AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 2
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 2 to THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”), dated as of May 17, 2005, is entered into by and among Tesoro Corporation (the “Borrower”), the financial institutions party to the below-defined Credit Agreement (the “Lenders”), and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Illinois)), as Administrative Agent (the “Agent”). Each capitalized term used herein and not otherwise defined herein shall have the meaning given to it in the below-defined Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders, and the Agent are parties to a Third Amended and Restated Credit Agreement dated as of May 25, 2004 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, the Borrower wishes to amend the Credit Agreement in certain respects and the Lenders and the Agent are willing to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Agent and the Lenders hereby agree as follows:
1. Amendments to Credit Agreement. Effective as of the date first above written, and subject to the satisfaction of the conditions to effectiveness set forth in Section 2 below, the Credit Agreement is hereby amended as follows:
(a) The definition of “Termination Date” set forth in Section 1.1 of the Credit Agreement is hereby amended in its entirety as follows:
“Termination Date” means the earlier of (a) June 30, 2008 and (b) the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.4 hereof or the Revolving Loan Commitments pursuant to Section 8.1 hereof.
(b) The Pricing Schedule to the Credit Agreement is hereby amended in its entirety pursuant to the Pricing Schedule attached hereto as Exhibit A.
2.Conditions of Effectiveness. This Amendment shall become effective and be deemed effective as of the date hereof, if, and only if:
(a) the Agent shall have received executed copies of this Amendment from the Borrower and each of the Lenders;
(b) the Agent shall have received a written reaffirmation of the Borrower’s and the Subsidiary Guarantors’ respective obligations under the Guaranty and the Collateral Documents in form and substance substantially similar to Exhibit B hereto; and
(c) the Agent shall have receive the following fees in immediately available funds, which, once paid, shall be fully earned and non-refundable: for each Lender with a Revolving Loan Commitment that signs this Amendment, an amount equal to 0.05% times such Lender’s Revolving Loan Commitment.
3. Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Credit Agreement as previously executed constitutes the legal, valid and binding obligation of the Borrower and is enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by (i) bankruptcy, insolvency, fraudulent conveyances, reorganization or similar laws relating to or affecting the enforcement of creditors’ rights generally; (ii) general equitable principles (whether considered in a proceeding in equity or at law); and (iii) requirements of reasonableness, good faith and fair dealing.
(b) Upon the effectiveness of this Amendment, the Borrower hereby (i) represents that no Default or Unmatured Default exists under the terms of the Credit Agreement, (ii) reaffirms all covenants, representations and warranties made in the Credit Agreement, and (iii) agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Amendment, provided that any such covenant, representation or warranty that references a specific date is reaffirmed as of such referenced date.
(c) The modifications contemplated by this Amendment are permitted under the terms of the Other Senior Secured Debt and those indentures referenced in Section 9.18 of the Credit Agreement that remain in effect as of the date hereof.
4. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Credit Agreement, as amended and modified hereby.
(b) Except as specifically amended and modified above, the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect, and are hereby ratified and confirmed.
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(c) The execution, delivery and effectiveness of this Amendment shall neither, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders or the Agent, nor constitute a waiver of any provision of the Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
5. Costs and Expenses. The Borrower agrees to pay all reasonable costs, fees and out-of-pocket expenses (including attorneys’ fees and expenses charged to the Agent) incurred by the Agent and the Lenders in connection with the preparation, arrangement, execution and enforcement of this Amendment.
6. Governing Law. This Amendment shall be governed by and construed in accordance with the internal laws, as opposed to the conflicts of law provisions, of the State of New York; provided, however, that if a court, tribunal or other judicial entity with jurisdiction over the Credit Agreement, this Amendment and the transactions evidenced by the Loan Documents were to disregard such choice of law, this Amendment shall be governed by and construed in accordance with the internal laws, as opposed to the conflicts of law provisions, of the State of Illinois.
7. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of the parties to the Amendment on any number of separate counterparts and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
9. No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Amendment. In the event an ambiguity or question of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Amendment.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
| TESORO CORPORATION, | ||||
| as the Borrower | ||||
| By: | /s/ G. Xxxxx Xxxxxxxxx | |||
| Name: | G. Xxxxx Xxxxxxxxx | |||
| Title: | Vice President, Finance and Treasurer |
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| JPMORGAN CHASE BANK, N.A. (successor by | ||||
| merger to Bank One, NA (Illinois)), | ||||
| individually, as initial LC Issuer, and as Administrative | ||||
| Agent | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Vice President |
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| STATE OF CALIFORNIA PUBLIC EMPLOYEES’ | ||||
| RETIREMENT SYSTEM | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Investment Officer | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| FORTIS CAPITAL CORP. | ||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| XXXXX FARGO FOOTHILL, LLC | ||||
| By: | /s/ Xxxxxxx XxXxxxxxx | |||
| Name: | Xxxxxxx XxXxxxxxx | |||
| Title: | Assistant Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| LASALLE BUSINESS CREDIT, LLC | ||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| PNC BANK, N.A. | ||||
| By: | /s/ Xxxxxxxx X. XxXxxxxx | |||
| Name: | Xxxxxxxx X. XxXxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| PB CAPITAL CORPORATION | ||||
| By: | /s/ Xxxxx X. XxXxxxxx | |||
| Name: | Xxxxx X. XxXxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| GUARANTY BANK | ||||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| CALYON NEW YORK BRANCH | ||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Manager Director | |||
| By: | /s/ Philippe Soustra | |||
| Name: | Philippe Soustra | |||
| Title: | Executive Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| UBS AG, STAMFORD BRANCH | ||||
| By: | /s/ Xxxxxxx X. Saint | |||
| Name: | Xxxxxxx X. Saint | |||
| Title: | Director | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| SIEMENS FINANCIAL SERVICES, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | XXXXX X. XXXXXXX | |||
| Title: | VP CREDIT OPERATIONS – RISK MANAGEMENT | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| THE ROYAL BANK OF SCOTLAND plc | ||||
| By: | /s/ Xxxxxxxx X. Dundee | |||
| NAME: | XXXXXXXX X. DUNDEE | |||
| Title: | SENIOR VICE PRESIDENT | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| U.S. BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| HIBERNIA NATIONAL BANK | ||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| ALLIED IRISH BANKS PLC | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | XXXXXX X. XXXX | |||
| Title: | Vice President | |||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | XXXX XXXXXXX | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | XXXXXXXXX X. XXXXX | |||
| Title: | DIRECTOR | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| NATIONAL CITY BUSINESS CREDIT , INC. | ||||
| By: | /s/ Xxxxxx X. Xxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxx, Xx. | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| UFJ BANK LIMITED | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name : | Xxxxx X. Xxxxxxx | |||||
| Title: | Senior Vice President | |||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| SUMITOMO MITSUI BANKING CORP. | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name : | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| THE FROST NATIONAL BANK | ||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Assistant Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| NATEXIS BANQUES POPULAIRES | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxx X. Xxxxxxx, III | |||
| Name: | Xxxxx X. Xxxxxxx, III | |||
| Title: | Vice President and Group Manager | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| THE BANK OF TOKYO-MITSUBISHI, LTD., | ||||
| HOUSTON AGENCY | ||||
| By: | /s/ Xxxx XxXxxx | |||
| Name: Xxxx XxXxxx | ||||
| Title: Vice President and Manager | ||||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| BANK OF SCOTLAND | ||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: Xxxxx Xxxxx | ||||
| Title: Assistant Vice President | ||||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| RZB FINANCE LLC | ||||
| By: | /s/ Xxxxxxxxx Xxxxx | |||
| Name: XXXXXXXXX XXXXX | ||||
| Title: Group Vice President | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: XXXX X. XXXXXXX | ||||
| Title: First Vice President | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| XXXXXXX BUSINESS CREDIT CORPORATION | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Assistant Vice President | ||||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| ALASKA PACIFIC BANK | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxxx | ||||
| Title: Senior Vice President | ||||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| FRANKLIN CLO III, LIMITED | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: XXXXX XXXXXX | ||||
| Title: VICE PRESIDENT | ||||
| FRANKLIN FLOATING RATE DAILY ACCESS FUND |
||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: Xxxxxxx Xxx | ||||
| Title: Vice President | ||||
| FRANKLIN FLOATING RATE MASTER SERIES | ||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: Xxxxxxx Xxx | ||||
| Title: Vice President | ||||
| FRANKLIN FLOATING RATE TRUST | ||||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: Xxxxxxx Xxx | ||||
| Title: Vice President | ||||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| CUMBERLAND II CLO, LTD. | ||||
| By: | Deerfield Capital Management LLC as its | |||
| Collateral Manager | ||||
| By: | /s/ Xxxxx Sakon | |||
| Name: Xxxxx Sakon | ||||
| Title: Vice President | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| AIB Debt Management Ltd | ||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: XXXXXX X. XXXX | ||||
| Title: Vice President | ||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: Xxxx Xxxxxxx | ||||
| Title: Senior Vice President | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| ATRIUM CDO | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: XXXXX X. XXXXXX | ||||
| Title: AUTHORIZED SIGNATORY | ||||
| ATRIUM II | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: XXXXX X. XXXXXX | ||||
| Title: AUTHORIZED SIGNATORY | ||||
| CSAM FUNDING III | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: XXXXX X. XXXXXX | ||||
| Title: AUTHORIZED SIGNATORY | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| APEX (IDM) CDO I, LTD. | ||||
| By: | Babson Capital Management LLC as | |||
| Collateral Manager | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: XXXX X. XXXXXXXXX | ||||
| Title: Managing Director | ||||
| BABSON CLO LTD. 2004-I | ||||
| By: | Babson Capital Management LLC as | |||
| Collateral Manager | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: XXXX X. XXXXXXXXX | ||||
| Title: Managing Director | ||||
| C.M. LIFE INSURANCE COMPANY | ||||
| By: | Babson Capital Management LLC as | |||
| Investment Sub-Advisor | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: XXXX X. XXXXXXXXX | ||||
| Title: Managing Director | ||||
| MAPLEWOOD (CAYMAN) LIMITED | ||||
| By: | Babson Capital Management LLC as | |||
| Investment Manager | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: XXXX X. XXXXXXXXX | ||||
| Title: Managing Director | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| LANDMARK V CDO LIMITED | |||||
| By: Aladdin Capital Management LLC as Manager | |||||
| By: | /s/ Xxxxxx Xxxxxxxxx | ||||
| Name: | Xxxxxx Xxxxxxxxx | ||||
| Title: | Director | ||||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| BIG SKY SENIOR LOAN
FUND, LTD. BY: XXXXX XXXXX MANAGEMENT AS INVESTMENT ADVISOR |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT NO. 2
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
| GALAXY CLO 1999-1, LTD | ||||
| By: | AIG Global Investment Corp. as | |||
| Collateral Manager | ||||
| By: | /s/ W. Xxxxxxx Xxxxxx | |||
| Name: | W. Xxxxxxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO AMENDMENT
NO. 2
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
TO
AMENDMENT NO. 2
PRICING SCHEDULE
Attached
PRICING SCHEDULE
| Applicable Fee Rate | Tier I Utilization | Tier II Utilization | Tier III Utilization | ||||||||||||||
Commitment Fee |
0.25 | % | 0.375 | % | 0.50 | % | |||||||||||
The following shall be used to calculate the Applicable Margin for Revolving Loans and the Pre-Funded Letter of Credit Fee Rate at any time the Borrower’s senior long-term secured indebtedness (without giving effect to any credit enhancement) is rated BBB- or better by S&P or Baa3 or better by Xxxxx’x.
| Applicable | ||||||||||||||||||||||
| Margin for | ||||||||||||||||||||||
| Revolving Loans | Level I Status | Level II Status | Level III Status | Level IV Status | ||||||||||||||||||
Eurodollar Rate |
1.50 | % | 1.75 | % | 2.00 | % | 2.25 | % | ||||||||||||||
Floating Rate |
0.00 | % | 0.00 | % | 0.25 | % | 0.50 | % | ||||||||||||||
| Level I Status | Level II Status | Level III Status | Level IV Status | |||||||||||||||||||
Pre-Funded
Letter of Credit
Fee Rate |
1.50 | % | 1.75 | % | 2.00 | % | 2.25 | % | ||||||||||||||
The following shall be used to calculate the Applicable Margin for Revolving Loans and the Pre-Funded Letter of Credit Fee Rate at any time the Borrower’s senior long-term secured indebtedness (without giving effect to any credit enhancement) is rated BB+ by S&P or Ba1 by Xxxxx’x and the Borrower does not qualify for pricing as set forth in the immediately preceding grid.
| Applicable | ||||||||||||||||||||||
| Margin for | ||||||||||||||||||||||
| Revolving Loans | Level I Status | Level II Status | Level III Status | Level IV Status | ||||||||||||||||||
Eurodollar Rate |
1.75 | % | 2.00 | % | 2.25 | % | 2.50 | % | ||||||||||||||
Floating Rate |
0.00 | % | 0.25 | % | 0.50 | % | 0.75 | % | ||||||||||||||
| Level I Status | Level II Status | Level III Status | Level IV Status | |||||||||||||||||||
Pre-Funded
Letter of Credit
Fee Rate |
1.75 | % | 2.00 | % | 2.25 | % | 2.50 | % | ||||||||||||||
The following shall be used to calculate the Applicable Margin for Revolving Loans and the Pre-Funded Letter of Credit Fee Rate at any time the Borrower’s senior long-term secured indebtedness (without giving effect to any credit enhancement) is lower than BB+ by S&P or Ba1 by Xxxxx’x and the Borrower does not qualify for pricing as set forth in the two immediately preceding pricing grids.
| Applicable | ||||||||||||||||||||||
| Margin for | ||||||||||||||||||||||
| Revolving Loans | Level I Status | Level II Status | Level III Status | Level IV Status | ||||||||||||||||||
Eurodollar Rate |
2.00 | % | 2.25 | % | 2.50 | % | 2.75 | % | ||||||||||||||
Floating Rate |
0.25 | % | 0.50 | % | 0.75 | % | 1.00 | % | ||||||||||||||
| Level I Status | Level II Status | Level III Status | Level IV Status | |||||||||||||||||||
Pre-Funded
Letter of Credit
Fee Rate |
2.00 | % | 2.25 | % | 2.50 | % | 2.75 | % | ||||||||||||||
For the purposes of this Schedule, the following terms have the following meanings, subject to the final paragraph of this Schedule:
“Level I Status” exists at any date if, as of the last day of the applicable fiscal quarter of the Borrower, average daily Excess Availability for such fiscal quarter was greater than 45% of the average monthly Borrowing Base for such fiscal quarter.
“Level II Status” exists at any date if, as of the last day of the applicable fiscal quarter of the Borrower, (i) the Borrower has not qualified for Level I Status and (ii) average daily Excess Availability for such fiscal quarter was less than or equal to 45% of the average monthly Borrowing Base for such fiscal quarter but greater than 30% of the average monthly Borrowing Base for such fiscal quarter.
“Level III Status” exists at any date if, as of the last day of the applicable fiscal quarter, (i) the Borrower has not qualified for Level I Status or Level II Status and (ii) average daily Excess Availability for such fiscal quarter was less than or equal to 30% of the average monthly
Borrowing Base for such fiscal quarter but greater than 15% of the average monthly Borrowing Base for such fiscal quarter.
“Level IV Status” exists at any date if, as of the last day of the applicable fiscal quarter, (i) the Borrower has not qualified for Level I Status, Level II Status, or Level III Status and (ii) average daily Excess Availability for such fiscal quarter was less than or equal to 15% of the average monthly Borrowing Base for such fiscal quarter.
“Status” means either Level I Status, Level II Status, Level III Status or Level IV Status.
“Tier I Utilization” means, on any date of determination, the average Aggregate Outstanding Revolving Loan Credit Exposure on such date was greater than 66% of the Aggregate Revolving Loan Commitment on such date.
“Tier II Utilization” means, on any date of determination, the average Aggregate Outstanding Revolving Loan Credit Exposure on such date was greater than or equal to 33-1/3rd% of the Aggregate Revolving Loan Commitment on such date but less than or equal to 66% of the Aggregate Revolving Loan Commitment on such date.
“Tier III Utilization” means, on any date of determination, the average Aggregate Outstanding Revolving Loan Credit Exposure on such date was less than 33-1/3rd% of the Aggregate Revolving Loan Commitment on such date.
The Applicable Margin, the Applicable Fee Rate, and the Pre-Funded Letter of Credit Fee Rate shall be determined in accordance with the foregoing tables based on the Borrower’s Status for the applicable fiscal quarter. Such Status shall be determined based upon the Interim Collateral Reports and Monthly Collateral Reports delivered for such fiscal quarter. Adjustments, if any, to the Applicable Margin, the Applicable Fee Rate and the Pre-Funded Letter of Credit Fee Rate shall be effective five Business Days after the Agent has received all of the applicable Interim Collateral Reports and Monthly Collateral Reports. If the Borrower fails to deliver such Interim Collateral Reports and Monthly Collateral Reports to the Agent at the time required pursuant to Section 6.1, then the Applicable Margin, the Applicable Fee Rate, and the Pre-Funded Letter of Credit Fee Rate shall be the highest Applicable Margin, Applicable Fee Rate, and Pre-Funded Letter of Credit Fee Rate set forth in the foregoing tables until the date on which such Interim Collateral Reports and Monthly Collateral Reports are so delivered.
