EXHIBIT 4.1
364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT dated as of December 6, 2001, among FMC
CORPORATION, a Delaware corporation (the "BORROWER"), the lenders from time to
time party hereto (the "LENDERS"), CITIBANK, N.A., as administrative agent (the
"ADMINISTRATIVE AGENT"), BANK OF AMERICA, N.A., as syndication agent, and ABN
AMRO BANK N.V. and FIRST UNION NATIONAL BANK, as co-documentation agents.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have the
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following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"ADDITIONAL LENDER" has the meaning set forth in Section 2.18(b).
"ADJUSTED NET INCOME" means, for any period, Consolidated Net Income for
such period, excluding the effect of Non-Recurring Items; provided that the
aggregate amount so excluded on account of Non-Recurring Items shall not exceed
$150,000,000 minus the aggregate amount of any write-downs in or write-offs of
any Investment of the Borrower or any Restricted Subsidiary in any Unrestricted
Subsidiary if such Investments were accounted for under the cost method of
accounting under GAAP.
"ADMINISTRATIVE AGENT" means Citibank, in its capacity as agent for the
Lenders hereunder, and its successors in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and duly completed and submitted to the Administrative Agent (with a copy to the
Borrower) by such Lender.
"AGREEMENT" means this 364-Day Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in the
case of its Base Rate 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 Competitive Bid Loans, its Competitive Bid Lending Office.
"ASSIGNEE" has the meaning set forth in Section 9.07(c).
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means an assignment and assumption
entered into by (a) a Lender and an Assignee, and accepted by the Administrative
Agent, or (b) an Assuming Lender, a Non-Consenting Lender, the Borrower and the
Administrative Agent, as applicable, in substantially the form of Exhibit D.
"ASSUMING LENDER" means each Assignee that accepts an offer to participate
in a requested extension of the Commitments in accordance with Section 2.17.
"BASE RATE" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall be equal to the
higher of the following:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate; or
(b) the sum of (i) 0.5% per annum plus (ii) the Federal Funds Rate.
"BASE RATE LOAN" means a Loan made or to be made by a Lender in accordance
with the applicable Notice of Borrowing or pursuant to Section 8.04 which bears
interest based on the Base Rate.
"BORROWER" means FMC Corporation and its permitted successors and assigns.
"BORROWING" has the meaning set forth in Section 1.03.
"BUSINESS DAY" means a Domestic Business Day and, if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Euro-Dollar Rate or any Euro-Dollar Loans, a Euro-Dollar
Business Day.
"CITIBANK" means Citibank, N.A.
"COMMITMENT" means, (i) with respect to each Lender, the amount set forth
opposite the name of such Lender on Schedule I hereto and (ii) with respect to
each Additional Lender which becomes a Lender pursuant to Section 2.18, the
amount of commitment thereby assumed by it, in each case as such amount may be
reduced from time to time pursuant to Section 2.10 or 2.11, or increased
pursuant to Section 2.17 or 2.18 or increased or reduced by reason of an
assignment to or by such Lender in accordance with Section 9.07(c).
"COMMITMENT TERMINATION DATE" means, subject to Section 2.17, the earlier
to occur of (i) 364 days following the Effective Date (or if such day is not a
Euro-Dollar Business Day, the preceding Euro-Dollar Business Day), as such date
may be extended in accordance with Section 2.17, or (ii) the date on which the
Commitments shall have been reduced to zero pursuant to Sections 2.09, 2.10 or
6.01; provided, however, that the Commitment Termination Date of any Lender that
is a Non-Consenting Lender to any requested extension pursuant to Section 2.17
shall be the Commitment Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"COMPETITIVE BID BORROWING" means a Borrowing consisting of a Competitive
Bid Loan or simultaneous Competitive Bid Loans from each of the Lenders whose
offer to make one or more Competitive Bid Loans as part of such Borrowing has
been accepted under the competitive bidding procedure described in Section 2.03.
"COMPETITIVE BID EURO-DOLLAR RATE LOAN" means a Loan made pursuant to
Section 2.03 that bears interest based on the Euro-Dollar Rate.
"COMPETITIVE BID LENDING OFFICE" means, with respect to each Lender, the
office of such Lender notified by such Lender to the Administrative Agent as its
Lending Office with respect to any Competitive Bid Loan.
"COMPETITIVE BID LOAN" means a Competitive Bid Euro-Dollar Rate Loan or a
Fixed Rate Loan.
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"COMPETITIVE BID LOAN REDUCTION" has the meaning specified in Section 2.01.
"COMPETITIVE BID LOAN NOTE" means a promissory note of the Borrower
registered in the name of any Lender, in substantially the form of Exhibit A-2,
evidencing the aggregate Debt of the Borrower to such Lender resulting from the
Competitive Bid Loans owing to such Lender.
"CONSOLIDATED ADJUSTED NET WORTH" means, at any date, the sum of (i) the
consolidated stockholders' equity of the Borrower and its Consolidated
Subsidiaries as of December 31, 2001, plus (ii) the cumulative Adjusted Net
Income for the period since December 31, 2001 through the end of the then most
recently ended fiscal quarter of the Borrower, treated for this purpose as a
single accounting period, plus or minus (iii) the net amount by which the
consolidated stockholders' equity of the Borrower and its Consolidated
Restricted Subsidiaries has been increased or decreased since December 31, 2001
on account of items not reflected in Adjusted Net Income (other than items
specifically excluded from Adjusted Net Income pursuant to the terms of this
Agreement and cumulative changes in GAAP, and amounts included in other
comprehensive income under GAAP).
"CONSOLIDATED DEBT" means at any date the total Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"CONSOLIDATED EBITDA" means, with respect to the Borrower and its
Consolidated Subsidiaries for any period, an amount equal to (a) Consolidated
Net Income for such period plus (b) the sum of, in each case to the extent
deducted in the calculation of such Consolidated Net Income but without
duplication, (i) any income tax expense, (ii) Consolidated Interest Expense,
(iii) depreciation, depletion, and amortization of intangibles or financing or
acquisition costs, (iv) all other non-cash charges and non-cash losses for such
period, and (v) Non-Recurring Items minus (c) the cash portion of Non-Recurring
Items recognized in 2002 when paid and (d) the sum of, in each case to the
extent added in the calculation of such Consolidated Net Income, but without
duplication, (i) any income tax benefit, (ii) interest income, (iii) gains and
losses from extraordinary items for such period, (iv) any aggregate net gain
(but not any aggregate net loss) from the sale, exchange or other disposition of
capital assets currently employed in the trade or business of the Borrower and
its Subsidiaries, and (v) any other non-cash gains.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, with respect to the Borrower
and its Consolidated Subsidiaries for any period, the ratio of Consolidated
EBITDA to Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for the Borrower and its
Consolidated Subsidiaries for any period, total interest expense for such period
determined on a consolidated basis in conformity with GAAP and including, in any
event, interest capitalized during construction for such period.
"CONSOLIDATED NET INCOME" means for any period the net income (or loss) of
the Borrower and its Consolidated Restricted Subsidiaries for such period before
extraordinary items, exclusive of any income (or loss) of any Unrestricted
Subsidiary during such period but including the sum of (i) dividends received
during such period by the Borrower or a Consolidated Restricted Subsidiary and
(ii) the sum of (x) the Borrower's pro rata share of the net income (calculated
before income taxes, interest expense, extraordinary and unusual items and
Non-Recurring Items) of Astaris LLC for such period and (y) the Shortfall Amount
for such period, in each case only to the extent that the Shortfall Amount is
paid to Astaris LLC by the Borrower during such period.
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"CONSOLIDATED RESTRICTED SUBSIDIARY" means at any date any Restricted
Subsidiary the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other Person
the accounts of which would be consolidated with those of the Borrower in its
consolidated financial statements as of such date, other than FTI.
"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 (other
than the non-negotiable notes of the Borrower issued to its insurance carriers
in lieu of maintenance of policy reserves in connection with its workers'
compensation and auto liability insurance program), (iii) all obligations of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable, expense accruals and deferred employee compensation
items arising in the ordinary course of business, (iv) all non-contingent
obligations (and, for purposes of Section 5.06 and the definition of Material
Financial Obligations, all contingent obligations) of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, other than obligations under direct pay letters of credit
which have already been accounted for under the categories of Debt described in
clauses (i) or (ii) above, (v) all obligations of such Person as lessee under
capital leases reported under GAAP as "debt" on such Person's balance sheet,
(vi) all Debt of others secured by a Lien on any asset of such Person, whether
or not such Debt is assumed by such Person, (vii) all debt of such Person
created or arising under any conditional sale or other title retention agreement
with respect to trade accounts receivable acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such trade accounts
receivable) and (viii) all Debt of others Guaranteed by such Person, except for
guarantees of Debt related to the financing of product sales of certain foreign
Subsidiaries of the Borrower listed on Schedule 1.01(a).
"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 other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"DOMESTIC LENDING OFFICE" means, as to each Lender, 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 Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
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"ENFORCEABLE JUDGMENT" means a judgment or order of a court or arbitral or
regulatory authority as to which the period, if any, during which the
enforcement of such judgment or order is stayed shall have expired. A judgment
or order which is under appeal or as to which the time in which to perfect an
appeal has not expired shall not be deemed an Enforceable Judgment so long as
enforcement thereof is effectively stayed pending the outcome of such appeal or
the expiration of such period, as the case may be.
"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, petroleum or petroleum
products, 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, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Restricted 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 Borrower or any
Restricted 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 Lender, 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
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"EURO-DOLLAR LOAN" means a Loan made or to be made by a Lender in
accordance with the applicable Notice of Borrowing which bears interest based on
the Euro-Dollar Rate.
"EURO-DOLLAR MARGIN" means, as of any date of determination, a per
annum rate equal to the rate set forth below opposite the then applicable
Status, set forth below:
================================================================================
Status Level I Xxxxx XX Xxxxx XXX Xxxxx XX Xxxxx X Xxxxx XX
================================================================================
Euro-Dollar Loan .470% .625% 1.100% 1.175% 1.250% 1.300%
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"EURO-DOLLAR RATE" means, with respect to any Interest Period, 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
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
Euro-Dollar Loan of such Reference Bank
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or, in the case of a Competitive Bid Borrowing, in an amount substantially equal
to the amount that would be the Reference Bank's respective Shares of such
Borrowing if such Borrowing were to be a Euro-Dollar Loan, in each case, to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
"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 or Competitive Bid Euro-Dollar Rate Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING CREDIT AGREEMENT" means that certain Five Year Credit Agreement
dated as of December 6, 1996, among the Borrower, the lenders party thereto and
Xxxxxx Guaranty Trust Company of New York, as agent, as amended, supplemented or
otherwise modified from time to time.
"EXTENSION DATE" has the meaning specified in Section 2.17(a).
"FACILITY FEE RATE" means, as of any date of determination, a per annum
rate equal to the rate set forth below opposite the then applicable Status, set
forth below:
================================================================================
Status Level I Xxxxx XX Xxxxx XXX Xxxxx XX Xxxxx X Xxxxx XX
================================================================================
Facility Fee Rate .080% .125% .150% .200% .250% .325%
--------------------------------------------------------------------------------
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, 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 the Administrative Agent on such day (or
next preceding Domestic Business Day) on such transactions as determined by the
Administrative Agent.
"FIXED RATE LOAN" means a Loan made pursuant to Section 2.03 that bears
interest at a fixed rate per annum.
"FTI" means FMC Technologies, Inc.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be
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in general use by significant segments of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well (but
excluding any agreement related to the Shortfall Amount), to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
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.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign currency
exchange contracts, currency swap or option agreements, equity deriviatives,
forward rate contracts, commodity swap, purchase or option agreements, and all
other similar agreements or arrangements designed to alter the risks of any
Person arising from fluctuations in interest rates, currency values, equity
values or commodity prices.
"INCREASED COMMITMENTS" has the meaning set forth in Section 2.18(a).
"INTEREST PERIOD" means: (i) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Euro-Dollar Borrowing and ending one,
two, three, six or, if available by all of the Lenders, nine months thereafter,
as the Borrower may elect in the applicable Notice of Borrowing and, (ii) with
respect to a Competitive Bid Euro-Dollar Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the date specified in the offer
pursuant to which the Borrower has accepted such Borrowing under the competitive
bidding procedure described in Section 2.03; 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
immediately preceding Euro-Dollar Business Day;
(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, subject to clause (c) below, end on the last Euro-Dollar Business
Day of the calendar month at the end of such Interest Period; and
(c) the Borrower may not elect any Interest Period that would end
after the Commitment Termination Date.
(iii) with respect to each Base Rate Borrowing, the period commencing on
the date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is
not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
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(b) any Interest Period which would otherwise end after the Commitment
Termination Date shall end on the Commitment Termination Date.
"INTEREST RATE CONTRACTS" means all interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements and interest rate
insurance.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT" means any investment by any Person (the "INVESTOR") in any
other Person (the "INVESTEE"), whether by means of share purchase, capital
contribution, loan, time deposit or otherwise. It is understood that neither (i)
an item reflected in the financial statements of the Investor as an expense nor
(ii) an adjustment to the carrying value of the Investee in the financial
statements of the Investor (such as by reason of increased retained earnings of
the Investee) constitutes the making or acquisition of an Investment for
purposes hereof.
"LENDER" means each of the financial institution listed on Schedule I
hereto, each Assignee which becomes a Lender pursuant to Section 9.07(c), each
financial institution which becomes a Lender pursuant to Section 2.17(b), each
Additional Lender which becomes a Lender pursuant to Section 2.18, and their
respective successors.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purpose of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset that it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LOAN" means a Base Rate Loan or a Euro-Dollar Loan made by a Lender
pursuant to Section 2.01 or a Competitive Bid Loan made by a Lender pursuant to
Section 2.03. "LOANS" means Base Rate Loans, Euro-Dollar Loans or Competitive
Bid Loans or any combination of the foregoing.
"LOAN DOCUMENTS" means this Agreement, the Notes, and any other documents
to be delivered thereunder or in connection therewith and all amendments thereto
and substitutions and replacements therefor and modifications thereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect (i) on the
business, condition (financial or otherwise) or operations or prospects of the
Borrower and its Consolidated Subsidiaries, taken as a whole, or (ii) on the
legality, validity or enforceability of this Agreement or the Notes.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of Debt
(other than Debt under this Agreement) and/or payment in respect of Derivatives
Obligations of the Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the aggregate
$25,000,000.
"MATERIAL PLAN" means any Plan or Plans having aggregate Unfunded
Liabilities in excess of $25,000,000.
"MATERIAL SUBSIDIARY" means any Restricted Subsidiary in which the Borrower
has an Investment, direct or indirect, of at least $10,000,000, as listed on
Schedule 1.01(b) hereto.
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"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 is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NON-CONSENTING LENDER" has the meaning set forth in Section 2.17(a).
"NON-RECURRING ITEMS" means, to the extent reflected in the determination
of Consolidated Net Income for any period, provisions for restructuring,
discontinued operations, special reserves or other similar charges including
write-downs or write-offs of assets (other than write-downs resulting from
foreign currency translations).
"NOTES" means promissory notes of the Borrower, substantially in the form
of Exhibit A-1 or A-2 hereto, as applicable, evidencing the obligation of the
Borrower to repay the Loans made to it, and "NOTE" means any one of such
promissory notes issued hereunder.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02 and, with
respect to any Competitive Bid Loans, means a Notice of Competitive Bid
Borrowing, as the case may be.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in Section
2.03(a)(i).
"PARENT" means with respect to any Lender, any Person controlling such
Lender.
"PARTICIPANT" has the meaning set forth in Section 9.07(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 partnership, a limited
liability company, 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.
"PRINCIPAL OFFICER" means any of the following officers of the Borrower:
Chairman of the Board, President, Secretary, Treasurer, or any Vice President.
If any of the titles of the preceding officers are changed after the date
hereof, the term "PRINCIPAL OFFICER" shall thereafter mean any officer
performing substantially the same functions as are presently performed by one or
more of the officers listed in the first sentence of this definition.
"QUALIFICATION" means, with respect to any certificate covering financial
statements, a qualification to such certificate (such as a "SUBJECT TO" or
"EXCEPT FOR" statement therein) (i) resulting from a limitation on the scope of
examination of such financial statements or the underlying data, (ii) as
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to the capability of the Person whose financial statements are certified to
continue operations as a going concern or (iii) which could be eliminated by
changes in financial statements or notes thereto covered by such certificate
(such as by the creation of or increase in a reserve or a decrease in the
carrying value of assets) and which if so eliminated by the making of any such
change and after giving effect thereto would occasion a Default; provided that
neither of the following shall constitute a Qualification: (a) a consistency
exception relating to a change in accounting principles with which the
independent public accountants for the Person whose financial statements are
being certified have concurred or (b) a qualification relating to the outcome or
disposition of threatened litigation, pending litigation being contested in good
faith, pending or threatened claims or other contingencies, the impact of which
litigation, claims or contingencies cannot be determined with sufficient
certainty to permit quantification in such financial statements.
"REFERENCE BANKS" means Citibank and Bank of America, N.A.
"REGULATIONS T, X AND U" means such Regulations of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"REQUIRED LENDERS" means at any time Lenders having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments have been terminated,
holding Notes evidencing at least 66 2/3% of the aggregate unpaid principal
amount of the Loans (excluding Competitive Bid Loans).
"RESTRICTED SUBSIDIARY" means any Subsidiary other than an Unrestricted
Subsidiary.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc.
"SHARE" means, with respect to each Lender, a fraction the numerator of
which is such Lender's Commitment and the denominator of which is the aggregate
amount of the Commitments.
"SHORTFALL AMOUNT" means, during any period, the Borrower's pro rata share
of the cash amount required to be contributed to Astaris LLC in accordance with
the terms of the guarantee agreement entered into by the Borrower in connection
with the Five-Year Credit Agreement dated September 14, 2000, among Astaris LLC
and the lenders named therein, as amended from time to time.
"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.
"SUBSIDIARY" means any Person 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 the Borrower. For purposes of this Agreement, FTI shall
not be deemed to be a Subsidiary.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such Plan
exceeds (ii) the fair market value of all Plan assets allocable to such benefits
(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.
"UNRESTRICTED SUBSIDIARY" means (i) FMC Funding Corporation and Astaris LLC
and (ii) any other Subsidiary of the Borrower which is declared to be an
Unrestricted Subsidiary by the Borrower by notice to the Lenders; provided that
the sum of all (x) Investments of the Borrower and its Restricted
10
Subsidiaries in any Subsidiary included in clause (i) above after the date
hereof and (y) Investments of the Borrower and its Restricted Subsidiaries in
Unrestricted Subsidiaries so declared under clause (ii) above shall not
aggregate more than $75,000,000.
"UTILIZATION FEE RATE" means a rate per annum equal to (i) .100% during a
Level I Status and (ii) .125% during a Level II Status, a Level III Status and a
Level IV Status, (iii) .250% during a Level V Status and (iv) .375% during a
Level VI Status.
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 United
States generally accepted accounting principles as in effect from time to time
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders; provided that if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant contained in Article V 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
Borrower that the Required Lenders wish to amend Article V for such purpose),
then the Borrower'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, unless or until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders. The
Administrative Agent shall promptly notify the Lenders of any notice received
from the Borrower pursuant to this Section 1.02.
SECTION 1.03. Types of Borrowings. The term "BORROWING" denotes the
-------------------
aggregation of Loans of one or more Lenders to be made to the Borrower pursuant
to Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "EURO-DOLLAR BORROWING" is a Borrowing
comprised of Euro-Dollar Loans, a "BASE RATE BORROWING" is a Borrowing comprised
of Base Rate Loans and a "COMPETITIVE BID BORROWING" is a Borrowing comprised of
Competitive Bid Loans).
SECTION 1.04. Pricing Levels. For purposes of this Agreement, the
--------------
following terms have the following meanings, subject to the concluding paragraph
of this Section 1.04:
"LEVEL I STATUS" exists at any date if, at such date, the Borrower's senior
unsecured long-term debt is rated A- and A3 or higher.
"LEVEL II STATUS" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB+ and Baa1.
"LEVEL III STATUS" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB and Baa2.
"LEVEL IV STATUS" exists at any date if, at such date, the Borrower's
senior unsecured long-term debt is rated BBB- and Baa3.
"LEVEL V STATUS" exists at any date if, at such date, the Borrower's senior
unsecured long-term debt is rated BBB- or Baa3.
"LEVEL VI STATUS" exists at any date if, at such date, no other Status
exists.
11
The credit ratings to be utilized for purposes of the Euro-Dollar Margin,
the Utilization Fee Rate and the Facility Fee Rate are those assigned by S&P or
Xxxxx'x to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date.
In the case of split ratings with respect to pricing from S&P and Xxxxx'x,
the rating to be used to determine Status is the higher of the two (e.g. BBB+and
Baa2 results in Level II Status); provided that in the event the split is more
than one full category, the average (or the higher of two intermediate ratings)
shall be used (e.g., BBB+ and Baa3 results in Level III Status, as does BBB+ and
Ba1).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Subject to the terms and conditions set
-------------------
forth in this Agreement, each Lender severally and not jointly agrees, during
the period from the Effective Date to but not including the Commitment
Termination Date, to lend to the Borrower in United States Dollars pursuant to
this Section 2.01 from time to time amounts such that the aggregate principal
amount of Loans made by such Lender to the Borrower at any one time outstanding
shall not exceed the amount of its Commitment. Each Borrowing under this Section
2.01 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)(iii)) and shall be made from
the several Lenders ratably in proportion to their respective Commitments.
Within the limits specified in this Agreement, the Borrower may borrow pursuant
to this Section 2.01, repay, or to the extent permitted by Section 2.11, prepay
Loans and reborrow (other than Competitive Bid Loans) at any time under this
Section 2.01. Within the limits of each Lender's Commitment, the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount of the Competitive Bid Loans then
outstanding, which deemed usage shall be allocated among the Lenders according
to their respective Shares (such deemed usage being a "COMPETITIVE BID LOAN
REDUCTION").
SECTION 2.02. Notice of Borrowings. The Borrower shall give the
--------------------
Administrative Agent notice (a "NOTICE OF 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 be Base Rate
Loans or Euro-Dollar Loans, and
(d) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Notwithstanding the foregoing, no more than ten Euro-Dollar Borrowings shall be
outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
12
SECTION 2.03. Competitive Bid Loans.
---------------------
(a) Each Lender severally agrees that the Borrower may make
Competitive Bid Borrowings under this Section 2.03 from time to time on any
Domestic Business Day during the period from the date hereof until the date
occurring 30 days prior to the Commitment Termination Date in the manner
set forth below; provided, however, that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Loans then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Loan Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier, confirmed immediately in writing, a notice of a
Competitive Bid Borrowing (a "NOTICE OF COMPETITIVE BID BORROWING"),
specifying therein (w) the requested date of such proposed Competitive
Bid Borrowing, (x) the aggregate principal amount of such proposed
Competitive Bid Borrowing, (y) in the case of a Competitive Bid
Borrowing consisting of Competitive Bid Euro-Dollar Rate Loans, the
Interest Period therefor, or in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Loans, the maturity date for
repayment of each Fixed Rate Loan to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the Commitment Termination Date) and the
interest payment date or dates relating thereto, and (z) any other
terms to be applicable to such Competitive Bid Borrowing, not later
than 10:30 A.M. (New York City time) (A) at least one Domestic
Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the Loans comprising such Competitive Bid Borrowing
shall be Fixed Rate Loans and (B) at least four Domestic Business Days
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the Loans comprising such Competitive Bid Borrowing shall be
Competitive Bid Euro-Dollar Rate Loans. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower, except as
provided in Section 2.03(a)(iii)(x). The Administrative Agent shall in
turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by sending such Lender a
copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, offer, irrevocably, to make one or more Competitive Bid Loans to
the Borrower as part of such proposed Competitive Bid Borrowing, by
notifying the Administrative Agent (which shall give prompt notice
thereof to the Borrower) (A) before 9:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Loans and (B)
before 10:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Competitive Bid Euro-Dollar
Rate Loans, of (x) the minimum and maximum amount of Fixed Rate Loans
(if any) which such Lender is prepared to make as part of such
requested Competitive Bid Borrowing and the fixed rate of interest per
annum which such Lender is prepared to offer in respect thereof, (y)
the minimum and maximum amount of Competitive Bid Euro-Dollar Rate
Loans (if any) which such Lender is prepared to make as part of such
requested Competitive Bid Borrowing and the interest margin (expressed
as a percentage rate per annum) to be added to or subtracted from the
Euro-Dollar Rate and the Interest Period corresponding thereto which
such Lender is prepared to offer in respect thereof and (z) such
Lender's Competitive Bid Lending Office with respect to such
Competitive Bid Loans; provided, however, that the amounts of such
proposed Competitive Bid Loans offered by such Lender may, subject to
the proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any, and provided, further, that if the
Administrative Agent in its capacity as a
13
Lender shall, in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer at least 30 minutes before the
time and on the date on which notice of such election is to be given
to the Administrative Agent, by the other Lenders. If any Lender shall
elect not to make such an offer in respect of any proposed Competitive
Bid Borrowing, such Lender shall so notify the Administrative Agent
thereof before the relevant times referred to in clauses (A) and (B)
of this paragraph (ii) and such Lender shall not be obligated to, and
shall not, make any Competitive Bid Loan as part of such Competitive
Bid Borrowing; provided, however, that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Loan as part of such proposed Competitive Bid
Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Loans, and (B) before 11:00 A.M. (New York City time) three
Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Competitive Bid Euro-Dollar Rate Loans, either:
(x) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving notice to the Administrative Agent of the amount of
each Competitive Bid Loan (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Administrative
Agent on behalf of such Lender for such Competitive Bid Loan
pursuant to paragraph (ii) above) to be made by each Lender as
part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving
the Administrative Agent notice to that effect; provided,
however, that if the Borrower elects to accept the offers made by
any Lender or Lenders to make Competitive Bid Loans, it shall
accept such offers in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at such
interest rate will be allocated among such Lenders in proportion
to the amount that each such Lender offered at such interest
rate; and provided, further, that the aggregate amount of offers
so accepted by the Borrower shall not exceed the amount of
respective Competitive Bid Loans proposed by the Borrower in the
relevant Notice of Competitive Bid Borrowing.
(iv) If the Borrower notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Administrative Agent shall give prompt notice thereof to
the Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in paragraph (ii) above, of the
date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Lender pursuant to
paragraph (ii) above have been accepted by the Borrower, (B) each
Lender that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Loan
to be made by such Lender as part of such Competitive Bid Borrowing,
and (C) each Lender that is to make a Competitive Bid Loan as part of
such Competitive Bid Borrowing, upon receipt, that the Administrative
Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each
14
Lender that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing shall, before 11:00 A.M. (New York City
time) on the date of such Competitive Bid Borrowing specified in the
notice received from the Administrative Agent pursuant to clause (A)
of the preceding sentence or any later time when such Lender shall
have received notice from the Administrative Agent pursuant to clause
(C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent in same day
funds, such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the Borrower at
the location specified by the Borrower in its Notice of Competitive
Bid Borrowing. Promptly after each Competitive Bid Borrowing, the
Administrative Agent will notify each Lender of the amount of the
Competitive Bid Borrowing, the consequent Competitive Bid Loan
Reduction and the dates upon which such Competitive Bid Loan Reduction
commenced and will terminate.
(vi) If the Borrower notifies the Administrative Agent that it
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, such notice of acceptance shall
be irrevocable and binding on the Borrower. The Borrower shall
indemnify each Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the
date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Competitive Bid Loan to be made by such Lender
as part of such Competitive Bid Borrowing when such Competitive Bid
Loan, as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03; provided, however, that a Competitive Bid Borrowing shall not
be made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a Competitive Bid Loan, on the
maturity date of each Competitive Bid Loan (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Loan in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Loan Note
evidencing such Competitive Bid Loan), the then unpaid principal amount of
such Competitive Bid Loan. The Borrower shall have no right to prepay any
principal amount of any Competitive Bid Loan unless, and then only on the
terms, specified by the Borrower for such Competitive Bid Loan in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid Loan Note
evidencing such Competitive Bid Loan.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Loan from the date of such Competitive Bid Loan to the
date the principal amount of such Competitive Bid Loan is repaid in full,
at the rate of interest for such Competitive Bid Loan specified by the
Lender making such Competitive Bid Loan in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest
payment date or dates specified by the Borrower for such Competitive Bid
Loan in the related Notice of Competitive Bid Borrowing delivered pursuant
to subsection (a)(i) above, or as otherwise provided in the Competitive Bid
Loan Note
15
evidencing such Competitive Bid Loan. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of, and accrued and unpaid interest on, each
Competitive Bid Loan owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times
to 2% per annum above the rate of interest per annum required to be paid on
such Competitive Bid Loan pursuant to this paragraph (e), unless otherwise
agreed between the Borrower and such Lender.
(f) The Debt of the Borrower resulting from each Competitive Bid Loan
made to the Borrower as part of a Competitive Bid Borrowing shall, if
requested by any Lender making such Competitive Bid Loan, be evidenced by a
separate Competitive Bid Loan Note of the Borrower payable to the order of
such Lender.
SECTION 2.04. Notice to Lenders; Funding of Loans.
-----------------------------------
(a) Upon its receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's Share (if any) of such Borrowing, and such Notice of Borrowing
shall thereafter be irrevocable by the Borrower, except as specified in
Section 2.03(a)(i).
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing (other than a Competitive Bid Borrowing), each Lender
participating therein shall (except as provided in subsection (c) of this
Section 2.04) 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 pursuant to Section 9.01. Unless the
Administrative Agent determines that any applicable condition specified in
Article III has not been satisfied, the Administrative Agent will make the
funds so received from the Lenders promptly available to the Borrower at
the Administrative Agent's aforesaid address.
(c) If any Lender makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such
Lender, such Lender shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available
by such Lender to the Administrative Agent as provided by subsection (b),
or remitted by the Borrower to the Administrative Agent as provided in
Section 2.12, as the case may be.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing (other than a Competitive Bid
Borrowing) that such Lender will not make available to the Administrative
Agent such Lender's Share of such Borrowing, the Administrative Agent may
assume that such Lender has made such Share available to the Administrative
Agent on the date of such Borrowing in accordance with subsections (b) and
(c) 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 Lender shall not have
so made such Share available to the Administrative Agent, such Lender and
the Borrower severally and not jointly 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 Lender, the Federal Funds Rate.
If such Lender shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Loan included
in such Borrowing for purposes of this Agreement.
16
SECTION 2.05. Notes.
-----
(a) Subject to Section 2.03(f), the Loans of each Lender to the
Borrower shall, if requested by such Lender, be evidenced by a single Note
of the Borrower payable to the order of such Lender for the account of its
Applicable Lending Office in an amount equal to such Lender's Commitment.
(b) Upon receipt of any Lender's Note pursuant to Section 3.01(a), the
Administrative Agent shall forward such Note to such Lender. Each Lender
shall record in accordance with its usual business practices the date,
amount, type 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
may, if such Lender so elects in connection with any transfer or
enforcement of its Note, 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 neither the failure of any
Lender to make any such recordation or endorsement nor any error therein
shall affect the obligations of the Borrower hereunder or under the Notes.
Each Lender is hereby irrevocably authorized by the Borrower to so endorse
its Note and to attach to and make a part of its Note a continuation of any
such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any Borrowing shall
-----------------
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing; provided that all Loans
shall be due and payable on the Commitment Termination Date.
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 is made
until it becomes due, at a rate per annum equal to the Base Rate for such
day. Such interest shall be payable for each Interest Period on the last
day thereof. Any overdue principal of or 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 rate otherwise applicable to Base
Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum equal to the sum of (i) the
Euro-Dollar Rate applicable to such Interest Period and (ii) the
Euro-Dollar Margin. 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 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 Euro-Dollar Rate applicable to the
Interest Period for such Loan and (ii) the sum of the Euro-Dollar Margin
plus the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum
at which one day (or, if such amount due remains unpaid more than three
Euro-Dollar Business Days, then for such period of time not longer than
three months as the Administrative Agent may select) deposits in dollars in
an amount approximately equal to such overdue payment due to each of the
Reference Banks are offered to such Euro-Dollar Reference Bank in the
London interbank market for the applicable period determined as provided
above by (y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the
circumstances described in clause (a) or (b) of Section 8.01 shall exist,
at a rate per annum equal to the sum of 2% plus the rate applicable to Base
Rate Loans for such day).
17
(c) 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 Lenders of each rate of
interest so determined, and its determination thereof shall be conclusive
in the absence of manifest error.
(d) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section
2.07. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the
basis of the quotation or quotations furnished by the remaining Reference
Bank or Banks or, if none of such quotations is available on a timely
basis, the provisions of Section 8.01 shall apply.
(e) Notwithstanding the rates of interest specified in this Section
2.07 or elsewhere herein, effective immediately upon the occurrence of an
Event of Default, and for as long thereafter as such Event of Default shall
be continuing, the principal balance of all Loans 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 applicable interest rate then in effect for
such day.
SECTION 2.08. Fees.
----
(a) The Borrower shall pay to the Administrative Agent for the account
of the Lenders ratably in proportion to their respective Shares (or, if the
Commitments shall have been terminated, in proportion to the aggregate
principal amount of their Loans (other than Competitive Bid Loans)
outstanding), a facility fee at the Facility Fee Rate. Such facility fee
shall accrue (i) from and including the Effective Date to but excluding the
Commitment Termination Date, on the daily average aggregate amount of the
Commitments (whether used or unused) and (ii) from and including the
Commitment Termination Date 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) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender for (i) each date prior to the Commitment
Termination Date on which the aggregate outstanding Loans exceed 33% of the
Commitments and (ii) each date on which the average aggregate principal
amount of outstanding Loans during the most recently completed 30-day
period exceeds 33% of the Commitments, a fee on the aggregate amount of the
outstanding Loans at the Utilization Fee Rate.
(c) Accrued and unpaid fees under this Section 2.08 shall be payable
quarterly in arrears on the last day of each March, June, September and
December and any balance shall be payable upon the Commitment Termination
Date.
18
SECTION 2.09. Mandatory Termination of Commitments.
------------------------------------
(a) The Commitments shall terminate on the Commitment Termination
Date, and any Loans then outstanding (together with accrued and unpaid
interest thereon) shall be due and payable on such date. The aggregate
outstanding principal amount of the Loans shall at no time exceed the
aggregate of the Commitments. If on any date on which the Commitments are
reduced the aggregate outstanding principal amount of the Loans exceeds the
aggregate of the Commitments as so reduced, then the Borrower shall be
obligated to repay (together with accrued and unpaid interest to the date
of repayment) on such date a principal amount of the Loans equal to such
excess.
(b) Each Competitive Bid Loan shall be due and payable on the maturity
date specified in the Borrower's Notice of Competitive Bid Borrowing
requesting such Competitive Bid Loan (which such maturity date shall be not
later than the Commitment Termination Date).
SECTION 2.10. Optional Reduction of Commitments. The Borrower may,
---------------------------------
upon at least three Domestic Business Days' notice to the Administrative Agent,
(i) terminate the Commitments at any time, in whole or in part, if no Loans are
outstanding at such time or (ii) ratably and permanently reduce from time to
time, by an aggregate amount of $10,000,000 or any larger multiple of $1,000,000
thereof, the aggregate amount of the Commitments in excess of the aggregate
outstanding principal amount of the Loans. Upon receipt of any notice pursuant
to this Section 2.10, the Administrative Agent shall promptly notify each of the
Lenders thereof. Commitments terminated or reduced pursuant to this Section 2.10
may not be reinstated.
SECTION 2.11. Optional Prepayments.
--------------------
(a) Subject in the case of any Euro-Dollar Loans to Section 2.13, the
Borrower may, (x) upon notice to the Administrative Agent not later than
10:30 A.M. (New York City time) on the date of prepayment, prepay any Base
Rate Borrowing and (y) upon not less than two Euro-Dollar Business Days'
notice to the Administrative Agent, prepay any Euro-Dollar Borrowing, in
whole at any time, or in part from time to time in amounts aggregating
$10,000,000 or any larger multiple of $1,000,000 thereof, by paying the
principal amount being prepaid together with interest accrued and unpaid
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Lenders included in such
Borrowing.
(b) Competitive Bid Loans shall not be prepaid except as may be agreed
by the Borrower and the affected Lender.
(c) Upon receipt of a notice of prepayment pursuant to this Section
2.11, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's ratable share of such prepayment, and
such notice shall thereafter be irrevocable by the Borrower.
SECTION 2.12. Payments.
--------
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees payable and of additional compensation hereunder,
not later than 12:00 Noon (New York City time) on the date when due, in
Federal or other funds immediately available, without set-off, counterclaim
or deduction of any kind (except as otherwise expressly agreed), to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Lender in like funds
its ratable share of each such payment received by the Administrative Agent
for the account of the Lenders. Payments in respect of each Competitive Bid
Loan Borrowing shall be distributed to each Lender participating in such
Borrowing on a pro rata basis in accordance with the
19
respective principal amounts of the Competitive Bid Loans comprising such
Borrowing. The Borrower shall repay each Loan in full on a date which is no
later than the Commitment Termination Date.
(b) Whenever any payment of principal of, or interest on, the Base
Rate Loans or Fixed Rate Loans or of fees or additional compensation
hereunder 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 or Competitive Bid Euro-Dollar 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 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. 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.
(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the 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
Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made such payment,
each Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the
Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment of
--------------
principal with respect to any Euro-Dollar Loan (pursuant to Article VI or VIII
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to borrow or prepay any Euro-Dollar
Loans after notice has been given to any Lender in accordance with Section
2.04(a) or 2.11(c), the Borrower shall reimburse each Lender on demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow; provided that
such Lender shall have delivered to the Borrower a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based on the Base
--------------------------------
Rate hereunder (if based on clause (a) of the definition of "BASE RATE") 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 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 2.15. Regulation D Compensation. Each Lender may require the
-------------------------
Borrower to pay, contemporaneously with each payment of interest on Euro-Dollar
Loans and Competitive Bid Euro-Dollar Rate Loans, additional interest on the
related Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as
applicable, of such Lender at a rate per annum determined by such Lender up to
but not exceeding the excess of (i) (A) the applicable Euro-Dollar Rate divided
by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the applicable
Euro-Dollar Rate. Any Lender 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 or Competitive Bid
Euro-Dollar Rate Loans, as applicable, of such Lender shall be payable to such
Lender at the place
20
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Dollar Business Days after such Lender gives such notice and
(y) shall notify the Borrower at least five Euro-Dollar Business Days before
each date on which interest is payable on the Euro-Dollar Loans or Competitive
Bid Euro-Dollar Rate Loans, as applicable, of the amount then due under this
Section 2.15.
SECTION 2.16. Withholding Tax Exemption. On the Effective Date, each Lender
-------------------------
that is not incorporated or organized under the laws of the United States of
America or a state thereof agrees that it will deliver to each of the Borrower
and the Administrative Agent two duly completed copies of United States Internal
Revenue Service (i) Form W-8ECI (claiming exemption from withholding because the
income is effectively connected with a U.S. trade or business) (or any successor
form) or (ii) Form W-8BEN (claiming exemption from, or a reduction of,
withholding tax under an income tax treaty) (or any successor form), certifying
in either case that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Lender which so delivers a Form W-8ECI or Form W-8BEN
further undertakes to deliver to each of the Borrower and the Administrative
Agent two additional copies of such form (or a successor form) on or before the
date that such form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
SECTION 2.17. Extension of Commitments.
------------------------
(a) The Borrower may, upon not more than 45 days' (but no later than
30 days prior to the then existing Commitment Termination Date) notice
prior to the then current Commitment Termination Date to the Administrative
Agent (which shall notify each Lender of receipt of such request), propose
to extend the Commitment Termination Date for an additional 364 days
measured from the Commitment Termination Date then in effect. Each Lender
shall endeavor to respond to such request, whether affirmatively or
negatively (such determination to be in the individual and sole discretion
of such Lender), by written notice to the Administrative Agent no earlier
than 30 days prior to the then existing Commitment Termination Date (but in
any event no later than 20 days prior to the then existing Commitment
Termination Date). The Administrative Agent will notify the Borrower, in
writing, of the Lenders' responses no later than 15 days prior to the then
existing Commitment Termination Date. Subject to the execution by the
Borrower, the Administrative Agent and such Lenders of a duly completed
Extension Agreement in substantially the form of Exhibit E hereto, the
Commitment Termination Date applicable to the Commitment of each Lender so
affirmatively notifying the Borrower and the Administrative Agent (each a
"CONSENTING LENDER") shall, effective as at the Commitment Termination Date
(the "EXTENSION DATE"), be extended for the period specified above;
provided that no Commitment Termination Date of any Lender shall be
extended unless by the date 15 days prior to the Commitment Termination
Date then in effect, Lenders having at least 50% in aggregate amount of the
Commitments in effect at the time any such extension is requested shall
have elected so to extend their Commitments. Any Lender which does not give
such notice to the Borrower and the Administrative Agent by the date 15
days prior to the Commitment Termination Date then in effect (each, a
"NON-CONSENTING LENDER") shall be deemed to have elected not to extend as
requested, and the Commitment of each non-extending Lender shall terminate
on its Commitment Termination Date determined without giving effect to such
requested extension.
21
(b) If any Lender party to this Agreement shall not elect to extend
its Commitment pursuant to subsection (a) of this Section 2.17, the
Borrower may designate another lender or other lenders (which may be, but
need not be, one or more of the Lenders), which at the time agree to become
a party to this Agreement (each, an "ASSUMING LENDER").
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Administrative Agent
shall promptly so notify the Consenting Lenders, and each Consenting Lender
may, in its sole discretion, give written notice to the Administrative
Agent not later than 10 days prior to the Commitment Termination Date then
in effect of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders
notify the Administrative Agent that they are willing to accept assignments
of Commitments in an aggregate amount that exceeds the amount of the
Commitments of the Non-Consenting Lenders, such Commitments shall be
allocated among the Consenting Lenders willing to accept such assignments
in such amounts as are agreed between the Borrower and the Administrative
Agent. If after giving effect to the assignments of Commitments described
above there remain any Commitments of Non-Consenting Lenders, the Borrower
may arrange for one or more Consenting Lenders or other Assignees as
Assuming Lenders to assume, effective as of the Extension Date, any
Non-Consenting Lender's Commitment and all of the obligations of such
Non-Consenting Lender under this Agreement thereafter arising, without
recourse to or warranty by, or expense to, such Non-Consenting Lender;
provided, however, that the amount of the Commitment of any such Assuming
Lender as a result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-Consenting
Lender is less than $10,000,000, in which case such Assuming Lender shall
assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have paid
to such Non-Consenting Lender (A) the aggregate principal amount of,
and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Loans, if any, of such Non-Consenting
Lender plus (B) any accrued but unpaid fees owing to such
Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements
and indemnities payable to such Non-Consenting Lender, and all other
accrued and unpaid amounts owing to such Non-Consenting Lender
hereunder, as of the effective date of such assignment shall have been
paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(c) for such
assignment shall have been paid;
provided further that such Non-Consenting Lender's rights and obligations
under Sections 8.03 and 9.03 shall survive such assignment as to matters
occurring prior to the date of assignment. At least three Domestic Business
Days prior to any Extension Date, (A) each such Assuming Lender, if any,
shall have delivered to the Borrower and the Administrative Agent an
Assignment and Assumption Agreement, duly executed by such Assuming Lender,
such Non-Consenting Lender, the Borrower and the Administrative Agent, and
(B) each Non-Consenting Lender being replaced pursuant to this Section 2.17
shall have delivered to the Administrative Agent any Note or Notes held by
such Non-Consenting Lender. Upon the payment or prepayment of all amounts
referred to in clauses (i), (ii) and (iii) of the immediately preceding
sentence, each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Non-Consenting Lender under
this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgement by or the consent of the other Lenders,
and the obligations of each such Non-Consenting Lender hereunder shall, by
the provisions hereof, be released and discharged, except for any
obligations which accrue prior to the date of such payment or prepayment.
22
SECTION 2.18. Increased Commitments; Additional Lenders.
-----------------------------------------
(a) Subsequent to the Effective Date and provided no Default has
occurred and is continuing, the Borrower may, upon at least 30 days' notice
to the Administrative Agent (which shall promptly provide a copy of such
notice to the Lenders), propose to increase the aggregate amount of the
Commitments by an amount not to exceed $60,000,000 (the amount of any such
increase, the "INCREASED COMMITMENTS"). Each Lender party, to this
Agreement at such time shall have the right (but not the obligation), for a
period of 5 Domestic Business Days following receipt of such notice, to
elect by notice to the Borrower and the Administrative Agent to increase
its Commitment by a principal amount which bears the same ratio to the
Increased Commitments as its then Commitment bears to the aggregate
Commitments then existing.
(b) If any Lender party to this Agreement shall not elect to increase
its Commitment pursuant to subsection (a) of this Section 2.18, the
Borrower may designate another Lender or other lenders (which may be, but
need not be, one or more of the Lenders) which at the time agree to (i) in
the case of any such Lender that, increase its Commitment and (ii) in the
case of any other such lender (an "ADDITIONAL LENDER"), become a party to
this Agreement. The sum of the increases in the Commitments of the Lenders
pursuant to this subsection (b) plus the Commitments of the Additional
Lenders shall not in the aggregate exceed the unsubscribed amount of the
Increased Commitments.
(c) An increase in the aggregate amount of the Commitments pursuant to
this Section 2.18 shall become effective upon the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to
the Administrative Agent signed by the Borrower, by each Additional Lender
and by each Lender whose Commitment is to be increased, setting forth the
new Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be bound by
all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of the Borrower with
respect to the Increased Commitments and such opinions of counsel for the
Borrower with respect to the Increased Commitments as the Administrative
Agent may reasonably request.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND BORROWINGS
SECTION 3.01. Conditions Precedent to Effectiveness. The effectiveness of
-------------------------------------
this Agreement is subject to (a) the receipt by the Administrative Agent of
executed counterparts of this Agreement by the Borrower and each Lender and the
receipt by the Administrative Agent of a sufficient number of copies of each of
the following on or before the Effective Date, each, unless otherwise noted,
dated the Effective Date, and in form and substance satisfactory to the
Administrative Agent:
(i) a copy of the Certificate of Incorporation of the Borrower,
certified as of a recent date by the Secretary of State of the State
of Delaware, a copy of the By-Laws of the Borrower, certified by the
Secretary or an Assistant Secretary of the Borrower, and a good
standing certificate for the Borrower from the Secretary of State of
the State of Delaware; and
(ii) (A) an opinion of Weil, Gotshal & Xxxxxx LLP, counsel for
the Administrative Agent, substantially in the form of Exhibit B
hereto, dated as of the Effective Date; and
(B) an opinion of Xxxxxx Xxxxxx, in-house counsel to the
Borrower, substantially in the form of Exhibit C hereto, dated as
of the Effective Date; and
23
(iii) the Notes, if requested by the Lenders; and
(iv) all documents (including an incumbency certificate for the
Borrower and certification by the Secretary or Assistant Secretary of
the Borrower of the board resolutions approving this Agreement and the
other documents and transactions contemplated hereby) the
Administrative Agent may reasonably request relating to the existence
of the Borrower, the corporate authority for and the validity of this
Agreement, and any other matter relevant hereto, all in form and
substance satisfactory to the Administrative Agent; and
(b) The termination of all commitments under the Existing Credit
Agreement and the payment in full of all Debt outstanding thereunder (it
being understood that the proceeds of the Loans hereunder may be used to
satisfy the payment obligation under the Existing Credit Agreement
described in this clause (b)); and
(c) The condition precedent that, except to the extent provided below,
the representations and warranties of the Borrower contained in Article IV
are true and correct in all material respects on and as of the date hereof,
except to the extent that any such representation or warranty expressly
relates only to an earlier date, in which case it was correct as of such
earlier date.
SECTION 3.02. Conditions Precedent to Each Borrowing and Extension of
-------------------------------------------------------
Commitment. The obligation of each Lender to make a Loan on the occasion of a
----------
Borrowing (including the initial Borrowing) and the extension of any Lender's
Commitment pursuant to Section 2.17 shall be subject to the satisfaction of the
following conditions precedent:
(a) in the case of a Borrowing, the Administrative Agent shall have
received a Notice of Borrowing or Competitive Bid Notice of Borrowing, as
the case may be, with respect thereto in accordance with Section 2.02 or
Section 2.03, as the case may be; and
(b) on the date of such Borrowing or on such Extension Date the
following statements shall be true (and each of the giving of the Notice of
Borrowing or Notice of Competitive Bid Borrowing, as applicable, and the
acceptance by the Borrower of the proceeds of such Borrowing shall
constitute a representation and warranty by the Borrower that on the date
of such Borrowing or Competitive Bid Borrowing, as the case may be, such
statements are true):
(i) except to the extent provided below, the representations and
warranties of the Borrower contained in Article IV are true and
correct in all material respects on and as of the date of such
Borrowing or Competitive Bid Borrowing, as the case may be, or on such
Extension Date, before and after giving effect to such Borrowing or
Competitive Bid Borrowing, as the case may be, or to the extension of
any Lender's Commitment pursuant to Section 2.17 and to the
application of the proceeds therefrom, as though made on and as of
such date, except to the extent that any such representation or
warranty expressly relates only to an earlier date, in which case it
was correct as of such earlier date; provided that the representations
contained in Section 4.04(c) and Section 4.05 need only be true and
correct on the Effective Date and on each date of an extension of any
Lender's Commitment pursuant to Section 2.17;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or Competitive Bid Borrowing, as the case may be,
or from the application of the proceeds therefrom, which constitutes a
Default or Event of Default; and
24
(iii) immediately after such Borrowing or Competitive Bid
Borrowing, as the case may be, the aggregate outstanding principal
amount of the Loans will not exceed the aggregate amount of the
Commitments.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as to itself and its Subsidiaries
that:
SECTION 4.01. Corporate, Limited Liability Company or Partnership Existence
-------------------------------------------------------------
and Power. The Borrower and each Material Subsidiary (i) is a corporation,
---------
limited liability company or partnership duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, (ii) has all
corporate, limited liability company or partnership powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business and (iii) is duly qualified as a foreign corporation, limited
liability company or partnership and in good standing in each jurisdiction where
qualification is required by the nature of its business or the character and
location of its property, business or customers, except, as to clauses (ii) and
(iii), where the failure to so qualify or to have such licenses, authorizations,
consents and approvals, in the aggregate, would not have a Material Adverse
Effect.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
----------------------------------------------------------
The execution, delivery and performance by the Borrower of this Agreement and
the Notes are within the Borrower's corporate power, 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 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 Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or result in or require the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a legal, valid and
--------------
binding agreement of the Borrower and the Notes which, when executed and
delivered in accordance with this Agreement, will constitute the legal, valid
and binding obligations of the Borrower, in each case enforceable in accordance
with their respective terms.
SECTION 4.04. Financial Information.
---------------------
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000, and the related
consolidated statements of income, cash flows and changes in stockholders'
equity for the fiscal year then ended, reported on by KPMG Peat Marwick and
set forth in the Borrower's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000, filed with the Securities and Exchange Commission,
a copy of which has been delivered to each of the Lenders, fairly present
in all material respects, in conformity with generally accepted accounting
principles consistently applied, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations, cash flows and changes in stockholders'
equity for such fiscal year.
(b) The consolidated unaudited balance sheet of the Borrower and its
Consolidated Subsidiaries as of September 30, 2001, and the related
consolidated statements of income, cash flows and changes in stockholders'
equity for that portion of the fiscal year ending as of the close of such
fiscal quarter, setting forth in comparative form the figures for the
corresponding period in the prior year, set
25
forth in the Borrower's Form 10-Q for the fiscal quarter ended September
30, 2001, filed with the Securities and Exchange Commission, a copy of
which has been delivered to each of the Lenders, fairly present in all
material respects, in conformity with generally accepted accounting
principles consistently applied, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations, cash flows and changes in stockholders'
equity for such fiscal quarter.
(c) Since December 31, 2000, there has been no change which has a
Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit, proceeding or
----------
arbitration pending against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which would have a Material Adverse
Effect or which in any manner questions the validity or enforceability of this
Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. 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 made any amendment
to any Plan which, in either case, 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.
SECTION 4.07. Environmental Matters. In the ordinary course of its
---------------------
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, 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 protection standards imposed by law or as
a condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, there is no violation by the Borrower and its Subsidiaries of any
Environmental Law that is reasonably likely to result in a Material Adverse
Effect.
SECTION 4.08. Taxes. United States Federal income tax returns of the
-----
Borrower and its Consolidated Subsidiaries have been examined and closed through
the fiscal year ended December 31, 1997. The Borrower and each of its
Consolidated Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by any of them, except for any such taxes being diligently
contested in good faith and by appropriate proceedings. Adequate reserves have
been provided on the books of the Borrower and its Consolidated Subsidiaries in
respect of all taxes or other governmental charges in accordance with generally
accepted accounting principles, and no tax liabilities in excess of the amount
so provided are anticipated that could reasonably be expected to have a Material
Adverse Effect.
26
SECTION 4.09. Full Disclosure. All information heretofore furnished by the
---------------
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby was, and all such information hereafter furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
will be, true and accurate in every material respect or based on reasonable
estimates on the date as of which such information is stated or certified.
SECTION 4.10. Compliance with Laws. The Borrower and each Material
--------------------
Subsidiary are in compliance with all applicable laws, rules and regulations,
other than such laws, rules or regulations (i) the validity or applicability of
which the Borrower or such Subsidiary is contesting in good faith or (ii) the
failure to comply with which cannot reasonably be expected to have a Material
Adverse Effect.
SECTION 4.11. Not an Investment Company. The Borrower is not an "investment
-------------------------
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding company" or a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.12. Margin Regulations. The Borrower is not engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Federal Reserve Board), and no
proceeds of any Borrowing will be used to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock in contravention of Regulation T, U or X of the Federal Reserve Board.
SECTION 4.13. Pari Passu Obligations. This Agreement and the other Loan
----------------------
Documents and the obligations evidenced hereby and thereby are and will at all
times be direct and unconditional general obligations of the Borrower, and rank
and will at all times rank in right of payment and otherwise at least pari passu
with all unsecured Debt of the Borrower, whether now existing or hereafter
outstanding, subject to statutory priority and the effect of bankruptcy and
insolvency law.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
-----------
Lenders:
(a) within 90 days after the end of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, cash flows and changes in stockholders' equity for
such fiscal year, setting forth in each case in comparative form the
figures as of the end of and for the previous fiscal year, all in
reasonable detail and reported on without Qualification by KPMG Peat
Marwick or any other independent public accountants of nationally
recognized standing acceptable to the Administrative Agent;
(b) within 45 days after the end of each of the first three quarters
of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter,
and the related
27
consolidated statements of income for such quarter and for the portion of
the Borrower's fiscal year ended at the end of such quarter and the related
consolidated statement of cash flows for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting forth in each case in
comparative form the consolidated balance sheet as of the end of the
previous fiscal year and the consolidated statements of income for the
corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and consistency by the chief
financial officer, the treasurer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section 5.01, a
certificate of the Borrower executed by the chief financial officer, the
treasurer or the chief accounting officer of the Borrower (i) setting forth
in reasonable detail such calculations as are required to establish whether
the Borrower was in compliance with the requirements of Section 5.11 on the
date of such financial statements and (ii) stating whether there exists on
the date of such certificate any Default and, if any Default then exists,
setting forth the details thereof and the action that the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) of this Section 5.01, a
schedule, certified as to its accuracy and completeness by the chief
financial officer, the treasurer or the chief accounting officer of the
Borrower, listing in reasonable detail the Debt balance of each Restricted
Subsidiary where such Debt balance is in excess of $1,000,000, listing only
Debt instruments of $1,000,000 or more; provided that no such schedule need
be furnished if at the date of the related financial statements (i) the
aggregate amount of Debt of domestic Restricted Subsidiaries did not exceed
$100,000,000 and (ii) the aggregate amount of Debt of all Restricted
Subsidiaries did not exceed $125,000,000;
(e) within five Domestic Business Days after any Principal Officer of
the Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the Borrower executed by the chief financial
officer, the treasurer or the chief accounting officer of the Borrower
setting forth the details thereof and the action that the Borrower is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent), annual, quarterly or monthly reports and
any reports on Form 8-K (or any successor form) that the Borrower or any of
its Subsidiaries shall have filed with the Securities and Exchange
Commission;
(h) within 14 days after 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
which liability exceeds $1,000,000 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
38
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 makes any
amendment to any Plan which in either case 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, the chief accounting officer or
the treasurer of the Borrower setting forth details as to such occurrence
and the action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take;
(i) as soon as practicable after a Principal Officer obtains knowledge
of the commencement of an action, suit or proceeding against the Borrower
or any Subsidiary before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable likelihood of an adverse
decision which would have a Material Adverse Effect or which in any manner
questions the validity or enforceability of this Agreement or any of the
transactions contemplated hereby, information as to the nature of such
pending or threatened action, suit or proceeding; and
(j) from time to time such additional information regarding the
business, properties, financial position, results of operations, or
prospects of the Borrower or any of its Subsidiaries as the Administrative
Agent, at the request of any Lender, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and discharge,
----------------------
and will cause each of its Subsidiaries to pay and discharge, at or before
maturity, all of its material obligations and liabilities and all lawful taxes,
assessments and governmental charges or levies upon it or its property or
assets, except where the same may be diligently contested in good faith by
appropriate proceedings or where the failure to so pay and discharge would not
have a Material Adverse Effect, and will maintain, and will cause each of its
Subsidiaries to maintain, in accordance with United States generally accepted
accounting principles as in effect from time to time, appropriate reserves for
the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep, and will cause each Restricted Subsidiary
to keep, all material property useful and necessary in its business in good
working order and condition, normal wear and tear excepted.
(b) The Borrower will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all of its properties in at least such amounts and
against at least such risks (and with such risk retention) as are usually
maintained in the same general area by companies of established repute
engaged in the same or a similar business; and will furnish to the Lenders,
upon request from the Administrative Agent, information presented in
reasonable detail as to the insurance so carried.
SECTION 5.04. Inspection of Property, Books and Records. The 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. Subject to
limitations imposed by law or contract on access to and dissemination of
classified or other confidential information, the Borrower will permit, and will
cause each of its Subsidiaries to permit,
29
representatives of any Lender to visit and inspect any of its properties, to
examine its corporate, financial and operating records and make copies thereof
or abstracts therefrom, and to discuss affairs, finances and accounts with
directors, officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired, upon reasonable
advance notice to the Borrower.
SECTION 5.05. Maintenance of Existence, Rights, Etc.
-------------------------------------
(a) Subject to Section 5.07, the 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 their respective
corporate, limited liability company or partnership existence and its
rights, privileges and franchises necessary or desirable in the normal
conduct of business, except when failure to do so would not result in a
Material Adverse Effect; provided that nothing in this Section 5.05 shall
prohibit (i) the merger of a Restricted Subsidiary into the Borrower in a
transaction permitted under Section 5.07 or the merger or consolidation of
a Restricted Subsidiary with or into another Person if, in each case, after
giving effect thereto, no Default shall have occurred and be continuing or
(ii) the termination of the corporate, limited liability company or
partnership existence of any Restricted Subsidiary if the Borrower in good
faith determines that such termination is in the best interest of the
Borrower and will not result in a Material Adverse Effect.
(b) At no time will any Unrestricted Subsidiary hold, directly or
indirectly, any capital stock of any Restricted Subsidiary.
SECTION 5.06. Liens. The Borrower will not, and will not permit any
-----
Restricted Subsidiary to, create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt outstanding on the
date hereof;
(b) Liens incidental to the conduct of its business or the ownership
of its assets which (i) arise in the ordinary course of business, (ii) do
not secure Debt 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;
(c) Liens on property or assets of any Person existing at the time
such Person becomes a Restricted Subsidiary;
(d) Liens on any property or assets existing at the time of
acquisition thereof (including acquisition through merger or consolidation)
or to secure the payment of all or any part of the purchase price or
construction cost thereof or to secure any Debt incurred prior to, at the
time of or within 120 days after the later of the acquisition of such
property or assets or shares of stock or Debt or the completion of any such
construction and the commencement of operation of such property, for the
purpose of financing all or any part of the purchase price or construction
cost thereof;
(e) Liens in favor of a governmental unit to secure payments under any
contract or statute, or to secure any Debt incurred in financing the
acquisition, construction or improvement of property subject thereto,
including Liens on, and created or arising in connection with the financing
of the acquisition, construction or improvement of, any facility used or to
be used in the business of the Borrower or any Subsidiary through the
issuance of obligations, the income from which shall be excludable from
gross income by virtue of Section 103 of the Internal Revenue
30
Code (or any subsequently adopted provisions thereof providing for a
specific exclusion from gross income);
(f) Liens on assets of Restricted Subsidiaries securing Debt owing to
the Borrower;
(g) any extension, renewal, substitution, or replacement (or
successive extensions, renewals, substitutions or replacements), in whole
or in part, of any Lien referred to in clauses (a) through (f) above or the
Debt secured thereby; provided that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that was subject to the
Lien extended, renewed, substituted or replaced (plus improvements on such
property) and (2) the Debt secured by such Lien at such time is not
increased; and
(h) other Liens securing Debt in an aggregate principal amount at any
time outstanding not to exceed $50,000,000; provided that, notwithstanding
the foregoing, the Borrower will not, and will not permit any Restricted
Subsidiary to, create, assume or suffer to exist any Lien on any stock,
Debt or other security of any Unrestricted Subsidiary now owned or
hereafter acquired by it.
SECTION 5.07. Consolidations, Mergers and Sales of Assets. The Borrower
-------------------------------------------
will not and will not permit any of its domestic Material Subsidiaries to (i)
consolidate with or merge with or into any other Person or (ii) sell, assign,
lease, transfer or otherwise dispose of all or substantially all of its assets
to any other Person; provided that (x) the Borrower may consolidate or merge
with or into another Person if (A) immediately after giving effect to such
consolidation or merger, no Default shall have occurred and be continuing, (B)
the surviving entity is a domestic corporation and (C) the Person surviving such
consolidation or merger is the Borrower and (y) any domestic Material Subsidiary
may consolidate or merge with or into the Borrower or another domestic Material
Subsidiary if (A) immediately after giving effect to such consolidation or
merger, no Default shall have occurred and be continuing, (B) the surviving
entity is a domestic corporation and (C) the Person surviving such consolidation
or merger (other than a consolidation or merger with or into the Borrower) is a
domestic Material Subsidiary.
SECTION 5.08. Change in Nature of Business. The Borrower will not make or
----------------------------
permit to be made any material change to the nature of the business of the
Borrower and its Consolidated Subsidiaries, taken as a whole, as carried on as
of the date hereof.
SECTION 5.09. Use of Proceeds. The proceeds of the Borrowings under this
---------------
Agreement will be used by the Borrower for the repayment in full of the Debt
outstanding under the Existing Credit Agreement and for general corporate
purposes. None of such proceeds will be used, directly or indirectly, in
violation of Regulation T, U or X of the Federal Reserve System.
SECTION 5.10. Compliance with Laws. The Borrower will comply, and cause
--------------------
each of its Subsidiaries to comply, in all material respects with all
requirements of law (including, without limitation, ERISA, Environmental Laws
and the rules and regulations thereunder), except where failure to so comply
would not have a Material Adverse Effect.
SECTION 5.11. Financial Covenants.
-------------------
(a) The Borrower and its Consolidated Subsidiaries will maintain a
ratio of Consolidated Debt to Consolidated EBITDA, as determined on the
last day of each fiscal quarter, for the four fiscal quarters ending on
such day, of not more than 3.50 to 1.0.
31
(b) The Borrower and its Consolidated Subsidiaries shall maintain a
Consolidated Interest Coverage Ratio, as determined on the last day of each
fiscal quarter, for the four fiscal quarters ending on such day, of not
less than 4.25 to 1.0.
(c) The Borrower and its Consolidated Subsidiaries shall maintain a
Consolidated Adjusted Net Worth, as determined on the last day of each
fiscal quarter beginning on the fiscal quarter ended March 31, 2002 of not
less than 90% of Consolidated Adjusted Net Worth as at December 31, 2001;
provided that the amount of Consolidated Adjusted Net Worth required to be
maintained under this Section 5.11(c) shall be increased at the end of each
fiscal quarter beginning on the fiscal quarter ended March 31, 2002 by an
amount equal to 50% of Adjusted Net Income (if a positive number) for such
fiscal quarter.
SECTION 5.12. Hedging Contracts. The Borrower will not, and will not permit
-----------------
any of its Subsidiaries to, enter into any Hedging Contract solely for
speculative purposes or other than for the purpose of hedging risks associated
with the businesses of the Borrower and its Subsidiaries, as done in the
ordinary course of such businesses.
ARTICLE VI
DEFAULTS
SECTION 6.01. Defaults. If one or more of the following events ("EVENTS
--------
OF DEFAULT") shall have occurred and be continuing:
(a) any principal of any Loan shall not be paid when due, or any
interest, any fees or other amount payable hereunder shall not be paid
within three Domestic Business Days of the due date thereof;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.01(e), 5.05, 5.06, 5.07, 5.09 or 5.11;
(c) the Borrower shall fail to observe or perform any of its covenants
or agreements 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 Borrower by the Administrative Agent at the request of any Lender;
(d) any representation, warranty, certification or statement by the
Borrower made in this Agreement or in any certificate, financial statement
or other document delivered pursuant hereto or deemed to be made pursuant
to Section 3.01 shall have been incorrect in any material respect when made
or deemed to be made;
(e) the Borrower and/or one or more of its Subsidiaries shall fail to
make any payment in respect of Material Financial Obligations when due
after giving effect to any applicable grace period;
(f) any event or condition shall occur that (i) results in the
acceleration of the maturity of any Material Financial Obligation or (ii)
enables the holder or holders of any Material Financial Obligation, or any
Person acting on behalf of such holder or holders, to accelerate the
maturity thereof; provided that no Event of Default under this clause (ii)
shall occur unless and until any required notice has been given and/or
period of time has elapsed with respect to any such Material Financial
Obligation so as to perfect such right to accelerate; and provided further,
32
that no Event of Default under this clause (ii) shall occur during the 45
day period following the Effective Date if (x) the event or condition that
shall have occurred enabling the holder or holders of any Material
Financial Obligation, or any Person acting on behalf of such holder or
holders, to accelerate the maturity thereof shall be a failure of the
Borrower to comply with informational requests or reporting requirements
under such Material Financial Obligation and (y) no notice of default shall
have been delivered to the Borrower by such holder or holders (or Person
acting on their behalf) in connection with such event or condition;
(g) the Borrower or any Material Subsidiary 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 Borrower or any Material Subsidiary 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 Borrower or any Material Subsidiary 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 could cause one or more members
of the ERISA Group to incur a current payment obligation in excess of
$25,000,000;
(j) one or more Enforceable Judgments for the payment of money in an
aggregate amount exceeding $25,000,000 shall be rendered against the
Borrower or any Material Subsidiary and shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) (i) any Person or two or more Persons acting in concert (other
than a Plan or Plans) 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, as amended) of 20% or more of the
outstanding shares of voting stock of the Borrower; or (ii) during any
period of 12 consecutive months, commencing before or after the date of
this Agreement, individuals who at the beginning of such 12 month period
were directors of the Borrower (together with any new directors whose
election by the Borrower's board of directors or whose nomination for
33
election by the Borrower's stockholders was approved by a vote of a
majority of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination was previously
so approved) cease for any reason to constitute a majority of the board of
directors of the Borrower;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to the Borrower, terminate the Commitments,
and the Commitments shall thereupon terminate, and (ii) if requested by Lenders
whose Loans represent at least 66 2/3% in aggregate principal amount of the
Loans, by notice to the Borrower, declare the Loans (together with accrued
interest thereon) and all other amounts payable by it hereunder to be, and such
Loans and amounts 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 Borrower; provided that:
(A) in the case of any of the Events of Default specified in
clause (g) or (h) of this Section 6.01 with respect to the Borrower,
immediately and without any notice to the Borrower or any other act by
the Administrative Agent or the Lenders, and
(B) in the case of any of the Events of Default specified in
clause (k) of this Section 6.01, unless the Required Lenders shall
have waived such Event of Default within 30 days of its occurrence, on
the 30th day after such occurrence,
the Commitments shall terminate and the Loans (together with accrued interest
thereon) and all other amounts payable by the Borrower hereunder shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give notice
-----------------
to the Borrower under Section 6.01(c) promptly upon being requested to do so by
any Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment and Authorization. Each Lender 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. Citibank shall have the
-----------------------------------
same rights and powers under this Agreement as any other Lender and may exercise
or refrain from exercising the same as though it were not the Administrative
Agent, and Citibank and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with, the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not the Administrative
Agent hereunder.
SECTION 7.03. Action by 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 or Event of Default, except as
expressly provided in Article VI.
34
SECTION 7.04. Consultation with Experts. The Administrative Agent may
-------------------------
consult with legal counsel (who may be counsel for the 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 directors, officers, agents or employees shall be liable to
any Lender for any action taken or not taken by it in connection herewith (i)
with the consent or at the request of the Required Lenders (or, if specifically
required by Section 9.04, all of the Lenders) or (ii) in the absence of its own
gross negligence or willful misconduct. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (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 the Borrower; (iii) the satisfaction of any condition specified in
Article III, 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 to be
genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Lender shall, ratably in accordance
---------------
with its Commitment, indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Administrative Agent's gross negligence or willful misconduct)
that the Administrative Agent may suffer or incur in connection with this
Agreement or any action taken or omitted by the Administrative Agent hereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
---------------
independently and without reliance upon the Administrative Agent or any other
Lender, 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 Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under this
Agreement.
SECTION 7.08. Administrative Agent's Fees. The Borrower shall pay to the
---------------------------
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the Administrative Agent.
SECTION 7.09. Successor Administrative Agent. The Administrative Agent may
------------------------------
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, 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
Lenders, 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 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
35
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
SECTION 7.10. Other Agents None of the Lenders identified on the facing
------------
page or signature pages of this Agreement as a "syndication agent" or a
"co-documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE VIII
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:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in United States dollars (in the applicable amounts) are not being
offered to the Reference Banks in the relevant market for such Interest
Period, or
(b) in the case of a Borrowing consisting of Euro-Dollar Loans,
Lenders having 66-2/3% or more of the aggregate amount of the Commitments
advise the Administrative Agent that the Euro-Dollar Rate, as determined by
the Administrative Agent, will not adequately and fairly reflect the cost
to such Lenders of funding their Euro-Dollar Loans for such Interest
Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon; until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Euro-Dollar Loans shall be suspended. Unless
the Borrower notifies the Administrative Agent at least two Euro-Dollar Business
Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing or a Notice of Competitive Bid Borrowing, as the case may be, has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
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 Lender (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 Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans or
Competitive Bid Euro-Dollar Rate Loans, as applicable, to the Borrower and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower, whereupon
until such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans
to the Borrower shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section 8.02, such Lender shall designate
a different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such Lender shall determine that it
may not lawfully continue to maintain and fund any of its
36
outstanding Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans to the
Borrower to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as applicable,
together with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loan, as applicable, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Lender (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Lenders), and such Lender shall make
such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return.
---------------------------------
(a) If on or after the date hereof, 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
Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency:
(i) shall subject any Lender (or its Applicable Lending Office)
to any tax, duty or other charge with respect to its Euro-Dollar Loans
or Competitive Bid Euro-Dollar Rate Loans, its Notes or its obligation
to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans,
or shall change the basis of taxation of payments to any Lender (or
its Applicable Lending Office) of the principal of or interest on its
Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans or any
other amounts due under this Agreement in respect of its Euro-Dollar
Loans or Competitive Bid Euro-Dollar Rate Loans or its obligation to
make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans
(except for changes in the rate of tax on the overall net income of
such Lender or its Applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(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 or Competitive Bid Euro-Dollar Rate
Loan, any such requirement with respect to which such Lender is
entitled to compensation during the relevant Interest Period under
Section 2.15), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (or its Applicable Lending Office) or
shall impose on any Lender (or its Applicable Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans
or Competitive Bid Euro-Dollar Rate Loans, its Notes or its obligation
to make Euro-Dollar Loans or Competitive Bid Euro-Dollar Rate Loans;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making or maintaining any
Euro-Dollar Loan or Competitive Bid Euro-Dollar Rate Loans, or to reduce
the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Notes with
respect thereto, by an amount deemed by such Lender to be material, then,
within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that the adoption after the
date hereof of any applicable law, rule or regulation regarding capital
adequacy, or any change after the date hereof in any
37
such law, rule or regulation, or any change after the date hereof 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 after the date hereof
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Lender (or its
Parent) as a consequence of such Lender's obligations hereunder to a level
below that which such Lender (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
Lender to be material, then from time to time, within 15 days after demand
by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section 8.03 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 sole judgment of such
Lender, be otherwise disadvantageous to such Lender. The Lender shall
deliver a written statement of such Lender as to the amount due, if any,
under this Section 8.03. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error. Determination of amounts payable under this
Section 8.03 in connection with a Euro-Dollar Loan or a Competitive Bid
Euro-Dollar Rate Loan shall be calculated as though such Lender funded such
Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the rate of
interest applicable to such Loan whether in fact that is the case or not.
In determining such amount, such Lender may use any reasonable averaging
and attribution methods.
(d) In the event that any Lender makes a claim under this Section 8.03
(any such Lender, an "AFFECTED LENDER"), the Borrower may substitute
another financial institution for such Affected Lender hereunder, upon
reasonable prior written notice (which written notice must be given within
90 days following the occurrence of such claim) by the Borrower to the
Administrative Agent and the Affected Lender that the Borrower intends to
make such substitution; provided, however, that at the time of such
substitution or replacement (i) no Default has occurred or is continuing,
(ii) the Borrower shall have satisfied all of its obligations hereunder and
under the Notes relating to such Lender, (iii) any such replacement or
substitute financial institution is acceptable to the Administrative Agent
and (iv) if such replacement or substitute financial institution is not an
existing Lender, the Borrower shall have paid to the Administrative Agent
an administrative fee in the amount of $3,500.
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
----------------------------------------------------------
If (i) the obligation of any Lender to make Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Lender has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section 8.04 shall apply to such Lender, then,
unless and until such Lender notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Lender as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Lenders), and
38
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other communications to
-------
any party hereunder shall be in writing, or by any telecommunication device
capable of creating a written record (including bank wire, telex, facsimile
transmission, email or similar writing) and shall be given to such party: (x) in
the case of the Borrower or the Administrative Agent, at its address, email
address or telex number set forth on the signature pages hereof, (y) in the case
of any Lender, at its address, email address or telex number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, email address or telex number as such party may hereafter specify for
the purpose by notice to the Administrative Agent and the Borrower. 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
9.01 and the appropriate answerback is received, (ii) if given by mail, 72 hours
after such communication is deposited in the U.S. mail with first class postage
prepaid, addressed as aforesaid or (iii) if given by any other means, when
delivered at the address specified in this Section 9.01; provided that notices
to the Administrative Agent under Article II or Article VIII shall not be
effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Administrative Agent
----------
or any Lender 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 or in
any Note shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification for Litigation.
-----------------------------------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Administrative Agent, including fees and disbursements of special
counsel for the Administrative Agent, in connection with the preparation
and administration of this Agreement, any waiver or consent hereunder or
any amendment hereof or any Default or alleged Default and (ii) if an Event
of Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent and each Lender, including fees and disbursements of
counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. The Borrower agrees to indemnify each Lender against any
transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this
Agreement or any of such Lender's Notes.
(b) The Borrower agrees to indemnify each Lender and hold each Lender
harmless from and against any and all liabilities, losses, damages, costs
and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Lender (or
by the Administrative Agent in connection with its actions as
Administrative Agent hereunder) in connection with any investigative,
administrative or judicial proceeding (whether or not such Lender shall be
designated a party thereto) relating to or arising out of this Agreement,
any transactions contemplated hereby or any actual or proposed use of
proceeds of Loans hereunder; provided that no Lender shall have the right
to be indemnified hereunder for (i) its own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction, (ii)
any default in its Commitment to make Loans hereunder as finally determined
by a court of competent jurisdiction or (iii) any settlement
39
of any investigation, administrative or judicial proceeding entered into
without the consent of the Borrower, which consent shall not be
unreasonably withheld.
SECTION 9.04. 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 Lenders (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall, unless
signed by all the Lenders, (i) except as contemplated by Section 2.18, increase
or decrease the Commitment of any Lender (except for a ratable decrease in the
Commitments of all Lenders) or subject any Lender to any additional obligation,
(ii) reduce the principal of or rate of interest on any Loan or any fees
hereunder, (iii) except in connection with Section 2.17, 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 or (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section 9.04 or any other provision of this
Agreement; and provided further, that no waiver of any of the conditions
specified in Section 3.01 or 3.02 relating to a Competitive Bid Borrowing shall
be effective unless consented to by all Lenders making Competitive Bid Loans as
a part of such Competitive Bid Borrowing.
SECTION 9.05. Sharing of Set-Offs. Each Lender 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 of principal and interest due with respect
to any Loan made by it which is greater than the proportion received by any
other Lender in respect of the aggregate amount of principal and interest due
with respect to any Loan made by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Loans
made by the other Lenders, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Loans made by the Lenders shall be shared by the Lenders pro rata; provided that
nothing in this Section 9.05 shall impair the right of any Lender 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 Debt of the Borrower other than its Debt
hereunder or under the Notes. The 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 the Borrower in the amount of such participation.
SECTION 9.06. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT AND
-----------------------------------------
EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. THE 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, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE 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.
40
SECTION 9.07. 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 the Borrower may not assign or otherwise transfer any
of its rights or obligations under this Agreement without the consent of
all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
financial 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 Lender of a participating interest to a Participant, whether or not
upon notice to the Borrower and the Administrative Agent, such Lender shall
remain responsible for the performance of its obligations hereunder, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any
Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the
obligations of the Borrower 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 Lender will not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii) or (iii) of Section 9.04 without
the consent of the Participant. The Borrower agrees that each Participant
shall, to the extent provided in its participation agreement, be entitled
to the benefits of Article VIII with respect to its participating interest.
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).
(c) Any Lender 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 original Commitment of at least $10,000,000 or in
increments of $1,000,000 in excess thereof) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit D hereto
executed by such Assignee and such transferor Lender, with (and subject to)
the consent of the Borrower (the consent of the Borrower not to be
unreasonably withheld) and the Administrative Agent (the consent of the
Administrative Agent not to be unreasonably withheld); provided that if an
Assignee is an affiliate of such transferor Lender, no such consent shall
be required and such Lender shall be permitted to assign its rights and
obligations under this Agreement and the Notes to such affiliate upon
notice thereof to the Borrower and the Administrative Agent. Upon execution
and delivery of such instrument and payment by such Assignee to such
transferor Lender of an amount equal to the purchase price as agreed
between such transferor Lender and such Assignee, such Assignee shall be a
Lender party to this Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such instrument
of assumption, and the transferor Lender 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 Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note or Notes are issued to the Assignee. In
connection with any such assignment, the transferor or transferee Lender
shall pay to the Administrative Agent an administrative fee for processing
such assignment in the amount of $3,500. If the Assignee is not
incorporated or organized 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 Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with
Section 2.16.
(d) The Borrower authorizes each Lender to disclose to any Participant
or Assignee (each a "TRANSFEREE") and any prospective Transferee any and
all financial information in such Lender's
41
possession concerning the Borrower which has been delivered to such Lender
by it pursuant to this Agreement or which has been delivered to such Lender
by it in connection with such Lender's credit evaluation prior to entering
into this Agreement, subject to Section 9.11.
(e) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations
hereunder.
(f) No Transferee (including for the purpose of this subparagraph (f)
a different Applicable Lending Office of a Lender) shall be entitled to
receive any greater payment under Section 8.03 than the transferor Lender
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or
by reason of the provisions of Section 8.02 or 8.03 requiring such Lender
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.
SECTION 9.08. Collateral. Each of the Lenders represents to the
----------
Administrative Agent and each of the other Lenders 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 9.09. 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 and the Notes constitute the entire agreement and understanding
among the parties hereto and supersede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
--------------------
AND THE LENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Confidentiality. Each Lender agrees to hold any information
---------------
which it may receive or has received from the Borrower pursuant to this
Agreement and which has been identified as confidential, in confidence, except
for disclosure (i) to legal counsel, accountants, and other professional
advisors to such Lender, to any actual or prospective Transferee and to any
affiliates of such Lender in each case subject to the receiving party's
undertaking to comply with the restrictions of this Section 9.11, (ii) required
by law, regulation, or legal process, (iii) as requested by regulatory
officials, (iv) in connection with any legal proceeding to enforce this
Agreement and (v) of information which is in the public domain at the time of
such disclosure through no fault of any of the Lenders.
42
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.
FMC CORPORATION
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxx, Xx.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Treasurer
Telephone number: (000) 000-0000
Telecopy number: (000) 000-0000
Email address: xxx_xxxx@xxx.xxx
CITIBANK, N.A., as Administrative Agent
and as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attention:
Telephone number:
Telecopier number:
Email address:
BANK OF AMERICA, N.A., as Syndication
Agent and as Lender
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
ABN AMRO BANK N.V., as Co-Documentation
Agent and as Lender
By: /s/ Xxxxxx Noique
--------------------------
Name: Xxxxxx Noique
Title: Group Vice President
43
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
FIRST UNION NATIONAL BANK, as
Co-Documentation Agent and as Lender
By: /s/ Xxxx X. Lunghime
--------------------------
Name: Xxxx X. Lunghime
Title: SVP & Director
THE ROYAL BANK OF SCOTLAND, as Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
NATIONAL CITY BANK, as Lender
By: /s/ Xxxxxx X. XxXxxxxxx
--------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY, as Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Second Vice President
THE GOVERNOR AND COMPANY OF THE BANK
OF IRELAND, as Lender
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Senior Executive
44
SCHEDULE I
LENDERS AND COMMITMENTS
--------------------------------------------------------------------------------
LENDER COMMITMENT
--------------------------------------------------------------------------------
Citibank, N.A. $45,000,000
--------------------------------------------------------------------------------
Bank of America, N.A. $45,000,000
--------------------------------------------------------------------------------
ABN AMRO Bank N.V. $35,000,000
--------------------------------------------------------------------------------
First Union National Bank $35,000,000
--------------------------------------------------------------------------------
The Royal Bank of Scotland $25,000,000
--------------------------------------------------------------------------------
National City Bank $20,000,000
--------------------------------------------------------------------------------
The Northern Trust Company $20,000,000
--------------------------------------------------------------------------------
The Governor and Company of the Bank of Ireland $15,000,000
--------------------------------------------------------------------------------
TOTAL COMMITMENT (AS OF THE EFFECTIVE DATE): $240,000,000
SCHEDULE 1.01(A)
CERTAIN FOREIGN SUBSIDIARIES
FMC Quimica do Brasil Limitada
FMC Agroquimica de Mexico, S.A. de C.V.
FMC Xxxxx, X.X.
SCHEDULE 1.01(B)
MATERIAL SUBSIDIARIES
FMC Wyoming Corporation
Electro Quimica Mexicana, S.A. de C.V.
FMC Agroquimica de Mexico S.A. de C.V.
FMC Xxxxx, X.X.
FMC BioPolymer A/S
Minera del Altiplano, S.A.
FMC Chemicals Limited
EXHIBIT A-1
FORM OF NOTE
U.S. $ New York, New York
-----------------
------- ---, 200-
FOR VALUE RECEIVED, the undersigned, FMC CORPORATION, a Delaware
corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
(the "LENDER"), for the account of its Applicable Lending Office,
--------------
the unpaid principal amount of each Loan made by the Lender to the Borrower
pursuant to the Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in such Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Citibank, N.A., Xxx Xxxxx Xxx,
Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000.
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that neither the failure of the Lender to make any such
recordation or endorsement nor any error therein shall affect the obligations of
the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit Agreement
dated as of December 6, 2001 among the Borrower, the financial institutions
party thereto and Citibank, N.A., as Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
FMC CORPORATION
By:______________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
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Amount
of Amount of Maturity Notation
Date Loan Principal Repaid Date Made By
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EXHIBIT A-2
FORM OF COMPETITIVE BID LOAN NOTE
New York, New York
U.S. $ Dated: , 200
------------------------ ---------- ------ --
FOR VALUE RECEIVED, the undersigned, FMC CORPORATION, a Delaware
corporation (the "BORROWER"), HEREBY PROMISES TO PAY to (the "LENDER")
---------
for the account of its Competitive Bid Lending Office (as defined in the 364-Day
Credit Agreement dated as of December 6, 2001 among the Borrower, the
financial institutions party thereto and Citibank, N.A., as Administrative Agent
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; the terms defined therein being used herein as therein defined)), on
, 200 , the principal amount of U.S.$ .
---------------- - ---------------
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: % per annum (calculated on the basis of a
-----------
year of 360 days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States to Citibank, as agent, for the account of the Lender at the office of
Citibank, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds.
This Note is one of the Competitive Bid Loan Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York.
FMC CORPORATION
By:
-----------------------------------
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Date Amount of Type of Principal Maturity Notation
Loan Loan Repaid Date Made By
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EXHIBIT B
FORM OPINION OF COUNSEL
FOR THE ADMINISTRATIVE AGENT
December 6, 2001
To Citibank, N.A., as Administrative Agent under
the Credit Agreement referred to below, and each of
the Lenders party to the Credit Agreement referred to below
Re: FMC Corporation
---------------
Ladies and Gentlemen:
We have acted as counsel to Citibank, N.A. ("CITIBANK"), in connection with
the preparation, execution and delivery of, and the consummation of the
transactions contemplated by, (i) the 364-Day Credit Agreement dated as of
December 6, 2001 (the "CREDIT AGREEMENT") among FMC Corporation, a Delaware
corporation (the "COMPANY"), the financial institutions party thereto (the
"LENDERS"), and Citibank, as Administrative Agent for the Lenders, and (ii) the
Notes, if any, issued by the Company pursuant to the Credit Agreement (the
"NOTES"), in favor of the applicable Lenders. The Credit Agreement and the Notes
are collectively referred to herein as the "FINANCE DOCUMENTS". Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
them in the Credit Agreement.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of each of the Finance Documents and
such documents and other instruments as we have deemed relevant and necessary as
a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. We have also assumed (i)
the valid existence and good standing of each party to the Finance Documents,
(ii) that each party to the Finance Documents has the requisite power and
authority to enter into and perform each of the Finance Documents to which it is
party, (iii) the due authorization, execution and delivery of each of the
Finance Documents by each of the parties thereto, (iv) that the execution,
delivery and performance of the Finance Documents by each party thereto has been
duly authorized by all necessary action, and does not (a) contravene the
constituent documents of any such party thereto, or (b) conflict with or result
in the breach of any document or instrument binding on any such party thereto,
and (iii) the enforceability of the Finance Documents against the parties
thereto (other than the Company).
Based on the foregoing, and subject to the qualifications stated herein, we
are of the opinion that each Finance Document constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that (i) rights to indemnification
thereunder may be limited by federal or state securities laws or public policy
relating thereto and (ii) no opinion is expressed with respect to any provision
of the Credit Agreement insofar as it provides that any Person purchasing a
participation from any Lender pursuant thereto may exercise set-off or similar
rights with respect to such participation or that any Lender thereunder or any
other Person may exercise set-off or similar rights other than in accordance
with law.
The opinions expressed herein are limited to the laws of the State of New
York and the federal laws of the United States, and we express no opinion as to
the effect on the matters covered by this letter of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for the benefit of you
and your permitted assigns and participants in connection with the transactions
described herein. Those opinions may not be used or relied upon by any other
Person, nor may this letter or any copies thereof be furnished to a third party,
filed with a governmental agency, quoted, cited or otherwise referred to without
our prior written consent, other than to bank regulatory authorities or
permitted assigns or participants of any Lender.
Very truly yours,
2
EXHIBIT C
FORM OF OPINION OF THE BORROWER'S IN-HOUSE COUNSEL
To Citibank, N.A., as Administrative
Agent, and each of the Lenders party to
the Credit Agreement referred to below
Re:FMC Corporation
---------------
Ladies and Gentlemen:
I am the ____________ of FMC Corporation, a Delaware corporation (the
"BORROWER"), in connection with the preparation, execution and delivery of, and
the consummation of the transactions contemplated by, the 364-Day Credit
Agreement dated as of December 6, 2001 (the "CREDIT AGREEMENT") among the
Borrower, the financial institutions party thereto (the "LENDERS") and Citibank,
N.A., as administrative agent for the Lenders (the "Administrative Agent").
This opinion is rendered to you pursuant to Section 3.01(b)(ii) of the
-------------------
Credit Agreement. Capitalized terms defined in the Credit Agreement, used
herein, and not otherwise defined herein, shall have the meanings given them in
the Credit Agreement.
In so acting, I have examined originals or copies (certified or otherwise
identified to our satisfaction) of the following documents:
(a) the Credit Agreement; and
(b) the Notes issued by the Borrower on the date hereof, if any.
The agreements specified in clauses (a) through (b) above are collectively
referred to as the "AGREEMENTS".
In addition, I have examined such corporate records, agreements, documents
and other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Borrower, and have made
such inquiries of such officers and representatives, as I have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to these opinions that have not been independently established, I
have relied upon certificates or comparable documents of officers and
representatives of the Borrower and upon the representations and warranties of
the Borrower contained in the Agreements. As to the good standing of the
Borrower, I have relied solely on the good standing certificate of the Secretary
of State of the State of Delaware.
In rendering the opinions expressed below, I have further assumed, without
any independent investigation or verification of any kind, that each of the
Agreements is the valid and binding obligation of each party thereto other than
the Borrower.
Based on the foregoing, and subject to the qualifications stated herein, I
am of the opinion that:
1. The Borrower is a corporation validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate
power and authority to own, lease and operate its properties and to carry
on its business as now being conducted.
2. The Borrower is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the failure to
be so qualified would not have a Material Adverse Effect.
3. The Borrower has all requisite corporate power and authority to
execute, deliver and perform the Agreements to which it is a party. The
execution, delivery and performance by the Borrower of the Agreements to
which it is a party have been duly authorized by all necessary corporate
action on the part of the Borrower. The Borrower has duly executed and
delivered the Agreements to which it is a party and such Agreements
constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in
a proceeding at law or in equity).
4. The execution, delivery and performance by the Borrower of the
Agreements to which it is a party will not conflict with, constitute a
default under or violate (i) any of the terms, conditions or provisions of
the Certificate of Incorporation or By-laws of the Borrower, (ii) any of
the terms, conditions or provisions of any material contractual obligation
of the Borrower of which I am aware, (iii) any Pennsylvania, Delaware
corporate or federal requirement of law or (iv) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
of which I am aware binding on the Borrower.
5. No consent, approval, waiver, license or authorization or other
action by or filing with any Pennsylvania, Delaware corporate or federal
governmental authority is required in connection with the execution,
delivery or performance by the Borrower of the Agreements to which it is a
party.
6. The Borrowings by and other financial accommodations provided to
the Borrower under the Agreements and the application of proceeds thereof
as provided in the Credit Agreement will not violate Regulation T, U or X
of the Federal Reserve Board.
7. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or a "holding company" or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
2
8. To my knowledge, there is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity or before any
governmental authority, pending or overtly threatened against the Borrower
(i) with respect to any Agreement or challenging any of the Lenders' or the
Administrative Agent's rights or remedies thereunder or (ii) which, if
adversely determined, could materially adversely affect the ability of the
Borrower to perform its obligations under the Agreements.
I am admitted to the bar of the Commonwealth of Pennsylvania. I express no
opinion as to the laws of any jurisdiction other than (A) the laws of the
Commonwealth of
Pennsylvania, (B) the Delaware General Corporate Law and (C) the Federal laws of
the United States of America.
As used herein, "to my knowledge" means the conscious awareness of facts or
other information by any officer, attorney or other employee of the Borrower
actively involved in the transactions contemplated by the Credit Agreement.
The opinions expressed herein are rendered solely for your benefit in
connection with the transactions described herein. This opinion may not be used
or relied upon by any other person, nor may this letter or any copies thereof be
furnished to a third party, filed with a governmental agency, quoted, cited or
otherwise referred to without my prior written consent, other than to bank
regulatory authorities or permitted assigns of any Lender, and except as
required by any governmental authority or pursuant to legal process.
Very truly yours,
3
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of , 20 among [ASSIGNOR] (the "ASSIGNOR"),
---------- ----
[ASSIGNEE] (the "ASSIGNEE"), FMC CORPORATION (the "BORROWER") and CITIBANK,
N.A., as administrative agent under the Credit Agreement referred to below (the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT") relates
to the 364-Day Credit Agreement dated as of December 6, 2001 among the
Borrower, the Assignor and the other financial institutions party thereto from
time to time, and the Administrative Agent (as amended, supplemented or
otherwise modified, the "CREDIT AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate principal amount at any time
outstanding not to exceed $300,000,000;
WHEREAS, Loans made by the Assignor under the Credit Agreement in the
aggregate principal amount of $ are outstanding at the date hereof;
-----------
and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
and obligations of the Assignor under the Credit Agreement in respect of the
portion of its Commitment (other than in respect of Competitive Bid Loans and
Competitive Bid Loan Notes) thereunder in an amount equal to $ (the
-----------
"ASSIGNED AMOUNT"), together with a corresponding portion of its outstanding
Loans that are not Competitive Bid Loans (if any) and the Assignee proposes to
accept assignment of such rights and assume the corresponding obligations from
the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights and obligations of the Assignor under the Credit
Agreement to the extent they relate to the Assigned Amount (other than in
respect of Competitive Bid Loans and Competitive Bid Loan Notes), and the
Assignee hereby accepts such assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to the extent they relate
to the Assigned Amount (other than in respect of Competitive Bid Loans and
Competitive Bid Loan Notes), including the purchase from the Assignor of the
corresponding portion of the principal amount of the Loans that are not
Competitive Bid Loans (if any) made by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the Assignor, the Assignee,
the Borrower and the Administrative Agent and the payment of the amounts
specified in Section 3 hereof required to be paid on the date hereof (a) the
Assignee shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Lender under the Credit Agreement with a Commitment
in an amount equal to the Assigned Amount, and (b) the Commitment of the
Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor
shall be released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
---------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds an amount equal to $ * . It is understood
-----------
that facility fees accrued to the date hereof are for the account of the
Assignor and such fees accruing from and including the date hereof with respect
to the Assigned Amount are for the account of the Assignee. Each of the Assignor
and the Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other, it shall receive the same for
the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Administrative Agent. This
----------------------------------------------------
Agreement is conditioned upon the consent of the Borrower and the Administrative
Agent required by Section 9.07(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Administrative Agent is evidence of such
consent. Pursuant to said Section 9.07(c), the Borrower agrees to execute and
deliver a Note, if requested by the Assignee, payable to the order of the
Assignee to evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
------------------------
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. 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.
-----------
*Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any portion of
any upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:_________________________
Name:
Title:
[ASSIGNEE]
By:_________________________
Name:
Title:
FMC CORPORATION
By:_________________________
Name:
Title:
CITIBANK, N.A., as Administrative Agent
By:_________________________
Name:
Title:
3
EXHIBIT E
FORM OF EXTENSION AGREEMENT
Citibank, N.A., as Administrative Agent
Xxx Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx, 00000
Attention:
-----------
Ladies and Gentlemen:
The undersigned hereby agrees to extend, effective , 200 its
--------------- -
Commitment and Commitment Termination Date under the 364-Day Credit Agreement
dated as of December 6, 2001 among FMC Corporation, the financial institutions
parties thereto (the "Lenders") and Citibank, N.A., as Administrative Agent for
the Lenders (as amended, supplemented or otherwise modified from time to time,
the "364-Day Credit Agreement") for 364 days to [date to which the Commitment
Termination Date is extended] pursuant to Section 2.17 of the 364-Day Credit
Agreement. Terms defined in the 364-Day Credit Agreement are used herein as
therein defined.
This Extension Agreement shall be governed by and construed in accordance
with the laws of the State of New York. This Extension 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.
[NAME OF LENDER]
By:
---------------------------------------
Name:
Title:
Agreed and Accepted:
FMC CORPORATION
By:
---------------------------------
Name:
Title:
CITIBANK, N.A., as Administrative Agent
By:
---------------------------------
Name:
Title:
CONFORMED COPY
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--------------------------------------------------------------------------------
364-DAY CREDIT AGREEMENT
DATED AS OF
DECEMBER 6, 2001
AMONG
FMC CORPORATION,
THE LENDERS PARTY HERETO
AND
CITIBANK, N.A.,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
AND
ABN AMRO BANK N.V.
AND
FIRST UNION NATIONAL BANK,
AS CO-DOCUMENTATION AGENTS
XXXXXXX XXXXX XXXXXX INC.
AND
BANC OF AMERICA SECURITIES LLC,
AS CO-LEAD ARRANGERS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
PAGE
Article I DEFINITION 1
SECTION 1.01 Definitions 1
SECTION 1.02 Accounting Terms and Determinations 11
SECTION 1.03 Types of Borrowings 11
SECTION 1.04 Pricing Levels 11
Article II THE CREDITS 12
SECTION 2.01 Commitments to Lend 12
SECTION 2.02 Notice of Borrowings 12
SECTION 2.03 Competitive Bid Loans 13
SECTION 2.04 Notice to Lenders; Funding of Loans 16
SECTION 2.05 Notes 17
SECTION 2.06 Maturity of Loans 17
SECTION 2.07 Interest Rates 17
SECTION 2.08 Fees 18
SECTION 2.09 Mandatory Termination of Commitments 19
SECTION 2.10 Optional Reduction of Commitments 19
SECTION 2.11 Optional Prepayments 19
SECTION 2.12 Payments 19
SECTION 2.13 Funding Losses 20
SECTION 2.14 Computation of Interest and Fees 20
SECTION 2.15 Regulation D Compensation 20
SECTION 2.16 Withholding Tax Exemption 21
SECTION 2.17 Extension of Commitments 21
SECTION 2.18 Increased Commitments; Additional Lenders 23
Article III CONDITIONS TO EFFECTIVENESS AND BORROWINGS 23
SECTION 3.01 Conditions Precedent to Effectiveness 23
SECTION 3.02 Conditions Precedent to Each Borrowing and
Extension of Commitment 24
Article IV REPRESENTATIONS AND WARRANTIES 25
SECTION 4.01 Corporate, Limited Liability Company or
Partnership Existence and Power 25
SECTION 4.02 Corporate and Governmental Authorization;
No Contravention 25
SECTION 4.03 Binding Effect 25
SECTION 4.04 Financial Information 25
i
TABLE OF CONTENTS
(CONTINUED)
SECTION 4.05 Litigation 26
SECTION 4.06 Compliance with ERISA 26
SECTION 4.07 Environmental Matters 26
SECTION 4.08 Taxes 26
SECTION 4.09 Full Disclosure 27
SECTION 4.10 Compliance with Laws 27
SECTION 4.11 Not an Investment Company 27
SECTION 4.12 Margin Regulations 27
SECTION 4.13 Pari Passu Obligations 27
SECTION 4.14 Material Subsidiaries 27
Article V COVENANTS 27
SECTION 5.01 Information 27
SECTION 5.02 Payment of Obligations 29
SECTION 5.03 Maintenance of Property; Insurance 29
SECTION 5.04 Inspection of Property, Books and Records 30
SECTION 5.05 Maintenance of Existence, Rights, Etc. 30
SECTION 5.06 Liens 30
SECTION 5.07 Consolidations, Mergers and Sales of Assets 31
SECTION 5.08 Change in Nature of Business 31
SECTION 5.09 Use of Proceeds 31
SECTION 5.10 Compliance with Laws 31
SECTION 5.11 Financial Covenants 32
SECTION 5.12 Hedging Contracts 32
Article VI DEFAULTS 32
SECTION 6.01 Defaults 32
SECTION 6.02 Notice of Default 34
Article VII THE ADMINISTRATIVE AGENT 34
SECTION 7.01 Appointment and Authorization 34
SECTION 7.02 Administrative Agent and Affiliates 35
SECTION 7.03 Action by Agent 35
SECTION 7.04 Consultation with Experts 35
SECTION 7.05 Liability of Administrative Agent 35
ii
TABLE OF CONTENTS
(CONTINUED)
SECTION 7.06 Indemnification 35
SECTION 7.07 Credit Decision 35
SECTION 7.08 Administrative Agent's Fees 35
SECTION 7.09 Successor Administrative Agent 36
SECTION 7.10 Other Agents 36
Article VIII CHANGE IN CIRCUMSTANCES 36
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 36
SECTION 8.02 Illegality 36
SECTION 8.03 Increased Cost and Reduced Return 37
SECTION 8.04 Base Rate Loans Substituted for Affected
Euro-Dollar Loans 39
Article IX MISCELLANEOUS 39
SECTION 9.01 Notices 39
SECTION 9.02 No Waivers 39
SECTION 9.03 Expenses; Documentary Taxes;
Indemnification for Litigation 39
SECTION 9.04 Amendments and Waivers 40
SECTION 9.05 Sharing of Set-Offs 40
SECTION 9.06 GOVERNING LAW; SUBMISSION TO JURISDICTION 40
SECTION 9.07 Successors and Assigns 41
SECTION 9.08 Collateral 42
SECTION 9.09 Counterparts; Integration 42
SECTION 9.10 WAIVER OF JURY TRIAL 42
SECTION 9.11 Confidentiality 42
iii
TABLE OF CONTENTS
(CONTINUED)
SCHEDULES
Schedule I Lenders and Commitments
Schedule 1.01(a) Certain Foreign Subsidiaries
Schedule 1.01(b) Material Subsidiaries
EXHIBITS
Exhibit A-1.Form of Note
Exhibit A-2.Form of Competitive Bid Loan Note
Exhibit B Form of Opinion of Weil, Gotshal & Xxxxxx LLP, counsel for the
Administrative Agent
Exhibit C Form of Opinion of In-House Counsel of the Borrower
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Extension Agreement
iv
