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Exhibit 10.31
EXECUTION COUNTERPART
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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,
and
CREDIT SUISSE FIRST BOSTON,
as Agent
$450,000,000
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.................................................................... 21
ARTICLE II CREDIT FACILITY.................................................................... 22
2.01 The Facility................................................................ 22
2.02 Making the Loans............................................................ 22
2.03 Reduction of Commitments.................................................... 23
2.04 Fees........................................................................ 24
2.05 Interest; Determination and Protection; Illegality.......................... 24
2.06 Interest Period Conversion.................................................. 27
ARTICLE III PAYMENTS, PREPAYMENTS, INCREASED COSTS AND TAXES.................................. 27
3.01 Payments and Computations................................................... 27
3.02 Mandatory Prepayments....................................................... 29
3.03 Voluntary Prepayments....................................................... 29
3.04 Funding Losses Relating to Eurodollar Rate Loans............................ 29
3.05 Increased Costs; Capital Adequacy........................................... 30
3.06 Taxes....................................................................... 32
3.07 Substitution of Lender...................................................... 34
ARTICLE IV CONDITIONS TO LOANS................................................................ 34
4.01 Conditions to Loans......................................................... 34
4.02 Further Conditions to Borrowing............................................. 36
4.03 Deemed Fulfilled Conditions................................................. 37
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BORROWER...................................... 38
5.01 Organization; Power; Qualification.......................................... 38
5.02 Authorization; Enforceability; Absence of Conflicts; Required Consents...... 38
5.03 Compliance With Laws........................................................ 39
5.04 No Defaults................................................................. 39
5.05 Litigation.................................................................. 39
5.06 Financial Statements; Disclosure............................................ 40
5.07 Taxes....................................................................... 41
5.08 Government Regulation....................................................... 41
5.09 Employee Benefit Plans...................................................... 42
5.10 Title to Property; Leases................................................... 42
5.11 Labor Matters............................................................... 43
5.12 Intellectual Property....................................................... 43
5.13 Use of Proceeds............................................................. 43
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ARTICLE VI FINANCIAL STATEMENTS AND INFORMATION......................................... 44
6.01 Reporting Requirements................................................ 44
6.02 Books and Records..................................................... 46
6.03 Visits, Inspections and Discussions................................... 46
ARTICLE VII CERTAIN COVENANTS........................................................... 47
7.01 Maintenance of Existence and Properties............................... 47
7.02 Compliance With Governmental Requirements............................. 48
7.03 Payment of Taxes and Claims........................................... 48
7.04 Insurance; Casualty................................................... 49
7.05 Liens................................................................. 49
7.06 Restricted Payments................................................... 49
7.07 Limitations on Mergers, Etc........................................... 50
7.08 Disposition of Assets................................................. 50
7.09 Indebtedness.......................................................... 51
7.10 Transactions With Affiliates.......................................... 52
7.11 Limitation on Restrictive Covenants................................... 52
7.12 Issuance or Disposition of Capital Securities......................... 52
7.13 Investments........................................................... 52
7.14 Business.............................................................. 53
7.15 Fiscal Year........................................................... 53
7.16 Financial Covenants................................................... 53
7.17 Certain Material Agreements........................................... 54
7.18 Use of Proceeds....................................................... 55
ARTICLE VIII DEFAULT.................................................................... 55
8.01 Events of Default..................................................... 55
8.02 Remedies.............................................................. 60
8.03 Application of Proceeds............................................... 61
8.04 Set-Off; Suspension of Payment and Performance........................ 61
8.05 Sharing of Recoveries................................................. 62
ARTICLE IX THE AGENT.................................................................... 62
9.01 Appointment and Powers................................................ 62
9.02 Limitation on Agent's Liability....................................... 62
9.03 Defaults.............................................................. 63
9.04 Rights as a Lender.................................................... 63
9.05 Indemnification....................................................... 64
9.06 Non-Reliance on Agent and Other Lenders............................... 64
9.07 Resignation of the Agent.............................................. 64
9.08 CERTAIN INTENTIONS.................................................... 65
ARTICLE X MISCELLANEOUS................................................................. 65
10.01 Notices and Deliveries................................................ 65
10.02 Expenses; Indemnification............................................. 66
10.03 Rights Cumulative..................................................... 69
10.04 Confidentiality....................................................... 69
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10.05 Amendments; Waivers.................................................. 71
10.06 Assignments and Participations....................................... 71
10.07 GOVERNING LAW........................................................ 74
10.08 JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL........................... 74
10.09 Severability of Provisions........................................... 76
10.10 Counterparts; Integration; Binding Effect............................ 76
10.11 Entire Agreement..................................................... 76
10.12 Successors and Assigns............................................... 76
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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 2.06 - 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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CREDIT AGREEMENT
dated as of September 13, 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
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 BANC OF AMERICA SECURITIES LLC, as
Co-Arranger, agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. As used in this Credit Agreement, the following
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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.
"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 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;
(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.
"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 Working Capital Loans, the Working Capital Credit
Agreement Letter of Credit Obligations (if any), 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
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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 and
Section 2.05(b)(iii) that bears interest computed on the basis of the
Adjusted 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 the borrowing by the Borrower (consisting of Loans)
under this Agreement.
"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 relate to an Eurodollar Rate Loan, 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
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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 date as of which Loans are made to the
Borrower pursuant to this Agreement.
"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 Assignment
Agreement, in either case as the same may be reduced from time to time
pursuant to Section 2.03, 3.02 or 3.03 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.
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"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 Working Capital Loans, the Working Capital
Credit Agreement Letter of Credit Obligations (if any), 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,
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that solely for the purpose of calculating the 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.
"Convert", "Conversion" or "Converted" each refers (a) to a conversion
of Eurodollar Rate Loans into Base Rate Loans, if required pursuant to
Section 2.05(b)(iii), (b) to a conversion of Base Rate Loans into
Eurodollar Rate Loans, if required pursuant to Section 2.05(b)(v) or
2.06(b), and (c) to 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.
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"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 Net Worth, 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
2.05(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 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
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"ERISA Assumptions" set out our 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 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.
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"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 May 4, 2000, respecting certain fees payable by the
Borrower to the Agent and the Lenders, (b) that certain letter from
Bank of America, N.A. and Banc of America Securities LLC. to the Agent
and the Borrower, dated August 21, 2000, respecting certain fees
payable by the Borrower to Bank of America, N.A. and (c) that certain
letter from Societe Generale, New York Branch, to the Borrower, dated
August 22, 2000 respecting certain fees payable by the Borrower to
Societe Generale, New York Branch.
"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).
"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.
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"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 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.
<PAGE>
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"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, a Lender, an Affiliate of the Agent 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) on the date such Loan is made, and (ii) for each such
Loan into which any Loan has been Converted, the date of 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
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
<PAGE>
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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 one
Interest Period 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.
"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.
"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.
"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.
<PAGE>
-12-
"Loan" means a loan by a Lender to the Borrower pursuant to Section
2.01 or 2.05(b)(iii).
"Loan Document Claim" means any claim in connection with, arising out
of or relating to any Loan Document or any transaction with any Lender
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 Fee Letters and
all other agreements between the Borrower or any Subsidiary and any
one or more of the Lenders and the Agent respecting fees payable in
connection with this Agreement or any other Loan Document 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 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
<PAGE>
-13-
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 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 2.06.
"Obligations" means all obligations or liabilities of any form or nature,
whether matured or unmatured, fixed or contingent, of the Borrower to the
Agent 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.
<PAGE>
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"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.
"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
<PAGE>
-15-
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.
"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
<PAGE>
-16-
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 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 solely (i) to prepay any then outstanding Loans pursuant to
Section 3.02(a), (ii) to pay the Issuance Expenses, if any, incurred by the
Borrower in connection with such issuance or sale, (iii) to pay, if all
Loans have been paid in full, such other Obligations as have then become
due, (iv) to prepay, if all Obligations have been paid in full, any then
outstanding Working Capital Loans and (v) to pay, if all Working Capital
Loans have been paid in full, such other Working Capital Obligations;
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.
<PAGE>
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"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, 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.
"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 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
<PAGE>
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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.
"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
<PAGE>
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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
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.
"Revolving Credit Agreement" means the Revolving Credit Agreement, dated
May 5, 2000, between the Borrower and PDV Holding, Inc., a Delaware
corporation.
"Service Agent" has the meaning specified in Section 10.08.
"S&P" means Standard and Poor's Rating Group.
"SPC" has the meaning assigned to that term 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.
"Supply Termination Date" has the meaning specified in Section 8.02.
"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
<PAGE>
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imposed by any Governmental Requirement, excluding, in the case of each
Lender 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).
"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 $450,000,000, the aggregate amount of the
Commitments, as such amount may be reduced from time to time pursuant to
Sections 2.03, 3.02 and 3.03.
"Type" refers to a Base Rate Loan and 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.
"Working Capital Credit Agreement" means the Working Capital Credit
Agreement, for the provision of $70,000,000 of indebtedness for working
capital and general business purposes, dated as of the date of this
Agreement among the Borrower and the lenders party thereto, as amended,
modified and supplemented from time to time provided that, to constitute
--------
part of the "Working Capital Credit Agreement" for the purpose of this
definition, any such amendment, modification or supplement thereto, at any
time in effect must be in form and substance reasonably satisfactory to the
Lenders.
"Working Capital Credit Agreement Letter of Credit Obligation" means at any
time the obligations of the Borrower in respect of letters of credit (if
any) issued under the Working Capital Credit Agreement at such time.
"Working Capital Loan" means any loan made to the Borrower under the
Working Capital Credit Agreement.
<PAGE>
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"Working Capital Loan Termination Date" has the meaning assigned to the
term "Termination Date" in the Working Capital Credit Agreement.
"Working Capital Obligations" has the meaning assigned to the term
"Obligations" in the Working Capital Credit Agreement.
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 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 a Loan to the Borrower on any Business Day
during the period from the date hereof through September 15, 2000, in an
amount not to exceed such Lender's Commitment; provided, however, that the
-------- -------
Lenders shall only have an obligation to make Base Rate Loans to the
Borrower pursuant to this Section 2.01 to the extent that the requirement
that a Notice of Borrowing be delivered on the third Business Day prior to
the date of Borrowing of Eurodollar Rate Loans has not been waived by all
Lenders. The
<PAGE>
-22-
Borrower shall not be entitled to borrow more than once hereunder and such
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. The obligation of each Lender to make a Loan
is subject to the satisfaction of the conditions applicable to the making
of Loans which are set forth in Article IV. 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) The 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. Such notice of the
Borrowing (the "Notice of Borrowing") shall be in the form of Exhibit
2.02 and shall specify (A) the date of the Borrowing, (B) the Type and
the aggregate principal amount of Loans comprising the Borrowing and
(C) in the case of a Borrowing comprised of Eurodollar Rate Loans, the
initial Interest Period for such Loans. The Notice of Borrowing shall
be irrevocable and binding on the Borrower. The Agent shall promptly
deliver a copy of the Notice of Borrowing to each Lender.
(b) Each Lender shall, before (i) 2:00 P.M. 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 the 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 the 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 a
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 the Borrowing consisting of
Base Rate Loans and (ii) 11:00 A.M. (New York City time) on the date
of the Borrowing consisting of Eurodollar Rate Loans that such Lender
will not make available to the Agent such Lender's Ratable Portion of
the Borrowing, the Agent may assume such Lender has made such portion
available to the Agent on the date of the 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 the
Borrowing available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent
<PAGE>
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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 the 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 the
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
the Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Loan on the date of the 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 the
Borrowing.
2.03 Reduction of Commitments. 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. No termination or partial
reduction of the Total Commitment pursuant to this Section 2.03 may be
reinstated.
2.04 Fees. The Borrower agrees to pay, without duplication, to the Agent, for
----
its own account and for the ratable account of the Lenders and/or the Co-
Arrangers, as applicable, the fees payable in the amounts and at the times
agreed upon in the Fee Letters.
2.05 Interest; Determination and Protection; Illegality.
--------------------------------------------------
(a) Rates. Each Loan shall bear interest at 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,
<PAGE>
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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, each such Loan shall bear interest at 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 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 and during the
continuance thereof, automatically and without any action by the
Agent 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 the 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 2.05(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 each
Lender shall notify the Borrower through the Agent of the cost
to such Lender (as determined by it in good faith) of funding
and maintaining the outstanding affected Loans for such Interest
Period, and the interest payable to such Lender on Eurodollar
Rate Loans to which such Interest Period applies shall bear the
interest at a rate per annum equal to the cost of funding and
maintaining such Loans as so notified by such Lender plus the
----
Applicable Margin or, upon the occurrence of any Event of
Default specified in Section 8.01(a) and consisting of a failure
of the Borrower to pay any principal on any Note or interest
thereon and during the continuance thereof, the Default Rate.
(ii) If, with respect to any Eurodollar Rate Loans, any Lender
reasonably determines that the Adjusted Eurodollar Rate for any
Interest Period for
<PAGE>
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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 such Lender shall notify the
Borrower through the Agent of the cost to such Lender (as
determined by it in good faith) of funding and maintaining the
outstanding affected Loans for such Interest Period, and the
interest payable to such Lender on Eurodollar Rate Loans to
which such Interest Period applies shall bear the interest at a
rate per annum equal to the cost of funding and maintaining such
Loans as so notified by such Lender plus the Applicable Margin
----
or, upon the occurrence of any Event of Default specified in
Section 8.01(a) and consisting of a failure of the Borrower to
pay any principal on any Note or interest thereon and during the
continuance thereof, the Default Rate.
(iii) 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) (I) if lawful, as determined by such Lender in good faith,
each Eurodollar Rate Loan of such Lender then outstanding
shall be Converted automatically into a Base Rate Loan
effective on the last day of the Interest Period then
currently applicable to such Eurodollar Rate Loan (or on
such earlier date as shall be notified by the Lender as
being the last applicable date for such Conversion under
applicable law, rule, regulation, treaty or directive), or
(II) if (1) it is unlawful to Convert such Eurodollar Rate
Loans in accordance with Section 2.05(b)(iii)(I), as
determined by such Lender in good faith or (y) becomes
unlawful for any such Lender or US Domestic Lending Office
to maintain Base Rate Loans hereunder, as determined by such
a Lender in good faith, and (2) the assignment referred to
in Section 3.07 cannot be consummate prior to the last date
permissible for such assignment under the relevant law,
rule, regulation, treaty or directive, the Borrower shall
prepay such Lender's outstanding Loans in full (or the
amount of the affected portion thereof) together with
accrued interest thereon and all other amounts payable to
such Lender hereunder to the Agent for account of such
Lender,
<PAGE>
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hereunder to the Agent for account of such Lender, on the
last day of the then current Interest Period for such Loan
(or on such earlier date as shall be notified by the Lender
as being the last permissible date for such prepayment under
relevant law, rule, regulation, treaty or directive).
(iv) 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
Eurodollar 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.
(v) The procedures specified in clauses (i), (ii) and (iii) above
shall apply to each relevant period succeeding the first such
period to which they were applied unless and until the Agent
notifies the Borrower that the condition referred to in clause
(i) of this Section 2.05(b) no longer exists or the Agent (at the
request of the applicable Lender) notifies the Borrower that the
condition referred to in clause (ii) or (iii) of this Section
2.05(b) no longer exists (which notice the Lenders agree to give
or cause to be given promptly following the time any such
condition no longer exists), whereupon the Loan, if it is a Base
Rate Loan, shall be Converted into a Eurodollar Rate Loan or
interest on the Loans, or applicable Loan, shall again be
determined in accordance with the provisions of Section
2.05(a)(ii), in each case, effective commencing on the third
Business Day after the date of such notice.
2.06 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) on the third Business Day prior to the date
of the proposed Conversion of Eurodollar Rate Loans, Convert all
Eurodollar Rate Loans comprising the same Borrowing into Eurodollar
Rate Loans having a different Interest Period; provided, however, that
(except as required by Section 2.05(b)(iii)(I)) any Conversion 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 and (ii) the duration of the Interest Period. 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) If a Borrowing pursuant to Section 2.01 consists of Base Rate Loans
then such Base Rate Loans shall be Converted, on the Business Day
after the date of Borrowing, into Eurodollar Rate Loans having the
Interest Period set forth on a
<PAGE>
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Notice of Conversion which the Borrower shall deliver to the Agent not
later than 12:00 Noon (New York City time) on the Business Day before
the date of the Borrowing of such Base Rate Loans.
(c) If the Borrower shall fail to deliver to the Agent a Notice of
Conversion in accordance with this Section 2.06 to select the duration
of the Interest Period for the principal amount outstanding under (i)
any Eurodollar Rate Loan prior to the last day of the Interest Period
applicable to such Loan, or (ii) any Base Rate Loan which is required
to be Converted in accordance with Section 2.06(b) prior to the
Business Day before the Borrowing of such Loans, the Interest Period
for such Loan shall automatically have a duration of one month.
ARTICLE III
PAYMENTS, PREPAYMENTS, INCREASED COSTS AND TAXES
3.01 Payments and Computations.
-------------------------
(a) 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 like funds relating to the
payment of principal or interest or fees payable to the Lenders (to
the extent received by the Agent) ratably to the Lenders for the
account of their applicable Lending Offices and 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, in each case to be applied in accordance with the terms of
this Agreement. Fees payable pursuant to Section 2.04 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
<PAGE>
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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) 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.
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 an aggregate principal amount
equal to such 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.
(b) Other Mandatory Prepayments. If at any time the aggregate outstanding
---------------------------
principal amount of the Loans 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, if relevant, whether such Loans are Base
Rate Loans or Eurodollar Rate Loans), prepay, without premium or penalty,
the outstanding principal amounts of such Loans in whole or ratably in
part, 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. 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
<PAGE>
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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; provided, that these
--------
limitations do not apply to any prepayment made pursuant to Section
7.04(b).
3.04 Funding Losses Relating to Eurodollar Rate Loans.
------------------------------------------------
(a) If any payment of principal or 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 3.02 or 3.03
or a Conversion pursuant to Section 2.05(b)(iii) 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 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 a Loan the applicable conditions set forth in Article IV
or (ii) any failure by the Borrower to make a Borrowing of a 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 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 Loan that was to have
been made for the period from the date such Borrowing 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
<PAGE>
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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 of or credit extended by any Lender (except any such reserve
requirement that is reflected in the Eurodollar Rate Reserve
Percentage), or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Rate
Loans made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Rate Loan or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal,
interest, fees or otherwise) by an amount reasonably determined by
such Lender to be material, then the Borrower will pay to such Lender,
following receipt of a notice from such Lender to such effect, such
additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender 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 any Lender'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 capital or on the capital of such Lender's holding company,
if any, as a consequence of this Agreement, the Commitment of such
Lender or the Loans made by such Lender to a level below that which
such Lender or such Lender's holding company could have achieved but
for such applicability, adoption, change or compliance (taking into
consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy) by an amount
reasonably determined
<PAGE>
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by such Lender to be material, then from time to time the Borrower
will pay to such Lender, following receipt of a notice from such
Lender to such effect, such additional amount or amounts as shall
compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) 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 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 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 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 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
<PAGE>
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OF SUCH LENDER 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 or the Agent.
Payments in respect of the foregoing indemnification shall be made by
the Borrower within five days after the date such Lender 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 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 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
<PAGE>
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promptly thereafter but only to the extent the forms previously
delivered by it hereunder are no longer effective, deliver to
the Borrower through 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 Loans
----------------------
has been suspended pursuant to Section 2.05(b) or a Lender is unable to
Convert Eurodollar Loans into, or maintain Base Rate Loans in accordance
with Section 2.05(b)(iii)(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. 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 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
4.01 Conditions to Loans. The obligation of each Lender to make its Loan is
-------------------
subject to the Agent's receipt on or prior to the Closing Date of each of
the following, in sufficient number for each of the Lenders 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 Borrowing 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 on the Closing Date;
(h) evidence that, prior to or on the Closing Date: (i) all outstanding
Indebtedness and other amounts owing under the 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 Loans, and (B) after the proceeds of the Loans have been applied
in full for such purpose, to the extent there remains any Indebtedness
outstanding under the Existing Interim Credit Agreement, the proceeds
of the Working Capital Loans or other available cash of the Borrower;
(iii) all
<PAGE>
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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 Co-Arrangers and the Lenders that are due and payable on
the Closing Date pursuant to this Agreement, any other Loan Document
or the Fee Letters;
(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; and
(o) a certified copy of the executed Working Capital Credit Agreement, in
form and substance reasonably satisfactory to the Agent.
4.02 Further Conditions to Borrowing. The obligation of any Lender to make its
-------------------------------
Loan on the occasion of the Borrowing is subject to the satisfaction of the
following conditions precedent that on the date of the Borrowing:
(a) the Agent has received the Notice of Borrowing with respect to such
Loan in accordance with this Agreement;
<PAGE>
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(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;
(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;
(f) 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;
(g) 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; and
(h) satisfaction of the Agent that (i) there shall not have occurred a
material disruption of or material adverse change in financial,
banking or capital market conditions that, in the Agent's reasonable
judgment, could materially impair the syndication of the Total
Commitment and (ii) within the 60 days after the receipt by the Agent
of notice from the Borrower that it intends to refinance the loans
under the Existing Interim Credit Agreement, there shall be no
competing, offering, placement (other than, in relation to customer
receivables or customer financing, a placement under an existing
ongoing program) or arrangement of any debt securities or bank
financing or any customer receivables or customer financings, in each
case, by or on behalf of the Borrower or PDVSA, or any of its
Affiliates (other than in relation to the Hamaca extra heavy crude oil
project in Venezuela).
4.03 Deemed Fulfilled Conditions. Except to the extent that the Borrower has
---------------------------
disclosed in the Notice of Borrowing, 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 Borrowing, that an
applicable condition specified in this Article IV will not be fulfilled as
of the requested time for the making of the Loans, the Borrower shall be
deemed to have made a representation and warranty as of such time that the
conditions
<PAGE>
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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 Sections 4.02(d) and 4.02(h)(i). 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 shall affect the
right of each Lender not to make the Loans requested to be made by it if
such condition has not been fulfilled at such time.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Agent and each Lender to enter into this Agreement and to
make each Loan requested to be made 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).
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.
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.
<PAGE>
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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 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
<PAGE>
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obtained, could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
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 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 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
<PAGE>
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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 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 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
<PAGE>
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respect to, any Multiemployer Benefit Plan; the execution and delivery
of this Agreement, the consummation of the transactions contemplated
by this 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
<PAGE>
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undisturbed possession of such properties and assets and no default exists
under such 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. 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.
The proceeds of the Loans will be used solely to pay and discharge the
Indebtedness and any other amounts owing under the Existing Interim Credit
Agreement.
ARTICLE VI
FINANCIAL STATEMENTS AND INFORMATION
So long as any of the Commitments remain in effect and until payment in full of
the Loans and all other Obligations that have become due when the Loans 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:
(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
<PAGE>
-43-
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, 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 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
<PAGE>
-44-
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, 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,
<PAGE>
-45-
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
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 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.
ARTICLE VII
CERTAIN COVENANTS
So long as any of the Commitments remain in effect and until payment in full of
the Loans and all other Obligations that have become due when the Loans have
been paid in full, unless
<PAGE>
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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.
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
<PAGE>
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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 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 Loans pursuant to Section
3.03.
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.
<PAGE>
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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 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
<PAGE>
-49-
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) (i) the Loans and (ii) in an aggregate amount not to exceed
$70,000,000 at any time outstanding, the Working Capital Loans and (if
any) the Working Capital Credit Agreement Letter of Credit
Obligations;
(b) 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 not exceeding, at the time entered
into, 100% of the total commitment then in effect of the lenders
parties to the Working Capital Credit Agreement to make Working
Capital Loans, having a maturity not later than the Working
Capital 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;
<PAGE>
-50-
(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.
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,
<PAGE>
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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.
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
<PAGE>
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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 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
<PAGE>
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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 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 when the same
becomes due and payable; or the Borrower fails to pay any interest on
any Note, any fees required by Section 2.04 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 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
<PAGE>
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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 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
<PAGE>
-55-
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 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;
<PAGE>
-56-
(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) 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;
(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
<PAGE>
-57-
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 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;
(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; or
(m) notwithstanding any provision of Article VII (including, without
limitation Section 7.06) to the contrary:
<PAGE>
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(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; and (b) terminate, in
whole or, from time to time, in part, the Commitments; 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 or any Lender shall be entitled
to exercise any of its rights or remedies under Section 8.04 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 be automatically 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 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 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.
<PAGE>
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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
interest on and the principal of any portion of any Loan which the Agent
has advanced on behalf of any Lender; (b) second, to pay Obligations in
respect of any fees, expense reimbursements or indemnities then due to the
Agent; (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 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 Set-Off; Suspension of Payment and Performance. The Agent 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),
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 and each Lender under this Section 8.04 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.
8.05 Sharing of Recoveries. The Agent 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
<PAGE>
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a participation in any rights hereunder so purchased or acquired pursuant
to this Section 8.05 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.
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
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 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 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 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 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.
<PAGE>
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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 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. In
the event of any Default, the Agent shall take such action with respect to
such Default as shall be directed by the Required 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 of the Lenders (or, if no Loans 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
by the Agent under the Loan Documents, the
<PAGE>
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Agent shall have no obligation to provide any Lender 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.
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 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 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, TX 77010
Telecopier No.: (713) 652-4598
Telephone No.: (713) 309-7688
Attention: Assistant Treasurer
Banking and Foreign Exchange
(ii) if to the Agent, to it at:
Eleven Madison Avenue
13/th/ Floor
New York, NY 10010
Telephone No.: 212-325-9935
Telecopier No.: 212-325-8304
Attention: Shazia Sarker
(iii) 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;
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,
<PAGE>
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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 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 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, excluding any such taxes imposed as a result of
the assignment (otherwise than pursuant to Section 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 the Co-Arrangers and
appraisers, accountants and other experts employed or retained
collectively by the Agent and the Co-Arrangers) 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 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 or the Lenders under or related to the Loan Documents or
(iv) protecting, preserving, exercising or enforcing any of the rights
of the Agent or the Lenders in, under or related to the Loan Documents
during a Default;
(c) when an Event of Default has occurred and is occurring, pay or
reimburse each Lender for all reasonable costs and expenses (including
reasonable fees and disbursements of legal counsel and other experts
employed or retained by such Lender) at such time incurred by such
Lender 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
<PAGE>
-65-
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
(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 (A) 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 and the
Lenders and (B), 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
<PAGE>
-66-
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 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 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 Confidential Information except for the purposes of this
Agreement and the Loans 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 and each Lender further agrees that in all events (i) the
Crude Supply Agreement and the
<PAGE>
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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 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 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 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 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 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
<PAGE>
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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 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 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
are affected thereby, by the Agent 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
2.03) or extends the term of such Lender's Commitment, (b) reduces the
principal of or the rate of interest on the Loans or Notes, 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 or any fees payable pursuant
to any Loan Document, (d) waives any condition precedent to the initial
Loans, (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
8.05, 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 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 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
<PAGE>
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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 shall have given its 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
(provided, that no such fee shall be payable if the assignment is to
--------
an Affiliate of such Lender) payable to the Agent. 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 2.04 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 and principal amount
of the Loans owing to each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Agent 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 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 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. 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
<PAGE>
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existing Note of the assignor Lender, issue a new Note 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 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 or any other Lender; provided,
however, that no Lender shall, sell any such participation, or permit
the resale or other 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 pursuant to
Section 2.04, 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
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its 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 hereunder, 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 this 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.
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).
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,
<PAGE>
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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 AND THE LENDERS. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE AGENT, ANY LENDER 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 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 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
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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 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 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.
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 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, NEW YORK BRANCH
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
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:
