurring after the date of this Agreement which will cause the
Adjusted Eurodollar Rate not to adequately reflect such
Lender's costs or which makes it unlawful for such Lender to
make or maintain Eurodollar Rate Loans, and will designate a
different Lending Office if such designation will avoid such
inadequacy or unlawfulness and will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
<PAGE>
-32-
2.07 Voluntary Interest Period Conversion.
------------------------------------
(a) The Borrower may on any Business Day, on notice ("Notice of
Conversion") given by the Borrower to the Agent not later than 12:00
Noon (New York City time) (a) on the third Business Day prior to the
date of the proposed Conversion of Loans into Eurodollar Rate Loans or
(b) prior to the date of the proposed Conversion of Eurodollar Rate
Loans to Base Rate Loans and subject to the provisions of Section 2.06
and the provisions of Sections 4.04 and 4.05, Convert all Loans of one
Type comprising the same Borrowing or Borrowings into Loans of another
Type or Convert all Eurodollar Rate Loans comprising the same
Borrowing or Borrowings into Eurodollar Rate Loans having a different
Interest Period; provided, however, that any Conversion of any
-------- -------
Eurodollar Rate Loans into Base Rate Loans and of any Eurodollar Rate
Loans into Eurodollar Rate Loans having a different Interest Period
shall be made on, and only on, the last day of an Interest Period for
such Eurodollar Rate Loans. Each such Notice of Conversion shall
specify therein the requested (i) date of such Conversion, (ii) the
Loans to be Converted and (iii) if such Conversion is into Loans
constituting Eurodollar Rate Loans or Eurodollar Rate Loans having a
different Interest Period, the duration of the Interest Period for
each such Loan. Each Notice of Conversion shall be irrevocable and
binding on the Borrower. The Agent shall promptly deliver a copy of
each Notice of Conversion to each Lender.
(b) Each Conversion shall be in an aggregate amount not less than
$1,000,000 or an integral multiple of $100,000 in excess thereof.
ARTICLE III
PAYMENTS, PREPAYMENTS, INCREASED COSTS AND TAXES
3.01 Payments and Computations.
-------------------------
(a) Except as otherwise specified in Section 2.03 with respect to payments
to the Issuer of Reimbursement Obligations, the Borrower shall make
each payment under this Agreement and under the Notes not later than
12:00 Noon (New York City time) on the day when due in Dollars to the
Agent at the Agent's Office in immediately available funds. Each
payment by the Borrower shall be made without set-off, counterclaim or
other deduction whatsoever. The Agent will promptly thereafter cause
to be distributed (i) like funds relating to the payment of principal
or interest or fees payable to the Lenders (to the extent received by
the Agent), in each case to each Lender for the account of its
applicable Lending Office, (A) first, ratably according to the amount
of interest which is then due and payable to the Lenders, (B) second,
ratably according to the amount of principal which is due and payable
to the Lenders and (C) third, ratably according to the amount of fees
which then due and payable to the Lenders and (ii) like funds relating
to the payment of any other amount payable to any Lender (to the
extent received by the Agent) to such Lender for the account of its
Lending Office; and
<PAGE>
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in all cases, the funds distributed shall be applied in accordance
with the terms of this Agreement. Fees payable pursuant to Section
2.05 to a Lender are for the account of such Lender's Lending Office
as such Lender shall designate by notice to the Agent.
(b) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest or
fees, as the case may be; provided, however, if such extension would
-------- -------
cause payment of interest on or principal of Eurodollar Rate Loans to
be made in the next succeeding calendar month, such payment shall be
made on the next preceding Business Day.
(c) All computations of interest hereunder based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, for each day that the Prime Rate is the basis for such
computation, and on the basis of a year of 360 days for each day that
the Federal Funds Rate is the basis for such computation, and all
computations of interest hereunder based on the Adjusted Eurodollar
Rate shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest is payable. Each determination by the Agent of an interest
rate hereunder shall be conclusive, absent manifest error.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders that the Borrower
will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall
repay to the Agent forthwith on demand such amount distributed to such
Lender, together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender
repays such amount to the Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter
at the Base Rate.
(e) Subject to Section 3.03, payments of Loans shall be applied first to
pay Base Rate Loans and then to pay Eurodollar Rate Loans in the order
that the Interest Periods for such Eurodollar Rate Loans end. All
amounts shall be paid on the date specified therefor, whether or not
such payment would require a payment of any Eurodollar Rate Loans
prior to the last day of the applicable Interest Periods therefor or
would result in losses, costs or expenses compensable under Section
3.04.
<PAGE>
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3.02 Mandatory Prepayments.
---------------------
(a) Permitted Replacement Debt. Within one Business Day after the receipt
--------------------------
by the Borrower of the Net Proceeds of any Permitted Replacement Debt,
the Borrower shall prepay the Loans, in the order set out in Section
3.01(e), in an aggregate principal amount equal to the Available Net
Proceeds, together with accrued and unpaid interest to the date of
such prepayment on the principal amount prepaid, whereupon the Total
Commitment shall be permanently reduced ratably by the amount of such
prepayment; provided, however, that in no event shall the prepayment
-------- -------
of Loans in accordance with this Section 3.02 reduce the Total
Commitment below the aggregate amount of Letter of Credit Obligations.
No reduction of the Total Commitment pursuant to this Section 3.02(a)
may be reinstated.
(b) Other Mandatory Prepayments. If at any time the aggregate outstanding
---------------------------
principal amount of the Loans and the Letter of Credit Obligations
exceeds the Total Commitment then in effect, then the Borrower shall
immediately pay to the Agent for the ratable account of the Lenders
the amount of such excess, together with accrued and unpaid interest
to the date of such prepayment on the principal amount prepaid.
3.03 Voluntary Prepayments. The Borrower may, on at least one Business Day's
---------------------
notice to the Agent stating the proposed date and aggregate principal
amount of the prepayment and the Type of Loans to be prepaid, prepay,
without premium or penalty, the outstanding principal amounts of such Loans
comprising part of the same Borrowing in whole or ratably in part, together
with accrued and unpaid interest to the date of such prepayment on the
principal amount prepaid. Such notice shall be irrevocable and the payment
amount specified in such notice shall be due and payable on the prepayment
date described in such notice, together with accrued and unpaid interest on
the amount prepaid. Partial prepayments of Loans shall be in an aggregate
principal amount equal to the lesser of (a) $1,000,000 or an integral
multiple of $100,000 in excess thereof and (b) the aggregate outstanding
principal amount of such Loans.
3.04 Funding Losses Relating to Eurodollar Rate Loans.
------------------------------------------------
(a) If any payment of principal of, or any Conversion of, any Eurodollar
Rate Loan is made other than on the last day of an Interest Period
relating to such Loan, as a result of a payment pursuant to Section
2.03(j), 3.02 or 3.03, a Conversion pursuant to Section 2.07 an
acceleration of the maturity of any Note in accordance with the terms
hereof, or for any other reason, the Borrower shall, upon demand by
any Lender, pay to such Lender at its Eurodollar Lending Office any
amounts required to compensate such Lender for any losses or
reasonable expenses which it may actually incur by reason of the
liquidation or reemployment of the amounts so prepaid or of deposits
or other funds acquired by such Lender to fund or maintain such Loan.
In any such case, such loss and reasonable expense shall be equal to
the sum, without duplication of amounts, of (i) the costs and expenses
incurred (other than loss of the Applicable Margin) in connection
with, or by
<PAGE>
-35-
reason of, any such event and (ii) an amount equal to the excess, if
any, as reasonably determined by such Lender of (A) the amount of
interest which would have accrued on the amount so paid or accelerated
for the period from the date of such payment or acceleration to the
last day of the Interest Period for such Loan at the Adjusted
Eurodollar Rate (minus the Applicable Margin) applicable to such Loan
over (B) 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 prime
banks in the London interbank market.
(b) The Borrower shall indemnify each Lender against any loss or
reasonable expense incurred by such Lender as a result of (i) any
failure by the Borrower to fulfill on the date of any proposed
Borrowing of or Conversion into a Eurodollar Rate Loan the applicable
conditions set forth in Article IV or (ii) any failure by the Borrower
to make a Borrowing of or Conversion into a Eurodollar Rate Loan after
the Borrower has given a notice requesting the same in accordance with
the provisions hereof. In any such case, such loss and reasonable
expense shall be equal to the sum, without duplication of amounts, of
(i) the costs and expenses incurred (other than loss of the Applicable
Margin) by such Lender by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to effect or maintain
such Eurodollar Rate Loan in connection with, or by reason of, any
such event and (ii) an amount equal to the excess, if any, as
reasonably determined by such Lender of (A) the amount of interest
which would have accrued on the amount of the Eurodollar Rate Loan
that was to have been made or into which another Loan was to have been
Converted for the period from the date such Borrowing or Conversion
was to have been made to the last day of the Interest Period for such
Loan that would have commenced on such date at the Adjusted Eurodollar
Rate (minus the Applicable Margin) applicable to such Loan over (B)
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 prime banks in the
London interbank market.
(c) Any Lender demanding payment pursuant to this Section 3.04 shall
deliver to the Borrower a statement reasonably setting forth the
amount and manner of determining the loss or expense for which such
demand is made, which statement shall be conclusive, absent manifest
error.
3.05 Increased Costs; Capital Adequacy.
---------------------------------
(a) If after the date of this Agreement any change in any applicable
Governmental Requirement (including, without limitation, the adoption
of any new Governmental Requirement) or in the interpretation or
administration thereof by any central bank or comparable agency or any
other Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) shall
impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the
account
<PAGE>
-36-
of or credit extended by any Lender or the Issuer (except any such
reserve requirement that is reflected in the Eurodollar Rate Reserve
Percentage), or shall impose on such Lender or the Issuer or the
London interbank market any other condition affecting this Agreement
or Eurodollar Rate Loans made by such Lender or any Letter of Credit
or participation therein, and the result of any of the foregoing shall
be to increase the cost to such Lender or the Issuer of making or
maintaining any Eurodollar Rate Loan or increase the cost to such
Lender or the Issuer of issuing or maintaining any Letter of Credit,
paying or funding any draw request thereunder or purchasing or
maintaining a participation therein, or to reduce the amount of any
sum received or receivable by such Lender hereunder or the Issuer
hereunder or under any Letter of Credit Reimbursement Agreement
(whether of principal, interest, fees or otherwise) by an amount
reasonably determined by such Lender or the Issuer to be material,
then the Borrower will pay to such Lender or the Issuer, as the case
may be, following receipt of a notice from such Lender or the Issuer,
as the case may be, to such effect, such additional amount or amounts
as will compensate such Lender or the Issuer, as the case may be, for
such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuer shall have determined that (i) the
adoption after the date of this Agreement of any Governmental
Requirement, guideline or directive regarding capital adequacy, (ii)
any change after the date of this Agreement in any such Governmental
Requirement, guideline or directive or in the interpretation or
administration thereof after the date of this Agreement by any central
bank or comparable agency or any other Governmental Authority charged
with the interpretation or administration thereof or (iii) compliance
by any Lender (or any lending office of such Lender) or the Issuer or
any Lender's or the Issuer's holding company with any request or
directive regarding capital adequacy issued after the date of this
Agreement under any Governmental Requirement or guideline (whether or
not having the force of law) of any Governmental Authority has or
would have the effect of reducing the rate of return on such Lender's
or the Issuer's capital or on the capital of such Lender's or the
Issuer's holding company, if any, as a consequence of this Agreement,
the Commitment of such Lender or the Loans made by such Lender or
participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuer pursuant hereto
to a level below that which such Lender or the Issuer or such Lender's
or the Issuer's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration such Lender's or the Issuer's policies and the policies
of such Lender's or the Issuer's holding company with respect to
capital adequacy) by an amount reasonably determined by such Lender or
the Issuer to be material, then from time to time the Borrower will
pay to such Lender or the Issuer, as the case may be, following
receipt of a notice from such Lender or the Issuer, as the case may
be, to such effect, such additional amount or amounts as shall
compensate such Lender or the Issuer or such Lender's or the Issuer's
holding company for any such reduction suffered.
<PAGE>
-37-
(c) The Issuer or any Lender requiring payment under this Section 3.05
shall deliver to the Borrower a statement reasonably setting forth the
amount and manner of determination thereof, which statement shall be
conclusive, absent manifest error.
(d) Each Lender will promptly notify the Borrower of any event occurring
after the date of this Agreement of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 3.05 and
will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and
will not, in the judgment of such Lender, be otherwise disadvantageous
to such Lender.
3.06 Taxes.
-----
(a) Any and all payments by the Borrower of the Obligations shall be made
free and clear of and without deduction for any and all present or
future Taxes. If the Borrower shall be required by any Governmental
Requirement to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, the Issuer or the Agent, (i) the sum payable
by the Borrower shall be increased by the amount necessary so that,
after making all required deductions (including, without limitation,
deductions applicable to additional sums payable under this Section
3.06), such Lender, the Issuer or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable
Governmental Requirements.
(b) In addition, the Borrower shall pay any and all present and future
transfer, documentary, stamp and similar Taxes, any and all other
excise and property Taxes, charges and similar levies and all
recording and filing Taxes and fees which arise from any payment made
hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender, the Issuer and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.06) paid by such Lender, the
Issuer or the Agent (as the case may be) and all liabilities
(including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted, INCLUDING PENALTIES,
ADDITIONS TO TAX, INTEREST AND EXPENSES ARISING AS A RESULT OF THE
NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE) ON
THE PART OF SUCH LENDER, THE ISSUER OR THE AGENT, but excluding
penalties, additions to tax, interest and expenses arising as a result
of the gross negligence or willful misconduct on the part of such
Lender, the Issuer or the Agent. Payments in respect of the foregoing
<PAGE>
-38-
indemnification shall be made by the Borrower within five days after
the date such Lender, the Issuer or the Agent (as the case may be)
makes demand therefor.
(d) Within 30 days after the date of any payment of Taxes by the Borrower
pursuant to this Section 3.06, the Borrower shall furnish to the
Lenders, the Issuer and the Agent the original or a certified copy of
a receipt evidencing payment thereof. If the Borrower makes any
payment in respect of any Obligation from any account located outside
the United States or any such payment is made by a payor that is not a
United States Person and if no Taxes are payable in respect of such
payment, the Borrower shall furnish to the Lenders, the Issuer and the
Agent a certificate from each appropriate taxing authority, or an
opinion of counsel acceptable to the Agent, in either case stating
that such payment is exempt from or not subject to Taxes. For
purposes of this Section 3.06, the terms "United States" and "United
States Person" shall have the meanings set forth in Section 7701 of
the Code.
(e) Each Lender that is not a United States Person hereby agrees that:
(i) it shall, no later than the date of this Agreement (or, if such
Lender becomes a party hereto pursuant to Section 3.07 or 10.06,
the date upon which such Lender becomes a party hereto), deliver
to the Borrower through the Agent, with a copy to the Agent (A)
if any Lending Office is located in the United States of America,
two accurate and complete signed originals of Internal Revenue
Service Form W-8ECI or any successor thereto ("Form W-8ECI"), (B)
if any Lending Office is located outside the United States of
America, two accurate and complete signed originals of Internal
Revenue Service Form W-8BEN or any successor thereto ("Form
W-8BEN"), or (C) if such Lender is claiming exemption from
withholding of United States federal income tax under Section
871(h) or 881(c) of the Code with respect to "portfolio
interest," a Form W-8BEN or any successor thereto (and, if such
Lender delivers a Form W-8BEN, pursuant to clause (C) of this
paragraph, such Lender will certify that it (1) is not a bank,
for purposes of Section 881(c) of the Code, receiving interest on
an extension of credit made pursuant to a loan agreement entered
into in the ordinary course of its trade or business, (2) is not
a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and (3) is not a
controlled foreign corporation related to the Borrower (within
the meaning of Section 864(d)(4) of the Code)), in each case
indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for
the account of such Lending Office or Lending Offices under this
Agreement free from withholding of United States federal income
tax;
(ii) if at any time such Lender changes any Lending Office or selects
an additional Lending Office, it shall, at the same time or
reasonably promptly thereafter but only to the extent the forms
previously delivered by it hereunder are no longer effective,
deliver to the Borrower through
<PAGE>
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the Agent, with a copy to the Agent, in replacement for the
forms previously delivered by it hereunder, two accurate and
complete signed originals of Form 4224 or Form 1001, as
applicable, or a Form W-8, in each case indicating that such
Lender is on the date of delivery thereof entitled to receive
payments of principal, interest and fees for the account of such
changed or additional Lending Office under this Agreement free
from withholding of United States federal income tax;
(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time, but excluding any event
mentioned in clause (ii) above) requiring a change in the most
recent forms or form previously delivered by such Lender
pursuant to this Section 3.06(e) and if the delivery of the same
be lawful, deliver to the Borrower through the Agent, with a
copy to the Agent, two accurate and complete original signed
copies of Form 4224 or Form 1001, as applicable, or a Form W-8
in replacement for the forms or form previously delivered by
such Lender; and
(iv) it shall, reasonably promptly upon the reasonable request of the
Borrower to that effect, deliver to the Borrower through the
Agent such other forms or similar documentation as may be
required from time to time by any applicable Governmental
Requirement, treaty, rule or regulation in order to establish
such Lender's tax status for withholding purposes.
(f) The obligations of the Borrower contained in this Section 3.06 shall
survive the termination of this Agreement and the payment in full of
the Obligations.
3.07 Substitution of Lender. If (a) the obligation of any Lender to make or
----------------------
Convert Loans into Eurodollar Rate Loans has been suspended pursuant to
Section 2.06(b), (b) any Lender has demanded compensation under Section
3.05 or (c) any Lender has notified the Borrower that it is not capable of
receiving payments without deduction or withholding pursuant to Section
3.06, the Borrower may replace such Lender by designating in a notice given
to the Agent an Eligible Assignee to replace such Lender, which Eligible
Assignee, if not already a Lender, shall be subject to the approval of the
Issuer, which approval shall not be unreasonably withheld. If the Borrower
so designates an Eligible Assignee, then the Agent shall give notice
thereof to the Lender to be replaced, and thereupon, such Lender shall
promptly consummate an assignment of such Lender's Commitment, Loans,
Notes, participations in Letters of Credits and other rights and
obligations hereunder relative to the Commitment of such Lender to such
Eligible Assignee in accordance with Section 10.06. For purposes of Section
3.04(a), a Lender consummating an assignment pursuant to this Section 3.07
shall be deemed to have been paid on the effective date of such assignment
all its Loans then being assigned.
<PAGE>
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ARTICLE IV
CONDITIONS TO LOANS; LETTERS OF CREDIT
4.01 Conditions to Loans and Letters of Credit. The obligation of each Lender
-----------------------------------------
to make its initial Loan and the obligation of the Issuer to issue the
initial Letters of Credit are subject to the Agent's receipt of each of the
following, in sufficient number for each of the Lenders and the Issuer and
in form and substance reasonably satisfactory to the Agent:
(a) a duly executed Note for each Lender, in each case dated as of the
date of this Agreement;
(b) a Secretary's Certificate, dated the Closing Date, in the form of
Exhibit 4.01(b)-1, to which shall be attached copies of the Charter
Documents, as amended, modified and supplemented and in effect on the
Closing Date, of the Borrower and resolutions evidencing the
Partnership Governance Committee Action approving and authorizing the
applicable Loan Documents and the Borrowings and issuances of the
Letters of Credit hereunder;
(c) a copy of the Certificate of Limited Partnership of the Borrower,
certified as of a Current Date by the Secretary of State of the State
of Delaware;
(d) a certificate of existence and good standing with respect to the
Borrower, issued as of a Current Date by the Secretary of State of the
State of Delaware;
(e) a certificate, issued by the Secretary of State of the State of
Alabama to the effect that the Borrower is registered as a foreign
limited partnership under the name "LYONDELL-CITGO Refining LP" in
that State and a certificate issued as of a Current Date by such
Secretary of State which certifies that the Borrower has not filed a
certificate of cancellation of such registration;
(f) opinions of counsel for the Borrower, dated the Closing Date, in the
forms of Exhibits 4.01(f)-1, 4.01(f)-2 and 4.01(f)-3;
(g) a certificate of a Responsible Officer, dated the Closing Date, in the
form of Exhibit 4.01(g) to the effect, among others, that (i) the
representations and warranties set forth in Article V are true and
correct in all material respects as of the Closing Date (unless made
as of a specific date as set forth therein) and (ii) no Default exists
or would exist as a result of making a Loan or the issuance of a
Letter of Credit on the Closing Date;
(h) evidence that, prior to or on the Closing Date: (i) all outstanding
Indebtedness and other amounts owing under the Interim Revolving
Credit Agreement have been paid and discharged in full; (ii) all
outstanding Indebtedness and other amounts owing under the Existing
Interim Credit Agreement will be paid and discharged in full with:
(A) the proceeds of the Term Loans; and (B) after the proceeds of the
Term Loans have been applied in full for such purpose, to the
<PAGE>
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extent there remains any Indebtedness outstanding under the Existing
Interim Credit Agreement, proceeds of the Loans or other available
cash of the Borrower; (iii) all commitments to lend under each such
credit agreement have been or will be terminated; and (iv) any Liens
under each such credit agreement have been or will be released;
(i) (i) the results of a recent search of the Uniform Commercial Code and
tax lien records in (A) the offices of the Secretary of State of the
State of Texas, the Secretary of State of the State of Delaware and
the Secretary of State of the State of Alabama and (B) the probate
court in all counties in Alabama in which the Borrower's assets are
located, which shall reveal no Liens on any of the property or assets
of the Borrower, or any revenues, income or profits therefrom, except
Permitted Liens, and shall otherwise be satisfactory to the Agent, and
(ii) the results of a recent search of the real property records of
Harris County, Texas, which shall reveal no Liens on the Houston
Facility, except Permitted Liens, and shall otherwise be satisfactory
to the Agent;
(j) an independent environmental report in form and substance satisfactory
to the Agent from Pace Consultants, Inc.;
(k) a bringdown of the Pace Consultants, Inc. 1998 draft: (i) independent
engineer's report in form and substance satisfactory to the Agent and
(ii) financial projections, which shall not be materially worse than
the financial projections dated February 25, 2000 previously provided
to the Agent;
(l) payment of all fees and reasonable expenses of the Agent, including
reasonable fees and expenses of common counsel to the Lenders, and
fees of the Issuer and the Lenders that are due and payable on the
Closing Date pursuant to this Agreement, any other Loan Document or
the Fee Letter;
(m) a duly executed and delivered agreement between the Borrower and the
Service Agent to the effect specified in Section 10.08;
(n) certified copies of the Contribution Agreement and the Refined
Products Purchase Agreement and one certified copy, to be held by the
Agent pursuant to its written safekeeping agreement with the Borrower
and delivered with such copy, of each of the Crude Supply Agreement
and the Supplemental Supply Agreement, in each case as amended,
modified and supplemented and in effect on the Closing Date;
(o) a certified copy of the executed Term Credit Agreement, in form and
substance reasonably satisfactory to the Agent;
(p) a duly executed Commercial Letter of Credit Reimbursement Agreement in
the form attached hereto as Exhibit 2.03(c)-(1) and a duly executed
Standby Letter of Credit Reimbursement Agreement in the form attached
hereto as Exhibit 2.03(c)-(2);
<PAGE>
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(q) satisfaction of the Agent that there shall not have occurred or become
known: (i) any material adverse condition or adverse change in or
affecting the business, operations, property, condition (financial or
otherwise) or prospects of the Borrower or its Subsidiaries, taken as
a whole, or (ii) any material adverse condition or material adverse
change in or affecting the business, operations, property or condition
(financial or otherwise) of PDVSA or Petroleos y Gas, S.A., which
would materially adversely change or affect the ability of such
Person, as applicable, to perform its obligations under the
Supplemental Supply Agreement or the Crude Supply Agreement, as
applicable, in accordance with its terms; and
(r) satisfaction of the Agent that as at the end of the fiscal quarter of
the Borrower ending immediately prior to the Closing Date, the
Borrower would have been in compliance with the applicable covenants
set out in Section 7.16 of this Agreement if this Agreement had then
been in effect.
4.02 Conditions to Each Borrowing. The obligation of any Lender to make a Loan
----------------------------
on the occasion of each Borrowing, including its initial Loan, but not
including a Loan pursuant to the second and last sentences of Section
2.03(g) to fund a drawing under a Letter of Credit, is subject to the
satisfaction of the following conditions precedent that on the date of such
Borrowing:
(a) the Agent has received a Notice of Borrowing with respect to such Loan
in accordance with this Agreement;
(b) the representations and warranties set forth in Article V (other than
in Section 5.06(a)(ii)) are true and correct in all material respects
(unless made as of a specific date as set forth therein);
(c) no Default exists or would exist as a result of making such Loan or
the application of the proceeds thereof;
(d) such Loan will not contravene any Governmental Requirements applicable
to such Lender; and
(e) satisfaction of the Agent and such Lender that the proceeds of such
Loan will be used for purposes not inconsistent with Section 5.13.
4.03 Conditions to Each Letter of Credit. The obligation of the Issuer to issue
-----------------------------------
any Letter of Credit, including the initial Letter of Credit, is subject to
the satisfaction of the following conditions precedent that on the date of
the issuance of such Letter of Credit:
(a) the Agent and the Issuer have received a Letter of Credit Request with
respect to such Letter of Credit in accordance with Section 2.03(d);
(b) the Issuer has received a Letter of Credit Reimbursement Agreement and
such other documents and items relating to such Letter of Credit as
the Issuer reasonably may request;
<PAGE>
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(c) the representations and warranties set forth in Article V (other than
in Section 5.06(a)(ii)) are true and correct in all material respects
(unless made as of a specific date as set forth therein);
(d) no Default exists or would exist as a result of the issuance of such
Letter of Credit;
(e) the issuance of such Letter of Credit will not contravene any
Governmental Requirement applicable to the Issuer or any Lender; and
(f) satisfaction of the Agent and the Issuer that such Letter of Credit is
being issued for purposes not inconsistent with Section 5.13.
4.04 Conditions to Conversions. The obligation of any Lender to Convert any
-------------------------
Loan into a Eurodollar Rate Loan pursuant to a Notice of Conversion is
subject to the satisfaction of the following conditions precedent that on
the date of Conversion:
(a) the Agent has received a Notice of Conversion in accordance with
Section 2.07;
(b) the representations and warranties set forth in Article V (other than
in Sections 5.05 and 5.06(a)(ii)) are true and correct in all material
respects (unless made as of a specific date as set forth therein);
(c) no Default exists; and
(d) such Conversion will not contravene any Governmental Requirement
applicable to such Lender.
4.05 Deemed Fulfilled Conditions. Except to the extent that the Borrower has
---------------------------
disclosed in the Notice of Borrowing, Letter of Credit Request or Notice of
Conversion, as the case may be, or in a subsequent notice given to the
Agent prior to 5:00 P.M. (New York City time) on the Business Day before
the requested date for the making of the requested Borrowing, Letter of
Credit issuance or Conversion, that an applicable condition specified in
this Article IV will not be fulfilled as of the requested time for the
making of such Loans, the issuance of such Letter of Credit or such
Conversion, the Borrower shall be deemed to have made a representation and
warranty as of such time that the conditions specified in such clauses have
been fulfilled, except that in no event shall the Borrower make or be
deemed to make any representation or warranty as to Section 4.02(d),
4.03(e) or 4.04(d). No such disclosure by the Borrower that a condition
specified in this Article IV will not be fulfilled as of the requested time
for the making of the requested Loans, issuance of the requested Letter of
Credit or effecting the requested Conversion shall affect the right of each
Lender not to make the Loans requested to be made by it, the Issuer not to
issue such Letter of Credit or each Lender not to effect such Conversion if
such condition has not been fulfilled at such time.
<PAGE>
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Agent, the Issuer and each Lender to enter into this
Agreement and to make each Loan and issue each Letter of Credit requested to be
made or issued by it, the Borrower represents and warrants as follows (which
representations and warranties will survive the delivery of any Note and any
other Loan Document and the making of any Loan and the issuance of any Letter of
Credit).
5.01 Organization; Power; Qualification. The Borrower (a) is a limited
----------------------------------
partnership duly organized, validly existing and in good standing under the
DRULPA and (b) has all the requisite power and authority under the DRULPA
and its Charter Documents to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted. The
Borrower is, and each Subsidiary is, duly registered, qualified or licensed
and in good standing as a foreign limited liability company, a foreign
limited partnership or a foreign corporation, as the case may be, in good
standing, when applicable, in each jurisdiction in which it owns or leases
property or proposes to own or lease property or in which the carrying on
of its business as now conducted or as proposed to be conducted so
requires, except to the extent that failures to be so registered, qualified
or licensed individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. The Borrower is, and each
Subsidiary is, duly registered, qualified or licensed and in good standing
as a foreign limited liability company (if it is a limited liability
company) or corporation (if it is a corporation) in good standing in all
jurisdictions in which it owns or leases property or proposes to own or
lease property or in which the carrying on of its business as now conducted
or as proposed to be conducted so requires, except to the extent that
failures to be so registered, qualified or licensed individually or in the
aggregate could not reasonably be expected to have a Material Adverse
Effect. As of the date of this Agreement, (a) Lyondell and CITGO
collectively own, directly or indirectly, 100% of the membership interests
of the Borrower and have the right to vote such interests and to manage the
business and affairs of the Borrower consistent with the terms and
provisions of the Partnership Agreement and (b) the Borrower has no
Subsidiaries. Each Subsidiary, if any, is a Wholly-Owned Subsidiary.
5.02 Authorization; Enforceability; Absence of Conflicts; Required Consents. The
----------------------------------------------------------------------
execution, delivery and performance by the Borrower of this Agreement and
each other Loan Document to which it is a party, and the incurrence of the
Indebtedness and other Obligations contemplated hereby and thereby, are
within its power and authority under its Charter Documents and the DRULPA
and have been duly authorized by all proceedings required under its Charter
Documents and the DRULPA. This Agreement and the Notes have been, and each
of the other Loan Documents to which the Borrower is a party when delivered
to the Agent will have been, duly executed and delivered by the Borrower
and are, or when so delivered will be, the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether such enforceability is considered in a
<PAGE>
-45-
proceeding in equity or at law). The execution, delivery and performance in
accordance with their respective terms by the Borrower of the Loan
Documents to which it is a party, and the incurrence of Indebtedness and
other Obligations pursuant thereto, do not and will not (a) violate, breach
or constitute a default under (i) the Charter Documents of the Borrower or
any Subsidiary, (ii) any Governmental Requirement applicable to the
Borrower or any Subsidiary or (iii) any other Material Agreement of the
Borrower or any Subsidiary, (b) result in the acceleration or mandatory
prepayment of any Indebtedness of the Borrower or any Subsidiary or afford
any holder of any such Indebtedness the right to require the Borrower or
any Subsidiary to redeem, purchase or otherwise acquire, reacquire or repay
any such Indebtedness or (c) cause or result in the imposition of or afford
any Person the right to obtain any Lien upon any property or assets of the
Borrower or any Subsidiary (or upon any revenues, income or profits of the
Borrower or any Subsidiary therefrom). No Governmental Approvals are
required to be obtained, and no reports or notices to any Governmental
Authority are required to be made, by the Borrower for the execution,
delivery or performance by the Borrower of the Loan Documents or the
enforcement against the Borrower of its obligations thereunder or the
incurrence of the Indebtedness and other Obligations by the Borrower
pursuant thereto.
5.03 Compliance With Laws. Each of the Borrower and the Subsidiaries (a)
--------------------
possesses, and is in compliance with the terms and conditions of, all
Governmental Approvals necessary for the ownership or lease and operation
of its property and the carrying on of its business as now conducted or
proposed to be conducted, except for such failures to possess and
noncompliances that individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect, and (b) is in compliance
with all Governmental Requirements applicable to it or any of its
properties or assets, including, without limitation, all applicable
Governmental Requirements under ERISA and Environmental Laws, except for
such noncompliances by the Borrower and the Subsidiaries that individually
or in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
5.04 No Defaults. No Default has occurred and is continuing. Neither the
-----------
Contribution Agreement nor any Supply or Purchase Contract has been
terminated.
5.05 Litigation. There is no Litigation pending or, to the knowledge of the
----------
Borrower, threatened to which the Borrower or any Subsidiary is or may
become a party that (a) questions or involves the validity or
enforceability of any of the Loan Documents, (b) could reasonably be
expected to have a Material Adverse Effect or (c) seeks (or reasonably may
be expected to seek) to rescind, revoke, terminate, cancel, withdraw,
suspend, modify or change adversely or withhold any Material Governmental
Approval or any Material Agreement and in which the remedies sought or
expected to be sought, if obtained, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
<PAGE>
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5.06 Financial Statements; Disclosure.
--------------------------------
(a) Financial Statements.
--------------------
(i) The Financial Statements (including in each case the related
schedules and notes) delivered to the Agent present fairly, in
all material respects, the consolidated financial position of the
Borrower and the Subsidiaries at the respective dates of the
balance sheets included therein and the consolidated results of
their operations and their consolidated cash flows for the
respective periods set forth therein and have been prepared in
accordance with GAAP (subject, in the case of interim financial
statements, to normal year-end adjustments). As of the date of
any balance sheet included in such Financial Statements, neither
the Borrower nor any Subsidiary then had any outstanding
Indebtedness to any Person or any Material, individually or in
the aggregate, liabilities of any kind (including contingent
obligations, tax assessments or unusual forward or long-term
commitments), or any Material unrealized or anticipated loss,
required to be reflected in such Financial Statements or in the
notes related thereto in accordance with GAAP which were not so
reflected.
(ii) Since December 31, 1999, no change has occurred in the business,
operations, properties or assets, liabilities, condition
(financial or otherwise) or results of operations of the Borrower
that could reasonably be expected, either alone or together with
all other such changes, to have a Material Adverse Effect.
(b) Disclosure.
----------
(i) As of the date hereof, all Information that has been made
available to the Agent, the Issuer or any Lender by or on behalf
of the Borrower prior to the date of this Agreement in connection
with the transactions contemplated by this Agreement is, taken
together, true and correct in all material respects (other than
financial budgets and projections) and does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained therein
not materially misleading in light of the circumstances under
which such statements were made.
(ii) All Information that is made available after the date of this
Agreement from time to time to the Agent, the Issuer or any
Lender by or on behalf of the Borrower in connection with or
pursuant to this Agreement, any other Loan Document or the
transactions contemplated hereby or thereby will be, when made
available and taken together, true and correct in all material
respects (other than financial budgets and projections) and will
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
contained therein
<PAGE>
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not materially misleading in light of the circumstances under
which such statements are made.
(iii) All financial budgets and projections that have been or are
hereafter from time to time prepared by or on behalf of the
Borrower and made available to the Agent, the Issuer or any
Lender pursuant to or in connection with this Agreement, any
other Loan Document or the transactions contemplated hereby or
thereby have been and will be prepared and furnished to the
Agent in good faith and were and will be based on facts and
assumptions that are believed by the management of the Borrower
to be reasonable in light of the then current and foreseeable
business conditions of the Borrower and the Subsidiaries and
represented and will represent the Borrower's management's good
faith estimate of the consolidated projected financial
performance of the Borrower and the Subsidiaries based on the
information available to the Responsible Officers at the time
so furnished.
5.07 Taxes. Each of the Borrower and each Subsidiary have filed or caused to be
-----
filed all Tax returns that are required to have been filed by or with
respect to it in every jurisdiction and have paid all Taxes shown to be due
and payable on such returns and all other Taxes payable by them by
assessment, to the extent such Taxes have become due and payable and before
they have become delinquent, except for (a) any Taxes the amount,
applicability or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which the Borrower has
established adequate reserves on its books in accordance with GAAP or (b)
Taxes, other than Federal Taxes and Taxes payable to Alabama and Texas
Governmental Authorities, to which this clause (b) does not relate, the
nonpayment of which individually or in the aggregate could not reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor
any Subsidiary is a party to any Tax sharing, Tax allocation or similar
agreement except to the extent the Partnership Agreement may be deemed to
be such an agreement.
5.08 Government Regulation. Neither the Borrower nor any Subsidiary is (a) an
---------------------
"investment company" or a company "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, (b) a
"holding company" or a "subsidiary" or an "affiliate" of a "holding
company" or a "public utility," as such terms are defined in the Public
Utility Holding Company Act of 1935, or (c) subject to any Governmental
Requirement that regulates or otherwise limits its ability to issue
promissory notes or securities (other than the Securities Act of 1933, the
Trust Indenture Act of 1939 and state "blue sky" laws) or (in the case of
the Borrower) to perform its obligations under the Loan Documents.
5.09 Employee Benefit Plans.
----------------------
(a) Neither the Borrower nor any ERISA Affiliate of the Borrower has
incurred or is reasonably expected to incur any withdrawal liability
under ERISA to, or with respect to, any Multiemployer Benefit Plan;
the execution and delivery of this Agreement, the consummation of the
transactions contemplated by this
<PAGE>
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Agreement and the lending of funds pursuant to the provisions of this
Agreement will not involve any Prohibited Transaction; no Benefit Plan
established or maintained by the Borrower or any ERISA Affiliate of
the Borrower, or to which the Borrower or any ERISA Affiliate of the
Borrower has made contributions, had an Accumulated Funding
Deficiency, whether or not waived, as of the last day of the most
recently ended plan year of such Benefit Plan; no liability,
individually or in the aggregate, to the PBGC (other than required
insurance premiums, all of which that have become due have been paid)
has been incurred and not satisfied in full by the Borrower or any
ERISA Affiliate of the Borrower with respect to any Benefit Plan; and
no event or condition has occurred, or is reasonably expected to
occur, which presents a material risk of the termination of any
Benefit Plan under circumstances which could result in a material
liability to the Borrower, directly or indirectly or as a result of
the liability of a current or former ERISA Affiliate of the Borrower;
provided, however, for purposes of this Section 5.09(a), a liability
-------- -------
shall be considered material at any time if it could reasonably be
expected, individually or in the aggregate with all other such
liabilities, to result in a Material Adverse Effect.
(b) No Lien in favor of a Benefit Plan, a Welfare Plan, any Multiemployer
Benefit Plan or the PBGC exists upon any property or assets of the
Borrower or any Subsidiary or upon any revenues, income or profits of
the Borrower or any Subsidiary therefrom nor to the knowledge of any
Responsible Officer has there been any occurrence with respect to any
such plan that, with or without the passage of time, could reasonably
be expected to have a Material Adverse Effect.
5.10 Title to Property; Leases. In each case, free and clear of all Liens
-------------------------
except for Permitted Liens, the Borrower has (a) good and indefeasible fee
simple title to the Houston Facility and the Birmingport Facility and good
and valid title to the "Ballpark" (the preceding and following quoted terms
having the meanings given them by the Contribution Agreement as in effect
on the date of this Agreement) and (b) sufficient title to the "Company
Pipelines" and the "Easements") to enable the Borrower to use the Company
Pipelines and Easements as the same were used by Lyondell immediately prior
to July 1, 1993, and as the same have been used by the Borrower immediately
prior to the date of this Agreement and as they are intended as of the date
of this Agreement to be used by the Borrower after such date in the
operation of the Refinery in a manner consistent with the Borrower's past
practices, and any defect in title to any portion of the Company Pipelines
and the Easements will not or could not reasonably be expected to have a
Material Adverse Effect. In each case, free and clear of all Liens except
for Permitted Liens, the Borrower has good and valid title to all its other
tangible properties and assets that individually or in the aggregate are
Material, and each Subsidiary has good and valid title to all its tangible
properties and assets that individually or in the aggregate with the
tangible properties and assets purported to be owned by all Subsidiaries
are Material. All leases of property or assets by the Borrower and the
Subsidiaries which individually or in the aggregate are Material are valid
and subsisting and in full force and effect, the Borrower and the
Subsidiaries enjoy the quiet and undisturbed possession of such properties
and assets and no default exists under such
<PAGE>
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leases, except for such lack of such enjoyment and defaults that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
5.11 Labor Matters. There are no strikes, work stoppages, slowdowns or lockouts
-------------
pending or, to the knowledge of the Borrower, threatened against or
involving the Borrower or any Subsidiary, other than those that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
5.12 Intellectual Property. The Borrower owns or possesses the right to use,
---------------------
and each Subsidiary owns or possesses the right to use, all Intellectual
Property necessary to the conduct of its business as now conducted or
proposed to be conducted, in each case free of any claims or infringements
known to the Borrower, except for claims and infringements that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
5.13 Use of Proceeds. The Borrower will use (a) the proceeds of the Loans
---------------
solely for working capital and general business purposes (including, in
relation to the initial Borrowing hereunder, to refinance Indebtedness of
the Borrower outstanding under the Existing Interim Credit Agreement) and
(b) request the issuance of Letters of Credit consistent with such
purposes. None of the proceeds of the Loans will be used to purchase or
carry (or refinance any borrowing the proceeds of which were used to
purchase or carry) any "margin stock" within the meaning of Regulation T, U
or X. Neither the Borrower nor any Subsidiary owns any margin stock. The
Borrower does not intend to apply, nor will it apply, any part of the
proceeds of any Loan in any manner or to any purpose that is unlawful or
would involve a violation of any Governmental Requirement relating to the
use of funds applicable to the Borrower or the transactions contemplated by
the Loan Documents, including, without limitation, Regulation T, U or X.
ARTICLE VI
FINANCIAL STATEMENTS AND INFORMATION
So long as any of the Commitments remain in effect and until payment in full of
the Loans, the Letter of Credit Obligations and all other Obligations that have
become due when the Loans and the Letter of Credit Obligations have been paid in
full, unless compliance with the provisions of the following Sections shall have
been waived in writing by the Required Lenders, the Borrower agrees as follows.
6.01 Reporting Requirements. The Borrower will furnish to the Agent:
----------------------
(a) Quarterly Financial Statements. As soon as available and in any event
------------------------------
within 60 days after the end of each of the first three fiscal
quarters of each of its fiscal years:
<PAGE>
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(i) a consolidated balance sheet of the Borrower and the
Subsidiaries as of the end of such fiscal quarter, the related
consolidated statements of income or operations and of cash
flows for such fiscal quarter and for the portion of the fiscal
year ended with such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and
the corresponding portion of the Borrower's previous fiscal
year, and the notes related thereto, prepared in accordance with
GAAP (subject to normal year-end adjustments); and
(ii) a certificate with respect thereto of a Responsible Officer or
the Manager, Accounting Services of the Borrower in the form of
Exhibit 6.01(a);
(b) Annual Financial Statements. As soon as available and in any event
---------------------------
within 120 days after the end of each of its fiscal years, commencing
with the fiscal year ending December 31, 2000:
(i) a consolidated balance sheet of the Borrower and the
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income or operations and of cash
flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and
the notes related thereto, prepared in accordance with GAAP;
(ii) the audit report of PricewaterhouseCoopers, or another
nationally recognized firm of independent certified public
accountants, on such consolidated financial statements, which
report shall be unqualified and state that in the opinion of
such accountants such consolidated financial statements present
fairly, in all material respects, the consolidated financial
position and results of operations and cash flows of the
Borrower and the Subsidiaries at the dates and for the periods
covered in such financial statements and have been prepared in
conformity with GAAP and that the examination of such
accountants in connection with such financial statements has
been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion under the circumstances; and
(iii) a certificate of a Responsible Officer or the Manager,
Accounting Services of the Borrower in the form of Exhibit
6.01(b);
(c) Notices and Information. Promptly and in any event:
-----------------------
(i) within five Business Days after (A) the approval by the
Partnership Governance Committee of any budget of any type
contemplated by Section 9.2 of the Partnership Agreement as in
effect on the date of this Agreement, or any amendment of or
supplement to any such budget, a copy of that budget, amendment
or supplement, (B) the beginning of any fiscal year, if the
Partnership Governance Committee has not approved for such
fiscal year any budget of any type contemplated by Section 9.2
of the
<PAGE>
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Partnership Agreement as in effect on the date of this Agreement
before the beginning of such fiscal year, a copy of (1) the
proposed budget in the form most recently submitted to the
Partnership Governance Committee for approval and (2) if such
budget is the operating budget, the budget or other plan
pursuant to which the Borrower is then conducting operations,
and (C) the sending to the Partnership Governance Committee of
any business plan of the type contemplated by Section 9.6 of the
Partnership Agreement as in effect on the date of this
Agreement, a copy of that plan;
(ii) within five Business Days after the sending or receiving
thereof, copies of all Material notices and communications sent
by the Borrower or any Subsidiary to, or received by the
Borrower or any Subsidiary from, any Governmental Authority,
which notices in each case relate to matters that have had or
could reasonably be expected to have a Material Adverse Effect;
(iii) within five Business Days after the sending or receiving
thereof, copies of all notices of termination or material
default sent by the Borrower or any Subsidiary to, or received
by the Borrower or any Subsidiary from, any party to any
Material Agreement; and
(iv) within five Business Days after the effective date thereof, (A)
copies of all amendments and supplements to and modifications of
the Borrower's Charter Documents and (B) copies of all
amendments and supplements to and modifications of any Supply or
Purchase Contract;
(d) Defaults; ERISA; Material Adverse Effect. Promptly and in any event
----------------------------------------
within (i) five Business Days after the Borrower has knowledge of a
Default, written notice of such Default which specifies the nature and
duration thereof and what action the Borrower has taken, is taking or
proposes to take with respect thereto, and (ii) within ten Business
Days after the Borrower has knowledge of (A) the occurrence of any of
the events described in Section 8.01(g)(i)-(v) whether or not a
Default has occurred as a result thereof, written notice of such
occurrence, (B) any material adverse change in the business,
operations, properties, assets or conditions of the Borrower and the
Subsidiaries, written notice of such change which specifies the nature
thereof, or (C) the occurrence of any Reportable Event with respect to
a Benefit Plan of the Borrower or any ERISA Affiliate of the Borrower,
written notice of such Reportable Event which specifies the nature
thereof;
(e) Litigation. Promptly and in any event within five Business Days after
----------
the Borrower has knowledge of the commencement of any Litigation
involving the Borrower or any of the Subsidiaries or any of their
respective property or assets which (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect, (ii)
questions or involves the validity or enforceability of any of the
Loan Documents or (iii) if adversely determined, could reasonably be
expected to result in the rescission, revocation, termination,
cancellation,
<PAGE>
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withdrawal, suspension, adverse modification of or change in or
withholding of a Material Governmental Approval or any Material
Agreement and such rescission, revocation, termination, cancellation,
withdrawal, suspension, modification, change or withholding could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, notice of such Litigation; and
(f) Requested Information. Such information regarding the Loan Documents,
---------------------
the Loans, the books and records, business, affairs, operations,
property or assets, liabilities, condition (financial or otherwise) or
results of operations of the Borrower and the Subsidiaries and other
information concerning the Borrower and the Subsidiaries as the Agent,
the Issuer or any Lender may from time to time reasonably request.
6.02 Books and Records. The Borrower shall and shall cause each Subsidiary to
-----------------
keep and maintain a system of accounting established and administered in
accordance with sound business practices and keep and maintain proper
books of records and account.
6.03 Visits, Inspections and Discussions. Subject to Section 10.04, the
-----------------------------------
Borrower shall and shall cause each Subsidiary to permit representatives
(whether or not officers or employees) of any Lender, from time to time
during the Borrower's normal daytime business hours, as often as may be
reasonably requested and upon reasonable notice, to (a) visit any of the
premises or property of the Borrower or such Subsidiary, (b) during any
such visit, inspect, and verify the amount, character and condition of,
any of the properties or assets of the Borrower or such Subsidiary, (c)
during any such visit, review and make extracts from the books and records
of the Borrower or such Subsidiary, and (d) during any such visit, discuss
the affairs, finances and accounts of the Borrower or such Subsidiary with
its officers, employees or its independent public accountants (and the
Borrower hereby authorizes such accountants to discuss the finances and
affairs of the Borrower and the Subsidiaries); provided, that in the case
--------
of any discussions pursuant to clause (d), a representative of the
Borrower designated by a Responsible Officer must be present, it being
understood and agreed by the Borrower that it will cooperate to cause this
condition to be satisfied. Each Lender will pay the costs incurred by such
Lender in exercising its rights under this Section 6.03; provided,
--------
however, that if a Lender exercises its rights under this Section 6.03
-------
after the occurrence of an Event of Default, then the Borrower will
reimburse such Lender for the reasonable costs incurred by such Lender in
connection therewith promptly after such Lender's request therefor.
Nothing in this Agreement or any other Loan Document does, is intended to
or shall be construed as authorizing the Agent, the Issuer or any Lender
to conduct or have conducted for its account or the account of any other
Person after the date of this Agreement any environmental inspection or
audit of the Refinery or the real property on which the Refinery is
situated or any other plant, property or equipment or real property owned
or leased by the Borrower on the date of this Agreement.
<PAGE>
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ARTICLE VII
CERTAIN COVENANTS
So long as any of the Commitments remain in effect and until payment in full of
the Loans, the Letter of Credit Obligations and all other Obligations that have
become due when the Loans and the Letter of Credit Obligations have been paid in
full, unless compliance with the provisions of the following Sections shall have
been waived in writing by the Required Lenders, the Borrower agrees as follows.
7.01 Maintenance of Existence and Properties.
---------------------------------------
(a) The Borrower shall remain a limited partnership. The Borrower shall
cause each Subsidiary that is a limited liability company or a
limited partnership when it becomes a Subsidiary to maintain its
existence as a limited liability company or limited partnership, as
the case may be, under the appropriate act under which it was
originally formed. The Borrower shall cause each Subsidiary that is a
corporation when it becomes a Subsidiary to maintain its existence as
a corporation. The Borrower shall and shall cause each Subsidiary to
(i) be in good standing in each jurisdiction in which its ownership
or lease of properties or its transaction of business requires it to
be registered, qualified or licensed, except to the extent that
failures to be so registered, qualified or licensed individually or
in the aggregate by the Borrower and all Subsidiaries could not
reasonably be expected to have a Material Adverse Effect, and (ii)
keep and maintain all rights, franchises, licenses and privileges
useful or necessary in the conduct of its business, except to the
extent that the failure to keep and maintain such rights, franchises,
licenses and privileges individually or in the aggregate by the
Borrower and all Subsidiaries could not reasonably be expected to
have a Material Adverse Effect.
(b) The Borrower shall and shall cause each Subsidiary to maintain and
preserve all of its properties, owned or leased, that are necessary
or useful in the conduct of its business in good repair, working
order and condition, ordinary wear and tear excepted; provided,
--------
however, that no item of property need be so maintained and preserved
-------
if the failure to so maintain and preserve such item individually or
in the aggregate with all other items not so maintained and preserved
by the Borrower and all Subsidiaries could not reasonably be expected
to have a Material Adverse Effect.
(c) The Borrower shall and shall cause each Subsidiary to maintain and
protect its ownership of or rights to use all Intellectual Property
owned or used by it in the conduct of its business as now conducted
and proposed to be conducted, in each case free of all claims and
infringements known to the Borrower, except for such failure so to
maintain and protect that individually or in the aggregate respecting
all Intellectual Property owned or used by the Borrower and all
Subsidiaries could not reasonably be expected to have a Material
Adverse Effect.
<PAGE>
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7.02 Compliance With Governmental Requirements.
-----------------------------------------
(a) The Borrower will and will cause each Subsidiary to comply with all
applicable Governmental Requirements and Governmental Approvals,
including, without limitation, Governmental Requirements under ERISA
and applicable Environmental Laws and applicable Governmental
Approvals required by applicable Environmental Laws, except for such
noncompliances that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
(b) The Borrower shall and shall cause each Subsidiary to maintain a
policy which, in the reasonable business judgment of the Borrower, is
reasonably designed to promote and monitor continued compliance by
their respective operations and properties with applicable
Environmental Laws and applicable Governmental Approvals required by
applicable Environmental Laws.
7.03 Payment of Taxes and Claims. The Borrower shall and shall cause each
---------------------------
Subsidiary to pay and discharge or cause to be paid and discharged
promptly when due all Taxes imposed upon it or its revenues, income,
profits or capital or in respect of any of its properties or assets before
the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid,
might give rise to a Lien (other than a Permitted Lien) on such properties
or assets or any part thereof; provided, however, that such payment and
-------- -------
discharge by such Person shall not be required with respect to any such
Tax or claim so long as the failure to make such payment and effect such
discharge, together with all other failures then and theretofore permitted
by this clause, could not reasonably be expected to have a Material
Adverse Effect.
7.04 Insurance; Casualty.
-------------------
(a) The Borrower shall and shall cause each Subsidiary to maintain
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as is usually
carried by Persons engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower or such
Subsidiary operates, including, without limitation, public liability
insurance, casualty insurance against loss or damage to its
properties and assets and business interruption insurance.
(b) In the case of any damage or casualty to any property, plant or
equipment of the Borrower or any Subsidiary, the Borrower will and
will cause such Subsidiary, as determined by the sound business
judgment of the Borrower, to pursue diligently claims available to it
under casualty or other applicable insurance policies (other than
business interruption insurance policies) relating to such property,
plant or equipment and shall use the proceeds of such policies to (i)
finance or refinance (through reimbursement of such Person's treasury
or otherwise) in whole or in part the cost of repairing or replacing
such property, plant or equipment promptly and in a good workmanlike
manner, (ii) otherwise reinvest the proceeds in
<PAGE>
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property, plant or equipment for any of the lubes, aeromatics or
refining businesses of the Borrower or, in the case of proceeds
received in respect of the property, plant or equipment of such
Subsidiary, the business of the Borrower or such Subsidiary, or (iii)
prepay Term Loans.
7.05 Liens. The Borrower shall not and shall not permit any Subsidiary to
-----
create, assume or permit to exist any Lien on any of its properties or
assets other than Permitted Liens.
7.06 Restricted Payments. The Borrower shall not and shall not permit any
-------------------
Subsidiary to make any Restricted Payment, including any distribution to
the Partners, whether pursuant to or in accordance with Section 7.2, 7.4
or 7.5 of the Partnership Agreement or otherwise, except:
(a) so long as no Event of Default exists or would exist after giving
effect thereto, the Borrower may make distributions to the Partners
pursuant to and in accordance with Sections 7.2, 7.4 and 7.5 of the
Partnership Agreement, including, without limitation, distributions
in satisfaction of Distribution Debt and advances pursuant to Section
7.5 of the Partnership Agreement;
(b) each Wholly-Owned Subsidiary may make Restricted Payments to the
Borrower and other Wholly-Owned Subsidiaries;
(c) the Borrower may make scheduled payments of principal, fees and other
charges to the holders of Permitted Replacement Debt when due in
accordance with its terms (including terms of subordination);
(d) with respect to Qualified Subordinated Debt that is not Permitted
Replacement Debt:
(i) if such Indebtedness is Affiliate Indebtedness of the Borrower,
the Borrower may make scheduled payments of interest thereon
when due in accordance with its terms (including terms of
subordination); and
(ii) if such Indebtedness is not Affiliate Indebtedness of the
Borrower, the Borrower may make scheduled payments of principal,
interest, fees and other charges to the holders of such
Qualified Subordinated Debt when due in accordance with its
terms (including terms of subordination).
Notwithstanding the foregoing clause (d) of this Section 7.06, so long as
no Event of Default exists or would exist after giving effect thereto, the
Borrower may make scheduled payments of interest on Affiliated
Indebtedness incurred prior to December 31, 1998 pursuant to Section
6.4(D) or 6.3 of the Amended and Restated Limited Liability Company
Regulations of the Borrower dated July 1, 1993 as in effect on December
30, 1998. Nothing in this Section 7.06 restricts the creation of
Distribution Debt in accordance with Section 7.3.(C) of the Partnership
Agreement.
7.07 Limitations on Mergers, Etc. The Borrower shall not and shall not permit
----------------------------
any Subsidiary to merge or consolidate with or into any Person or convey,
transfer, lease or
<PAGE>
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otherwise dispose of all or substantially all of its properties and assets
in a single transaction or series of transactions; provided, that any
--------
Subsidiary may merge or consolidate with or into or transfer all or
substantially all its properties and assets to any other Subsidiary so
long as no Default exists or would exist after giving effect thereto.
7.08 Disposition of Assets. The Borrower shall not and shall not permit any
---------------------
Subsidiary to sell, lease, license, transfer or otherwise dispose of any
of its properties or assets (or any right to receive revenues, proceeds,
income or profits therefrom), except (a) licensing of technology and
dispositions of inventory, in each case in the ordinary course of
business, (b) dispositions of any property not required to be maintained
or preserved pursuant to Section 7.01(b), (c) dispositions of any property
or assets by a Subsidiary to the Borrower or a Subsidiary or loans or
advances of funds by the Borrower to a Subsidiary, (d) any sale or
assignment of delinquent accounts receivable or other trade receivables
(or notes evidencing such receivables) to a collection agency or similar
service in the ordinary course of business as now conducted, (e) Permitted
Liens, (f) Restricted Payments permitted by Section 7.06 and (g) in
transactions permitted by Section 7.07.
7.09 Indebtedness. The Borrower shall not and shall not permit any Subsidiary
------------
to incur, create, assume or suffer to exist any Indebtedness, except:
(a) the Loans and Letter of Credit Obligations;
(b) the Term Loans and Permitted Replacement Debt;
(c) Qualified Subordinated Debt;
(d) Distribution Debt;
(e) unsecured Indebtedness of any Subsidiary owing to the Borrower or to
any other Subsidiary;
(f) obligations of the Borrower and all Subsidiaries in an aggregate
amount, without duplication of amounts, not to exceed $10,000,000 at
any time outstanding in respect of Capital Leases and Indebtedness
consisting of secured purchase money Indebtedness incurred by the
Borrower or any Subsidiary in the ordinary course of business;
(g) (i) obligations in respect of Permitted Interest Rate Protection
Agreements, other than pursuant to a Guaranty, having a
designated notional amount not exceeding, at the time entered
into, 100% of the Total Commitment then in effect, having a
maturity not later than the Termination Date and providing for
regularly scheduled net settlement payments based upon nominal
interest amounts computed on the basis of fixed or floating
rates of interest; and
(ii) obligations in respect of Permitted Interest Rate Protection
Agreements, other than pursuant to a Guaranty, having a
designated notional amount
<PAGE>
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not exceeding, at the time entered into, 100% of the total
commitment then in effect of the lenders parties to the Term
Credit Agreement to make Term Loans, having a maturity not
later than the Term Loan Termination Date and providing for
regularly scheduled net settlement payments based upon nominal
interest amounts computed on the basis of fixed or floating
rates of interest;
(h) unsecured Indebtedness of the Borrower, in an aggregate amount not to
exceed $20,000,000 at any time outstanding, incurred to finance
"Capital Enhancement Projects" (as defined in Section 9.2.(C) of the
Partnership Agreement) of the Borrower in the conduct of the
Borrower's business as permitted by Section 7.14; and
(i) additional unsecured Indebtedness of the Borrower, other than pursuant
to a Guaranty, in an aggregate amount not to exceed $20,000,000 at any
time outstanding.
7.10 Transactions With Affiliates. The Borrower shall not and shall not permit
----------------------------
any Subsidiary to effect any transaction with any Affiliate of the Borrower
except (a) transactions contemplated by the Partnership Agreement and the
Supply or Purchase Contracts, (b) transactions permitted by and in
accordance with Sections 5.6 and 5.7 of the Partnership Agreement, (c)
transactions between or among the Borrower and any one or more Subsidiaries
or between or among Subsidiaries (except transactions not otherwise
permitted by this Article) and (d) any transaction to the extent not
otherwise restricted or prohibited by this Article on terms that are no
less favorable to the Borrower or such Subsidiary, as the case may be, than
would be available in a comparable transaction with a Person that is not an
Affiliate of the Borrower.
7.11 Limitation on Restrictive Covenants. The Borrower shall not and shall not
-----------------------------------
permit any Subsidiary to permit to exist any consensual restriction
limiting the ability (whether by covenant, event of default, subordination
or otherwise) of any Subsidiary to (a) pay dividends or make any other
distributions on its Capital Securities held by the Borrower or any other
Subsidiary, (b) pay any obligation owed to the Borrower or any other
Subsidiary, (c) make any loans or advances to or investments in the
Borrower or in any other Subsidiary, (d) transfer any of its property or
assets to the Borrower or any other Subsidiary, (e) incur any Indebtedness
to the Borrower or (f) create any Lien upon its property or assets whether
now owned or hereafter acquired or upon any revenues, income or profits
therefrom.
7.12 Issuance or Disposition of Capital Securities. The Borrower shall not
---------------------------------------------
permit any Subsidiary to issue any Capital Securities, and the Borrower
shall not and shall not permit any Subsidiary to sell, transfer or
otherwise dispose of any Capital Securities of any Subsidiary, except (a)
any issuance by a Subsidiary of Capital Securities to the Borrower or a
Wholly-Owned Subsidiary and (b) any disposition by the Borrower or any
Subsidiary of any Capital Securities of a Wholly-Owned Subsidiary to the
Borrower or another Wholly-Owned Subsidiary.
<PAGE>
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7.13 Investments. The Borrower shall not and shall not permit any Subsidiary to
-----------
purchase or acquire obligations or Capital Securities of, or any other
interest in, or make loans to, or otherwise enter into joint venture or
similar arrangements with, purchase or acquire in a single transaction or
series of transactions all or substantially all of the properties or
assets of, or any business unit of, any Person, except: (a) Permitted
Investments; (b) temporary loans and advances by the Borrower or any
Subsidiary to any of its officers or other employees which are made in the
ordinary course of business for travel, entertainment or other business
expenses; (c) current accounts receivable of the Borrower or any
Subsidiary which arise in the ordinary course of its business and
adjustments offered to account debtors (other than Affiliates of the
Borrower) with respect thereto which are made in the ordinary course of
its business; (d) cooperative arrangements entered into by the Borrower in
the ordinary course of its business of operating the Refinery with other
Persons engaged in operations in the Houston Ship Channel area in
connection with their compliance with applicable Governmental Requirements
relating to environmental, health and safety matters, including loans or
advances of funds or equipment to, or acquisitions of the Capital
Securities or the funding of, Gulf Coast Waste Disposal Authority, Clean
Channel Association, Inc. or any similar entity; and (e) acquisitions
permitted by Section 7.07.
7.14 Business. The Borrower shall not, directly or indirectly, make any
--------
material change in the nature or type of the Borrower's business as
carried on by it as of the date of this Agreement, except such changes as
are incidental or reasonably related to such business, and the Borrower
shall not permit any Subsidiary to engage in any business other than any
type of business in which the Borrower is permitted to engage under this
Section 7.14.
7.15 Fiscal Year. The Borrower shall not and shall not permit any Subsidiary to
-----------
change its fiscal year from the calendar year.
7.16 Financial Covenants.
-------------------
(a) Debt to Total Capitalization Ratio. The Borrower shall not permit the
----------------------------------
Debt to Total Capitalization Ratio at the end of any fiscal quarter
of the Borrower to be greater than 0.60 to 1.00.
(b) Coverage Ratio. The Borrower shall not permit the Coverage Ratio at
--------------
the end of any fiscal quarter of the Borrower to be less than 2.00 to
1.00.
(c) Consolidated Net Worth. The Borrower shall not permit Consolidated
----------------------
Net Worth to be less than $555,000,000 at the end of any fiscal
quarter of the Borrower.
(d) Average Debt to EBITDA Ratio. The Borrower shall not permit the
----------------------------
Average Debt to EBITDA Ratio at the end of any fiscal quarter of the
Borrower to be greater than 4.0 to 1.0.
<PAGE>
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7.17 Certain Material Agreements.
---------------------------
(a) The Borrower shall not, and shall not permit any Subsidiary to:
(i) amend, modify, repudiate, supplement or terminate prior to the
scheduled termination date (or any effective extension of such
date) the Crude Supply Agreement or the Refined Products
Purchase Agreement, except to the extent that any such
amendment, modification or supplement, together with all
previous amendments, modifications and supplements covered by
this clause (i), could not reasonably be expected to have a
Material Adverse Effect;
(ii) without the prior written consent of the Required Lenders
(which consent shall not be unreasonably withheld), amend,
modify or supplement any provision of Sections 2.1, 2.3, 2.4,
2.12, 2.13 and 5.7 of the Crude Supply Agreement (or any
provision of such Sections as incorporated in the Supplemental
Supply Agreement) in a manner that is detrimental to the
Borrower or any Subsidiary, other than such amendments or
modifications of or supplements to such provisions concerning
day-to-day performance as are customarily waived or modified on
a temporary basis in the ordinary course of business or
pursuant to industry custom or practice; or
(iii) without the prior written consent of the Required Lenders
(which consent shall not be unreasonably withheld), otherwise
amend, modify, repudiate, supplement or terminate prior to the
scheduled termination date (or any effective extension of such
date) the Supplemental Supply Agreement;
provided, that all adjustments contemplated by any Supply or Purchase
--------
Contract as in effect on the date hereof that are made utilizing the
methodology, or in accordance with the parameters, set forth therein
(including in any schedules or exhibits thereto), shall not constitute
amendments, modifications or supplements for purposes of this Section
7.17(a); and provided, further, that any amendments or modifications of or
-------- -------
supplements to the Crude Supply Agreement permitted or consented to under
this Section 7.17(a) shall be deemed to be permitted, and consented to,
amendments, modifications or supplements of the Supplemental Supply
Agreement.
(b) The Borrower shall not amend, modify or supplement its Certificate of
Limited Partnership, except to the extent that any such amendment,
modification or supplement, together with all previous amendments,
modifications and supplements, could not reasonably be expected to
have a Material Adverse Effect.
(c) The Borrower shall not amend, modify or supplement (i) any of
Sections 2.3.(A), 2.3.(C), 2.3.(D), 5.2, 5.3 or 6.14 of the
Contribution Agreement or Schedule 2.3.(D) to the Contribution
Agreement insofar as any such Section or such Schedule relates to the
Lyondell Obligations (it being understood that if any term defined
elsewhere in the Contribution Agreement or the Schedules or Exhibits
to the Contribution Agreement and used (directly or by inclusion in
such
<PAGE>
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a defined term used) in any of such enumerated Sections or Schedule is
amended, modified or supplemented in a manner materially detrimental
to the Lenders with respect to any of such Sections or such Schedule,
such amendment, modification or supplement will be deemed an amendment
or modification of or a supplement to each of the enumerated Sections
or Schedule in which it is used) without the prior written consent of
the Required Lenders (which consent shall not be unreasonably
withheld) or (ii) any other term or condition of the Contribution
Agreement in such a manner that the effect thereof, together with the
effect of all previous amendments and modifications of and supplements
to such other terms and conditions, could reasonably be expected to
have a Material Adverse Effect.
7.18 Use of Proceeds. The Borrower shall not use or permit the use of all or
---------------
any portion of the proceeds of any Loan, or request the issuance of any
Letter of Credit, for any purpose other than as represented and warranted
in Section 5.13.
ARTICLE VIII
DEFAULT
8.01 Events of Default. Each of the following shall constitute an "Event of
-----------------
Default":
(a) The Borrower fails to pay any principal of any Note or any
Reimbursement Obligation when the same becomes due and payable; or
the Borrower fails to pay any interest on any Note, any fees required
by Section 2.05 or any other Loan Document or any other Obligation
when the same becomes due and payable and such failure continues for
five days;
(b) Any representation or warranty made by the Borrower or any of its
officers in any Loan Document shall prove to have been incorrect or
misleading in any material respect when made or deemed made pursuant
to this Agreement;
(c) The Borrower shall fail to perform or observe: (i) any term,
covenant, condition or agreement contained in Section 6.01(e),
7.01(a) (as to maintenance of existence by the Borrower), 7.02(a) (as
to Environmental Laws), 7.05 (except as to Liens for state and local
taxes payable to Governmental Authorities in states other than
Alabama and Texas), 7.07, 7.08, 7.09 (other than clause (f) thereof),
7.10, 7.11, 7.12, 7.14, 7.16, 7.17 or 7.18; (ii) any term, covenant,
condition or agreement contained in Section 7.06 or 7.13 and such
failure continues unremedied for a period of five Business Days after
the earlier to occur of notice of such failure being given to the
Borrower by the Agent or the Borrower otherwise obtaining knowledge
of such failure; or (iii) any term, covenant, condition or agreement
contained in this Agreement or any other Loan Document (other than a
term, covenant, condition or agreement a failure in the performance
or observance of which is elsewhere specifically dealt with in this
Section 8.01) and such failure continues unremedied for a period of
30 days after the earlier to occur of notice of
<PAGE>
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such failure being given to the Borrower by the Agent or the Borrower
otherwise obtaining knowledge of such failure;
(d) (i) The Borrower or any Subsidiary fails to pay when due any
principal of or interest on any Indebtedness of such Person (other
than the Loans) having a then outstanding principal amount in excess
of $15,000,000, (ii) the maturity of any such Indebtedness, in whole
or in part, is accelerated, or any such Indebtedness, in whole or in
part, is required to be prepaid or purchased prior to the stated
maturity thereof, in accordance with the provisions of any document,
instrument or agreement evidencing, providing for the creation of or
concerning such Indebtedness, or (iii) (A) any event has occurred and
is continuing that permits (or, with the passage of time or the
giving of notice or both, would permit) any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person to accelerate such maturity or require
any such prepayment or purchase and (B) if the document, instrument
or agreement evidencing, providing for the creation of or concerning
such Indebtedness provides for a grace period for such event, such
event is not cured prior to the end of such grace period; provided,
--------
that this Section 8.01(d) does not apply to (a) Indebtedness of the
type referred to in clause (a)(iii) or (iv) of the definition
thereof, (b) any liability referred to in clause (b) of the
definition thereof which does not constitute Indebtedness of the type
referred to in clause (a)(i) or (ii) of the definition thereof or (c)
Distribution Debt;
(e) (i) The Borrower or any Subsidiary (A) makes a general assignment for
the benefit of creditors, (B) pursuant to or within the meaning of
any Bankruptcy Law, (1) commences a voluntary case or proceeding or
(2) consents to the appointment of, or the taking possession by, any
Custodian of it or any substantial part of its assets, (C) takes any
limited partnership or corporate action to authorize any of the
actions set forth above in this Section 8.01(e) or (D) admits in
writing its inability to pay its debts as they become due or its
belief that it will become unable generally to pay its debts as they
become due; or (ii) (A) an involuntary case or proceeding is
commenced against the Borrower or any Subsidiary under and within the
meaning of any Bankruptcy Law and such involuntary case or proceeding
continues undismissed or unstayed for a period of 60 days after it is
commenced, (B) a Custodian is appointed of it or any substantial part
of its assets in any such involuntary case or proceeding or (C) an
order for relief is entered against the Borrower or any Subsidiary in
any such involuntary case or proceeding; or (iii) any Partner applies
to any court of competent jurisdiction for the dissolution of the
Borrower or an event of dissolution (within the meaning of Section 11
of the Partnership Agreement or the DRULPA) occurs and the business
of the Borrower is not continued pursuant to the vote of the
requisite Partners within 90 days after such event of dissolution or
the Borrower is not otherwise reconstituted in accordance with
Section 11.10 of the Partnership Agreement within 90 days after such
event of dissolution;
(f) Judgments, orders or decrees are entered against the Borrower or any
one or more of the Subsidiaries by one or more courts of competent
jurisdiction the cost of
<PAGE>
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which to the Borrower and the Subsidiaries (without duplication of
amounts and without including attorney's fees and other expenses
incurred by the Borrower or any Subsidiary defending against or
litigating in connection with any such judgment, order or decree)
aggregates in excess of $15,000,000, and such judgments, orders and
decrees continue undismissed, unbonded, undischarged or unstayed for a
period of 30 days;
(g) (i) Any Termination Event occurs with respect to any Benefit Plan of
the Borrower or any Subsidiary or any of their respective ERISA
Affiliates, (ii) any Accumulated Funding Deficiency, whether or not
waived, exists with respect to any such Benefit Plan, (iii) the
Borrower, any Subsidiary or any of their respective ERISA Affiliates
is in "default" (as defined in Section 4219(c)(5) of ERISA) with
respect to payments owing to any Multiemployer Benefit Plan as a
result of such Person's complete or partial withdrawal (as described
in Section 4203 or 4205 of ERISA) therefrom, (iv) the Borrower, any
Subsidiary or any of their respective ERISA Affiliates fails to pay
when due an amount that is payable by it to the PBGC or to any such
Benefit Plan under Title IV of ERISA, (v) a proceeding is instituted
by a fiduciary of any such Benefit Plan against the Borrower, any
Subsidiary or any of their respective ERISA Affiliates to enforce
Section 515 of ERISA and such proceeding has not been dismissed within
30 days thereafter, (vi) any Multiemployer Benefit Plan to which the
Borrower or any of its ERISA Affiliates is or has made or accrued an
obligation to make contributions shall reorganize or become insolvent
or (vii) any other event or condition occurs or exists with respect to
any such Benefit Plan, except that no event or condition referred to
in clauses (i) through (vii) above shall constitute an Event of
Default if it, together with all other such events or conditions at
the time existing, has not subjected and could not reasonably be
expected to subject the Borrower or any Subsidiary to any liability in
excess of $25,000,000 or otherwise, alone or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect;
(h) The Borrower or any Subsidiary (or any Affiliate of the Borrower)
institutes any proceedings seeking to establish that any provision of
any Loan Document is invalid, not binding or unenforceable;
(i) (i) Any Supply or Purchase Contract is terminated for any reason by
any party thereto prior to its stated termination date or any
effective extension of such date, or any party to any Supply or
Purchase Contract shall fail to perform or observe any term,
covenant, condition or agreement contained therein to be
performed or observed by it and such failure, or such failure
together with all other failures by any party or parties to any
such agreements, could reasonably be expected to have a Material
Adverse Effect;
(ii) any other Material Agreement is terminated for any reason by any
party thereto prior to its stated termination date or any
effective extension of such date, or any party to any such
Material Agreement shall fail to
<PAGE>
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perform or observe any term, covenant, condition or agreement
contained therein to be performed or observed by it and such
termination or failure, or such termination or failure together
with all other such terminations and failures by any party or
parties to any such agreements, could reasonably be expected to
have a Material Adverse Effect, and such termination or failure
continues unremedied for a period of 30 days after the earlier to
occur of notice of such termination or failure being given to the
Borrower by the Agent or the Borrower otherwise obtaining
knowledge of such termination or failure;
(iii) (A) any of Sections 3.1.(B), 5.6, 5.7, 6.2, 6.5, 6.6, 6.7, 7.2,
7.3, 7.4 and 7.5 of the Partnership Agreement is amended,
modified or supplemented (directly or indirectly by means of an
amendment to the Borrower's Partnership Agreement or Certificate
of Limited Partnership) (it being understood that if any term
defined elsewhere in the Partnership Agreement or the Exhibits to
the Partnership Agreement and used (directly or by inclusion in
such a defined term used) in any of such enumerated Sections is
amended, modified or supplemented in a manner materially
detrimental to the Lenders with respect to any of such Sections,
such amendment, modification or supplement will be deemed an
amendment or modification of or supplement to each of the
enumerated Sections in which it is used) without the prior
written consent of the Required Lenders (which consent shall not
be unreasonably withheld) or (B) any other term or condition of
the Partnership Agreement is amended, modified or supplemented
(directly or indirectly as aforesaid) in such a manner that the
effect thereof, together with the effect of all previous
amendments and modifications of and supplements to such other
term or conditions, could reasonably be expected to have a
Material Adverse Effect;
(iv) any Partner fails to pay or make any cash contribution or loan to
the Borrower required by the Partnership Agreement and such
failure continues unremedied for a period of three days;
(v) any Partner materially breaches or violates any other term,
covenant, condition or agreement contained in the Partnership
Agreement to be performed or observed by it and such breach or
violation continues unremedied for a period of 90 days after the
nondefaulting Partner gives written notice thereof to the
defaulting Partner pursuant to Section 11.2 of the Partnership
Agreement; or
(vi) (A) Lyondell fails to perform any of the Lyondell Obligations,
(B) such failure continues unremedied for a period of 90 days
after the Borrower or CRIC gives Lyondell written notice thereof
and (C) such failure, if continued, together with all then
continuing such failures, could reasonably be expected to have a
Material Adverse Effect;
(j) A Change of Control occurs;
<PAGE>
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(k) (i) the Borrower or any ERISA Affiliate of the Borrower does any of
the following if, individually or in the aggregate, any of the
following could reasonably be expected to have a Material
Adverse Effect: (A) fails to make any payments when due to any
Multiemployer Benefit Plan that the Borrower or such ERISA
Affiliate of the Borrower is required to make under any
agreement relating to such Multiemployer Benefit Plan or any
Governmental Requirement pertaining thereto; (B) incurs
withdrawal liability under ERISA to a Multiemployer Benefit
Plan; (C) voluntarily terminates or, in the case of a
"substantial employer" as defined in Section 4001(a)(2) of
ERISA, withdraws from any Benefit Plan or Multiple Employer
Plan if such termination or withdrawal could reasonably result
in the imposition of a Lien upon the properties or assets of
the Borrower or any Subsidiary (or upon the revenues, income or
profits of the Borrower or any Subsidiary therefrom) under
Section 4068 of ERISA; (D) fails to make any required
contribution when due to any Plan subject to Section 412(n) of
the Code that, with the passage of time, could result in a Lien
upon the properties or assets of the Borrower or any Subsidiary
(or upon the revenues, income or profits of the Borrower or any
Subsidiary therefrom); (E) adopts any amendment to a Benefit
Plan the effect of which is to increase the "current liability"
under the Benefit Plan as defined in Section 302(d)(7) of
ERISA; (F) incurs any liability to the PBGC or to a trustee
appointed under Section 4042(b) of ERISA (other than required
insurance premiums); or (G) acts or fails to act, and, as a
result thereof, an event similar to any of those referred to in
clauses (A) through (F) above could occur under the
Governmental Requirements of a foreign country;
(ii) the Borrower or any ERISA Affiliate of the Borrower permits the
present value of all benefits (irrespective of whether vested)
under all Benefit Plans that have assets less than benefits
(irrespective of whether vested) to exceed the "current value,"
as defined in Section 3(26) of ERISA, of the assets of such
Benefit Plans by an aggregate amount which could reasonably be
expected to have a Material Adverse Effect; or
(iii) the Borrower or any ERISA Affiliate does any of the following
if, in the aggregate, the effect of such actions could
reasonably be expected to have a Material Adverse Effect: (A)
permits to exist any Accumulated Funding Deficiency, whether or
not waived, with respect to any Benefit Plan; (B) applies for
or is granted a funding waiver under Section 302 of ERISA or
Section 412 of the Code; (C) permits to occur any Reportable
Event with respect to any Benefit Plan or Multiple Employer
Plan, which Reportable Event is likely to result in the
termination of such Benefit Plan or Multiple Employer Plan for
purposes of Title IV of ERISA; (D) permits to be filed a notice
of intent to terminate a Benefit Plan or Multiple Employer Plan
under Section 4041(c) of ERISA; or (E) permits a complete or
partial withdrawal from a Multiemployer Benefit Plan;
<PAGE>
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(l) (i) either LRC or Lyondell LP shall transfer its interest as a Partner
of the Borrower in accordance with the terms of the Partnership
Agreement to a Person other than an "Affiliate" (as defined in the
Crude Supply Agreement) of Lyondell or (ii) neither CITGO nor any of
its "Affiliates" (as defined in the Crude Supply Agreement) is a
Partner of the Borrower.
(m) notwithstanding any provision of Article VII (including, without
limitation Section 7.06) to the contrary:
(i) the Borrower makes any payment of interest on any Qualified
Subordinated Debt which is Affiliate Indebtedness and which is
not Permitted Replacement Debt (such Indebtedness, "AIQSD"); or
(ii) the Borrower makes any distribution of Distributable Cash (as
defined in the Partnership Agreement) to the Partners for any
period in excess of (A) Distributable Cash for such period less
(B) interest payable on any AIQSD during such period;
provided that Partners may apply distributions otherwise permitted by the
--------
Loan Documents to payments in respect of Qualified Subordinated Debt to the
extent that such payment would not result in any increase in the aggregate
distribution otherwise permitted by the Loan Documents.
8.02 Remedies. During the continuance of any Event of Default (other than one
--------
specified in Section 8.01(e)), the Agent, on notice to the Borrower, may
(but shall not be obligated to), and if so directed by the Required Lenders
shall, do any or all of the following: (a) declare, in whole or, from time
to time, in part, the Obligations to be, and the Obligations shall
thereupon and to that extent become, due and payable; (b) demand that the
Borrower deliver cash collateral to the Agent in an amount equal to the
aggregate amount of the then Letter of Credit Undrawn Amount to be held in
accordance with Section 8.04, whereupon the Borrower shall be obligated to
deliver such cash collateral immediately; and (c) terminate, in whole or,
from time to time, in part, the Commitments (other than the Commitments to
make Loans pursuant to the second and last sentences of Section 2.03(g));
provided, however, that during the continuance of an Event of Default
-------- -------
specified in Section 8.01(l), the Agent shall not be entitled to declare,
in whole or in any part, the Obligations to be due and payable, or to
exercise any of the other rights or remedies set forth in this Section
8.02, solely by reason of such continuance, and none of the Agent, the
Issuer or any Lender shall be entitled to exercise any of its rights or
remedies under Section 8.05 or 10.02(c) or the proviso to the second
sentence of Section 6.03 solely by reason of such continuance, unless and
until the date (the "Supply Termination Date"), if any, the Borrower
receives a written notice of termination of the Crude Supply Agreement by
the "Supplier" (as defined in the Crude Supply Agreement) pursuant to
Section 3.2(c)(iv) or (v) of the Crude Supply Agreement, as applicable, by
reason of the occurrence of such Event of Default; and provided, further,
-------- -------
that any Event of Default specified in Section 8.01(l) which occurs shall
automatically be cured and no longer continuing upon the earlier to occur
prior to the Supply Termination Date, if any, applicable thereto of (i)
receipt by the Borrower of written evidence reasonably
<PAGE>
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satisfactory to the Required Lenders of such Supplier's waiver of its right
to terminate the Crude Supply Agreement pursuant to Section 3.2(c)(iv) or
(v) thereof, as applicable, by reason of the occurrence of such Event of
Default or (ii) the passage of the 90-day period provided under such
Section 3.2(c)(iv) or (v), as applicable, without such Supplier's having
delivered such Supplier's notice of termination of the Crude Supply
Agreement by reason of the occurrence of such Event of Default. Upon the
occurrence of an Event of Default specified in Section 8.01(e),
automatically and without any notice to the Borrower, (a) the principal of
and accrued and unpaid interest on the Notes and all other Obligations then
owing under the Loan Documents shall be due and payable and (b) the
Commitments (other than the Commitments to make Loans pursuant to the
second and last sentences of Section 2.03(g)) shall terminate. Presentment,
demand, protest, notice of protest, notice of default, notice of dishonor,
notice of intent to accelerate and all other notices of any kind (other
than the notice provided for in the first sentence of this Section 8.02)
are hereby expressly waived by the Borrower.
8.03 Application of Proceeds. During the continuance of any Event of Default,
-----------------------
all payments in respect of the Obligations received by the Agent may, and
shall on the acceleration of the Obligations pursuant to Section 8.01(e),
be applied by the Agent to the Obligations, as follows: (a) first, to pay
(i) interest on and the principal of any portion of any Loan which the
Agent has advanced on behalf of any Lender and (ii) any amount in respect
of a drawing under a Letter of Credit which the Issuer has paid, in either
case, for which the Agent or the Issuer has not then been reimbursed by any
Lender or the Borrower; (b) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Agent or the
Issuer; (c) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders; (d) fourth, to pay
interest due in respect of the Loans; (e) fifth, to pay or prepay principal
outstanding on the Loans; (f) sixth, to pay all Obligations owed to Lenders
in respect of any Interest Rate Protection Agreements respecting the Loans;
and (g) seventh, to pay all other Obligations, or in such other order and
manner as the Agent shall determine, and the Borrower shall remain liable
to the Agent, the Issuer and the Lenders for any deficiency. If the Agent
has funds available to apply to a portion of, but not all of, one of the
amounts described in clauses (a) through (g) above, then the Agent shall
apply such funds to the applicable parties in proportion to the amounts to
which such parties would have been entitled if the entire amount described
in any such clause had been available.
8.04 Cash Collateral. If cash collateralization of any Letter of Credit
---------------
Obligations is required pursuant to any provision of any of the Loan
Documents, including, without limitation, Section 8.02, then such cash
collateralization shall be made by deposit by the Borrower of Dollars in
immediately available funds, in the amount of such required cash
collateralization, into a non-interest bearing cash collateral account at
the Agent's Office, which account shall be under the sole dominion and
control of the Agent and is hereby pledged to the Agent for the benefit of
itself, the Issuer and the Lenders as security for the payment of any
Letter of Credit Obligations and any other Obligations that may become
payable under any Loan Documents. Funds deposited in such account shall (a)
automatically be applied by the Agent to reimburse the Issuer for all
Reimbursement Obligations the Borrower has not paid, and thereafter (b) may
be applied by the Agent against the Letter of Credit Obligations as they
become due or, if the maturity of the
<PAGE>
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Loans has been accelerated, against payment of any other Obligations under
the Loan Documents as such amounts become due. Any funds remaining in such
account when all Letter of Credit Obligations and all other Obligations
payable under the Loan Documents have been paid shall be promptly remitted
to the Borrower.
8.05 Set-Off; Suspension of Payment and Performance. The Agent, the Issuer and
----------------------------------------------
each Lender is hereby authorized by the Borrower, to the extent permitted
under Governmental Requirements, at any time and from time to time, without
notice, during any Event of Default, to set-off against, and to appropriate
and apply to the payment of, the Obligations owing to such Person (whether
matured or unmatured, fixed or contingent or liquidated or unliquidated and
including amounts to which such Person is entitled with respect to Letter
of Credit Obligations), any and all liabilities owing by such Person to the
Borrower (whether payable in Dollars or any other currency, whether matured
or unmatured and, in the case of liabilities that are deposits, whether
general or special, time or demand and however evidenced and whether
maintained at a branch or office located within or without the United
States). The rights of the Agent, the Issuer and each Lender under this
Section 8.05 are in addition to and cumulative of all other rights and
remedies (including, without limitation, rights pursuant to any banker's
lien) which such Person may have.
8.06 Sharing of Recoveries. The Agent, the Issuer and each Lender agrees that
---------------------
if, for any reason (whether voluntary, involuntary, through the exercise of
any right of set-off or otherwise), such Person receives payment of a
proportion of the aggregate amount of Obligations due and payable to it
hereunder that is greater than its allocable share thereof, then the Person
receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon
the receipt of such payment) in the rights of the applicable Persons
hereunder so that all such recoveries with respect to the Obligations (net
of costs of collection) shall be properly allocated among the Persons
entitled to the same; provided, however, that if all or part of such
-------- -------
proportionately greater payment received by the purchasing Person is
thereafter recovered by or on behalf of the Borrower from such Person, such
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such Person to the extent of such
recovery, but without interest (unless the purchasing Person is required to
pay interest on the amount recovered to the Person recovering such amount,
in which case the selling Lender shall be required to pay interest at a
like rate). The Borrower expressly consents to the foregoing arrangements
and agrees that any holder of a participation in any rights hereunder so
purchased or acquired pursuant to this Section 8.06 shall, with respect to
such participation, to the extent permitted under Governmental
Requirements, be entitled to all of the rights of a Lender and may exercise
any and all rights of set-off with respect to such participation as fully
as though the Borrower were directly indebted to the holder of such
participation for Obligations in the amount of such participation.
<PAGE>
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ARTICLE IX
THE AGENT
9.01 Appointment and Powers. Each Lender hereby irrevocably appoints and
----------------------
authorizes the Agent to act as the agent for such Lender under this
Agreement with such powers as are delegated to the Agent by the terms
thereof, together with such other powers as are reasonably incidental
thereto. The Agent's duties shall be purely ministerial and the Agent shall
have no duties or responsibilities except those expressly set forth herein.
The Agent shall not be required under any circumstances to take any action
that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Governmental Requirements or (b) would expose it to any
liability or expense against which it has not been indemnified to its
satisfaction. The Agent, by reason of its serving as an agent, shall not be
a trustee or other fiduciary for any Lender. The Co-Arrangers and Co-
Syndication Agents shall have no responsibilities hereunder in their
capacities as Co-Arrangers and Co-Syndication Agents.
9.02 Limitation on Agent's Liability. Neither the Agent nor any of its
-------------------------------
directors, officers, employees or agents shall be liable or responsible to
the Issuer or any Lender for any action taken or omitted to be taken by
them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct. The Agent shall not be
responsible to the Issuer or any Lender for (a) any recitals, statements,
representations or warranties contained in the Loan Documents or in any
certificate or other document referred to or provided for in, or received
by the Issuer or any Lender under, the Loan Documents, (b) the validity,
effectiveness or enforceability of the Loan Documents or any such
certificate or other document or (c) any failure by the Borrower to perform
any of its obligations under the Loan Documents. The Agent may employ
agents and attorneys-in-fact and shall not be responsible to the Issuer or
any Lender for the negligence or misconduct of any such agents or
attorneys-in-fact so long as the Agent was not grossly negligent in
selecting or directing such agents or attorneys-in-fact. The Agent shall be
entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telecopier, telegram or cable)
believed by it to be genuine and correct and to have been signed or given
by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants or other experts
selected in good faith by the Agent. As to any matters not expressly
provided for by the Loan Documents, the Agent shall in all cases be fully
protected as to the Issuer and the Lenders in acting, or in refraining from
acting, under the Loan Documents in accordance with instructions signed by
the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of
the Lenders.
9.03 Defaults. The Agent shall not be deemed to have knowledge of the occurrence
--------
of a Default unless the Agent has received notice from a Lender, the Issuer
or the Borrower specifying such Default and stating that such notice is a
"Notice of Default." If the Agent receives such a notice of the occurrence
of a Default, then the Agent shall give prompt notice thereof to the
Lenders and the Issuer. In the event of any Default, the Agent shall take
such action with respect to such Default as shall be directed by the
Required
<PAGE>
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Lenders. Unless and until the Agent has received such directions, in the
event of any Default, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such
Default as it deems advisable in the best interests of the Lenders.
9.04 Rights as a Lender. The Agent shall, in its capacity as a Lender, have the
------------------
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not acting as the Agent, and the term
"Lender" or "Lenders" shall include such Person in its individual capacity.
Each Person acting as the Agent and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Borrower, the Subsidiaries and the Borrower's Affiliates as if it were not
acting as the Agent, and such Person and its Affiliates may accept fees and
other consideration from the Borrower, the Subsidiaries and the Borrower's
Affiliates for services in connection with the Loan Documents or otherwise
without having to account for the same to the Lenders.
9.05 Indemnification. The Lenders agree to indemnify the Agent (to the extent
---------------
not reimbursed by the Borrower under the Loan Documents), ratably on the
basis of the outstanding Loans and Letter of Credit Obligations of the
Lenders (or, if no Loans or Letter of Credit Obligations are at the time
outstanding, ratably on the basis of their respective Commitments), for any
and all liabilities, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever that may
be imposed on, incurred by or asserted against the Agent in its capacity as
agent (including, without limitation, the costs and expenses that the
Borrower is obligated to pay under the Loan Documents) in any way connected
with, relating to or arising out of the Loan Documents or any other
documents contemplated thereby or referred to therein or the transactions
contemplated thereby or the enforcement of any of the terms thereof or of
any such other documents, provided that no Lender shall be liable for any
of the foregoing to the extent they arise from gross negligence or willful
misconduct by the Agent. The obligations of the Lenders under this Section
9.05 shall survive the termination of this Agreement and the payment in
full of the Obligations.
9.06 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it has
---------------------------------------
made and will continue to make, independently and without reliance on the
Agent or any other Lender, and based on such documents and information as
it deems appropriate, its own credit analysis of the Borrower and the
Subsidiaries, and its own decision to enter into the Loan Documents and to
take or refrain from taking any action in connection therewith. The Agent
shall not be required to keep itself informed as to the performance or
observance by the Borrower of the Loan Documents or any other document
referred to or provided for therein or to inspect the properties or books
of the Borrower or any Subsidiary. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders
and the Issuer by the Agent under the Loan Documents, the Agent shall have
no obligation to provide any Lender or the Issuer with any information
concerning the business, status or condition of the Borrower or any
Subsidiary or the Loan Documents which may come into the possession of the
Agent or any of its Affiliates.
<PAGE>
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9.07 Resignation of the Agent. Subject to the appointment and acceptance of a
------------------------
successor Agent as provided below, the Agent may resign at any time by
giving notice thereof to the Lenders, the Issuer and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders may, with
the consent of the Borrower (which consent shall not be unreasonably
withheld), appoint any Eligible Assignee as the successor Agent. If no
successor Agent is so appointed by the Required Lenders and accepts such
appointment within 30 days after the resigning Agent's giving of notice of
resignation, then the resigning Agent may, on behalf of the Lenders and
with the consent of the Borrower (which consent shall not be unreasonably
withheld), appoint any Eligible Assignee as the successor Agent. Effective
on the acceptance by any Person of its appointment as a successor Agent,
such Person shall succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the resigning Agent and the resigning
Agent shall be discharged from its duties and obligations as Agent under
the Loan Documents. After any resigning Agent's resignation as Agent, the
provisions of this Article IX shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was
acting as the Agent.
9.08 CERTAIN INTENTIONS. THE ISSUER AND THE LENDERS SEVERALLY ACKNOWLEDGE TO THE
------------------
AGENT THAT THE PROVISIONS OF THIS ARTICLE IX WHICH RELEASE THE AGENT FROM
LIABILITY, LIMIT THE AGENT'S LIABILITY, DUTIES OR RESPONSIBILITIES OR
PROVIDE FOR THE INDEMNIFICATION OF THE AGENT BY THE LENDERS, INCLUDING,
WITHOUT LIMITATION, SECTIONS 9.01, 9.02, 9.03, 9.05 AND 9.06, ARE INTENDED
BY THEM TO SAVE AND HOLD THE AGENT HARMLESS FROM THE CONSEQUENCES OF ITS
OWN NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT).
ARTICLE X
MISCELLANEOUS
10.01 Notices and Deliveries.
----------------------
(a) Manner of Delivery; Addresses. All notices, communications and
-----------------------------
materials (including all Information) to be given or delivered
pursuant to or in connection with the Loan Documents shall be given or
delivered in writing (which shall include telecopier transmissions)
and shall be delivered at the following respective addresses and
telecopier and telephone numbers and to the attention of the following
individuals or departments:
<PAGE>
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(i) if to the Borrower, to it at:
12000 Lawndale
Houston, Texas 77252-2451
Telecopier No.: (713) 321-6900
Telephone No.: (713) 321-5307
Attention: Vice President - General Manager of Planning and
Administration
With a copy to:
Lyondell Chemical Company
One Houston Center
1221 McKinney
Houston, Texas 77010
Telecopier No.: (713) 652-4598
Telephone No.: (713) 309-7688
Attention: Assistant Treasurer, Banking and Foreign Exchange
(ii) If to the Issuer, to it at:
11 Madison Avenue
13/th/ Floor
New York, NY 10010
Attention: Shazia Sarker
Telephone No.: 212-325-9935
Telecopier No.: 212-325-8304
(iii) if to the Agent, to it at:
11 Madison Avenue
13/th/ Floor
New York, NY 10010
Attention: Shazia Sarker
Telephone No.: 212-325-9935
Telecopier No.: 212-325-8304
(iv) if to any Lender, to it at the address or telecopier number and
to the attention of the individual or department set forth below
such Lender's name under the heading "Notice Address" on Annex A
or, in the case of a Lender that becomes a Lender pursuant to an
assignment, set forth under the heading "Notice Address" in the
Assignment Agreement effecting such assignment;
<PAGE>
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or at such other address or telecopier number or to the attention of
such other individual or department as the party to which such
information pertains may hereafter specify for the purpose in a notice
specifically captioned "Notice of Change of Address" given to each of
the other parties to this Agreement.
(b) Effectiveness. Each notice and communication and any material to be
-------------
given or delivered pursuant to the Loan Documents shall be deemed so
given or delivered (i) if sent by registered or certified mail,
postage prepaid, return receipt requested, on the third Business Day
after such notice, communication or material, addressed as above
provided, is delivered to a United States post office and a receipt
therefor is issued thereby, (ii) if sent by any other means of
physical delivery, when such notice, communication or material is
delivered to the appropriate address as above provided, and (iii) if
sent by telecopier, when such notice, communication or material is
transmitted to the appropriate telecopier number as above provided and
is received at such number.
10.02 Expenses; Indemnification. Whether or not any Loans are made or any
-------------------------
Letters of Credit are issued hereunder, the Borrower shall, promptly, and
in any event within 15 Business Days after receiving a reasonably detailed
statement setting forth the amount and nature thereof:
(a) to the extent not otherwise paid pursuant to Section 3.06(b), pay or
reimburse the Agent, the Issuer and each Lender for all transfer,
documentary, stamp and similar taxes, and all recording and filing
taxes and fees payable in connection with, arising out of or in any
way related to, the execution, delivery and performance of the Loan
Documents or the making of the Loans or the issuance of the Letters
of Credit, excluding any such taxes imposed as a result of the
assignment (otherwise than pursuant to Section 2.01(b)(iv) or 3.07)
of any Loan or portion thereof;
(b) pay or reimburse the Agent for all reasonable out-of-pocket costs and
expenses (including reasonable fees and disbursements of legal
counsel collectively retained by the Agent and appraisers,
accountants and other experts employed or retained collectively by
the Agent) incurred by the Agent in connection with, arising out of
or in any way related to (i) the negotiation, preparation, execution
and delivery of (A) the Loan Documents and (B) whether or not
executed and delivered, any waiver or consent thereunder, amendment
thereof or supplement thereto or, in the case of this Agreement, any
assignment pursuant to Section 3.07, (ii) the administration of and
any operations under the Loan Documents, (iii) consulting with
respect to any matter in any way arising out of, related to or in
connection with the Loan Documents, including (A) the protection,
preservation, exercise or enforcement of any of the rights of the
Agent, the Issuer or the Lenders in, under or related to the Loan
Documents during a Default or (B) the performance of any of the
obligations of the Agent, the Issuer or the Lenders under or related
to the Loan Documents or (iv) protecting, preserving, exercising or
enforcing any of the rights of the Agent, the Issuer or the Lenders
in, under or related to the Loan Documents during a Default;
<PAGE>
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(c) when an Event of Default has occurred and is occurring, pay or
reimburse each Lender and the Issuer for all reasonable costs and
expenses (including reasonable fees and disbursements of legal counsel
and other experts employed or retained by such Lender or the Issuer)
at such time incurred by such Lender or the Issuer in connection with,
arising out of or in any way related to protecting, preserving,
exercising or enforcing during an Event of Default any of its rights
in, under or related to the Loan Documents;
(d) (i) indemnify each Indemnified Person against, and hold each
Indemnified Person harmless from, any and all losses, claims, damages,
liabilities, obligations, penalties, actions, judgments, suits,
proceedings, disbursements, costs and expenses of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against
such Indemnified Person (including, without limitation, the reasonable
fees charged and disbursements made by counsel to such Indemnified
Person, whether or not suit is brought) or to which such Indemnified
Person may become subject arising out of or in connection with or in
any way relating to or resulting from any actual or threatened
Litigation relating to this Agreement (including the use of the
proceeds of the Loans), the other Loan Documents or any transaction
contemplated by any of the foregoing, whether or not such Indemnified
Person is a party thereto, whether direct or indirect, whether based
on any federal, state or local law or regulation, securities or
commercial law or regulation or under common law or in equity or on
contract, tort or otherwise, and whether or not the transactions
contemplated hereby are ever consummated, and (ii) reimburse each
Indemnified Person, on demand, for all out-of-pocket costs and
expenses (including, without limitation, the reasonable fees and
disbursements of counsel) incurred in connection with any of the
foregoing, including, without limitation, costs and expenses incurred
in connection with investigating, defending or participating in any
legal proceeding relating to any of the foregoing; provided, however,
-------- -------
that the Borrower shall not indemnify or hold harmless any Indemnified
Person from, or reimburse any Indemnified Person for, or waive or
release any claim for, any losses, claims, damages, liabilities,
obligations, penalties, actions, judgments, suits, proceedings,
disbursements, costs or expenses arising out of the gross negligence
or willful misconduct of such Indemnified Person; PROVIDED, FURTHER,
-------- -------
THAT IT IS THE EXPRESS INTENTION OF THE BORROWER TO INDEMNIFY EACH
INDEMNIFIED PERSON AGAINST THE CONSEQUENCES OF ITS OWN OR ANY OTHER
INDEMNIFIED PARTY'S NEGLIGENCE (OTHER THAN GROSS NEGLIGENCE), WHETHER
SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT OR ACTIVE OR PASSIVE.
The Borrower shall not make any claim against any Indemnified Person
for any special, indirect or consequential damages in respect of any
breach or wrongful conduct (whether the claim therefor is based on
contract, tort or duty imposed by law) in connection with, arising out
of or in any way related to the transactions contemplated by, and the
relationship established by, the Loan Documents, or any act, omission
or event occurring in connection therewith; and the Borrower hereby
waives, releases and agrees not to sue upon any such claim for any
such damages, whether or not accrued and whether or not known or
suspected to exist in its favor; and
<PAGE>
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(e) indemnify each Indemnified Person against, and hold each Indemnified
Person harmless from, any and all losses, claims, damages,
liabilities, obligations, penalties, actions, judgments, suits,
proceedings, disbursements, costs and expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by or
asserted against such Indemnified Person (including, without
limitation, the reasonable fees charged and disbursements made by
counsel to such Indemnified Person, whether or not suit is brought)
arising out of or in connection with or in any way relating to or
resulting from (i) any Loan Document, including, without limitation,
the use of the proceeds of the Loans or the relationship created by
any Loan Document between or among the Borrower and the Agent, the
Issuer and the Lenders and (ii), with respect to or as a direct or
indirect result of any acts or omissions to act by the Borrower or any
Subsidiary or any Affiliate of the Borrower under any Environmental
Law or with respect to or as a direct or indirect result of the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, handling, release, discharge, emission or
disposal of pollutants, contaminants, chemicals, toxic or hazardous
substances, industrial or hazardous wastes or noxious noises or odors
or presence of any of the foregoing on, under, from or about its real
property; provided, however, that the Borrower shall not indemnify or
-------- -------
hold harmless any Indemnified Person from, or reimburse any
Indemnified Person for, or waive or release any claim for, any losses,
claims, damages, liabilities, obligations, penalties, actions,
judgments, suits, disbursements, costs or expenses arising out of the
gross negligence or willful misconduct of such Indemnified Person;
PROVIDED, FURTHER, THAT IT IS THE EXPRESS INTENTION OF THE BORROWER TO
-------- -------
INDEMNIFY EACH INDEMNIFIED PERSON AGAINST THE CONSEQUENCES OF ITS OWN
OR ANY OTHER INDEMNIFIED PERSON'S NEGLIGENCE (OTHER THAN GROSS
NEGLIGENCE), WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT OR
ACTIVE OR PASSIVE.
The obligations of the Borrower under this Section 10.02 shall survive the
termination of this Agreement and the payment in full of the Obligations.
10.03 Rights Cumulative. Each of the rights and remedies of the Agent, the
-----------------
Issuer and the Lenders under the Loan Documents shall be in addition to
all of their other rights and remedies under the Loan Documents and
Governmental Requirements, including, without limitation, the Fraudulent
Conveyance Act of Delaware, and nothing in the Loan Documents shall be
construed as limiting any such rights or remedies.
10.04 Confidentiality.
---------------
(a) The Agent, the Issuer and each Lender each agrees that (i) it and its
Representatives will keep confidential all non-public information
concerning the Borrower or the Partners which is furnished to it by or
on behalf of the Borrower, the Partners or any of their respective
Representatives ("Confidential Information") and, except with the
specific prior written consent of the Borrower or as otherwise
expressly permitted by the terms of this Section 10.04, will not
disclose any Confidential Information, (ii) it and its Representatives
will not use
<PAGE>
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Confidential Information except for the purposes of this Agreement and
the Loans, Letters of Credit or other extensions of credit
contemplated hereby, (iii) all recipients of Confidential Information
will be informed of the confidential nature of the Confidential
Information and instructed not to make use of the Confidential
Information in a manner inconsistent herewith, (iv) it and its
Representatives will not make available any Confidential Information
to other Persons for use or copying and (v) prior to its disclosure of
Confidential Information to any of its Outside Representatives, such
Outside Representative shall have executed and delivered a written
confidentiality agreement for the Borrower's benefit substantially in
the form of Exhibit 10.04(c)-3 in respect of the Confidential
Information, an executed original of which it will provide promptly to
the Borrower. Each of the Agent, the Issuer and each Lender further
agrees that in all events (i) the Crude Supply Agreement and the
Supplemental Supply Agreement shall be Confidential Information, (ii)
no copies may be made of either such agreement and (iii) any
inspection of either such agreement will be restricted to a limited
number of its Representatives and to the premises of the Borrower or
the Agent.
(b) The term "Confidential Information" does not include information that
any Receiving Party can show (i) has become generally available to the
public other than as a result of disclosure or other fault by a
Receiving Party or its Representatives or (ii) (A) was already in the
possession of a Receiving Party or its Representatives prior to its
disclosure to such Person by the Borrower, a Partner or any of their
respective Representatives or (B) became available to the Receiving
Party or its Representatives, in each case under this clause (ii),
free of any restrictions as to its disclosure and from a source, other
than the Borrower, the Partners or any of their respective
Representatives, which to the knowledge of the Receiving Party or the
relevant Representative was not then prohibited from transmitting the
information to the Receiving Party or its Representatives by a
contractual, legal, fiduciary or other obligation.
(c) Each of the Agent, the Issuer and each Lender also agrees to disclose
Confidential Information only to (i) its Representatives requiring
such material for the purpose of administering this Agreement and the
transactions contemplated hereby, and (ii) all or any of the Agent,
the Issuer, the Lenders, any Prospective Assignees and Prospective
Participants; provided, however, that prior to such disclosure to any
-------- -------
Prospective Assignee or Prospective Participant, a Representative of
such Prospective Assignee or Prospective Participant shall have
executed and delivered a written confidentiality agreement for the
Borrower's benefit substantially in the form of Exhibit 10.04(c)-1 (in
the case of any Prospective Assignee) or Exhibit 10.04(c)-2 (in the
case of any Prospective Participant) in respect of the Confidential
Information on behalf of such Eligible Assignee, and prior to such
disclosure to any Outside Representative of such Eligible Assignee,
such Outside Representative shall have executed and delivered a
written confidentiality agreement for the Borrower's benefit
substantially in the form of Exhibit 10.04(c)-3 in respect of the
Confidential Information, and each Lender agrees to provide promptly
to the Borrower an executed original of each such
<PAGE>
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confidentiality agreement entered into by its Prospective Assignee or
Prospective Participant, as the case may be, and such Person's
Outside Representative, if any.
(d) The foregoing will not prohibit the disclosure of any Confidential
Information by the Agent, the Issuer or any Lender if and to the
extent that (i) such disclosure may be required by any Governmental
Authority having regulatory authority over it, or (ii) it or any of
its Representatives may become legally compelled by court order,
subpoena or summons, or by deposition, interrogatory, request for
documents or otherwise in connection with Litigation, or by similar
legal process, including, without limitation, a civil investigative
demand having the same force and effect as a subpoena. However, in
any event described in clause (ii) above, the Agent, the Issuer and
each Lender each agrees that it or its Representatives, as the case
may be, prior to such disclosure will endeavor in good faith (except
to the extent prohibited by any Governmental Requirement from doing
so) to provide the Borrower with prompt notice of such request so
that the Borrower may seek an appropriate protective order or other
appropriate remedy or waive compliance with the provisions of this
Section 10.04(d). In the event that such protective order or other
remedy is not obtained, or that the Borrower grants such a waiver
hereunder, the Agent, the Issuer and each Lender or its
Representatives, as the case may be, will in all events endeavor in
good faith to obtain reliable assurance that confidential treatment
will be accorded any Confidential Information so furnished.
(e) The Agent, the Issuer and each Lender will only be responsible for
any breach of this Agreement by it or its Representatives, other than
its Outside Representatives who have executed and delivered a written
confidentiality agreement in accordance with this Section 10.04.
(f) No failure or delay by the Borrower in exercising any right, power or
privilege under this Section 10.04 shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right, power
or privilege under this Section 10.04.
10.05 Amendments; Waivers. Any term, covenant, agreement or condition of this
-------------------
Agreement or the Notes may be amended, and any right thereunder may be
waived, if, but only if, such amendment or waiver is in writing and is
signed by the Required Lenders and, if the rights and duties of the Agent
or the Issuer are affected thereby, by the Agent or the Issuer, as the
case may be, and by the Borrower; provided, however, that no such
-------- -------
amendment or waiver shall be effective, unless in writing and signed by
each Lender affected thereby, to the extent it (a) changes the several
nature or the amount (except pursuant to Section 2.04) or extends the term
of such Lender's Commitment, (b) reduces the principal of or the rate of
interest on the Loans, Reimbursement Obligations or Notes, the amount of
such Lender's participation in any Letter of Credit or any fees payable
pursuant to any Loan Document, (c) postpones any date fixed for, or
reduces the amount of, any mandatory payment or prepayment of principal of
or interest on the Loans, Notes, Reimbursement Obligations, or
participations in Letters of Credit or any fees payable pursuant to any
Loan Document, (d) waives any condition precedent to the
<PAGE>
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initial Loans or Letters of Credit, (e) waives the payment of any amounts
payable to any Lender pursuant to Section 3.04, 3.05 or 3.06 or (f)
waives or amends Section 8.06, this Section 10.05 or Section 10.12.
Unless otherwise specified in such waiver, a waiver of any right under
any Loan Document shall be effective only in the specific instance and
for the specific purpose for which it is given. No election not to
exercise, failure to exercise or delay in exercising any right, nor any
course of dealing or performance, shall operate as a waiver of any right
of the Agent, the Issuer or any Lender under the Loan Documents or
Governmental Requirements, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the
exercise of any other right of the Agent, the Issuer or any Lender under
the Loan Documents or Governmental Requirements.
10.06 Assignments and Participations.
------------------------------
(a) Assignments. Each Lender may from time to time, in accordance with
-----------
applicable Governmental Requirements, assign any or all of its
rights and obligations under the Loan Documents to one or more
Eligible Assignees; provided, however, that no such assignment shall
-------- -------
be effective unless and until: (i) the Borrower shall have received
prior notice of such assignment; (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender, the Agent and
the Issuer shall have given their written consent to such assignment
(which consent shall not be unreasonably withheld); (iii) except in
the case of an assignment to a Lender or an Affiliate of a Lender,
the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment Agreement
respecting such assignment is delivered to the Agent) shall not be
less than $5,000,000; and (iv) the parties to each such assignment
shall have executed and delivered to the Agent an Assignment
Agreement together with an assignment fee of $3,000 payable to the
Agent (provided that no such fee shall be payable if the assignment
--------
is to an Affiliate of such Lender). Upon acceptance and recording
pursuant to Section 10.06(c), from and after the effective date
specified in each Assignment Agreement, (i) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned
by such Assignment Agreement, have the rights and obligations of a
Lender under this Agreement and (ii) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this Agreement
(and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto,
but shall continue to be entitled to the benefits of Sections 3.04,
3.05, 3.06 and 10.02, as well as to amounts accrued for its account
pursuant to Section 2.05 or any other Loan Document and not yet
paid).
(b) Maintenance of Register. The Agent shall maintain at one of its
-----------------------
offices in The City of New York a copy of each Assignment Agreement
delivered to it and a register for the recordation of the names and
addresses of the Lenders (including those becoming Lenders pursuant
to an Assignment Agreement), and the Commitments of, principal
amount of the Loans owing to and Letter of Credit Obligations of,
each Lender pursuant to the terms hereof from time to time (the
<PAGE>
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"Register"). The entries in the Register shall be conclusive and the
Borrower, the Agent, the Issuer and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection
by the Borrower, the Issuer and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(c) Acceptance and Recordation of Assignments. On its receipt of a duly
-----------------------------------------
completed Assignment Agreement executed by an assigning Lender and an
assignee and, to the extent applicable, the assignment fee referred to
in Section 10.06(a) above and the written consent of the Agent and the
Issuer to such assignment, the Agent shall (i) accept such Assignment
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Lenders and the
Issuer. No assignment shall be effective unless it has been recorded
in the Register as provided in this Section 10.06(c). On acceptance
and recording pursuant to this Section 10.06(c) of any such assignment
by a Lender, the Borrower shall, against receipt of the existing Note
or Notes, as the case may be, of the assignor Lender, issue a new Note
or Notes, as the case may be, to the assignee Lender and, in the case
of a partial assignment, to the assignor Lender, appropriately
reflecting such assignment.
(d) Assignments to Federal Reserve Banks. Nothing in this Section 10.06
------------------------------------
shall limit the right of any Lender to assign its interest in its
Loans and Note or Notes, as the case may be, to a Federal Reserve Bank
as collateral security under Regulation A of the Board of Governors of
the Federal Reserve System, but no such assignment shall release such
Lender from its obligations hereunder.
(e) Participations. Subject to Sections 10.04 and 10.06(f), each Lender
--------------
may from time to time, in accordance with applicable Governmental
Requirements, sell or otherwise grant participations in any or all of
its rights and obligations under the Loan Documents without the
consent of the Borrower, the Agent, the Issuer or any other Lender;
provided, however, that no Lender shall sell any such participation,
-------- -------
or permit the resale or transfer of any such participation, to any
Person other than a financial institution meeting the requirement of
Eligible Assignee. No sale by a Lender of any participation shall
relieve such Lender of any of its obligations hereunder.
(f) Rights of Participants. Each participation agreement shall provide
----------------------
that the Lender that has sold or granted the participation shall
retain the sole right to take or refrain from taking any action under
the Loan Documents, except that such participation agreement may
provide that such Lender shall not, without the consent of the
participant, agree to any amendment or waiver that would have the
effect of (i) increasing the Commitment of such Lender, (ii) extending
the Termination Date, (iii) reducing the principal on the Loans, to
the extent that the participant would be affected thereby, (iv)
reducing the rate of interest on the Loans or Notes, to the extent
that the participant would be affected thereby or (v) reducing the
amount of such Lender's participation in any fees payable
<PAGE>
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pursuant to Section 2.05, to the extent that the participant would be
affected thereby. All amounts payable to any Lender under Section
3.04, 3.05 or 3.06 shall be determined as if such Lender has not sold
any participations.
(g) Lender Representation. Each Lender party to this Agreement on the
---------------------
Closing Date hereby represents, and each Person that becomes a Lender
pursuant to an Assignment Agreement will represent, and shall be
deemed to have represented on becoming a party to this Agreement, that
it is in fact, otherwise than by reason of being a Lender, an Eligible
Assignee and will make or acquire Loans hereunder for its own account
in the ordinary course of its business.
(h) Granting Lender. Notwithstanding anything to the contrary contained
---------------
herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC"), identified as such in writing from
time to time by the Granting Lender to the Agent and the Borrower, the
right to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided that such SPC uses as its source
--------
of funds to make and maintain such Loan a source satisfying the "ERISA
Assumptions" set out on Schedule A and provided, further that (i)
-------- -------
nothing herein shall constitute a commitment by any SPC to make any
Loan; and (ii) if an SPC elects not to exercise such right or
otherwise fails to provide all or any part of such Loan at the time
required, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender.
In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment
in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in
Section 10.06, any SPC may: (A) with notice to, but without the prior
written consent of, the Borrower and the Agent and without paying any
processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender or to any Eligible Assignee
(consented to by the Agent) providing liquidity and/or credit support
to or for the account of such SPC to support the funding or
maintenance of Loans; and (B) disclose: (I) any Confidential
Information on the terms set out in Section 10.04; and (II) on a
confidential basis any other non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC.
<PAGE>
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10.07 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW PRINCIPLES). EACH LETTER OF CREDIT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OR RULES
DESIGNATED IN THE APPLICABLE LETTER OF CREDIT REIMBURSEMENT AGREEMENT.
10.08 JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. ANY JUDICIAL PROCEEDING
------------------------------------------
BROUGHT AGAINST THE BORROWER WITH RESPECT TO, OR ANY DISPUTE UNDER OR
ARISING OUT OF OR IN CONNECTION WITH, ANY LOAN DOCUMENT CLAIM MAY BE
BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER (A) ACCEPTS, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF EACH SUCH COURT AND ANY
RELATED APPELLATE COURT AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH ANY LOAN DOCUMENT CLAIM AND
(B) TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO,
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
---------
CONVENIENS, IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
----------
ACTION OR PROCEEDING IN SUCH JURISDICTION. THE BORROWER SHALL APPOINT AND
MAINTAIN CT CORPORATION SYSTEM, THE PRENTICE-HALL CORPORATION SYSTEM INC.
OR A SIMILAR ENTITY (THE "SERVICE AGENT") AS AGENT TO RECEIVE ON ITS
BEHALF SERVICE OF PROCESS IN ANY PROCEEDING IN A STATE OR FEDERAL COURT
LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK BY ENTERING
INTO AN AGREEMENT AS OF THE DATE OF THIS AGREEMENT WITH THE SERVICE AGENT
TO SUCH EFFECT, AND THE BORROWER SHALL MAINTAIN SUCH AGREEMENT (OR AN
APPROPRIATE SUBSTITUTE TO THE SAME EFFECT WITH THE SAME OR A DIFFERENT
SERVICE AGENT) FOR THE ENTIRE TERM OF THIS AGREEMENT. THE FOREGOING
CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT TO RECEIVE SERVICE OF
PROCESS SHALL NOT CONSTITUTE A GENERAL CONSENT TO SERVICE OF PROCESS IN
THE STATE OF NEW YORK FOR ANY PURPOSE EXCEPT AS PROVIDED ABOVE AND SHALL
NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OTHER THAN THE AGENT, THE
LENDERS AND THE ISSUER. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
AGENT, ANY LENDER, THE ISSUER OR ANY OTHER INDEMNIFIED PERSON TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
THE AGENT, ANY LENDER, THE ISSUER OR ANY OTHER INDEMNIFIED PERSON TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. IN LIGHT OF THE EXPRESS AGREEMENT OF THE BORROWER TO SUBMIT
TO THE JURISDICTION OF NEW YORK COURTS FOR THE RESOLUTION OF ANY AND ALL
DISPUTES ARISING UNDER THIS
<PAGE>
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AGREEMENT AND BROUGHT IN NEW YORK COURTS PURSUANT TO THIS SECTION 10.08,
THE BORROWER FURTHER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
AFFIRMATIVE DEFENSES IT COULD OR MIGHT OTHERWISE BE ABLE TO ASSERT BASED
ON AN ALLEGED INCAPACITY OF THE BORROWER TO ASSERT A CLAIM OR COUNTER-
CLAIM IN THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH
OF MANHATTAN WHETHER ON THE GROUNDS THAT THE BORROWER HAS FAILED TO
COMPLY WITH ANY OR ALL REGISTRATION, CERTIFICATION, NOTIFICATION, FILING
OR DESIGNATION-OF-AGENT GOVERNMENTAL REQUIREMENTS OF THE STATE OF NEW
YORK OR ON OTHER GROUNDS. THE BORROWER AND EACH OTHER PARTY HERETO EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING ANY CLAIM ARISING OUT OF, RELATING TO OR IN CONNECTION WITH ANY
LOAN DOCUMENT CLAIM. THE BORROWER AND EACH OTHER PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.08. THE PROVISIONS OF THIS SECTION 10.08 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND THE PAYMENT IN FULL OF THE OBLIGATIONS.
10.09 Severability of Provisions. In case any provision of the Loan Documents
--------------------------
is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
10.10 Counterparts; Integration; Binding Effect. This Agreement may be executed
-----------------------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
This Agreement shall become effective when it shall have been executed by
the Borrower, the Issuer and the Agent and when the Agent shall have
received an original signature page signed by, or a facsimile copy of an
original signature page signed by, each Lender listed on the signature
pages hereof.
10.11 Entire Agreement. This Agreement, the Notes and the other Loan Documents
----------------
embody the entire agreement among the Borrower, the Agent, the Issuer and
the Lenders relating to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, relating to the subject
matter hereof.
<PAGE>
-82-
10.12 Successors and Assigns. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns in accordance with the terms hereof,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of all
Lenders.
<PAGE>
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers all as of September 13,
2000.
LYONDELL-CITGO REFINING LP
By:_______________________________________
Name:
Title:
<PAGE>
S-2
CREDIT SUISSE FIRST BOSTON,
as Issuer and Agent
By:_____________________________________
Name:
Title:
<PAGE>
S-3
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:_____________________________________
Name:
Title:
<PAGE>
S-4
BANK OF AMERICA, N.A.
By:_____________________________________
Name:
Title:
<PAGE>
S-5
SOCIETE GENERALE,
By:____________________________________
Name:
Title:
<PAGE>
S-6
SUNTRUST BANK
By:_________________________________
Name:
Title:
<PAGE>
S-7
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________
Name:
Title:
<PAGE>
S-8
BANK OF OKLAHOMA N.A.
By:_________________________________
Name:
Title:
<PAGE>
S-9
BANK ONE, N.A. (CHICAGO)
By: ____________________________
Name:
Title:
<PAGE>
S-10
COBANK, ACB
By: ____________________________
Name:
Title:
<PAGE>
S-11
THE DAI-ICHI KANGYO BANK, LTD.
By: ____________________________
Name:
Title:
<PAGE>
S-12
THE FUJI BANK, LIMITED
By: ____________________________
Name:
Title:
<PAGE>
S-13
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
<PAGE>
S-14
NATEXIS BANQUES POPULAIRES
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
<PAGE>
S-15
THE ROYAL BANK OF SCOTLAND PLC
By: ____________________________
Name:
Title:
<PAGE>
S-16
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: ____________________________
Name:
Title:
<PAGE>
S-17
THE BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
<PAGE>
S-18
WELLS FARGO BANK TEXAS, N.A.
By: ____________________________
Name:
Title:
<PAGE>
S-19
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: ________________________________
Name:
Title:
<PAGE>
S-20
ARAB BANKING CORPORATION
By: ____________________________
Name:
Title:
<PAGE>
S-21
BANK OF SCOTLAND
By: ____________________________
Name:
Title:
