EXHIBIT 10.2
CONFORMED COPY
$350,000,000
364-DAY
CREDIT AGREEMENT
dated as of
December 15, 1997
among
IMC Global Inc.,
The Banks Listed Herein,
Royal Bank of Canada,
as Documentation Agent,
The Chase Manhattan Bank and NationsBank, N.A.,
as Co-Syndication Agents,
and
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent
X.X. Xxxxxx Securities Inc.,
Arranger
Chase Securities Inc.
NationsBanc Xxxxxxxxxx Securities, Inc.
Royal Bank of Canada,
Co-Arrangers
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS . . . . . . . . . . . . . 13
SECTION 1.03. TYPES OF BORROWINGS . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 2
THE CREDITS
SECTION 2.02. NOTICE OF COMMITTED BORROWINGS . . . . . . . . . . . . . . . . 15
SECTION 2.03. BID RATE BORROWINGS . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.04. NOTICE TO BANKS; FUNDING OF LOANS . . . . . . . . . . . . . . 20
SECTION 2.05. REGISTRY; NOTES . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. MATURITY OF LOANS . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.07. INTEREST RATES . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.08. FACILITY FEES . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS . . . . . . . 23
SECTION 2.10. METHOD OF ELECTING INTEREST RATES . . . . . . . . . . . . . . 24
SECTION 2.11. SCHEDULED TERMINATION OF COMMITMENTS . . . . . . . . . . . . . 25
SECTION 2.12. OPTIONAL PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS . . . . . . . . . . . . . . 26
SECTION 2.14. FUNDING LOSSES . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.15. COMPUTATION OF INTEREST AND FEES . . . . . . . . . . . . . . . 27
SECTION 2.16. REGULATION D COMPENSATION . . . . . . . . . . . . . . . . . . 27
SECTION 2.17. FOREIGN COSTS . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 3
CONDITIONS
SECTION 3.01. EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.02. BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.03. FIRST BORROWING BY EACH ELIGIBLE SUBSIDIARY . . . . . . . . . 30
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. CORPORATE EXISTENCE AND POWER . . . . . . . . . . . . . . . . 31
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION . . 31
SECTION 4.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.04. FINANCIAL INFORMATION . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.05. LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.06. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.07. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.08. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.09. SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.10. REGULATORY RESTRICTIONS ON BORROWING . . . . . . . . . . . . . 34
SECTION 4.11. FULL DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 5
COVENANTS
SECTION 5.01. INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.02. PAYMENT OF OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.03. MAINTENANCE OF PROPERTY; INSURANCE . . . . . . . . . . . . . . 37
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE . . . . . . . 37
SECTION 5.05. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS . . . . . . . . . . 38
SECTION 5.07. MERGERS AND SALES OF ASSETS . . . . . . . . . . . . . . . . . 38
SECTION 5.08. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.09. NEGATIVE PLEDGE . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.10. DEBT OF SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.11. TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . . . 40
SECTION 5.12. LEVERAGE RATIO . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.02. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE 7
THE ADMINISTRATIVE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION . . . . . . . . . . . . . . . . 45
SECTION 7.02. ADMINISTRATIVE AGENT AND AFFILIATES . . . . . . . . . . . . . 45
SECTION 7.03. ACTION BY ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . 45
SECTION 7.04. CONSULTATION WITH EXPERTS . . . . . . . . . . . . . . . . . . 45
ii
SECTION 7.05. LIABILITY OF ADMINISTRATIVE AGENT . . . . . . . . . . . . . . 45
SECTION 7.06. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.07. CREDIT DECISION . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . 46
SECTION 7.09. AGENTS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.10. OTHER AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR . . . 47
SECTION 8.02. ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.03. INCREASED COST AND REDUCED RETURN . . . . . . . . . . . . . . 48
SECTION 8.04. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE LOANS . . 52
SECTION 8.06. SUBSTITUTION OF BANK . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. CORPORATE EXISTENCE AND POWER . . . . . . . . . . . . . . . . 54
SECTION 9.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION . . . 54
SECTION 9.03. BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.04. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 10
GUARANTY
SECTION 10.01. THE GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.02. GUARANTY UNCONDITIONAL . . . . . . . . . . . . . . . . . . . 55
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.04. WAIVER BY THE COMPANY . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.05. SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.06. STAY OF ACCELERATION . . . . . . . . . . . . . . . . . . . . 57
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.02. NO WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 11.03. EXPENSES; INDEMNIFICATION . . . . . . . . . . . . . . . . . . 57
SECTION 11.04. SHARING OF SET-OFFS . . . . . . . . . . . . . . . . . . . . . 58
SECTION 11.05. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . 59
SECTION 11.06. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . 59
SECTION 11.07. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.08. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.09. GOVERNING LAW; SUBMISSION TO JURISDICTION . . . . . . . . . . 61
SECTION 11.10. COUNTERPARTS; INTEGRATION . . . . . . . . . . . . . . . . . . 62
SECTION 11.11. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 62
PRICING SCHEDULE
SCHEDULE I Existing Credit Agreements
EXHIBIT A - Note
EXHIBIT B - Form of Bid Rate Quote Request
EXHIBIT C - Form of Invitation for Bid Rate Quotes
EXHIBIT D - Form of Bid Rate Quote
EXHIBIT E-1 - Opinion of Special Counsel for the Company
EXHIBIT E-2 - Opinion of General Counsel of the Company
EXHIBIT F - Opinion of Xxxxx Xxxx & Xxxxxxxx, Special Counsel for the
Administrative Agent
EXHIBIT G - Assignment and Assumption Agreement
EXHIBIT H - Form of Election to Participate
EXHIBIT I - Form of Election to Terminate
EXHIBIT J - Matters to be covered in Opinion of Counsel for Eligible
Subsidiary
EXHIBIT K - Form of Notice of Borrowing
EXHIBIT L - Form of Notice of Interest Rate Election
EXHIBIT M - Form of Extension Agreement
iv
364-DAY
CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT dated as of December 15, 1997 among IMC GLOBAL
INC., the BANKS, MANAGING AGENTS and CO-AGENTS listed on the signature pages
hereof, ROYAL BANK OF CANADA, as Documentation Agent, THE CHASE MANHATTAN BANK
and NATIONSBANK, N.A., as Co-Syndication Agents, and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ACQUISITION" means an acquisition by the Company or any of its
Consolidated Subsidiaries of a company, a division, a location or a line of
business or of all or substantially all of the assets of any of the foregoing.
"ADMINISTRATIVE AGENT" means Xxxxxx Guaranty Trust Company of New York in
its capacity as administrative agent for the Banks hereunder, and its successors
in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, the
administrative questionnaire in the form submitted to such Bank by the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Company) duly completed by such Bank.
"AFFILIATE" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Company (a "CONTROLLING PERSON") or (ii)
any Person (other than the Company or a Subsidiary) which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"CONTROL" means possession, directly or indirectly, of the power to vote 10% or
more of any class of voting securities of a Person or to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT" means any one of the Administrative Agent, the Documentation Agent
or the Co-Syndication Agents, and "AGENTS" means any two or more of the
foregoing.
"AGRICO" means IMC-Agrico Company, a Delaware general partnership, and its
successors.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Bid Rate Loans, its Bid Rate Lending Office.
"APPROVED OFFICER" means the president, the chief financial officer, the
acting chief financial officer, the treasurer, a vice president, an assistant
treasurer or the controller of the Company or such other representative of the
Company as may be designated by any one of the foregoing with the consent of the
Administrative Agent.
"ASSIGNEE" has the meaning set forth in Section 11.06(c).
"BANK" means each bank or other financial institution listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
11.06(c), each substitute financial institution which becomes a Bank pursuant to
Section 2.01(b) and their respective successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means a Committed Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article 8.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BID RATE (GENERAL)" has the meaning set forth in Section 2.03(d).
"BID RATE (GENERAL) AUCTION" means a solicitation of Bid Rate Quotes
setting forth Bid Rates (General) pursuant to Section 2.03.
2
"BID RATE (GENERAL) LOAN" means a loan made or to be made by a Bank
pursuant to a Bid Rate (General) Auction.
"BID RATE (INDEXED) AUCTION" means a solicitation of Bid Rate Quotes
setting forth Bid Rate (Indexed) Margins based on the London Interbank Offered
Rate pursuant to Section 2.03.
"BID RATE (INDEXED) LOAN" means a loan made or to be made by a Bank
pursuant to a Bid Rate (Indexed) Auction (including such a loan bearing interest
at the Base Rate pursuant to Section 8.01(a)).
"BID RATE (INDEXED) MARGIN" has the meaning set forth in Section 2.03(d).
"BID RATE LENDING OFFICE" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Bid Rate Lending Office by notice to the Company and
the Administrative Agent; PROVIDED that any Bank may from time to time by notice
to the Company and the Administrative Agent designate separate Bid Rate Lending
Offices for its Bid Rate (Indexed) Loans, on the one hand, and its Bid Rate
(General) Loans, on the other hand, in which case all references herein to the
Bid Rate Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"BID RATE LOAN" means a Bid Rate (Indexed) Loan or a Bid Rate (General)
Loan.
"BID RATE QUOTE" means an offer by a Bank to make a Bid Rate Loan in
accordance with Section 2.03.
"BORROWER" means the Company or any Eligible Subsidiary, as the context may
require, and their respective successors, and "BORROWERS" means all of the
foregoing. References to "the Borrower" in connection with any Loan are to the
Borrower to which such Loan is or is to be made. As the context may permit, the
terms "BORROWER" and "BORROWERS" include the Company in its capacity as
guarantor of the obligations of the other Borrowers hereunder.
"BORROWING" has the meaning set forth in Section 1.03.
"CO-AGENT" means each Bank designated as a Co-Agent on the signature pages
hereof, in its capacity as co-agent in respect of this Agreement.
3
"COMMITMENT" means (i) with respect to each Bank listed on the signature
pages hereof, the amount set forth opposite the name of such Bank on the
signature pages hereof, and (ii) with respect to each Assignee or substitute
financial institution which becomes a Bank pursuant to Section 11.06(c) or
2.01(b), the amount of the Commitment thereby assumed by it, in each case as
such amount may from time to time be reduced pursuant to Section 2.09 or
11.06(c) or increased pursuant to Section 11.06(c).
"COMMITTED LOAN" means a Loan made by a Bank pursuant to Section 2.01(a);
PROVIDED that, if any loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"COMPANY" means IMC Global Inc., a Delaware corporation, and its
successors.
"CONSOLIDATED NET WORTH" means at any date the consolidated shareholders'
equity of the Company and its Consolidated Subsidiaries determined as of such
date (other than any amount attributable to stock which is required to be
redeemed or is redeemable at the option of the holder, if certain events or
conditions occur or exist or otherwise).
"CONSOLIDATED SUBSIDIARY" means, for any Person, at any date any Subsidiary
or other entity the accounts of which would be consolidated with those of such
Person in its consolidated financial statements if such statements were prepared
as of such date; unless otherwise specified "Consolidated Subsidiary" means a
Consolidated Subsidiary of the Company.
"CO-SYNDICATION AGENT" means each of The Chase Manhattan Bank and
NationsBank, N.A. in its capacity as a co-syndication agent in respect of this
Agreement.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable and similar items arising in
the ordinary course of business, (iv) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) all non-contingent obligations (and, for purposes of
Section 5.09 and the definition of Material Financial Obligations, all
contingent obligations) of such Person to
4
reimburse any bank or other Person in respect of amounts paid under a letter
of credit or similar instrument, (vi) all Debt secured by a Lien on any asset
of such Person, whether or not such Debt is otherwise an obligation of such
Person, PROVIDED that the amount of such Debt treated as Debt of such Person
solely pursuant to this clause (vi) shall not exceed the greater of the book
value or the fair market value of the collateral, and (vii) all Debt of
others Guaranteed by such Person. For purposes of clause (v) above, a
reimbursement obligation in respect of a letter of credit or similar
instrument is contingent unless and until there shall have been a drawing
under such letter of credit or instrument.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DOCUMENTATION AGENT" means Royal Bank of Canada in its capacity as
documentation agent in respect of this Agreement.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City or Chicago are authorized by law
to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Administrative Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
"ELECTION TO PARTICIPATE" means an Election to Participate substantially in
the form of Exhibit H hereto.
5
"ELECTION TO TERMINATE" means an Election to Terminate substantially in the
form of Exhibit I hereto.
"ELIGIBLE SUBSIDIARY" means any Substantially-Owned Consolidated Subsidiary
of the Company as to which an Election to Participate shall have been delivered
to the Administrative Agent and as to which an Election to Terminate shall not
have been delivered to the Administrative Agent. Each such Election to
Participate and Election to Terminate shall be duly executed on behalf of such
Consolidated Subsidiary and the Company in such number of copies as the
Administrative Agent may request. The delivery of an Election to Terminate
shall not affect any obligation of an Eligible Subsidiary theretofore incurred.
The Administrative Agent shall promptly give notice to the Banks of the receipt
of any Election to Participate or Election to Terminate.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, 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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Bank, its office, branch or
affiliate located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Euro-Dollar Lending
Office) or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Euro-Dollar Lending Office by notice to the Company
and the Administrative Agent.
6
"EURO-DOLLAR LOAN" means a Committed Loan which bears interest at a Euro-
Dollar Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance with
the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to Section
2.07(b) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE BANKS" means the principal London offices of Xxxxxx
Guaranty Trust Company of New York, Royal Bank of Canada, The Chase Manhattan
Bank and NationsBank, N.A.
"EURO-DOLLAR RESERVE PERCENTAGE" has the meaning set forth in Section 2.16.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING CREDIT AGREEMENTs" means the credit facilities identified in
Schedule I hereto, as amended and in effect on the Effective Date.
"FEDERAL FUNDS RATE" means, for any 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 on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, PROVIDED that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York (or its successor as Administrative Agent) on such day on such transactions
as determined by the Administrative Agent.
"FIXED RATE LOANS" means Euro-Dollar Loans or Bid Rate Loans (excluding Bid
Rate (Indexed) Loans bearing interest at the Base Rate) or any combination of
the foregoing.
"FRP" means Freeport-McMoRan Resource Partners, L.P., a Delaware limited
partnership, and its successors.
7
"FTX" means Freeport-McMoRan Inc., a Delaware corporation.
"GROUP OF LOANS" means at any time a group of Loans consisting of (i) all
Loans to a single Borrower which are Base Rate Loans at such time or (ii) all
Euro-Dollar Loans to a single Borrower having the same Interest Period at such
time, PROVIDED that, if a Committed Loan of any particular Bank is converted to
or made as a Base Rate Loan pursuant to Article 8, such Loan shall be included
in the same Group or Groups of Loans from time to time as it would have been if
it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person,
PROVIDED that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term "GUARANTEE" used as a
verb has a corresponding meaning.
"INDEMNITEE" has the meaning set forth in Section 11.03(b).
"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six, or, if deposits of a corresponding
maturity are available to each Bank in the London interbank market, nine or
twelve, months thereafter, as the Borrower may elect in such notice; PROVIDED
that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month;
(2) with respect to each Bid Rate (Indexed) Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing and ending
such number of months thereafter (but not less than one month) as the Borrower
may elect in accordance with Section 2.03; PROVIDED that:
8
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day; and
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Euro-Dollar Business Day of a calendar month; and
(3) with respect to each Bid Rate (General) Loan, the period commencing on
the date of borrowing specified in the applicable Notice of Borrowing and ending
such number of days thereafter (but not less than 7 days) as the Borrower may
elect in accordance with Section 2.03; PROVIDED that any Interest Period which
would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day; and
PROVIDED FURTHER that any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge
or security interest, or any other type of preferential arrangement that has the
practical effect of creating a security interest, in respect of such asset. For
the purposes of this Agreement, the Company or any Subsidiary shall be deemed to
own subject to a Lien any asset which 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.
"LOAN" means a Committed Loan or a Bid Rate Loan and "LOANS" means
Committed Loans or Bid Rate Loans or any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(b).
"MANAGING AGENT" means each Bank designated as a Managing Agent on the
signature pages hereof, in its capacity as managing agent in respect of this
Agreement.
9
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect on the
business, financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole, or (ii) an adverse effect on
the rights and obligations of the Banks and the Agents hereunder and under the
Notes which a Bank could reasonably deem material.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of Debt
and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Company and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the aggregate
$100,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $100,000,000.
"MATERIAL SUBSIDIARY" means, at any date, (i) any Subsidiary having (x) at
least 5% of the total consolidated assets of the Company and its Consolidated
Subsidiaries (determined as of the last day of the fiscal quarter of such Person
most recently ended on or prior to such date) or (y) at least 5% of Consolidated
EBITDA (as defined in Section 5.12) for the four consecutive fiscal quarters
most recently ended on or prior to such date or (ii) collectively, any one or
more Subsidiaries having (x) at least 10% of the total consolidated assets of
the Company and its Consolidated Subsidiaries (determined as of the last day of
the fiscal quarter of such Persons most recently ended on or prior to such date)
or (y) at least 10% of Consolidated EBITDA for the four consecutive fiscal
quarters most recently ended on or prior to such date.
"MERGER" means the merger of FTX with and into the Company pursuant to the
Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger between FTX and
the Company dated as of August 26, 1997, in the form annexed to the Company's
Proxy Statement/Prospectus dated November 17, 1997.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group either (i) is then making or accruing an obligation to make
contributions or (ii) has within the preceding five plan years made
contributions, including for these purposes any Person which was at the time
such contribution was made a member of the ERISA Group.
10
"NOTES" means promissory notes of the Borrower, in the form required by
Section 2.05, evidencing the obligation of the Borrower to repay the Loans, and
"NOTE" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Bid Rate Borrowing (as defined in Section 2.03(f)),
in either case in substantially the form of Exhibit K.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.10(a).
"PARENT" means, with respect to any Bank, any Person controlling such Bank.
"PARTICIPANT" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the schedule annexed hereto denominated as such.
"PRIME RATE" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate. Each change in the Prime Rate shall be effective from and including
the day such change is publicly announced.
"QUARTERLY PAYMENT DATE" means the last Domestic Business Day of each
March, June, September and December.
11
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding more than 50% of the aggregate unpaid principal amount of
the Loans.
"REVOLVING CREDIT PERIOD" means the period from and including the Effective
Date to but not including the Termination Date.
"S&P" means Standard & Poor's Rating Services, a division of The XxXxxx-
Xxxx Companies, Inc.
"SERIES E PREFERRED STOCK" means the shares of preferred stock of the
Vigoro Corporation, a Delaware corporation and wholly-owned Subsidiary of the
Company, par value $100 per share, designated Series E.
"SUBSIDIARY" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Company.
"SUBSTANTIAL ASSETS" means assets sold or otherwise disposed of in a single
transaction or a series of related transactions representing 25% or more of the
consolidated assets of the Company and its Consolidated Subsidiaries, taken as a
whole.
"SUBSTANTIALLY-OWNED CONSOLIDATED SUBSIDIARY" means any Consolidated
Subsidiary at least 80% of the Voting Stock of which is at the time directly or
indirectly owned by the Company; PROVIDED that Agrico shall be deemed a
Substantially-Owned Consolidated Subsidiary for so long as it is a Consolidated
Subsidiary.
"TERMINATION DATE" means December 14, 1998 or such later date to which the
Revolving Credit Period shall have been extended pursuant to Section 2.01(b),
or, if any such day is not a Euro-Dollar Business Day, the next preceding Euro-
Dollar Business Day.
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
12
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA (or other applicable standard),
exceeds (ii) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"VOTING STOCK" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent in all material respects (except for changes concurred in
by the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; PROVIDED that, if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in Article 5
to eliminate the effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the Administrative Agent
notifies the Company that the Required Banks wish to amend Article 5 for such
purpose), then the Company's compliance with such covenant shall be determined
on the basis of generally accepted accounting principles in effect immediately
before the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Banks, and the parties
hereto agree to enter into negotiations in good faith in order to amend such
provisions in a credit-neutral manner so as to reflect equitably such changes
with the desired result that the criteria for evaluating the financial condition
and performance of the Company and its Consolidated Subsidiaries shall be the
same after such changes as if such changes had not been made.
SECTION 1.03. TYPES OF BORROWINGS. The term "BORROWING" denotes the
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article 2 on a single date and for a single Interest Period.
Borrowings
13
are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such Borrowing (E.G., a "FIXED RATE BORROWING"
is a Euro-Dollar Borrowing or a Bid Rate Borrowing (excluding any such Borrowing
consisting of Bid Rate (Indexed) Loans bearing interest at the Base Rate), and a
"EURO-DOLLAR BORROWING" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article 2 under which participation therein is
determined (I.E., a "COMMITTED BORROWING" is a Borrowing under Section 2.01 in
which all Banks participate in proportion to their Commitments, while a "BID
RATE BORROWING" is a Borrowing under Section 2.03 in which the Bank participants
are determined on the basis of their bids in accordance therewith).
ARTICLE 2
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. (a) During the Revolving Credit
Period, each Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make loans to any Borrower pursuant to this subsection (a)
from time to time in amounts such that the aggregate principal amount of
Committed Loans by such Bank at any one time outstanding to all Borrowers shall
not exceed the amount of its Commitment. Each Borrowing under this subsection
(a) shall be in an aggregate principal amount of $10,000,000 or any larger
multiple of $1,000,000 (except that any such Borrowing may be in the aggregate
amount available in accordance with Section 3.02(b)) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, any Borrower may borrow under this subsection (a), repay or,
to the extent permitted by Section 2.12, prepay Loans and reborrow at any time
during the Revolving Credit Period under this subsection (a).
(b) The Revolving Credit Period may be extended, in the manner set forth in
this subsection 2.01(b), in each case for a period of 364 days from the
Termination Date then in effect. If the Company wishes to request an extension
of the Revolving Credit Period, it shall give written notice to that effect to
the Administrative Agent not less than 45 nor more than 90 days prior to such
Termination Date then in effect, whereupon the Administrative Agent shall
promptly notify each of the Banks of such notice. Each Bank shall respond to
such request, whether affirmatively or negatively, within 30 days; PROVIDED that
no such response shall be due more than 30 days prior to the Termination Date
then in effect. If a Bank or Banks respond negatively or fail to timely respond
to such request, but such non-extending Bank(s) have Commitment(s) totalling
less than 33 1/3% of the aggregate amount of the Commitments, the Company shall,
until the third Domestic Business Day prior to the Termination Date then in
effect, have
14
the right, with the assistance of the Administrative Agent, to seek
a mutually satisfactory substitute financial institution or financial
institutions (which may be one or more of the Banks) to assume the Commitment(s)
of such non-extending Bank(s). Not later than the third Domestic Business Day
prior to the Termination Date then in effect, the Company shall, by notice to
the Banks through the Administrative Agent, either (i) terminate, effective on
the Termination Date then in effect, the Commitment(s) of such non-extending
Bank(s), whereupon the aggregate amount of such Commitment(s) shall be assumed
by a substitute financial institution or financial institutions on the
Termination Date then in effect, (ii) withdraw its request for an extension of
the Revolving Credit Period, or (iii) so long as no Event of Default shall have
occurred and be continuing, terminate, effective on the Termination Date then in
effect, the Commitment(s) of any such non-extending Bank(s) which shall not be
assumed by a substitute financial institution or financial institutions on the
Termination Date then in effect, whereupon the aggregate Commitment(s) shall be
permanently reduced by the aggregate amount of such non-extending Bank(s)'s
Commitment(s) as of the Termination Date then in effect. The failure of the
Company to timely take the actions contemplated by the preceding sentence shall
be deemed a withdrawal of its request for an extension whether or not notice to
such effect is given. So long as Banks having Commitment(s) totalling not less
than 66 2/3% of the aggregate amount of the Commitment(s) shall have responded
affirmatively to such a request, and such request is not withdrawn in accordance
with the preceding sentence, then, subject to receipt by the Administrative
Agent of counterparts of an Extension Agreement in substantially the form of
Exhibit M duly completed and signed by each of the Administrative Agent, the
Company and each Bank electing to extend the Revolving Credit Period, the
Revolving Credit Period shall be extended for the period specified above.
SECTION 2.02. NOTICE OF COMMITTED BORROWINGS. The Borrower shall give the
Administrative Agent notice (a "NOTICE OF COMMITTED BORROWING") not later than
11:00 A.M. (New York City time) on (x) the date of each Base Rate Borrowing and
(y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate; and,
15
(d) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. BID RATE BORROWINGS. (a) THE BID RATE OPTION. In addition
to Committed Borrowings pursuant to Section 2.01, any Borrower may, as set forth
in this Section, request the Banks to make offers to make Bid Rate Loans to the
Borrower. The Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
(b) BID RATE QUOTE REQUEST. When a Borrower wishes to request offers to
make Bid Rate Loans under this Section, it shall transmit to the Administrative
Agent by telex or facsimile transmission a Bid Rate Quote Request substantially
in the form of Exhibit B hereto so as to be received no later than 11:00 A.M.
(New York City time) on (x) the fifth Euro-Dollar Business Day prior to the date
of Borrowing proposed therein, in the case of a Bid Rate (Indexed) Auction or
(y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of a Bid Rate (General) Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Bid Rate Quote Request for the first Bid Rate (Indexed) Auction or Bid Rate
(General) Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day,
(ii) the aggregate amount of such Borrowing, which shall be $10,000,000
or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(iv) whether the Bid Rate Quotes requested are to set forth a Bid Rate
(Indexed) Margin or a Bid Rate (General).
The Borrower may request offers to make Bid Rate Loans for more than one
Interest Period in a single Bid Rate Quote Request.
(c) INVITATION FOR BID RATE QUOTES. Promptly upon receipt of a Bid Rate
Quote Request, the Administrative Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Bid Rate Quotes substantially in the
form of Exhibit C hereto, which shall constitute an invitation by the Borrower
to each
16
Bank to submit Bid Rate Quotes offering to make the Bid Rate Loans to
which such Bid Rate Quote Request relates in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF BID RATE QUOTES. (i) Each Bank may submit a
Bid Rate Quote containing an offer or offers to make Bid Rate Loans in response
to any Invitation for Bid Rate Quotes. Each Bid Rate Quote must comply with the
requirements of this subsection (d) and must be submitted to the Administrative
Agent by telex or facsimile transmission at its offices specified in or pursuant
to Section 11.01 not later than (x) 2:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of
a Bid Rate (Indexed) Auction or (y) 10:00 A.M. (New York City time) on the
proposed date of Borrowing, in the case of a Bid Rate (General) Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Bid Rate Quote Request for the first Bid Rate (Indexed)
Auction or Bid Rate (General) Auction for which such change is to be effective);
PROVIDED that Bid Rate Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) 1:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of
a Bid Rate (Indexed) Auction or (y) 9:45 A.M. (New York City time) on the
proposed date of Borrowing, in the case of an Bid Rate (General) Auctions.
Subject to Articles 3 and 6, any Bid Rate Quote so made shall be irrevocable
except with the written consent of the Administrative Agent given on the
instructions of the Borrower.
(ii) Each Bid Rate Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Bid Rate Loan for which each such
offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $5,000,000
or a larger multiple of $1,000,000 and (y) may not exceed the
principal amount of Bid Rate Loans for each Interest Period for which
offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Bid Rate Loans for which
offers being made by such quoting Bank may be accepted,
17
(C) in the case of a Bid Rate (Indexed) Auction, the margin above
or below the applicable London Interbank Offered Rate (the "BID RATE
(INDEXED) MARGIN") offered for each such Bid Rate Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(D) in the case of a Bid Rate (General) Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"BID RATE (GENERAL)") offered for each such Bid Rate Loan, and
(E) the identity of the quoting Bank.
A Bid Rate Quote may set forth up to five separate offers by the quoting Bank
with respect to each Interest Period specified in the related Invitation for Bid
Rate Quotes.
(iii) Any Bid Rate Quote shall be disregarded if:
(A) it is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection
2.03(d)(ii);
(B) it contains qualifying, conditional or similar language
beyond that contemplated by Exhibit D (other than a qualification or
condition as to minimum amount);
(C) it proposes terms other than or in addition to those set
forth in the applicable Invitation for Bid Rate Quotes; or
(D) it arrives after the time set forth in subsection 2.03(d)(i).
(e) NOTICE TO BORROWER. The Administrative Agent shall promptly but in no
event later than (i) 5:00 P.M. (New York City time) on the fourth Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a Bid Rate
(Indexed) Auction or (ii) 10:30 A.M. (New York City time) on the proposed date
of Borrowing, in the case of a Bid Rate (General) Auction (or, in either case
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Bid Rate Quote Request for the first Bid Rate (Indexed) Auction or Bid Rate
18
(General) Auction for which such change is to be effective) notify the Borrower
of the terms (x) of any Bid Rate Quote submitted by a Bank that is in accordance
with subsection (d) and (y) of any Bid Rate Quote that amends, modifies or is
otherwise inconsistent with a previous Bid Rate Quote submitted by such Bank
with respect to the same Bid Rate Quote Request. Any such subsequent Quote
shall be disregarded by the Administrative Agent unless such subsequent Quote is
submitted solely to correct a manifest error in such former Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Loans for which offers have been received for each Interest
Period specified in the related Bid Rate Quote Request, (B) the respective
principal amounts and Bid Rate (Indexed) Margins or Bid Rate (General) Rates, as
the case may be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Bid Rate Loans for which offers in any single Bid Rate Quote
may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 11:00 A.M. (New York
City time) on (x) the third Euro-Dollar Business Day prior to the proposed date
of Borrowing, in the case of a Bid Rate (Indexed) Auction or (y) the proposed
date of Borrowing, in the case of an Bid Rate (General) Auction (or, in either
case, such other time or date as the Borrower and the Administrative Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Bid Rate Quote Request for the first Bid Rate (Indexed) Auction or
Bid Rate (General) Auction for which such change is to be effective), the
Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e). In
the case of acceptance, such notice (a "NOTICE OF BID RATE BORROWING") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Bid Rate Quote in whole or in part;
PROVIDED that:
(i) the aggregate principal amount of each Bid Rate Borrowing may not
exceed the applicable amount set forth in the related Bid Rate Quote
Request,
(ii) the principal amount of each Bid Rate Borrowing must be
$10,000,000 or a larger multiple of $1,000,000, and
(iii) acceptance of offers may only be made on the basis of ascending
Bid Rate (Indexed) Margin or Bid Rates (General), as the case may be.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by two or more
Banks with the same Bid Rate (Indexed) Margins or Bid Rate (General), as the
case may be, for a greater aggregate principal amount than the amount in
19
respect of which such offers are accepted for the related Interest Period,
the principal amount of Bid Rate Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amounts of
such offers. Determinations by the Administrative Agent of the amounts of
Bid Rate Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. NOTICE TO BANKS; FUNDING OF LOANS. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of each
Borrowing, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the
Administrative Agent at its address specified in or pursuant to Section 11.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Banks available to the Borrower at the
Administrative Agent's aforesaid address not later than 2:30 P.M. (New York City
time) on the date of such Borrowing.
(c) Unless the Administrative Agent shall have received notice from a Bank
prior to the time of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with subsection
(b) of this Section 2.04 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Bank shall not have so made such share available
to the Administrative Agent, such Bank and, if such Bank shall not have made
such payment within two Domestic Business Days of demand therefor, the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
20
(d) The failure of any Bank to make the Loan to be made by it as part of
any Borrowing shall not relieve any other Bank of its obligation, if any,
hereunder to make a Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make a Loan to be made by such
other Bank.
SECTION 2.05. REGISTRY; NOTES. (a) The Administrative Agent shall
maintain a register (the "REGISTER") on which it will record the Commitment of
each Bank, each Loan made by such Bank and each repayment of any Loan made by
such Bank. Any such recordation by the Administrative Agent on the Register
shall be presumptively correct, absent manifest error. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrowers'
obligations hereunder.
(b) Each Borrower hereby agrees that, promptly upon the request of any Bank
at any time, such Borrower shall deliver to such Bank a duly executed Note, in
substantially the form of Exhibit A hereto, payable to the order of such Bank
and representing the obligation of such Borrower to pay the unpaid principal
amount of the Loans made to such Borrower by such Bank, with interest as
provided herein on the unpaid principal amount from time to time outstanding.
(c) Each Bank shall record the date, amount and maturity of each Loan made
by it and the date and amount of each payment of principal made by the Borrower
with respect thereto, and each Bank receiving a Note pursuant to this Section,
if such Bank so elects in connection with any transfer or enforcement of any
Note, may endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan then
outstanding; PROVIDED that the failure of such Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrowers hereunder or
under the Notes. Such Bank is hereby irrevocably authorized by the Borrowers so
to endorse any Note and to attach to and make a part of any Note a continuation
of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS. (a) Each Committed Loan shall mature,
and the principal amount thereof shall be due and payable together with accrued
and unpaid interest thereon, on the Termination Date.
(b) Each Bid Rate Loan included in any Bid Rate Borrowing shall mature, and
the principal amount thereof shall be due and payable (together with accrued and
unpaid interest thereon), on the last day of the Interest Period applicable to
such Borrowing.
SECTION 2.07. INTEREST RATES. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan
21
is made until it becomes due, at a rate per annum equal to the Base Rate for
such day. Such interest shall be payable quarterly in arrears on each
Quarterly Payment Date, at maturity and, with respect to the principal amount
of any Base Rate Loan converted to a Euro-Dollar Loan, on the date such Base
Rate Loan is so converted. Any overdue principal of or overdue interest on
any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the Base Rate for such
day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Loan of such Euro-Dollar Reference Bank to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period. If any Euro-Dollar Reference Bank does not furnish a timely quotation,
the Administrative Agent shall determine the relevant interest rate on the basis
of the quotation furnished by the remaining Euro-Dollar Reference Bank or, if
none of such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply.
(c) Any overdue principal of or overdue interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Loan at the date such payment was due and (ii) the Base Rate
for such day.
(d) Subject to Section 8.01(a), each Bid Rate (Indexed) Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(b) as if each Euro-Dollar Reference Bank were to participate in the related
Bid Rate (Indexed) Borrowing ratably in proportion to its Commitment) plus (or
22
minus) the Bid Rate (Indexed) Margin quoted by the Bank making such Loan in
accordance with Section 2.03. Each Bid Rate (General) Loan shall bear interest
on the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Bid Rate (General) quoted by the Bank
making such Loan in accordance with Section 2.03. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months after the first
day thereof. Any overdue principal of or overdue interest on any Bid Rate Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 2% plus the Base Rate for such day.
(e) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to
the Borrower and the participating Banks of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
SECTION 2.08. FACILITY FEES. (a) The Company shall pay to the
Administrative Agent for the account of each Bank a facility fee at the Facility
Fee Rate (determined daily in accordance with the Pricing Schedule). Such
facility fee shall accrue (i) from and including the earlier of the date hereof
and the Effective Date to but excluding the date of termination of the
Commitments in their entirety, on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including such date of termination to
but excluding the date the Loans shall be repaid in their entirety, on the daily
average aggregate outstanding principal amount of the Loans.
(b) Accrued fees under this Section shall be payable quarterly in arrears
on each Quarterly Payment Date and upon the date of termination of the
Commitments in their entirety (and, if later, the date the Loans shall be repaid
in their entirety).
Section 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. The
Company may, upon notice to the Administrative Agent not later than 11:00 A.M.
(New York City time) on any Domestic Business Day, (i) terminate the Commitments
at any time, if no Loans are outstanding at such time (after giving effect to
any contemporaneous prepayment of the Loans in accordance with Section 2.12) or
(ii) ratably reduce from time to time by an aggregate amount of $25,000,000 or
any larger multiple of $1,000,000 the aggregate amount of the Commitments in
excess of the aggregate outstanding principal amount of the Loans.
23
SECTION 2.10. METHOD OF ELECTING INTEREST RATES. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8 and the last sentence of this subsection (a)), as
follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, subject to Section
2.14 in the case of any such conversion or continuation effective on any
day other than the last day of the then current Interest Period applicable
to such Loans.
Each such election shall be made by delivering a notice in substantially
the form of Exhibit L (a "NOTICE OF INTEREST RATE ELECTION") to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation selected in such
notice is to be effective. A Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans, provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such notice
applies, and the remaining portion to which it does not apply, are each
$10,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection 2.10(a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if the Loans being converted are to be Fixed Rate Loans,
the duration of the next succeeding Interest Period applicable thereto; and
24
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "INTEREST PERIOD".
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection 2.10(a) above, the Administrative Agent shall
notify each Bank of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If no Notice of Interest Rate Election is timely
received prior to the end of an Interest Period for any Group of Loans, the
Borrower shall be deemed to have elected that such Group of Loans be converted
to Base Rate Loans as of the last day of such Interest Period.
(d) An election by the Borrower to change or continue the rate of interest
applicable to any Group of Loans pursuant to this Section shall not constitute a
"BORROWING" subject to the provisions of Section 3.02.
SECTION 2.11. SCHEDULED TERMINATION OF COMMITMENTS. The Commitments shall
terminate on the Termination Date, and any Loans then outstanding (together with
accrued and unpaid interest thereon) shall be due and payable on such date.
SECTION 2.12. OPTIONAL PREPAYMENTS. (a) Subject in the case of any Fixed
Rate Borrowing to Section 2.14, the Borrower may (i) upon notice to the
Administrative Agent not later than 11:00 A.M. (New York City time) on any
Domestic Business Day prepay on such Domestic Business Day any Group of Base
Rate Loans or any Bid Rate Borrowing bearing interest at the Base Rate pursuant
to Section 8.01(a) and (ii) upon at least three Euro-Dollar Business Days'
notice to the Administrative Agent not later than 11:00 A.M. (New York City
time) prepay any Group of Euro-Dollar Loans, in each case in whole at any time,
or from time to time in part in amounts aggregating $10,000,000 or any larger
multiple of $1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group or Borrowing.
(b) Except as provided in subsection 2.12(a), the Borrower may not prepay
all or any portion of the principal amount of any Bid Rate Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
25
of such Bank's share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS. (a) Each payment of
principal of, and interest on, the Loans and of fees hereunder shall be made not
later than 2:30 P.M. (New York City time) on the date when due, in Federal or
other funds immediately available in New York City, to the Administrative Agent
at its address referred to in Section 11.01. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such payment received
by the Administrative Agent for the account of the Banks. Whenever any payment
of principal of, or interest on, the Base Rate Loans or of fees shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day. Whenever any
payment of principal of, or interest on, the Bid Rate Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due from such Borrower to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that such Borrower shall not have so made such payment, each Bank shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. FUNDING LOSSES. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan or continued as a Euro-Dollar Loan for a new
Interest Period (pursuant to Article 2, 6, 8 or otherwise) on any day other than
the last day of an Interest Period applicable thereto, or if a Borrower fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to
26
any Bank in accordance with Section 2.04(a), 2.10(c) or 2.12(c) (other
than by reason of a default by the Bank demanding payment hereunder), such
Borrower shall reimburse each Bank within 15 days after written demand from such
Bank for any resulting loss or reasonable expense incurred by it (or by an
existing or prospective Participant in the related Loan, but not to exceed the
loss and expense which would have been incurred by such Bank had no
participations been granted by it), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of profit or margin for the period after any such payment or
conversion or failure to borrow, prepay, convert or continue, PROVIDED that such
Bank shall have delivered to such Borrower a certificate setting forth in
reasonable detail the calculation of the amount of such loss or expense, which
certificate shall be presumptively correct in the absence of manifest error.
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
all fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. REGULATION D COMPENSATION. In the event that a Bank is
required to maintain reserves of the type contemplated by the definition of
"EURO-DOLLAR RESERVE PERCENTAGE", such Bank may require the Borrower to pay,
contemporaneously with each payment of interest on the Euro-Dollar Loans,
additional interest on the related Euro-Dollar Loan of such Bank at a rate per
annum determined by such Bank up to but not exceeding the excess of (i) (A) the
applicable London Interbank Offered Rate divided by (B) one MINUS the
Euro-Dollar Reserve Percentage over (ii) the applicable London Interbank Offered
Rate. Any Bank wishing to require payment of such additional interest (x)
shall so notify the Borrower and the Administrative Agent, in which case such
additional interest on the Euro-Dollar Loans of such Bank shall be payable to
such Bank at the place indicated in such notice with respect to each Interest
Period commencing at least three Euro-Dollar Business Days after the giving of
such notice and (y) shall furnish to the Borrower at least three Euro-Dollar
Business Days prior to each date on which interest is payable on the Euro-Dollar
Loans of such Borrower an officer's certificate setting forth the amount to
which such Bank is then entitled under this Section 2.16 (which shall be
consistent with such Bank's good faith estimate of the level at which the
related reserves are maintained by it). Each such notification shall be
accompanied by such information as the Borrower may reasonably request.
27
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
SECTION 2.17. FOREIGN COSTS. (a) If the cost to any Bank of making or
maintaining any Loan is increased, or the amount of any sum received or
receivable by any Bank (or its Applicable Lending Office) is reduced by an
amount deemed by such Bank to be material, by reason of the fact that the
Borrower of such Loan is incorporated in, or conducts business in, a
jurisdiction outside the United States of America, such Borrower shall indemnify
such Bank for such increased cost or reduction within 15 days after demand by
such Bank (with a copy to the Administrative Agent). A certificate of such Bank
claiming compensation under this subsection (a) and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error.
(b) Each Bank will promptly notify the Company and the Administrative Agent
of any event of which it has knowledge that will entitle such Bank to additional
compensation pursuant to subsection (a) and will designate a different
Applicable Lending Office if, in the judgment of such Bank, such designation
will avoid the need for, or reduce the amount of, such compensation and will not
be otherwise disadvantageous to such Bank.
ARTICLE 3
CONDITIONS
SECTION 3.01. EFFECTIVENESS. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 11.05):
(a) receipt by the Administrative Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telegraphic, telecopy,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party);
28
(b) receipt by the Administrative Agent of an opinion of (i) Sidley &
Austin, special counsel for the Company, substantially in the form of
Exhibit E-1 hereto and (ii) Xxxxxxxxx X. Xxxxx, General Counsel of the
Company, substantially in the form of Exhibit E-2 hereto, and in each case
covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(c) receipt by the Administrative Agent of an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Administrative Agent, substantially in
the form of Exhibit F hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks may
reasonably request;
(d) receipt by the Administrative Agent of all documents it may have
reasonably requested prior to the date hereof relating to the existence of
the Company, the corporate authority for and the validity of this Agreement
and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent;
(e) receipt by the Administrative Agent of evidence satisfactory to it
that the Merger shall have been consummated in accordance with the Merger
Agreement, without any amendment thereof or waiver thereto which (i) is
material in the context of this Agreement and (ii) the Required Banks shall
not have consented to in writing; and
(f) receipt by the Administrative Agent of evidence satisfactory to it
of the payment of all principal of and interest on any loans outstanding
under, and all accrued fees under, the Existing Credit Agreements and of
the termination of the commitments of the lenders thereunder;
PROVIDED that this Agreement shall not become effective or be binding on
any party hereto unless all of the foregoing conditions are satisfied not later
than January 15, 1998; and PROVIDED FURTHER that the provisions of Sections
2.08, 2.09, 2.14 and 11.03 shall become effective upon satisfaction of the
condition specified in clause 3.01(a). The Administrative Agent shall promptly
notify the Company and the Banks of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
29
SECTION 3.02. BORROWINGS. The obligation of any Bank to make a Loan on
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, the case may be;
(b) the facts that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing; and
(d) the fact that the representations and warranties (other than the
representation and warranty set forth in Section 4.04(b) in the case of a
Borrowing which does not result in an increase in the aggregate outstanding
principal amount of the Loans) of the Borrower and, if the Borrower is not
the Company, of the Company contained in this Agreement shall be true on
and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower (and, if the Company is not the Borrower, by the
Company) on the date of such Borrowing as to the facts specified in clauses (b),
(c) and (d) of this Section.
SECTION 3.03. FIRST BORROWING BY EACH ELIGIBLE SUBSIDIARY. The obligation
of each Bank to make a Loan on the occasion of the first Borrowing by each
Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Administrative Agent of an opinion or opinions of
counsel for such Eligible Subsidiary reasonably acceptable to the
Administrative Agent (which, in the case of an Eligible Subsidiary
organized under the laws of the United States or a State thereof may be an
employee of the Company) and addressed to the Administrative Agent and the
Banks, substantially to the effect of Exhibit J hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request; and
(b) receipt by the Administrative Agent of all documents which it may
reasonably request relating to the existence of such Eligible Subsidiary,
the corporate authority for and the validity of the Election to
30
Participate of such Eligible Subsidiary, this Agreement and the Notes of
such Eligible Subsidiary, and any other matters relevant thereto, all in
form and substance reasonably satisfactory to the Administrative Agent.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and is duly qualified to do business as a foreign corporation in each
jurisdiction where such qualification is required, except where the failure so
to qualify could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by the Company of this Agreement and its
Notes are within the Company's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official (except for such as may be
required in connection with the Merger, which shall have been obtained not later
than the Effective Date) and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or any of
its Subsidiaries or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company and each of its Notes, if and when executed and
delivered in accordance with this Agreement, will constitute a valid and binding
obligation of the Company, in each case enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of June 30, 1997 and the
related consolidated statements of earnings, cash flows and changes in
stockholders' equity for the fiscal year then ended, reported on by Ernst &
Young
31
LLP, copies of which have been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Company and its Consolidated Subsidiaries
as of such date and their consolidated results of operations and cash flows for
such fiscal year.
(b) Since June 30, 1997, there has been no material adverse change in the
business, financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. LITIGATION. Except as disclosed in the Company's annual
report on Form 10-K for the year ended June 30, 1997, each registration
statement (other than a registration statement on Form S-8 (or its equivalent))
and each report on Form 10-K, 10-Q and 8-K (or their equivalents) which the
Company shall have filed with the Securities and Exchange Commission at any time
thereafter, and the proxy statement and prospectus delivered to the shareholders
of the Company in connection with the Merger, copies of which have been
delivered to each of the Banks, there is no action, suit or proceeding pending
against, or to the knowledge of the Company, threatened against or affecting,
the Company or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could reasonably be expected to have
a Material Adverse Effect or which in any manner draws into question the
validity of this Agreement or any Note.
SECTION 4.06. COMPLIANCE WITH LAWS. (a) The Company and each Subsidiary
is in compliance in all material respects with all applicable laws, ordinances,
rules, regulations and requirements of governmental authorities except where (i)
non-compliance could not reasonably be expected to have a Material Adverse
Effect or (ii) the necessity of compliance therewith is contested in good faith
by appropriate proceedings.
(b) Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
32
SECTION 4.07. ENVIRONMENTAL MATTERS. In the ordinary course of its
business, the Company conducts a systematic review of the effects and reasonably
ascertainable associated liabilities and costs of Environmental Laws on the
business, operations and properties of the Company and its Subsidiaries. The
associated liabilities and costs include, without limitation: any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned; any capital or operating expenditures required to achieve
or maintain compliance with Environmental Laws; any constraints on operating
activities related to achieving or maintaining compliance with Environmental
Laws, including any periodic or permanent shutdown of any facility or reduction
in the level or change in the nature of operations conducted thereat; any costs
or liabilities in connection with off-site disposal of wastes or hazardous
substances; and any actual or potential liabilities to third parties, including
employees, arising under Environmental Laws, and any related costs and expenses.
On the basis of this review, the Company has reasonably concluded that such
associated liabilities and costs, including the costs of compliance with
Environmental Laws, could not reasonably be expected to have a Material Adverse
Effect.
SECTION 4.08. TAXES. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary except (i) where nonpayment could not reasonably be expected to have
a Material Adverse Effect or (ii) where the same are contested in good faith by
appropriate proceedings. The charges, accruals and reserves on the books of the
Company and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Company, adequate.
SECTION 4.09. SUBSIDIARIES. Each of the Company's corporate Subsidiaries
is a corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and is duly qualified to do business as a
foreign corporation in each jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to have
Material Adverse Effect.
SECTION 4.10. REGULATORY RESTRICTIONS ON BORROWING. The Company is not
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or otherwise subject to any regulatory
scheme which restricts its ability to incur debt.
33
SECTION 4.11. FULL DISCLOSURE. Neither the Company's Form 10-K for the
year ended June 30, 1997, as of the date of filing of such Form 10-K, nor any
registration statement (other than a registration statement on Form S-8 (or its
equivalent)) or report on Form 10-K, 10-Q and 8-K (or their equivalents) which
the Company shall have filed with the Securities and Exchange Commission as at
the time of filing of such registration statement or report, as applicable,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make any statements contained therein, in the light
of the circumstances under which they were made, not misleading; provided that
to the extent any such document contains forecasts and/or projections, it is
understood and agreed that uncertainty is inherent in any forecasts or
projections and that no assurances can be given by the Company of the future
achievement of such performance.
ARTICLE 5
COVENANTS
The Company and, where stated, each other Borrower agree that, so long as
any Bank has any Commitment hereunder or any amount payable hereunder remains
unpaid:
SECTION 5.01. INFORMATION. The Company will deliver to each of the Banks:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of earnings, cash flows, and
changes in stockholders' equity for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on in a manner consistent with the requirements of the Securities
and Exchange Commission and audited by Ernst & Young LLP or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Company, an
unaudited consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter and the related unaudited
consolidated statements of earnings and cash flows for such quarter and for
the portion of the Company's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of the
34
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and preparation based on
financial accounting principles consistent with generally accepted
accounting principles by an Approved Officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of an
Approved Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance
with the requirements of Sections 5.10 and 5.12 on the date of such
financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Company is taking or proposes to
take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) that
nothing has come to their attention to cause them to believe that any
Default arising from the Company's failure to comply with its obligations
under Sections 5.10 and 5.12 existed on the date of such statements (it
being understood that such accountants shall not thereby be required to
perform any procedures not otherwise required under generally accepted
auditing standards) and (ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant to clause
(c) above;
(e) within five days after any officer of the Company obtains
knowledge of any Default, if such Default is then continuing, a certificate
of an Approved Officer of the Company setting forth the details thereof and
the action which the Company is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports (other than the exhibits
thereto) on Forms 10-K, 10-Q and 8-K (or their equivalents) which the
Company shall have filed with the Securities and Exchange Commission;
35
(h) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such
occurrence and action, if any, which the Company or applicable member of
the ERISA Group is required or proposes to take; and
(i) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
Section 5.02. PAYMENT OF OBLIGATIONS. Each Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, at or
before maturity, all their respective material obligations and liabilities
(including, without limitation, tax liabilities and claims of materialmen,
warehousemen and the like which if unpaid might by law give rise to a Lien),
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each of its Subsidiaries to maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of any of the same.
Section 5.03. MAINTENANCE OF PROPERTY; INSURANCE. (a) Each Borrower will
keep, and will cause each of its Subsidiaries to keep, all material property
36
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted.
(b) Each Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Company or in such Borrower's or
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all its respective properties in at least such amounts,
against at least such risks and with such risk retention as are usually
maintained, insured against or retained, as the case may be, in the same general
area by companies of established repute engaged in the same or a similar
business; PROVIDED that the Borrowers and their Subsidiaries may self-insure to
the same extent as other companies of established repute engaged in the same or
a similar business in the same general area in which such Borrower or such
Subsidiary operates and to the extent consistent with prudent business practice.
Each Borrower will furnish to the Banks, upon request from the Administrative
Agent, information presented in reasonable detail as to the insurance so
carried.
Section 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Each
Borrower and its Subsidiaries taken as a whole will continue to engage in
business of the same general type as now conducted by such Borrower and its
Subsidiaries and any ancillary or related lines of business, and each Borrower
will preserve, renew and keep in full force and effect, and will cause each of
its Subsidiaries to preserve, renew and keep in full force and effect, its
respective legal existence and its respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; PROVIDED that nothing
in this Section shall prohibit (i) the consolidation or merger of a Subsidiary
(other than an Eligible Subsidiary with obligations with respect to Loans
outstanding hereunder) with or into another Person, (ii) the consolidation or
merger of an Eligible Subsidiary with or into the Company or another Eligible
Subsidiary or (iii) the termination of the corporate existence of any Subsidiary
(other than an Eligible Subsidiary with obligations with respect to Loans
outstanding hereunder) if, in the case of clauses (i), (ii) and (iii), such
consolidation, merger or termination is not materially disadvantageous to the
Banks; and PROVIDED FURTHER that nothing in this Section shall prohibit any sale
or other disposition of assets permitted under Section 5.07.
Section 5.05. COMPLIANCE WITH LAWS. Each Borrower will comply, and cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) except where (i) the necessity of compliance
therewith is contested in good faith by appropriate proceedings or (ii) the
failure to comply could not reasonably be expected to have a Material Adverse
Effect.
37
Section 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. Each Borrower
will keep, and will cause each of its Subsidiaries to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each of its Subsidiaries to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of its respective
properties, to examine and make abstracts from any of its respective books and
records and to discuss its respective affairs, finances and accounts with its
respective officers, employees and independent public accountants, all at such
reasonable times as may be desired.
Section 5.07. MERGERS AND SALES OF ASSETS. (a) The Company will not
consolidate or merge with or into any other Person; PROVIDED that the Company
may merge with another Person if (x) the Company is the corporation surviving
such merger and (y) after giving effect to such merger, no Default shall have
occurred and be continuing.
(b) The Company will not sell, lease or otherwise transfer, directly or
indirectly, assets (exclusive of assets transferred in the ordinary course of
business) if after giving effect to such transfer the aggregate book value of
assets so transferred subsequent to the date of this Agreement would constitute
Substantial Assets as of the day preceding the date of such transfer other than
(i) sales of accounts receivable to IMC-Agrico Receivables Company L.L.C. or any
other similar bankruptcy-remote Subsidiary of the Company or any of its
Subsidiaries established for the purpose of engaging in transactions related to
accounts receivable, (ii) the sale of substantially all of the assets comprising
the IMC-Vigoro business unit of the Company, (iii) the sale of any equity
interest in McMoRan Oil & Gas Co., a Delaware corporation, or the sale or
transfer of any right to receive revenues from the MOXY-FRP Exploration Program
undertaken by McMoRan Oil & Gas Co., a Delaware corporation, and (iv) the sale
of assets acquired pursuant to an Acquisition that are unrelated to the business
of the same general type as now conducted by the Company and its Subsidiaries.
Section 5.08. USE OF PROCEEDS. The proceeds of the Loans made under this
Agreement will be used by the Borrowers for general corporate purposes,
including without limitation the refinancing of the Existing Credit Agreements
and Acquisitions. None of such proceeds will be used in violation of Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System.
Section 5.09. NEGATIVE PLEDGE. Neither any Borrower nor any Subsidiary of
any Borrower will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
38
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $135,000,000;
(b) any Lien existing on any asset of any Person at the time such
Person becomes a Subsidiary of a Borrower and not created in contemplation
of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or
constructing such asset, PROVIDED that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition or completion of
construction thereof;
(d) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into a Borrower or a Subsidiary of
a Borrower and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
a Borrower or a Subsidiary of a Borrower and not created in contemplation
of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, PROVIDED that the proceeds of such Debt are used
solely for the foregoing purpose and to pay financing costs and such Debt
is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $100,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(h) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $10,000,000; and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount, together
with all other Debt secured by Liens permitted under this Section 5.09(i),
not to exceed an amount equal to 10% of Consolidated Net Worth
39
(calculated as of the last day of the fiscal quarter most recently ended
on or prior to the date of the most recent incurrence of such Debt).
Section 5.10. DEBT OF SUBSIDIARIES. Total Debt of all Subsidiaries
(excluding Debt (i) of a Subsidiary owing to the Company, (ii) of a Subsidiary
owing to a Substantially-Owned Consolidated Subsidiary, (iii) of an Eligible
Subsidiary under this Agreement or (iv) of FRP in an aggregate principal amount
not exceeding $300,000,000 outstanding on the Effective Date (but not any
refinancing thereof)) will not at any date exceed 20% of Consolidated Net Worth
(calculated as of the last day of the fiscal quarter most recently ended on or
prior to such date). For purposes of this Section any preferred stock of a
Consolidated Subsidiary (other than the Series E Preferred Stock) held by a
Person other than the Company or a Substantially-Owned Consolidated Subsidiary
shall be included, at the higher of its voluntary or involuntary liquidation
value, in the "Debt" of such Consolidated Subsidiary.
Section 5.11. TRANSACTIONS WITH AFFILIATES. No Borrower will, nor will it
permit any of its Subsidiaries to, directly or indirectly, pay any funds to or
for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any Affiliate except: (i) transactions on an arms-length basis on terms at
least as favorable to such Borrower or such Subsidiary as could have been
obtained from a third party who was not an Affiliate, (ii) marketing services
provided by IMC Global Operations Inc. to Agrico, (iii) employee leasing
services agreements between IMC Global Operations Inc. and Agrico, (iv)
transactions between Agrico and the Rainbow and FarMarkets business units of the
Company, (v) transactions between Agrico and the IMC Kalium business unit of the
Company, (vi) loans from the Company or a Subsidiary to the Company or a
Subsidiary, (vii) the declaration and payment of any lawful dividend and (viii)
transactions between Vigiron Partnership, a Delaware general partnership, and
the IMC AgriBusiness business unit of the Company.
Section 5.12. Leverage Ratio. The Leverage Ratio will not at any date
exceed 3.75 to 1.00. For this purpose:
"CONSOLIDATED ADJUSTED DEBT" means at any date the sum of (i) the Debt of
the Company and its Consolidated Subsidiaries plus (ii) the excess (if any) of
(A) the aggregate unrecovered principal investment of transferees of accounts
receivable from the Company or a Consolidated Subsidiary in transactions
accounted for as sales under generally accepted accounting principles over (B)
$100,000,000, in each case determined on a consolidated basis as of such date.
40
"CONSOLIDATED EBITDA" means, for any period, the consolidated net income of
the Company and its Consolidated Subsidiaries for such period before (i) income
taxes, (ii) interest expense, (iii) depreciation and amortization, (iv) minority
interest, (v) extraordinary losses or gains, (vi) discontinued operations and
(vii) the cumulative effect of changes in accounting principles. Consolidated
EBITDA for each four-quarter period will be adjusted on a pro-forma basis to
reflect any Acquisition closed during such period as if such Acquisition had
been closed on the first day of such period.
"LEVERAGE RATIO" means at any date the ratio of Consolidated Adjusted Debt
calculated as of such date to Consolidated EBITDA calculated for the period of
four consecutive fiscal quarters most recently ended on or prior to such date.
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay, within five Domestic Business Days of the due date
thereof, any interest, fees or any other amount payable hereunder;
(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.12, inclusive;
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after notice thereof has been given to the
Company by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
any Borrower in this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment in
respect of Material Financial Obligations (other than the Loans) when due
or within any applicable grace period;
41
(f) any event or condition shall occur and shall continue beyond the
applicable grace or cure period, if any, provided with respect thereto and
the maturity of Material Financial Obligations shall be accelerated as a
result thereof;
(g) the Company or any Material Subsidiary or any other Borrower shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or
shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Company or any Material Subsidiary or any other Borrower seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Company or any Material Subsidiary or any
other Borrower under the federal bankruptcy laws as now or hereafter in
effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $25,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which causes
42
one or more members of the ERISA Group to incur a current payment
obligation in excess of $100,000,000 in the aggregate;
(j) judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Company or any
Subsidiary and such judgments or orders shall continue unsatisfied and
unstayed for a period of 30 days;
(k) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 35% or more of
the combined voting power of all Voting Stock of the Company; or (ii)
during any period of up to 24 consecutive months, commencing after the date
of this Agreement, individuals who at the beginning of such 24-month period
were directors of the Company shall cease for any reason (other than due to
death or disability) to constitute a majority of the board of directors of
the Company, except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by 66-2/3% of
the remaining members of the board of directors of the Company or (y)
nominated for election by a majority of the remaining members of the board
of directors of the Company and thereafter elected as directors by the
shareholders of the Company; or (iii) any Person or two or more Persons
acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that has resulted in its or
their acquisition of, control over Voting Stock of the Company (or other
securities convertible into such securities) representing 35% or more of
the combined voting power of all Voting Stock of the Company; or
(l) any of the obligations of the Company under Article 10 of this
Agreement shall for any reason not be enforceable against the Company in
accordance with their terms, or the Company shall so assert in writing;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Company terminate the Commitments and they shall thereupon terminate and
(ii) if requested by Banks holding more than 50% in aggregate principal amount
of the Loans, by notice to the Company declare the Loans (together with accrued
interest thereon) to be, and the Loans shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers; PROVIDED that in the
43
case of any of the Events of Default specified in clause (g) or (h) above
with respect to any Borrower, without any notice to any Borrower or any other
act by the Administrative Agent or the Banks, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrowers.
SECTION 6.02. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Company under Section 6.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE ADMINISTRATIVE AGENT
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
SECTION 7.02. ADMINISTRATIVE AGENT AND AFFILIATES. Xxxxxx Guaranty Trust
Company of New York shall have the same rights and powers under this Agreement
as any other Bank and may exercise or refrain from exercising the same as though
it were not the Administrative Agent, and Xxxxxx Guaranty Trust Company of New
York and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary or affiliate
of the Company as if it were not the Administrative Agent hereunder.
SECTION 7.03. ACTION BY ADMINISTRATIVE AGENT. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Administrative Agent may
consult with legal counsel (who may be counsel for any Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.05. LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable to any Bank for any
action taken or
44
not taken by it in connection herewith (i) with the consent or at the request
of the Required Banks (or, when expressly required hereby, all the Banks) or
(ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its affiliates nor any of their
respective directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any Borrower; (iii) the satisfaction of any
condition specified in Article 3, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Administrative Agent shall not incur
any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar
writing) believed by it in good faith to be genuine or to be signed by the
proper party or parties. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
SECTION 7.06. INDEMNIFICATION. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Administrative Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees thereunder.
SECTION 7.07. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign at any time by giving notice thereof to the Banks and the Company.
Upon any such resignation, the Company, with the consent of the
45
Required Banks (such consent not to be unreasonably withheld or delayed),
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent
may, on behalf of the Banks, appoint a successor Administrative Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent.
SECTION 7.09. AGENTS' FEES. The Company shall pay to each of the Agents
for its own account fees in the amounts and at the times previously agreed upon
between the Company and such Agent.
SECTION 7.10. OTHER AGENTS. Nothing in this Agreement shall impose upon
the Documentation Agent, upon either Co-Syndication Agent, upon any Managing
Agent or upon any Co-Agent in such capacity, any duties or obligations
whatsoever.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.
If on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing or Bid Rate (Indexed) Borrowing:
(a) the Administrative Agent is advised by the Euro-Dollar Reference
Banks that deposits in dollars (in the applicable amounts) are not being
offered to the Euro-Dollar Reference Banks in the relevant market for such
Interest Period, or
(b) in the case of a Euro-Dollar Borrowing, Banks having more than 50%
of the aggregate amount of the affected Loans advise the Administrative
Agent that the London Interbank Offered Rate as
46
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Banks of funding their Euro-Dollar Loans for such
Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Dollar Loans or to continue or convert
outstanding Loans as or into Euro-Dollar Loans shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the
last day of the then current Interest Period applicable thereto. Unless the
Borrower notifies the Administrative Agent at least one Domestic Business Day
before the date of any Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Borrowing is a Bid Rate (Indexed)
Borrowing, the Loans comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
SECTION 8.02. ILLEGALITY. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund any of its Euro-Dollar
Loans to any Borrower and such Bank shall so notify the Administrative Agent,
the Administrative Agent shall forthwith give notice thereof to the other Banks
and such Borrower, whereupon until such Bank notifies such Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans, or to
continue or convert outstanding Loans as or into Euro-Dollar Loans, to such
Borrower shall be suspended. Before giving any notice to the Administrative
Agent pursuant to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid the need for giving
such notice and will not be otherwise disadvantageous to such Bank in the good
faith exercise of its discretion. If such notice is given, each Euro-Dollar
Loan of such Bank to such Borrower then outstanding shall be converted to a Base
Rate Loan either (a) on the last day of the then current Interest Period
applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan to such day or (b) immediately if such
47
Bank shall determine that it may not lawfully continue to maintain and fund
such Loan to such day.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after (x)
the date of this Agreement, in the case of any Committed Loan or any obligation
to make Committed Loans or (y) the date of any related Bid Rate Quote, in the
case of any Bid Rate Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
issued on or after such date of any such authority, central bank or comparable
agency shall impose, modify or deem applicable any reserve, special deposit or
similar requirement (including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement for which such Bank is
entitled to compensation for the relevant Interest Period under Section 2.16)
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the London interbank market any other condition
(other than in respect of Taxes or Other Taxes) affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans and the result of any of
the foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Fixed Rate Loan or to reduce the amount of
any sum received or receivable by such Bank (or its Applicable Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within 15 days after receipt by the
Company of written demand by such Bank (with a copy to the Administrative
Agent), the Company shall pay to such Bank an amount which on an after-tax basis
is necessary to maintain the same rate of return on capital that existed
immediately prior thereto which such Bank reasonably determines is attributable
to this Agreement, its Loans or its obligations to make Loans hereunder (after
taking into account such Bank's policies as to capital adequacy).
(b) If any Bank shall have determined that, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
48
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency given or made after the date of this
Agreement (including any determination by any such authority, central bank or
comparable agency that, for purposes of capital adequacy requirements, the
Commitments hereunder do not constitute commitments with an original maturity
of one year or less), has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 15 days after receipt by the Company of written demand by such
Bank (with a copy to the Administrative Agent), the Company shall pay to such
Bank an amount which on an after-tax basis is necessary to maintain the same
rate of return on capital that existed immediately prior thereto which such
Bank reasonably determines is attributable to this Agreement, its Loans or
its obligations to make Loans hereunder (after taking into account such
Bank's policies as to capital adequacy).
(c) Each Bank will promptly notify the Company and the Administrative Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable 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 Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be presumptively
correct in the absence of manifest error. In determining such amount, such Bank
may use any reasonable averaging and attribution methods. Notwithstanding the
foregoing subsections 8.03(a) and 8.03(b) of this Section 8.03, the Company
shall only be obligated to compensate any Bank for any amount arising or
accruing during (i) any time or period commencing not more than 45 days prior to
the date on which such Bank notifies the Administrative Agent and the Company
that it proposes to demand such compensation and identifies to the
Administrative Agent and the Company the statute, regulation or other basis upon
which the claimed compensation is or will be based and (ii) any time or period
during which because of the retroactive application of such statute, regulation
or other such basis, such Bank did not know in good faith that such amount would
arise or accrue.
SECTION 8.04. TAXES. (a) For purposes of this Section 8.04, the following
terms have the following meanings:
"TAXES" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by any Borrower
pursuant to this Agreement or any Note, and all liabilities with respect
thereto, EXCLUDING (i) in the case of each Bank and the Administrative Agent,
taxes imposed on its net income and franchise or similar taxes imposed on it by
a jurisdiction under the laws of which such Bank or the Administrative Agent (as
49
the case may be) is organized or in which its principal executive office is
located or, in the case of each Bank, in which its Applicable Lending Office is
located (all such excluded taxes of the Administrative Agent or any Bank being
herein referred to as its "DOMESTIC TAXES") and (ii) in the case of each Bank,
any United States withholding tax imposed on such payments except to the extent
that such Bank is subject to United States withholding tax by reason of a U.S.
Tax Law Change.
"OTHER TAXES" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
"U.S. TAX LAW CHANGE" means with respect to any Bank or Participant the
occurrence (x) in the case of each Bank listed on the signature pages hereof,
after the date of its execution and delivery of this Agreement and (y) in the
case of any other Bank, after the date such Bank shall have become a Bank
hereunder, and (z) in the case of each Participant, after the date such
Participant became a Participant hereunder, of the adoption of any applicable
U.S. federal law, U.S. federal rule or U.S. federal regulation relating to
taxation, or any change therein, or the entry into force, modification or
revocation of any income tax convention or treaty to which the United States is
a party.
(b) Any and all payments by any Borrower to or for the account of any Bank
or the Administrative Agent hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; PROVIDED that, if any Borrower shall be
required by law to deduct any Taxes or Other Taxes from any such payments,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 8.04) such Bank or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions, (iii) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) such Borrower
shall furnish to the Administrative Agent, at its address referred to in Section
11.01 the original or a certified copy of a receipt evidencing payment thereof.
(c) Each Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.04) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. In addition, each Borrower
organized under the laws of a jurisdiction outside the United States agrees to
indemnify the Administrative Agent and each Bank for all Domestic
50
Taxes incurred by it and any liability (including any penalties, interest and
expenses arising therefrom or with respect thereto), in each case to the
extent that such Domestic Taxes or liabilities result from any payment or
indemnification pursuant to this Section by or for the account of such
Borrower. This indemnification shall be paid within 15 days after such Bank
or the Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the United
States, on or prior to the date of its execution and delivery of this Agreement
in the case of each Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and from
time to time thereafter as required by law (but only so long as such Bank
remains lawfully able to do so), shall provide the Company two completed and
duly executed copies of Internal Revenue Service form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
or other documentation reasonably requested by the Company, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank has failed to provide the
Company with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a U.S. Tax Law Change), such Bank shall not be entitled to
indemnification under Section 8.04(b) or 8.04(c) with respect to any Taxes or
Other Taxes which would not have been payable had such form been so provided,
PROVIDED that if a Bank, which is otherwise exempt from or subject to a reduced
rate of withholding tax, becomes subject to Taxes because of its failure to
deliver a form required hereunder, the Company shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes (it
being understood, however, that the Company shall have no liability to such Bank
in respect of such Taxes).
(f) If any Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 8.04, then such Bank will take such
action (including changing the jurisdiction of its Applicable Lending Office) as
in the good faith judgment of such Bank (i) will eliminate or reduce any such
additional payment which may thereafter accrue and (ii) is not otherwise
disadvantageous to such Bank.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE LOANS.
If (i) the obligation of any Bank to make or to continue or convert outstanding
Loans as or into Euro-Dollar Loans to any Borrower has been
51
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03(a) or 8.04 with respect to its Euro-Dollar Loans and the
Borrower shall, by at least five Euro-Dollar Business Days' prior notice to
such Bank through the Administrative Agent, have elected that the provisions
of this Section shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer apply:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as (or continued as or converted to) Euro-Dollar Loans, as the case
may be, shall instead be Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Euro-Dollar Loans of
the other Banks), and
(b) after each of its Euro-Dollar Loans to such Borrower has been
repaid, all payments of principal which would otherwise be applied to repay
such Loans shall be applied to repay its Base Rate Loans instead.
If such Bank notifies such Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist, the principal amount
of each such Base Rate Loan shall be converted into a Euro-Dollar Loan on the
first day of the next succeeding Interest Period applicable to the related Euro-
Dollar Loans of the other Banks.
SECTION 8.06. SUBSTITUTION OF BANK. If (i) the obligation of any Bank to
make or to convert or continue outstanding Loans as or into Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04, the Company shall have the right, with
the assistance of the Administrative Agent, to designate a substitute bank or
banks (which may be one or more of the Banks) mutually satisfactory to the
Company and the Administrative Agent (whose consent shall not be unreasonably
withheld or delayed) to purchase for cash, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit G hereto, the
outstanding Loans of such Bank and assume the Commitment of such Bank, without
recourse to or warranty by, or expense to, such Bank, for a purchase price equal
to the principal amount of all of such Bank's outstanding Loans plus any accrued
but unpaid interest thereon and the accrued but unpaid fees in respect of such
Bank's Commitment hereunder plus such amount, if any, as would be payable
pursuant to Section 2.14 if the outstanding Loans of such Bank were prepaid in
their entirety on the date of consummation of such assignment.
52
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
By the execution and delivery of its Election to Participate, each Eligible
Subsidiary shall be deemed to have represented and warranted as of the date
thereof that:
SECTION 9.01. CORPORATE EXISTENCE AND POWER. It is a legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is a Substantially-Owned Consolidated
Subsidiary of the Company.
SECTION 9.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION.
The execution and delivery by it of its Election to Participate and its Notes,
and the performance by it of this Agreement and its Notes, are within its legal
powers, have been duly authorized by all necessary legal action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of its organizational documents or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Company or such Eligible Subsidiary or result in the creation or imposition
of any Lien on any asset of the Company or any of its Subsidiaries.
SECTION 9.03. BINDING EFFECT. Its Election to Participate has been duly
executed by such Eligible Subsidiary and this Agreement constitutes a valid and
binding agreement of such Eligible Subsidiary and each of its Notes, when
executed and delivered in accordance with this Agreement, will constitute a
valid and binding obligation of such Eligible Subsidiary, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
SECTION 9.04. TAXES. Except as disclosed in the opinion of counsel
delivered pursuant to Section 3.03 of this Agreement or in its Election to
Participate, there are no Taxes or Other Taxes of any country, or any taxing
authority thereof or therein, which are imposed on any payment to be made by
such Eligible Subsidiary pursuant hereto or on its Notes, or imposed on or by
virtue of the execution, delivery or enforcement of this Agreement, its Election
to Participate or of its Notes.
53
ARTICLE 10
GUARANTY
SECTION 10.01. THE GUARANTY. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Loan made to
any Eligible Subsidiary pursuant to this Agreement, and the full and punctual
payment of all other amounts payable by any Eligible Subsidiary under this
Agreement or any Note. Upon failure by any Eligible Subsidiary to pay
punctually any such amount, the Company shall forthwith on demand pay the amount
not so paid at the place and in the manner specified in this Agreement.
SECTION 10.02. GUARANTY UNCONDITIONAL. The obligations of the Company
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Eligible Subsidiary under this
Agreement or any Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any Note;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(d) any change in the existence, structure or ownership of any
Eligible Subsidiary, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Eligible Subsidiary or its assets or any
resulting release or discharge of any obligation of any Eligible Subsidiary
contained in this Agreement or any Note;
(e) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, any Agent,
any Bank or any other Person, whether in connection herewith or any
unrelated transactions, PROVIDED that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement or any Note, or any
54
provision of applicable law or regulation purporting to prohibit the
payment by any Eligible Subsidiary of the principal of or interest on any
Loan or any other amount payable by it under this Agreement or any Note; or
(g) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, any Agent or Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to the
Company's obligations hereunder.
SECTION 10.03. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. The Company's obligations hereunder shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Loans and all other amounts payable by the Company and
each Eligible Subsidiary under this Agreement or any Note shall have been paid
in full. If at any time any payment of principal of or interest on any Loan or
any other amount payable by any Eligible Subsidiary under this Agreement or any
Note is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Eligible Subsidiary or otherwise, the
Company's obligations hereunder with respect to such payment shall be reinstated
at such time as though such payment had been due but not made at such time.
SECTION 10.04. WAIVER BY THE COMPANY. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. SUBROGATION. The Company irrevocably waives any and all
rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder in respect of any Eligible Subsidiary to be
subrogated to the rights of the payee against such Eligible Subsidiary with
respect to such payment or against any direct or indirect security therefor, or
otherwise to be reimbursed, indemnified or exonerated by or for the account of
such Eligible Subsidiary in respect thereof, in any bankruptcy, insolvency or
similar proceeding involving such Eligible Subsidiary as debtor commenced within
one year after the making of any payment by such Eligible Subsidiary under this
Agreement or its Notes.
SECTION 10.06. STAY OF ACCELERATION. In the event that acceleration of
the time for payment of any amount payable by any Eligible Subsidiary under this
Agreement or any Note is stayed upon insolvency, bankruptcy or reorganization of
such Eligible Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the Company
55
hereunder forthwith on demand by the Administrative Agent made at the request of
the Required Banks.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (a) in the
case of the Company or the Administrative Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof, (b) in the case
of any Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (c) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Company. Each
such notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, 72 hours after
such communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the
Administrative Agent under Article 2 or Article 8 shall not be effective until
received. Any notice required to be given to or by any Eligible Subsidiary
shall be duly given if given to or by the Company, which is hereby appointed the
agent of each Eligible Subsidiary for such purpose.
SECTION 11.02. NO WAIVERS. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note 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. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11.03. EXPENSES; INDEMNIFICATION. (a) The Company shall pay (i)
all reasonable out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Administrative
Agent, in connection with the preparation of this Agreement, any waiver or
consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Administrative Agent or any Bank, including (without
duplication) the reasonable fees and disbursements of outside counsel and
allocated cost of
56
inside counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Administrative Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
out-of-pocket expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any litigation or governmental or regulatory
investigation or other similar proceeding (whether or not such Indemnitee shall
be designated a party thereto) relating to or arising out of this Agreement or
any actual or proposed use of proceeds of Loans hereunder; PROVIDED that no
Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct or for its breach of its
express obligations under this Agreement, in each case as determined by a court
of competent jurisdiction; PROVIDED, FURTHER, that in no event shall the Company
have any such indemnification obligation in respect of any liabilities, losses,
damages, costs or expenses resulting from disputes between any Bank and any
Agent or among the Banks.
SECTION 11.04. SHARING OF SET-OFFS. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount then due with respect to the Loans held by
it which is greater than the proportion received by any other Bank in respect of
the aggregate amount then due with respect to the Loans held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments with respect to the
Loans held by the Banks shall be shared by the Banks pro rata; PROVIDED that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrowers other than their
indebtedness under this Agreement. Each Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Loan, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of such Borrower in the amount of such participation.
SECTION 11.05. AMENDMENTS AND WAIVERS. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by such
Person); PROVIDED that no such amendment or waiver shall, unless signed
57
by all the Banks, (i) increase or decrease the Commitment of any Bank (except
for a ratable decrease in the Commitments of all Banks) or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or
for termination of any Commitment, (iv) make any changes to Article 10 or (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans, or the number of Banks, which shall be required for the
Banks or any of them to take any action under this Section or any other
provision of this Agreement; PROVIDED FURTHER that no such amendment, waiver
or modification shall, unless signed by each Eligible Subsidiary, (w) subject
such Eligible Subsidiary to any additional obligation, (x) increase the
principal of or rate of interest on any outstanding Loan of such Eligible
Subsidiary, (y) accelerate the stated maturity of any outstanding Loan of
such Eligible Subsidiary or (z) change this PROVISO.
SECTION 11.06. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Administrative Agent, such Bank shall remain responsible for the performance of
its obligations hereunder, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the Borrowers hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
PROVIDED that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii), (iii) or (iv) of Section 11.05 without the consent of the
Participant. The Borrowers agree that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of
Article 8 with respect to its participating interest, subject to subsection
11.06(e) below. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
58
(c) Any Bank may at any time assign to one or more banks or other financial
institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent to an
initial Commitment of not less than $15,000,000) of all, of its rights and
obligations under this Agreement and its Notes (if any), and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit G hereto executed by such
Assignee and such transferor Bank, with (and only with and subject to) the prior
written consent of the Borrower and the Administrative Agent (which consents
shall not be unreasonably withheld or delayed); PROVIDED that if an Assignee
is an affiliate of such transferor Bank or was a Bank immediately prior to such
assignment, no such consent shall be required; PROVIDED FURTHER such assignment
may, but need not, include rights of the transferor Bank in respect of
outstanding Bid Rate Loans. Upon execution and delivery of such instrument of
assumption and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrowers shall make appropriate arrangements so that, if required by
the Assignee, Note(s) are issued to the Assignee. In connection with any such
assignment, the transfer Bank shall pay or cause to be paid to the
Administrative Agent an administrative fee for processing such assignment in the
amount of $3,000. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account, deliver to the
Company and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Notes (if any) to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder or
modify any such obligations.
(e) No Assignee, Participant or other transferee of any Bank's rights shall
be entitled to receive any greater payment under Section 8.03 or 8.04 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made by reason of the provisions of Section 8.02, 8.03
or 8.04 requiring such Bank to designate a different Applicable Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
59
SECTION 11.07. COLLATERAL. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "MARGIN STOCK" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
SECTION 11.08. CONFIDENTIALITY. The Administrative Agent and each Bank
agrees to keep any information delivered or made available by the Borrower
pursuant to this Agreement confidential from anyone other than persons employed
or retained by such Bank and its affiliates who are engaged in evaluating,
approving, structuring or administering the credit facility contemplated hereby;
PROVIDED that nothing herein shall prevent any Bank from disclosing such
information (a) to any other Bank or to the Administrative Agent, (b) to any
other Person if reasonably incidental to the administration of the credit
facility contemplated hereby, (c) upon the order of any court or administrative
agency, (d) upon the request or demand of any regulatory agency or authority,
(e) which had been publicly disclosed other than as a result of a disclosure by
the Administrative Agent or any Bank prohibited by this Agreement, (f) in
connection with any litigation to which the Administrative Agent, any Bank or
its subsidiaries or Parent may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to such Bank's or
Administrative Agent's legal counsel and independent auditors and (i) subject to
provisions substantially similar to those contained in this Section 11.08, to
any actual or proposed Participant or Assignee.
SECTION 11.09. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement
and each Note shall be construed in accordance with and governed by the law of
the State of New York. Each Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 11.10. COUNTERPARTS; INTEGRATION. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 11.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS , TO THE FULLEST
60
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
IMC GLOBAL INC.
By /s/ Xxxx Xxxxxxxx
---------------------------------
Title: Assistant Treasurer
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Assistant Treasurer
Telecopy number: 000-000-0000
COMMITMENTS
$24,500,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
Individually and as Administrative
Agent
By /s/ Xxxxxxx X. Xxxx
----------------------------------
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Loan Department
Telex number: 177615 MGT
Telecopy number: (000) 000-0000
$24,500,000 THE CHASE MANHATTAN BANK,
Individually and as Co-Syndication
Agent
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President
COMMITMENTS
$24,500,000 NATIONSBANK, N.A., Individually
and as Co-Syndication Agent
By /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Title: Vice President
$24,500,000 ROYAL BANK OF CANADA,
Individually and as Documentation
Agent
By /s/ Xxxxxx XxxXxxxxx
---------------------------------
Title: Manager
$21,000,000 CREDIT AGRICOLE INDOSUEZ,
Individually and as Managing Agent
By /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Title: First Vice President
By /s/ W. Xxxxx Xxxxxx
---------------------------------
Title: First Vice President
$17,500,000 XXXXXX TRUST AND SAVINGS
BANK, Individually and as
Managing Agent
By /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Vice President
COMMITMENTS
$3,500,000 THE BANK OF MONTREAL
Individually and as Managing Agent
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Director
$18,375,000 THE FIRST NATIONAL BANK
OF CHICAGO, Individually and as
Co-Agent
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
$18,375,000 THE NORTHERN TRUST
COMPANY, Individually and as
Co-Agent
By /s/ Xxxxx F.T. Monhart
---------------------------------
Title: Vice President
$15,750,000 ABN-AMRO BANK N.V.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Group Vice President
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President
COMMITMENTS
$15,750,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By /s/ X. Xxxxxx Queen
---------------------------------
Title: Managing Director
$15,750,000 BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx Xxxxxx du Bocage
-----------------------------------
Title: Executive Vice President and
General Manager
$15,750,000 THE BANK OF NEW YORK
By /s/ Xxxx X. Xxxxx, Xx.
-----------------------------------
Title: Vice President
$12,250,000 THE BANK OF TOKYO-MITSUBISHI,
LTD. CHICAGO BRANCH
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Deputy General Manager
$12,250,000 FIRST UNION NATIONAL BANK
By /s/ Xxxxxx X. Xxxx
-----------------------------------
Title: Vice President
COMMITMENTS
$12,250,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
By /s/ M. Xxxxxxxxx Xxxxxx
----------------------------------
Title: Vice President
$12,250,000 THE SAKURA BANK, LIMITED,
CHICAGO BRANCH
By /s/ Xxxxx Xxxxx
----------------------------------
Title: Assistant General Manager
$12,250,000 STANDARD CHARTERED BANK
By /s/ Xxxxxxxx XxXxxxx
----------------------------------
Title: Vice President
By /s/ X.X. Xxxxxx
----------------------------------
Title: Vice President
COMMITMENTS
$12,250,000 SUNTRUST BANK, ATLANTA
By /s/ Xxxxx X. Xxxxx
----------------------------------
Title: Assistant Vice President
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
$12,250,000 THE DAI-ICHI KANGYO BANK,
LTD., CHICAGO BRANCH
By /s/ Seiichiro Ino
---------------------------------
Title: Vice President
$12,250,000 MARINE MIDLAND BANK
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
$12,250,000 THE INDUSTRIAL BANK OF
JAPAN, LIMITED
By /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President and
Deputy General Manager
------------------------
Total Commitments
$350, 000,000
========================
PRICING SCHEDULE
The "EURO-DOLLAR MARGIN" and the "FACILITY FEE RATE" for any day are the
respective percentages set forth below in the applicable row under the column
corresponding to the Status that exists on such day; PROVIDED that the Facility
Fee Rate shall be .065% and the Eurodollar Margin shall be .21% on any day prior
to the Conversion Date:
XXXXX XXXXX XXXXX XXXXX XXXXX
X II III IV V
Facility Fee Rate .075% .075% .075% .075% .075%
Euro-Dollar Margin .150% .200% .250% .350% .600%
For purposes of this Schedule, the following terms have the following
meanings, subject to the last paragraph of this Schedule:
"CONVERSION DATE" means the earliest to occur of (i) September 30, 1998,
(ii) the date (if any) on which the Debt of the Company and its Consolidated
Subsidiaries determined on a consolidated basis ("CONSOLIDATED DEBT") exceeds
45% of the sum of Consolidated Debt and Consolidated Net Worth and (iii) the
date (if any) on which the Company is rated BBB- or lower by S&P or Baa3 or
lower by Xxxxx'x.
"LEVEL I STATUS" exists at any date if, at such date, the Company is rated
A- or higher by S&P OR A3 or higher by Xxxxx'x.
"LEVEL II STATUS" exists at any date if, at such date, (i) the Company is
rated BBB+ or higher by S&P OR Baa1 or higher by Xxxxx'x and (ii) Level I Status
does not exist.
"LEVEL III STATUS" exists at any date if, at such date, (i) the Company is
rated BBB or higher by S&P OR Baa2 or higher by Xxxxx'x and (ii) neither Level I
Status nor Level II Status exists.
"LEVEL IV STATUS" exists at any date if, at such date, (i) the Company is
rated BBB- by S&P OR Baa3 by Xxxxx'x and (ii) neither Level I Status, Level II
Status nor Level III Status exists.
"LEVEL V STATUS" exists at any date if, at such date, no other Status
exists.
"STATUS" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status exists at any date.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Company without third-party credit enhancement, whether or not any such debt
securities are actually outstanding, and any rating assigned to any other
debt security of the Company shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date. If the
Company is split-rated and the ratings differential is one notch, the higher
of the two ratings will apply (E.G., A-/Baa1 results in Level I Status and
BBB+/Baa2 results in Level II Status). If the Company is split-rated and the
ratings differential is more than one notch, the average of the two ratings
(or the higher of two intermediate ratings) shall be used (E.G., A-/Baa3
results in Level II Status and BBB+/Baa3 results in Level III Status). If at
any date, the Company's long-term debt is rated by neither S&P nor Xxxxx'x,
then Level V shall apply.
2
SCHEDULE I
EXISTING CREDIT AGREEMENTS
1) Credit Agreement dated as of February 28, 1996, by and among the
Company, IMC Global Operations Inc. ("Global Operations"), a Delaware
corporation, International Minerals & Chemical (Canada) Global Limited, a
corporation organized under the federal laws of Canada ("IMC Canada"), Kalium
Canada, Ltd., a corporation organized under the federal laws of Canada
("Kalium"), and Central Canada Potash, Inc., a Delaware corporation ("CCP";
and, together with Global, Global Operations, IMC Canada and Kalium, the
"Borrowers"), the Company and the Subsidiary Guarantors (the "Guarantors"),
the banks and financial institutions (the "Lenders") listed on the signature
pages thereof, Citibank, N.A. ("Citibank"), as U.S. administrative agent (the
"U.S. Administrative Agent") and documentation agent (the "Documentation
Agent"), Citibank Canada ("Citibank Canada"), as Canadian administrative
agent (the "Canadian Administrative Agent"), Nationsbanc Capital Markets,
Inc., as syndication agent (the "Syndication Agent", and together with the
U.S. Administrative Agent, the Documentation Agent and the Canadian
Administrative Agent, the "Agents") and Citicorp Securities, Inc. and
Nationsbanc Capital Markets, Inc., as Arrangers, as amended by an Amendment
No. 1 dated as of September 30, 1996 (as amended, restated, supplemented or
otherwise modified as of the date hereof, the "Citibank Credit Agreement").
2) Credit Agreement dated as of February 9, 1994, among Agrico, the
financial institutions from time to time parties thereto, and NationsBank,
N.A. (formerly known as NationsBank of North Carolina, N.A.) as agent (as
amended, restated, or supplemented or otherwise modified as of the date
hereof, the "NationsBank Credit Agreement").
3) Revolving Loan Agreement, dated as of May 10, 1996, as amended by a
First Amendment, dated as of August 30, 1996, between Agrico and Bank of
America Illinois ("Bank of America")(as amended, restated, supplemented or
otherwise modified as of the date hereof, the "Bank of America Credit
Agreement").
4) Amended and Restated Credit Agreement, dated as of October 23, 1996,
between Agrico and NationsBank, N.A., as amended by an Amendment No. 1, an
Amendment No. 2 and an Amendment No. 3, dated as of February 4, 1997,
April 28, 1997 and July 31, 1997, respectively (as so amended and as amended,
restated, supplemented or otherwise modified as of the date hereof, the
"NationsBank Line of Credit").
5) Second Amended and Restated Credit Agreement, dated as of November 14,
1996, among FTX and FRP, as borrowers, the financial institutions from time to
time parties thereto, The Chase Manhattan Bank (successor by merger to Chemical
Bank) and the Chase Manhattan Bank (National Association), as administrative
agent and as collateral agent and as documentary agent (as amended, restated,
supplemented or otherwise modified as of the date hereof, the "FTX/FRP Credit
Agreement").
2
